J-S20045-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GREGORY LYNN BROWN, SR. :
:
Appellant : No. 1172 MDA 2017
Appeal from the PCRA Order June 30, 2017
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0000660-2015
BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.
MEMORANDUM BY GANTMAN, P.J.: FILED MAY 08, 2018
Appellant, Gregory Lynn Brown, Sr., appeals from the order entered in
the York County Court of Common Pleas, which denied his first petition filed
pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm and grant
counsel’s petition to withdraw.
In its opinion, the PCRA court accurately set forth the relevant facts and
procedural history of this case. Therefore, we have no reason to restate them.
Preliminarily, appellate counsel has filed a motion to withdraw as
counsel and an accompanying brief pursuant to Commonwealth v. Turner,
518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d
213 (Pa.Super. 1988) (en banc). Before counsel can be permitted to withdraw
____________________________________________
1 42 Pa.C.S.A. §§ 9541-9546.
J-S20045-18
from representing a petitioner under the PCRA, Pennsylvania law requires
counsel to file a “no-merit” brief or letter pursuant to Turner and Finley.
Commonwealth v. Karanicolas, 836 A.2d 940 (Pa.Super. 2003).
[C]ounsel must…submit a “no-merit” letter to the [PCRA]
court, or brief on appeal to this Court, detailing the nature
and extent of counsel’s diligent review of the case, listing
the issues which the petitioner wants to have reviewed,
explaining why and how those issues lack merit, and
requesting permission to withdraw.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007). Counsel
must also send to the petitioner a copy of the “no-merit” letter or brief and
motion to withdraw and advise petitioner of his right to proceed pro se or with
privately retained counsel. Id. “Substantial compliance with these
requirements will satisfy the criteria.” Karanicolas, supra at 947.
Instantly, appellate counsel filed a motion to withdraw as counsel and a
Turner/Finley brief detailing the nature of counsel’s review and explaining
why Appellant’s issues lack merit. Counsel’s brief also demonstrates she
reviewed the certified record and found no meritorious issues for appeal.
Counsel notified Appellant of counsel’s request to withdraw, and advised
Appellant regarding his rights. Thus, counsel substantially complied with the
Turner/Finley requirements. See Wrecks, supra; Karanicolas, supra.
Counsel raises the following issues on Appellant’s behalf:2
WHETHER THE PCRA COURT ERRED IN RULING THAT
____________________________________________
2 Appellant has not responded to the Turner/Finley brief pro se or with newly
retained private counsel.
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APPELLANT’S [PLEA] COUNSEL…DID NOT RENDER
CONSTITUTIONALLY INEFFECTIVE ASSISTANCE OF
COUNSEL IN VIOLATION OF APPELLANT’S RIGHT TO
COUNSEL GUARANTEED BY THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION
AND ARTICLE I, SECTION 9 OF THE PENNSYLVANIA
CONSTITUTION, FOR FAILING TO REVIEW THE PRE-
SENTENCE INVESTIGATION (“PSI”) REPORT WITH
APPELLANT PRIOR TO THE DECEMBER 29, 2015
SENTENCING HEARING.
WHETHER THE PCRA COURT ERRED IN RULING THAT
APPELLANT’S [PLEA] COUNSEL…DID NOT RENDER
CONSTITUTIONALLY INEFFECTIVE ASSISTANCE OF
COUNSEL IN VIOLATION OF APPELLANT’S RIGHT TO
COUNSEL GUARANTEED BY THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION
AND ARTICLE I, SECTION 9 OF THE PENNSYLVANIA
CONSTITUTION, FOR FAILING TO OBTAIN AND SUBMIT
APPELLANT’S MENTAL HEALTH RECORDS FOR THE TRIAL
COURT’S CONSIDERATION AT THE SENTENCING HEARING?
(Turner/Finley Brief at 5) (internal footnotes omitted).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error. Commonwealth v.
Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d
319 (2008). This Court grants great deference to the findings of the PCRA
court if the record contains any support for those findings. Commonwealth
v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932
A.2d 74 (2007). If the record supports a post-conviction court’s credibility
determination, it is binding on the appellate court. Commonwealth v.
Dennis, 609 Pa. 442, 17 A.3d 297 (2011).
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After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Michael E.
