Commonwealth v. Brandwein

10 Pa. D. & C.5th 13
CourtPennsylvania Court of Common Pleas, Carbon County
DecidedJuly 16, 2009
Docketnos. 657 CR 2005 and 241 CR 2006
StatusPublished
Cited by1 cases

This text of 10 Pa. D. & C.5th 13 (Commonwealth v. Brandwein) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Carbon County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Brandwein, 10 Pa. D. & C.5th 13 (Pa. Super. Ct. 2009).

Opinion

NANO VIC, P.J.,

PROCEDURAL AND FACTUAL BACKGROUND

On July 10,2006, Kevin Brandwein, the defendant in these proceedings, pled guilty to assaulting a juvenile [15]*15court officer while in the performance of his duties’ and to harassing a prison guard at a time when he was an inmate at the Carbon County Prison, both felony offenses.1 The aggravated assault charge stems from an incident which occurred on November 1, 2005, in the Carbon County Courthouse while defendant was awaiting a disposition proceeding in a juvenile matter. The aggravated harassment of a prison guard occurred on January 5, 2006.

Before accepting defendant’s pleas, Senior Judge John P. Lavelle, before whom the pleas were entered, conducted a colloquy to ascertain that defendant’s pleas were being made knowingly, intelligently, and voluntarily. Following his acceptance of defendant’s pleas, Judge Lavelle sentenced defendant to two concurrent terms of imprisonment of 18 to 60 months in a state correctional institution. Both the pleas and the sentences imposed by Judge Lavelle were in accordance with a plea agreement previously reached between defendant and the Commonwealth on May 18,2006. Pursuant to that agreement, all remaining charges in each case were to be nolle prossed.2

[16]*16Irt neither case did defendant file a post-sentence motion or a direct appeal. Accordingly, the judgment of sentence in each case became final on August 9, 2006. Thereafter, on July 16,2007, defendant filed a Post Conviction Relief Act (PCRA)3 petition, his first, pro se. Upon receiving this petition, we appointed post-conviction counsel to represent defendant in presenting his claim.

At the hearing on defendant’s petition, counsel identified three issues which defendant wished to pursue: (1) whether medication prescribed to defendant for mental health issues so clouded his thinking that he was unable to enter a knowing, voluntary, and intelligent plea; (2) whether defendant’s history of mental health illness and ongoing treatment dictated a plea of guilty but mentally ill, rather than one of guilty alone, and if so, whether trial counsel was then ineffective for failing to consider, present, and develop a plea of guilty but mentally ill on defendant’s behalf; and (3) whether defendant is entitled to reinstatement of his direct appeal rights nunc pro tunc for counsel’s failure to file an appeal on defendant’s behalf, which defendant claims he requested. (PCRA hearing, pp. 4-6.)4 These issues will be discussed in the order presented.

DISCUSSION

Defendant is a young man with a troubled past. He has been in placement most of his life. Since he was four or [17]*17five years of age, he has suffered from and has been treated for bipolar disorder and anger management problems. (PCRA hearing, p. 7.) He is now 22 years old, having been born on July 7, 1987.

Validity of Plea5

At the time of his plea, defendant advised Judge Lavelle that he was being treated for mental health issues, specifically for bipolar disorder and having anger management problems, and that he took medication for his illness. (Plea and sentencing, pp. 8-9.) When asked by Judge Lavelle whether he was taking any medication, defendant responded that he was and that the only medication whose name he could recall was Depakote, 1500 milligrams per day. When Judge Lavelle inquired further about defendant’s ability to understand the proceedings, defendant replied that he understood and comprehended what was occurring. (Plea and sentencing, pp. 9-10.) In contrast, at the PCRA hearing, defendant testified that he was heavily medicated at the time of his plea — that he was then taking 800 milligrams of Trazodone, 800 milligrams of Trileptal, and 2000 to 2500 milligrams of Depakote — and that he did not truly understand what was happening or what he was doing. [18]*18(PCRAhearing, p. 12.) On this basis, defendant contends that his plea was not voluntarily, knowingly, and intelligently made. The record, however, belies this contention.

When questioned by Judge Lavelle during his plea colloquy, defendant testified that: (1) he was being treated for mental illness; (2) the medications he was taking did not adversely affect his understanding or comprehension of the proceedings; (3) he understood the factual bases for his pleas; (4) he was pleading guilty because he was guilty; (5) his attorney had reviewed the charges with him, the sentences, and his rights as a defendant; (6) he was familiar with the plea agreement and had no questions he wanted to ask about the plea; and (7) he understood the court was not a party to the plea agreement.

In the written guilty plea colloquy which accompanied defendant’s oral plea and which was made part of the record, defendant represented that he: (1) read and understood the English language (no. 6); (2) was not under the influence of alcohol or any kind of drugs (no. 7); (3) was currently being treated for mental illness and was taking medication, identified as Depakote (nos. 10 and 11); (4) had sufficient mental capacity to understand what he was doing and to understand the written questions directed to him and to answer them correctly (no. 12); (5) understood the nature of the offenses to which he was pleading guilty and the elements of those offenses (nos. 14 and 15); (6) understood his right to trial by jury (nos. 17 and 18); (7) understood that he was presumed innocent until proven guilty (no. 19); (8) was aware of the permissible range of sentences and/or fines for the offenses for [19]*19which he was pleading guilty (no. 28); and (9) was entering the pleas of his own free will and had not been pressured or forced by anyone to do so (nos. 35, 36, and 37).

“Our law presumes that a defendant who enters a guilty plea was aware of what he was doing. He bears the burden of proving otherwise.” Commonwealth v. Rush, 909 A.2d 805, 808 (Pa. Super. 2006). Further, “a criminal defendant who elects to plead guilty has a duty to answer questions truthfully.” Commonwealth v. Cortino, 387 Pa. Super. 210, 216, 563 A.2d 1259, 1262 (1989). The court is entitled to rely on what the defendant says and the defendant may fairly be bound by what he tells the court during a plea colloquy. Moreover, the court may “assess for itself the [defendant’s] mental state at the time of the colloquy.” Id.

The transcript of defendant’s oral colloquy before Judge Lavelle shows that defendant was attentive, coherent, and responsive to the court’s questions. When asked specifically about his mental illness and the medication he was taking, defendant acknowledged that he was alert, knowledgeable, and understood the proceedings. Significantly, after questioning defendant about his mental illness and medication, Judge Lavelle documented his perception of defendant’s appearance and stated, “You look very sharp to me, and you seem to comprehend everything that is going on.” (Plea and sentencing, p. 9.)

Based upon our review of the record, we believe that defendant was capable of rationally understanding his plea and its consequences and are convinced that at the [20]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Com. v. Thomas, J.
Superior Court of Pennsylvania, 2015

Cite This Page — Counsel Stack

Bluebook (online)
10 Pa. D. & C.5th 13, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-brandwein-pactcomplcarbon-2009.