J-S65038-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRANDON W. CURRY,
Appellant No. 349 WDA 2016
Appeal from the PCRA Order February 3, 2016
in the Court of Common Pleas of Westmoreland County
Criminal Division at Nos.: CP-65-CR-0001270-2014
CP-65-CR-0001273-2014
BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED: SEPTEMBER 12, 2016
Appellant, Brandon W. Curry, appeals pro se from the order dismissing
his first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. We affirm.
We take the following history of this case from the PCRA court’s
opinion and our independent review of the record. On June 1, 2015,
Appellant entered a negotiated guilty plea in case numbers 1270-2014 and
1273-2014. In case number 1270-2014, Appellant pleaded guilty to one
count each of robbery, conspiracy to commit robbery, and theft by unlawful
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S65038-16
taking.1 In return, the Commonwealth dismissed one count each of robbery
and possession of a firearm prohibited.2 The charges related to three armed
robberies committed by Appellant and an accomplice.
In case number 1273-2014, Appellant pleaded guilty to one count each
of theft from a motor vehicle and possession of a controlled substance.3 The
Commonwealth dismissed one count of public drunkenness.4 These charges
resulted from Appellant’s attempt to rob a parked vehicle while intoxicated
and in possession of two alprazolam pills.
Consistent with the plea agreement, on June 1, 2015, the trial court
imposed an aggregate sentence in case number 1270-2014 of not less than
seven and one-half nor more than eighteen years’ incarceration. In case
number 1273-2014, the court sentenced Appellant to a period of
incarceration of not less than six nor more than twelve months to run
concurrent with the sentence imposed in case number 1273-2014. Appellant
did not file a direct appeal.
____________________________________________
1
18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903(a)(1), and 3921(a), respectively.
2
18 Pa.C.S.A. §§ 3701(a)(1)(ii) and 6105 (a)(1), respectively.
3
18 Pa.C.S.A. § 3934(a) and 35 P.S. § 780-113(a)(16), respectively.
4
18 Pa.C.S.A. § 5505.
-2-
J-S65038-16
Appellant filed his first, timely PCRA petition, pro se, on October 19,
2015. Appointed PCRA counsel filed a Turner/Finley5 no-merit letter on
November 23, 2015. On December 8, 2015, the PCRA court filed a notice of
its intent to dismiss Appellant’s petition without a hearing. See Pa.R.Crim.P.
907(1). Appellant responded to the notice pro se on December 17, 2015.
The court dismissed the petition on February 3, 2016 and granted counsel’s
request to withdraw. On February 26, 2016, Appellant timely appealed pro
se.6
To the extent that we can discern Appellant’s three issues, it appears
that he maintains his judgment of sentence was excessive, challenges the
admission of his confession, and claims that his guilty plea was invalid due
to counsel’s ineffective assistance, and the fact that he was not on his
medication during the plea hearing. (See Appellant’s Brief, at unnumbered
pages 1-2).
It is well-settled that, “[o]n appeal from the denial of PCRA relief, our
standard of review calls for us to determine whether the ruling of the PCRA
____________________________________________
5
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
6
The PCRA court did not order Appellant to file a Rule 1925(b) statement.
See Pa.R.A.P. 1925(b). However, the court filed a Rule 1925(a) opinion on
June 3, 2016, in which it relied on the reasons stated in its December 8,
2015 notice. See Pa.R.A.P. 1925(a).
-3-
J-S65038-16
court is supported by the record and free of legal error.” Commonwealth
v. Gacobano, 65 A.3d 416, 419 (Pa. Super. 2013) (citation omitted).
We first note that, pursuant to Pa.R.A.P. 302(a), “[i]ssues not raised in
the lower court are waived and cannot be raised for the first time on
appeal.” Pa.R.A.P. 302(a). Here, Appellant’s PCRA petition did not
challenge his guilty plea on the basis that he did not have his medication
during the hearing.7 (See PCRA Petition, 10/19/15, at 2, 4). Therefore, the
issue is waived. See Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa.
2002) (waiving claim where appellant failed to raise it in PCRA petition); see
also Pa.R.A.P. 302(a).
