J-S07012-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRANDON MICHAEL APOSTOLEC,
Appellant No. 1308 MDA 2014
Appeal from the PCRA Order July 14, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s):
CP-36-CR-0001446-2010
CP-36-CR-0002726-2010
CP-36-CR-0003464-2010
CP-36-CR-0004794-2010
CP-36-CR-0004806-2010
BEFORE: BENDER, P.J.E., OLSON, J., and OTT, J.
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 25, 2015
Brandon Michael Apostolec (Appellant) appeals from the July 14, 2014
order denying his petition for relief filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
In August 2011, Appellant entered an open guilty plea to all charges
against him. Of note, the charges at docket Nos. 2726-2010 and 3464-2010
consisted of one count each of burglary and theft of a handgun.1 In October
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1
Respectively, 18 Pa.C.S. §§ 3502(a) and 3921(a), the latter graded as a
felony of the second degree. See 18 Pa.C.S. § 3903(a)(2). Other charges
against Appellant included two counts of terroristic threats, three counts of
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2011, the lower court imposed a sentence of eleven to twenty-seven years’
incarceration. The sentences imposed for the theft of handgun crimes run
concurrently with the corresponding burglary convictions.2
Appellant timely filed a motion to modify sentence, which was denied
by the trial court. Appellant timely appealed, and this Court affirmed in part
and vacated in part. Commonwealth v. Apostolec, 62 A.3d 455 (Pa.
Super. 2012) (unpublished memorandum).3
In September 2013, Appellant timely filed pro se a PCRA petition, and
counsel was appointed. Thereafter, Appellant filed an amended, counseled
petition, alleging ineffective assistance of plea counsel. In April 2014, the
PCRA court held a hearing, at which Appellant and plea counsel testified.
According to Appellant, he had authorized plea counsel to disclose the
location of one of the stolen handguns, provided the Commonwealth offered
a deal or in order to “gain some kind of leverage with the DA.” Notes of
Testimony (N.T.), 4/1/2014, at 5. However, plea counsel disputed this
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(Footnote Continued)
burglary, and three counts of theft by unlawful taking. Respectively, 18
Pa.C.S. §§ 2706(a)(2) and (3), 3502(a), and 3921(a).
2
In contrast, the sentences for the remaining theft charges merged with
their respective burglary charges. See 18 Pa.C.S. § 3502(d).
3
On appeal, this Court vacated a portion of Appellant’s sentence, but as it
did not disrupt the overall sentencing scheme, no further action was
required by the sentencing court. Id. That error has no bearing on the
disposition of this appeal.
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testimony, suggesting that he had advised Appellant of the benefits of
surrendering the stolen handgun. He testified as follows:
Q. And what did you do with that information [re: the location
of the gun]?
A. Well, I know Brandon, you know, wanted me to have a tit
for tat, you know, if they give me a number, you know, I’ll give
them the gun. But I also discussed that it still looks good – most
judges – it looks good, you know, to turn a handgun in, even at
an open plea. I mean, it shows that you don’t want a gun out
there.
…
Q. This idea of using the gun to sort of curry or gain leniency
or curry favor with the [c]ourt, was that your idea?
A. It was my idea and we did discuss it.
Q. Were you authorized to surrender the gun to the police for
that purpose by your client?
A. I believe so.
Id. at 14-15. Thereafter, the PCRA court observed that plea counsel had
argued before the sentencing court that Appellant had cooperated with
police, insofar as he returned a stolen handgun. Id. at 22-23. Further, the
PCRA court noted that, despite consecutive sentences for each burglary, the
sentencing court imposed concurrent sentences for the handgun thefts. Id.
at 22.
In July 2014, the PCRA court denied Appellant’s petition and issued an
opinion. Appellant timely appealed and filed a court-ordered Pa.R.A.P.
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1925(b) statement. The PCRA court issued a responsive memorandum
incorporating its prior opinion.
