Com. v. Collins, L.

J-A08043-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LOGAN MICHAEL COLLINS :
:
Appellant : No. 944 WDA 2021

Appeal from the PCRA Order Entered July 19, 2021
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0001302-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LOGAN MICHAEL COLLINS :
:
Appellant : No. 946 WDA 2021

Appeal from the PCRA Order Entered July 19, 2021
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0003037-2016

BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.: FILED: AUGUST 26, 2022

Logan Michael Collins (Appellant) appeals from the consolidated orders

entered on July 19, 2021, in the Erie County Court of Common Pleas, denying

and dismissing his first petition filed under the Post-Conviction Relief Act1

(PCRA), without a hearing. Appellant seeks relief from the judgment of
____________________________________________

1 42 Pa.C.S. §§ 9541-9546.
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sentence at Criminal Docket No. CP-25-CR-0001302-2019 (Docket No. 1302-

2019), of 4 years and 9 months’ to 9 years and 6 months’ incarceration,

imposed on February 24, 2020, after he pled guilty to one count each of

accidents involving death or personal injury, accidents involving death or

personal injury while not properly licensed, and terroristic threats.2 Appellant

also challenges his sentence at Criminal Docket No. CP-25-CR-0003037-2016

(Docket No. 3037-2016), imposed on the same day, for which he was

resentenced after revocation of his house arrest and probation for a violation

related to this incident. On appeal, Appellant complains that the PCRA court

erred in denying his request for an evidentiary hearing regarding his various

claims of ineffectiveness of trial counsel. For the reasons below, we affirm in

part, reverse in part, and remand this matter to the PCRA court for an

evidentiary hearing consistent with this memorandum.

At Docket No. 3037-2016, Appellant plead guilty to one count of driving

under the influence (highest impairment) (second offense) (DUI). 3 Following

the guilty plea, the trial court sentenced Appellant to three years of “restrictive

intermediate punishment, beginning with 90 days of electric monitoring.”

Notice of Intent to Dismiss PCRA Pursuant to Pa.R.Crim.P. 907 (Rule 907

Notice), 6/28/21, at 1.

____________________________________________

2 75 Pa.C.S. §§ 3742(a), 3742.1(a)(1); 18 Pa.C.S. § 2706(a)(1).

3 75 Pa.C.S. § 3802(c).

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While on probation for the 2016 DUI offense, Appellant committed the

offenses entered at Docket No. 1302-2019. Specifically, on February 28,

2019, Appellant was driving when he hit pedestrian Donald Lonyo (Victim),

which caused Victim’s death. N.T. Plea, 12/19/19, at 8-9. At the time of the

accident, Appellant was driving his vehicle without a driver’s license and with

one other person, Adam Maison (Witness), in the car. Id. at 9. Appellant fled

the scene, rather than remain and administer aid to Victim. Id. at 8.

Subsequently, Appellant threatened to kill Witness if he reported the accident.

Id. at 9. Appellant was charged with one count each of accidents involving

death or personal injury, accidents involving death or personal injury while

not properly licensed, terroristic threats, involuntary manslaughter,

intimidation of witnesses or victims, homicide by vehicle, aggravated assault

by vehicle, immediate notice of accident to police department, duty to give

information and render aid, reckless driving, driving while operating privilege

is suspended or revoked, and two counts of careless driving.4 He eventually

elected to plead guilty.

At the December 19, 2019, proceeding, Appellant entered a guilty plea

to one count each of accidents involving death or personal injury, accidents

involving death or personal injury while not properly licensed, and terroristic

____________________________________________

4 18 Pa.C.S. §§ 2504(a), 4952(a)(1); 75 Pa.C.S. §§ 3732(a), 3732.1(a),
3746(a)(1), 3744(a), 3736(a), 1543(b)(1), 3714(a)-(b).

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threats. In exchange for the plea, the Commonwealth withdrew the remaining

charges against Appellant. The plea did not include a sentencing agreement.

As noted above, at the time of the accident, Appellant was serving

probation at Docket No. 3707-2016. On February 24, 2020, the trial court

held both a revocation and sentencing hearing. The court revoked Appellant’s

probationary sentence at Docket No. 3707-2016 as a result of the 2019

convictions, and then sentenced Appellant at both dockets. At Docket No.

3707-2016, the trial court resentenced Appellant to one to two years’

incarceration followed by a three-year period of probation. At Docket No.

1302-2019, the trial court sentenced Appellant to consecutive sentences of

three to six years’ incarceration for accidents involving death or personal

injury, nine to 18 months’ imprisonment for accidents involving death or

personal injury while not properly licensed, and one to two years’ incarceration

for terroristic threats.