Further, pursuant to section 9544(b) of the PCRA, “[f]or purposes of
this subchapter, an issue is waived if the petitioner could have raised it but
failed to do so before trial, at trial, during unitary review, on appeal or in a
prior state postconviction proceeding.” 42 Pa.C.S.A. § 9544(b). Here,
Appellant did not challenge the court’s admission of the subject confession in
____________________________________________
7
At the guilty plea hearing, Appellant confirmed that he did not have any
physical or psychological problems that would prevent him from
understanding what he was doing. (See N.T. Guilty Plea Hearing, 6/01/15,
at 8). Additionally, Appellant signed a written guilty plea petition in which
he represented that his mental health was satisfactory. (Guilty Plea Petition,
6/01/15, at 4 ¶ 12). Therefore, this issue would not merit relief. See
Pollard, infra at 523 (“A person who elects to plead guilty is bound by the
statements he makes in open court while under oath and he may not later
assert grounds for withdrawing the plea which contradict the statements he
made at his plea colloquy.”) (citation omitted).
-4-
J-S65038-16
either his PCRA petition, or in a direct appeal, and therefore, he has waived
this issue for our review.8 See Commonwealth v. Ligons, 971 A.2d 1125,
1147 (Pa. 2009) (declining to review claim where, “[b]ecause [a]ppellant did
not challenge the suppression ruling on direct appeal or in his PCRA petition,
the claim is waived.”) (citing 42 Pa.C.S.A. 9544(b)).
Additionally, we observe that Appellant’s brief utterly fails to comply
with our appellate rules. Pursuant to Pennsylvania Rule of Appellate
Procedure 2111:
(a) General rule.─The brief of the appellant, except as
otherwise prescribed by these rules, shall consist of the following
matters, separately and distinctly entitled and in the following
order:
(1) Statement of jurisdiction.
(2) Order or other determination in question.
(3) Statement of both the scope of review and the
standard of review.
(4) Statement of the questions involved.
____________________________________________
8
The record reflects that Appellant filed a counseled motion to suppress the
challenged statement to the Pennsylvania State Police, which was fully
litigated before the court denied his motion. (See Motion to Suppress,
11/05/14, at 2; see generally, N.T. Hearing, 12/19/14). Appellant waived
any challenge to that denial when he entered his guilty plea.
Commonwealth v. Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014) (“[U]pon
entry of a guilty plea, a defendant waives all claims and defenses other than
those sounding in the jurisdiction of the court, the validity of the plea, and
what has been termed the legality of the sentence imposed[.]”) (citation and
internal quotation marks omitted); (see also Guilty Plea Petition, 6/01/15,
at 4 ¶ 19 (“I understand that by entering a plea of guilty . . . I will not be
able to appeal the court’s rulings on any motions that have already been
denied.”)).
-5-
J-S65038-16
(5) Statement of the case.
(6) Summary of argument.
(7) Statement of the reasons to allow an appeal to
challenge the discretionary aspects of a sentence, if applicable.
(8) Argument for appellant.
(9) A short conclusion stating the precise relief sought.
(10) The opinions and pleadings specified in Subdivisions
(b) and (c) of this rule.
(11) In the Superior Court, a copy of the statement of
errors complained of on appeal, filed with the trial court
pursuant to Rule 1925(b), or an averment that no order
requiring a statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b) was entered.
Pa.R.A.P. 2111.
Pennsylvania Rule of Appellate Procedure 2119 provides:
(a) General rule. The argument shall be divided into as many
parts as there are questions to be argued; and shall have at the
head of each part--in distinctive type or in type distinctively
displayed--the particular point treated therein, followed by such
discussion and citation of authorities as are deemed pertinent.
(b) Citations of authorities. Citations of authorities in briefs
shall be in accordance with Pa.R.A.P. 126 governing citations of
authorities.
(c) Reference to record. If reference is made to the pleadings,
evidence, charge, opinion or order, or any other matter
appearing in the record, the argument must set forth, in
immediate connection therewith, or in a footnote thereto, a
reference to the place in the record where the matter referred to
appears (see Pa.R.A.P. 2132).
(d) Synopsis of evidence. When the finding of, or the refusal
to find, a fact is argued, the argument must contain a synopsis
-6-
J-S65038-16
of all the evidence on the point, with a reference to the place in
the record where the evidence may be found.
(e) Statement of place of raising or preservation of issues.
Where under the applicable law an issue is not reviewable on
appeal unless raised or preserved below, the argument must set
forth, in immediate connection therewith or in a footnote
thereto, either a specific cross-reference to the page or pages of
the statement of the case which set forth the information
relating thereto as required by Pa.R.A.P. 2117(c), or
substantially the same information.
(f) Discretionary aspects of sentence. An appellant who
challenges the discretionary aspects of a sentence in a criminal
matter shall set forth in a separate section of the brief a concise
statement of the reasons relied upon for allowance of appeal
with respect to the discretionary aspects of a sentence. The
statement shall immediately precede the argument on the merits
with respect to the discretionary aspects of the sentence.