Appellant presents the following question for our review:
Whether the [PCRA court] erred in denying post-conviction relief
where [plea] counsel disclosed confidential information relating
to the representation of [Appellant] to the Commonwealth to the
disadvantage of the client?
Appellant’s Brief at 4.
We review an order denying a petition under the PCRA to determine
whether the findings of the PCRA court are supported by the evidence of
record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,
1170 (Pa. 2007). The PCRA court’s findings will not be disturbed unless
there is no support for the findings in the certified record. Commonwealth
v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
Appellant asserts that plea counsel was ineffective for disclosing
confidential information to the Commonwealth. According to Appellant, plea
counsel was authorized only to reveal the location of the handgun, or to
surrender the stolen handgun to the Commonwealth, in exchange for a
favorable plea offer. As plea counsel was unable to secure an offer from the
Commonwealth, his disclosure created an actual conflict of interest, which
presumptively prejudiced Appellant. Appellant’s claim is without merit.
To establish ineffective assistance of counsel, a PCRA petitioner must
prove, by a preponderance of the evidence: “(1) the underlying legal issue
has arguable merit; (2) counsel’s actions lacked an objective reasonable
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basis; and (3) actual prejudice befell the petitioner from counsel’s act or
omission.” Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009)
(citations omitted). “A petitioner establishes prejudice when he
demonstrates that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Id. A claim will be denied if the petitioner fails to meet any one
of these requirements. Commonwealth v. Springer, 961 A.2d 1262, 1267
(Pa. Super. 2008) (citing Commonwealth v. Natividad, 938 A.2d 310, 322
(Pa. 2007)).
Here, the PCRA court determined that plea counsel “testified credibly …
that he believed he was authorized by [Appellant] to surrender the stolen
handgun.” See PCRA Court Opinion, 7/14/2014, at 5. We may not disturb
this finding, as it is supported by the record. See N.T., at 15; Johnson,
966 A.2d at 539 (noting that the credibility determinations of the PCRA court
are “provided great deference”); Carr, 768 A.2d at 1166. Further, this
finding is dispositive, as it eliminates from our consideration the very
premise of Appellant’s legal argument to this Court.
Nevertheless, we will proceed to examine briefly whether plea
counsel’s disclosure was objectively reasonable.
The test for deciding whether counsel had a reasonable basis for
his action or inaction is whether no competent counsel would
have chosen that action or inaction, or, the alternative, not
chosen, offered a significantly greater potential chance of
success. Counsel's decisions will be considered reasonable if
they effectuated his client's interests. We do not employ a
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hindsight analysis in comparing trial counsel's actions with other
efforts he may have taken.
Commonwealth v. Pander, 100 A.3d 626, 631 (Pa. Super. 2014) (en
banc) (citations omitted).
The PCRA court concluded as follows:
[I]t is very clear that the gun was turned over in order to make
a good impression on the [c]ourt since [Appellant] was entering
an open guilty plea and the [c]ourt would be deciding
[Appellant’s] sentence. Attempting to obtain a better sentence
by showing the [c]ourt that [Appellant] was cooperative and
surrendered the stolen handgun is certainly a reasonable basis
for [plea counsel’s] actions.
PCRA Court Opinion, at 5. We agree with this analysis. Indeed, as
recognized by the PCRA court, Appellant received a concurrent term of
incarceration for the handgun thefts – suggestive, at least, that plea
counsel’s strategy was successful. In light of Appellant’s authorization, the
decision of plea counsel to surrender the stolen handgun to the
Commonwealth was objectively reasonable, in that it reflected counsel’s
efforts to minimize the term of incarceration imposed upon Appellant. 4
Order affirmed.
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4
In light of the foregoing, we need not consider Appellant’s argument that
plea counsel’s disclosure was presumptively prejudicial. See
Commonwealth v. Reaves, 923 A.2d 1119, 1128 (Pa. 2007) (recognizing
the presumption of prejudice where counsel had an actual conflict of
interest); Springer, 961 A.2d at 1267.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/25/2015
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