Bortner, we conclude Appellant’s issues merit no relief. The PCRA court
opinion comprehensively discusses and properly disposes of the questions
presented. (See PCRA Court Opinion, filed January 12, 2018, at 6-10)
(finding: court credited plea counsel’s testimony at PCRA hearing that he
reviewed PSI report with Appellant and that Appellant did not release his
mental health records to counsel; in any event, PSI report noted Appellant’s
mental disorders and medications; thus, Appellant’s claims lack arguable
merit; additionally, counsel initially recommended that Appellant accept
Commonwealth’s global offer of 10-20 years’ imprisonment for all three cases
Appellant was facing, but Appellant rejected offer; counsel reviewed PSI report
with Appellant, who then went on to enter open guilty plea voluntarily;
Appellant cannot show counsel’s actions lacked reasonable basis; further,
Appellant had time to review PSI report, which included Appellant’s mental
health considerations; Appellant freely rejected Commonwealth’s initial plea
offer and entered open guilty plea; Appellant cannot establish prejudice, and
his ineffectiveness claims fail). Accordingly, we affirm based on the PCRA
court’s opinion. Following an independent review of the record, we grant
counsel’s petition to withdraw.
Order affirmed; counsel’s petition to withdraw is granted.
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J-S20045-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/8/2018
-5-
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GREGORY L. BROWN, SR.,
Appellant
OPINIONJN_SUPPORT OF ORDER
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Appellant Gregory L. Brown, Sr. appeals to the Superior Court of
Pennsylvania from the Order Denying Defendant's Petition for Post -
Conviction Relief on June 30, 2017. On July 26, 2017, Appellant filed a
Notice of Appeal. Appellant then filed a Concise Statement of Errors
Complained of Pursuant to Rule of Appellant Procedure 1925(b) on
August 24, 2017. The trial court now issues this 1925(a) Opinion.
PROCEDURAL HISTORY
On November 9, 2015, Appellant pled guilty (CR-731-2015) to
Conspiracy to Commit Robbery and Robbery under 18 Pa.C.S.A. § 903
and 18 Pa.C.S.A. § 3701 (A)(1)(II); pled guilty (CR-428.2015) to
Terroristic Threats under 18 Pa.C.S.A. § 2706 (A)(1); and pled guilty
(CR-660-2015) to Robbery under 18 Pa.C.S.A. § 3701 (A)(1)(II).
The Honorable Michael E. Bortner ("trial court") ordered a full
Pre -Sentence Investigation (PSI) report and recommendation. The trial
court held a sentencing hearing on December 29, 2015. Appellant was
sentenced to serve two consecutive terms of eight to twenty years
imprisonment with a concurrent sentence of three and half years to
seven years imprisonment. Appellant was represented at the time by
William H. Graff, Esquire.
On December 12, 2016, Appellant filed a motion for post -
conviction relief alleging ineffective assistance of counsel and the
imposition of a sentence greater than the lawful maximum. On
December 29, 2016, Heather Reiner, Esquire was appointed to become
Appellant's counsel.
The trial court denied Appellant's PCRA motion after a hearing on
June 30, 2017. In his statement, Appellant alleges two issues to be
considered by this Court:
1) whether the trial court erred in finding that there was no
ineffective assistance of counsel when Attorney Graff failed to review
the PSI report with Appellant before the sentencing hearing; and
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2) whether the trial court erred in finding that there was no
ineffective assistance of counsel when Attorney Graff failed to obtain
and submit Appellant's mental health records to the trial court for
sentencing purposes.
FACTUAL SUMMARY
At the PCRA hearing, Appellant testified that he never "received
my pre -sentence investigation in a reasonable amount of time for me to
observe it before sentencing." PCRA Hearing Transcript 6/30/2017, at 4.
Appellant testified that he had decided to enter into an open guilty plea,
even though there was an offer by the Commonwealth to serve only 10
to 20 years imprisonment. Id. at 5. Appellant testified that Attorney
Graff told Appellant that Appellant should make an open guilty plea
instead of entering into a plea agreement with the Commonwealth
because Appellant would "probably get less [time] than that." Id.
Appellant testified that he knew the risks of entering into an open
guilty plea and that the sentence was ultimately at the discretion of the
trial court. Id.
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Appellant testified that he didn't get a chance to look at the pre -
sentence investigation report until the day of sentencing. Id. at 6.
Appellant testified that Attorney Graff did not review the report with
him. Id. Appellant testified that he could not recall if Attorney Graff
had any discussion with Appellant immediately before the sentencing
hearing or if Attorney Graff made any mitigating arguments on
Appellant's behalf. Id. at 7.
Appellant testified that he was involved with the pre -sentence
investigation interview. Id. at 6. Appellant testified that he did not take
any medication for bipolar disorder and manic depression at the time of
his offense. Id .at 8. Appellant testified that he currently takes
medication and that the Probation Department was aware of these
issues. Id.
Appellant testified that Attorney Graff visited Appellant at the
York County Prison and told Appellant that he would obtain
Appellant's mental health and medical records. Id. at 9.
Appellant testified that if he saw the Probation's Department
recommendation, he would have withdrawn his open guilty plea and
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went to trial. Id. Appellant also testified that he entered the open guilty
plea knowingly and voluntarily. Id. at 10.