Appellant filed a post-sentence motion to modify both sentences, which

the trial court denied on March 10, 2020. Appellant did not file a direct appeal,

but instead, on April 6, 2021, filed a timely counseled PCRA petition.5 The

____________________________________________

5 In his petition, Appellant alleged trial counsel was ineffective because he:
(1) failed to have adequate contact with Appellant prior to trial; (2) informed
Appellant “he had inadequate funds to pay counsel to [d]efend him at trial[;]”
(3) failed to advise Appellant of potential defenses; (4) did not tell Appellant
that his minimum sentence could exceed three years, and (5) did not advocate
for a sentence that would allow him to participate in the state drug treatment
program. Appellant’s Amended Petition for Post Conviction Relief, 4/19/21,
at 2-3 (unpaginated).

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PCRA court then ordered Appellant to file an amended petition with “greater

specificity” of trial counsel’s alleged ineffectiveness, to which Appellant

complied. See Order, 4/9/21. On June 28, 2021, the PCRA court issued a

Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s petition without a

hearing and an accompanying opinion. On July 19, 2021, Appellant objected

to the Rule 907 notice and, on the same day, the PCRA court dismissed

Appellant’s petition. Appellant filed a timely appeal at each docket.6, 7 On

September 16, 2021, this Court consolidated both appeals sua sponte. Order,

9/16/21.

Appellant raises the following claims on appeal:

1. Whether the PCRA [c]ourt erred in failing to conduct an
evidentiary hearing where Appellant timely raised the issue
that his trial counsel was ineffective in failing to properly advise
Appellant during the plea-bargaining process with respect to
the duration of the sentence he was facing by communicating
to Appellant that he would receive a three year minimum
sentence if he pleaded guilty, thus causing Appellant to enter
a guilty plea that was not knowingly and voluntarily made[?]
See Commonwealth v. Hickman, 799 A.2d 136 (Pa. Super.
2002).

2. Whether the PCRA [c]ourt erred in failing to conduct an
evidentiary hearing where Appellant timely raised, the issue
than his trial counsel was ineffective in failing to advocate for
an aggregate sentence at Dockets 1302 of 2019 and 3037 of
2016 that would comport with the State Drug Treatment
Program (See 61 Pa.C.S. § 4010, et seq.) where [Appellant]
____________________________________________

6 Appellant timely complied with the PCRA court’s order to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

7 In its Pa.R.A.P. 1925(b) opinion, the PCRA court adopted the rationale from
its Rule 907 Notice.

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has a recorded history of past offenses that relate to drug
and/or alcohol abuse[?]

3. Whether the PCRA [c]ourt erred in failing to conduct an
evidentiary hearing where Appellant timely raised the issue
that his trial counsel was ineffective by inducing Appellant to
enter a guilty plea by communicating to him that he had
inadequate funds to pay counsel to [d]efend him at trial and by
failing to advise Appellant of potential defenses of arguable
merit as to the: charge of [a]ccidents involving [d]eath (75
Pa.C.S. § 3742) and [a]ccidents [i]nvolving [d]eath while not
[l]icensed (75 Pa.C.S. § 3742.1.) where [Appellant] was not
initially aware that he had struck an individual and had
attempted to return to the scene of the accident[?] See
Commonwealth v. Lutz, 424 A.2d 1302 (Pa. 1981), See
Commonwealth v. Jones, 640 A.2d 1330 (Pa.Super.1994).

4. Whether the PCRA [c]ourt erred in failing to conduct an
evidentiary hearing where Appellant timely raised the issue
that his trial counsel was ineffective in failing to have adequate
personal contact with Appellant during the pendency of his
case. Specifically, Appellant’s trial counsel was ineffective in
only meeting with Appellant on two occasions from when
Appellant was arrested until he was sentenced[?] See
Commonwealth v. Brooks, 839 A.2d 245 (Pa. 2003).

Appellant’s Brief at 5.8

Our review of an order denying a PCRA petition is well-settled: “We

must determine whether the PCRA court’s ruling is supported by the record

and free of legal error.” Commonwealth v. Johnson, 179 A.3d 1153, 1156

(Pa. 2018) (citation omitted). Furthermore, “[t]he PCRA court’s factual

findings and credibility determinations, when supported by the record, are

binding upon this Court.” Commonwealth v. Small, 238 A.3d 1267, 1280

(Pa. 2020) (citation omitted).