Pa.R.A.P. 2119.
In this case, Appellant has failed to comply with the mandates of Rules
2111 and 2119. (See Appellant’s Brief, at unnumbered pages 1-2). His
brief consists of two pages wherein he generally states his complaints, and,
without pertinent discussion, or citation to either authority or the record,
asserts why he believes they have merit. (See id.).
We recognize that Appellant is proceeding pro se. However, it is well-
settled that,
. . . although this Court is willing to construe liberally materials
filed by a pro se litigant, pro se status generally confers no
special benefit upon an appellant. Accordingly, a pro se litigant
must comply with the procedural rules set forth in the
Pennsylvania Rules of the Court. This Court may quash or
dismiss an appeal if an appellant fails to conform with the
requirements set forth in the Pennsylvania Rules of Appellate
Procedure. [See] Pa.R.A.P. 2101.
-7-
J-S65038-16
Commonwealth v. Lyons, 833 A.2d 245, 251-52 (Pa. Super. 2003),
appeal denied, 879 A.2d 782 (Pa. 2005) (case citations omitted). “As our
Supreme Court has explained, any layperson choosing to represent [himself]
in a legal proceeding must, to some reasonable extent, assume the risk that
[his] lack of expertise and legal training will prove [his] undoing.”
Commonwealth v. Greenwalt, 796 A.2d 996, 997 (Pa. Super. 2002)
(citation and internal quotation marks omitted). Based on Appellant’s
flagrant violation of our Rules, we conclude that he has waived all of his
issues. Moreover, the two claims that remain for our review, namely
Appellant’s challenges to the discretionary aspects of his sentence, and the
voluntariness of his guilty plea on the basis of counsel’s alleged
ineffectiveness, would not merit relief.
Appellant’s first claim is that his negotiated sentence was excessive.
(See Appellant’s Brief, at unnumbered page 1). “This claim raises a
challenge to the discretionary aspects of Appellant’s negotiated sentence,
and is unreviewable. The trial court imposed the sentence Appellant
negotiated with the Commonwealth. Appellant may not now seek
discretionary review of that negotiated sentence.” Commonwealth v.
Reid, 117 A.3d 777, 784 (Pa. Super. 2015) (citation omitted). Moreover,
we note that the PCRA does not provide an appellant relief for discretionary
aspects of sentence claims. See Commonwealth v. Fowler, 930 A.2d
586, 593 (Pa. Super. 2007), appeal denied, 944 A.2d 756 (Pa. 2008)
-8-
J-S65038-16
(“Challenges to the discretionary aspects of sentencing are not cognizable
under the PCRA.”) (citations omitted); see also 42 Pa.C.S.A. § 9543(a)(2).
Therefore, this claim does not merit relief.
Next, Appellant argues that his guilty plea was not voluntary because
counsel was ineffective in advising him to enter it. (See Appellant’s Brief, at
unnumbered pages 1-2). This argument would lack merit.
“The longstanding rule of Pennsylvania law is that a defendant may
not challenge his guilty plea by asserting that he lied while under oath, even
if he avers that counsel induced the lies. A person who elects to plead guilty
is bound by the statements he makes in open court while under oath and he
may not later assert grounds for withdrawing the plea which contradict the
statements he made at his plea colloquy.” Commonwealth v. Pollard, 832
A.2d 517, 523 (Pa. Super. 2003) (citations omitted).
Here, during the guilty plea colloquy, Appellant confirmed that he did
not have any physical or psychological problems that would prevent him
from understanding what he was doing. (See N.T. Guilty Plea Hearing,
6/01/15, at 8). He stated that counsel explained his trial and appellate
rights to him, that counsel was “fine,” and that he was satisfied with his
representation. (Id.; see also id. at 10-11). Appellant understood the
court’s explanation about what the Commonwealth would have to prove if he
went to trial, and the maximum penalties that could be imposed. (See id.
at 8-10). He maintained that no threats or promises were made to induce
-9-
J-S65038-16
him to plead guilty. (See id. at 10). Additionally, Appellant signed a written
guilty plea petition in which he represented that he was pleading guilty
“freely and voluntarily and of [his] own accord and free will” because it was
in his best interest to do so. (Guilty Plea Petition, 6/01/15, at 5 ¶ 27; see
id. at 4 ¶ 17).
Therefore, based on our review of the record, we conclude that
Appellant’s challenge to his guilty plea would lack merit. See Pollard,
supra at 523. Hence, Appellant’s issues, even if not waived, would not
merit relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/12/2016
- 10 -
Com. v. Curry, B.
Combined Opinion