Attorney Graff testified that he discussed the options of taking the
Commonwealth's offer, going to trial, or entering an open guilty plea
with Appellant. Id. at 16. Attorney Graff testified that the PSI report
stated that Appellant had bipolar. Id. at 18. Attorney Graff testified
that he did review the report with Appellant before the sentencing
hearing. Id. Attorney Graff testified that he never told Appellant that
Appellant would receive a lesser sentence if Appellant entered into an
open guilty plea. Id. at .19.
Attorney Graff testified that he never received any mental health
or medical records that were released to him. Id. at 22. Attorney Graff
testified that he believed the PSI report was sufficient in describing
Appellant's mental health. Id.
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:D ISSUES FOR APPEAL
Whether the trial court erred in denying Appellant's PCRA motion
when Appellant did not suffer from the ineffective assistance of
counsel.
DISCUSSION
The trial court did not err in denying Appellant's PCRA motion
because Appellant was informed of the risks of entering into an
open guilty plea and because the PSI report adequately detailed
Appellant's mental health records.
Appellant argued that his inability to review the PSI report prior
to the sentencing and the lack of submission of mental health
documents rose to the level of ineffective assistance of counsel as a
violation to his right to counsel. The Commonwealth argued that
Appellant did have to time to review the PSI report, that Appellant
freely entered into the open guilty plea, and that the mental health
records, which Appellant cited, do not exist.
The standard for deciding ineffective assistance of counsel is as
follows:
Counsel will be found to be ineffective where (I) there is arguable
merit to the underlying claim; (2) the course chosen by counsel
does not have a reasonable strategic basis designed to advance the
defendant's interests; and (3) the error of counsel prejudiced the
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petitioner, i.e., there is a reasonable probability that, but for the
error of counsel, the outcome of the proceeding would have been
different. Counsel will not be deemed ineffective for failing to raise
a baseless claim.
Commonwealth v. Henke, 851 A.2d 185, 187 (Pa. Super. 2004) (internal
citations omitted).
Counsel's chosen strategy lacks a reasonable basis only if an
appellant proves that "'an alternative not chosen offered a potential for
success substantially greater than the course actually pursued."'
Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011). (citation omitted).
To establish the third prong, an appellant must show "that there is a
reasonable probability that the outcome of the proceedings would have
been different but for counsel's action or inaction." Id.
The petitioner "bears the burden of proving counsel's
ineffectiveness." Commonwealth v. Childs, No. 928 WDA 2015, 2016
WL 2845073, at *3 (Pa. Super. Ct. May 13, 2016). The weight of the
evidence "is exclusively for the finder of fact who is free to believe all,
part, or none of the evidence and to determine the credibility of the
witnesses." Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003)
(citations omitted).
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1.4
Under the first prong of the standard for ineffective assistance of
counsel, there is no arguable merit to either of Appellant's claims.
Appellant insisted that he didn't get a chance to look at the PSI report
until the day of sentencing. He claimed that Attorney Graff did not
a review the report with him, however he also could not recall if Attorney
Graff had any discussion with Appellant immediately before the
sentencing hearing or if Attorney Graff made any mitigating arguments
on Appellant's behalf.
Attorney Graff testified that he did review the PSI report with
Appellant. Attorney Graff further testified that he did not tell Appellant
that an open guilty was Appellant's best course of action.
Appellant argued that Attorney Graff failed to submit the mental
health records. Even if they did exist, Attorney Graff was not given any
records. Regardless, the PSI report noted Appellant's mental disorders
and medications.
Therefore, Appellant did not meet his burden and therefore his
claims had no arguable merit.
Under the second prong, Attorney Graff faced no alternative
options to pursue. Attorney Graff recommended Appellant to take the
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Commonwealth's offer, but Appellant rejected it. Attorney Graff
reviewed the PSI report with Appellant, who then went on to freely
T. enter the open guilty plea. If Attorney Graff spent more time reviewing
the PSI report with Appellant, there would be no potential for
substantially greater success.
Attorney Graff stated he would obtain mental health records, but
the records were never released to Attorney Graff. If Attorney Graff
attempted to follow through with finding these records, there still would
be no potential for substantially greater success.
Because of this lack of potential, Attorney Graff s courses of action
were reasonable to advance Appellant's interests.
Under the third prong, there was no reasonable probability that
Appellant's sentence would have changed. As stated above, Appellant
had time to review the PSI report which included Appellant's mental
health considerations. Appellant freely rejected the Commonwealth's
offer and freely entered into the open guilty plea.
Thus, Attorney Graff made no error that rose to the level of
ineffective assistance of counsel and that there was no violation of
Appellant's right to counsel.
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CONCLUSION
In conclusion, the trial court respectfully requests that this Court
affirm the Order Denying Appellant's PCRA.
Michael E. Bortner
4
Judge of the Court of Common Pleas
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