____________________________________________

8 Based on our disposition, we have reordered Appellant’s issues.

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Appellant’s claims all challenge the PCRA court’s decision to deny his

ineffectiveness claims without an evidentiary hearing. We note a “PCRA

petitioner is not entitled to an evidentiary hearing as a matter of right, but

only where the petition presents genuine issues of material fact. A PCRA

court’s decision denying a claim without a hearing may only be reversed upon

a finding of an abuse of discretion.” Commonwealth v. Walker, 36 A.3d 1,

17 (Pa. 2011) (citation omitted). A PCRA court may decline to hold an

evidentiary hearing

if the petitioner’s claim is patently frivolous and has no support
either in the record or other evidence. It is the responsibility of
[this Court] on appeal to examine each issue raised in the PCRA
petition in light of the record certified before it in order to
determine if the PCRA court erred in its determination that there
were no genuine issues of material fact in controversy and in
denying relief without conducting an evidentiary hearing.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (internal

citations omitted).

Where a petitioner’s claims raise allegations of prior counsel’s

ineffectiveness,

Appellant must plead and prove by a preponderance of the
evidence that: (1) his underlying claim is of arguable merit; (2)
the particular course of conduct pursued by counsel did not have
some reasonable basis designed to effectuate his interests; and,
(3) but for counsel’s ineffectiveness, there is a reasonable
probability that the outcome of the challenged proceeding would
have been different. Failure to satisfy any prong of the test will
result in rejection of the appellant’s ineffective assistance of
counsel claim.

Johnson, 179 A.3d at 1158 (citations and quotation marks omitted).

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The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which
forms the basis for the assertion of ineffectiveness is of arguable
merit. . . . Counsel cannot be found ineffective for failing to pursue
a baseless or meritless claim.

Once this threshold is met we apply the reasonable basis
test to determine whether counsel’s chosen course was
designed to effectuate his client’s interests. If we conclude
that the particular course chosen by counsel had some
reasonable basis, our inquiry ceases and counsel’s
assistance is deemed effective. If we determine that there
was no reasonable basis for counsel’s chosen course then
the accused must demonstrate that counsel’s
ineffectiveness worked to his prejudice.

Commonwealth v. Kelley, 136 A.3d 1007, 1012 (Pa. Super. 2016) (citations

and quotation marks omitted). Moreover, “[i]neffective assistance of counsel

claims arising from the plea[-]bargaining process are eligible for PCRA

review.” Kelley, 136 A.3d at 1012 (citation omitted). We are also guided by

the following:

Allegations of ineffectiveness in connection with the entry of a
guilty plea will serve as a basis for relief only if the ineffectiveness
caused [the] appellant to enter an involuntary or unknowing plea.
In determining whether a guilty plea was entered knowingly and
intelligently, a reviewing court must review all of the
circumstances surrounding the entry of that plea.

Commonwealth v. Fears, 86 A.3d 795, 806–07 (Pa. 2014) (citation

omitted).

In his first claim, Appellant argues trial counsel misinformed him about

his potential sentence. Appellant’s Brief at 20. Specifically, Appellant asserts

trial counsel “misstate[d]” that his minimum sentence would be three years,

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which induced him into an unknowing and involuntary plea. Id. at 20, 25.

Appellant insists he is entitled to an evidentiary hearing to determine whether

he voluntarily entered his plea. See id. at 20, 25.

To determine if a guilty plea is valid, it must meet the following criteria:

A valid guilty plea must be knowingly, voluntarily and
intelligently entered. The Pennsylvania Rules of Criminal
Procedure mandate that pleas be taken in open court, and require
the court to conduct an on-the-record colloquy to ascertain
whether a defendant is aware of his rights and the consequences
of his plea. Commonwealth v. Hodges, 789 A.2d 764 (Pa.
Super. 2002) (citing Pa.R.Crim.P. 590). Specifically, the court
must affirmatively demonstrate the defendant understands: (1)
the nature of the charges to which he is pleading guilty; (2) the
factual basis for the plea; (3) his right to trial by jury; (4) the
presumption of innocence; (5) the permissible ranges of
sentences and fines possible; and (6) that the court is not bound
by the terms of the agreement unless the court accepts the
agreement. This Court will evaluate the adequacy of the plea
colloquy and the voluntariness of the resulting plea by examining
the totality of the circumstances surrounding the entry of that
plea.

Kelley, 136 A.3d at 1013 (some citations omitted).

The PCRA court concluded Appellant’s claim is not supported by the

record because he knowingly and intelligently entered his plea. Rule 907

Notice at 6-7. Specifically, the PCRA court noted Appellant’s plea hearing

complied with Pa.R.Crim.P. 590 when Appellant

signed a Statement of Understanding of Rights which was
reviewed with him prior to entry of his guilty plea. [Appellant]
was informed the [trial c]ourt was not bound by the terms of the
plea agreement. [Appellant] indicated he understood the nature
of the charges and the factual basis for the plea. Further,
[Appellant] indicated he understood the maximum sentences[.]

Id. at 6. We agree.

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“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. Reid, 117 A.3d 777, 783 (Pa. Super. 2015) (citations and

internal quotation marks omitted). Further, a defendant is bound by

statements they make during a guilty plea colloquy. Id. (citation omitted).

Here, Appellant alleged he was not aware that his minimum sentence

could surpass three years; however, the record contradicts this argument.

Prior to entering his guilty plea, Appellant signed an acknowledgement of his

rights, which stated:

4. I understand that the maximum sentence for the crime(s)
to which I am pleading guilty . . . is [accidents involving death or
personal injury: Mandatory Minimum]: 3 years, Maximum 10
years[; accidents involving death or personal injury while not
properly licensed]: 7 years[; terroristic threats]: 5 years . . .

5. I understand that any plea bargain in my case is set forth here
and there has been no other bargain . . . to induce me to plead
guilty[.] The only plea bargain in my case is pleading guilty
to [accidents involving death or personal injury, accidents
involving death or personal injury while not properly licensed, and
terroristic threats]. In exchange, the Commonwealth will nolle
pros the remaining [c]ounts[.]

6. I understand that the [court] is not bound by the terms of any
plea bargain unless the [court] chooses to accept it. . . . If the
Commonwealth agrees to make a sentencing recommendation on
my behalf, the [court] will not be bound by this
recommendation and I understand that I will not be
permitted to withdraw my guilty . . . plea if this should
occur. . . .

Appellant’s Statement of Understanding of Rights Prior to Guilty/No Contest

Plea, 12/19/19 (some emphasis added and omitted). Appellant signed this

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statement under oath which was reviewed with him at the plea hearing. See

N.T. Plea, 12/19/19, at 2-8; see also Rule 907 Notice at 6. The

Commonwealth made no sentencing recommendation.

At the plea hearing, Appellant was then informed that each of his

sentences could run consecutively, and reminded that his sentence was

“solely” the decision of the trial court regardless of any discussion prior to the

colloquy. N.T. Plea, at 3-4, 7. The Commonwealth also reiterated the possible

maximum sentences Appellant was facing. Id. at 7. Appellant indicated that

he understood the maximum sentences which could be imposed. Id. at 7-8.

After the court read the oral colloquy, Appellant indicated he did not have any

questions regarding the details of his guilty plea. Id. at 8.

Contrary to Appellant’s argument, the record supports the conclusion

that at the time he entered the guilty plea, he was aware of the possibility the

trial court would impose a sentence above the mandatory minimum, which

would be greater than three years, and that his sentence was up to the court’s

discretion. Thus, Appellant failed to establish he entered his plea unknowingly

or that any genuine issue of material fact exists, and as such no relief is due.

See Fears, 86 A.3d at 806–07; Wah, 42 A.3d at 338.

In his second claim, Appellant argues counsel was ineffective where he

did not “advocate for an aggregate sentence [on his Docket Nos. 3037-2016

and 1302-2019 sentences] that would comport with the State Drug Treatment

Program[ under 61 Pa.C.S. § 4104.]” Appellant’s Brief at 25. Appellant insists

he is eligible for the program because of his past alcohol related offenses and

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his lack of violent offenses. Id. at 27. Appellant, however, concedes that he

is “ineligible under the State Drug Treatment Program in that he received an

aggregate sentence with a five year, nine month, minimum term of

incarceration, which is nine months greater than [the] allowable minimum

sentence under the Program.” Id.

Preliminarily, we note the relevant sections of 61 Pa.C.S. § 4104, which

were in effect at the time Appellant committed the offenses, governing

admission to the state drug treatment program:

(a) Referral for evaluation.

(1) Prior to imposing a sentence, the court may, upon
motion of the Commonwealth and agreement of the
defendant, commit a defendant to the custody of the
department for the purpose of evaluating whether the
defendant would benefit from a drug offender treatment
program and whether placement in the drug offender
treatment program is appropriate.

(1.1)

(i) The prosecuting attorney, in the prosecuting
attorney’s sole discretion, may advise the court that
the Commonwealth has elected to waive the
eligibility requirements of this chapter, if the victim
has been given notice of the prosecuting attorney’s intent
to waive the eligibility requirements and an opportunity
to be heard on the issue.

* * *

(c) Proposed drug offender treatment program. — If the
department in its discretion believes a defendant would benefit
from a drug offender treatment program and placement in the
drug offender treatment program is appropriate, the department
shall provide the court, the defendant, the attorney for the
Commonwealth and the commission with a proposed drug

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offender treatment program detailing the type of treatment
proposed.

61 Pa.C.S. § 4104(a)(1)-(2)(i), (c) (effective until February 17, 2020)

(emphasis added).

An “eligible person” for purposes of the State Drug Treatment Program

is defined, in relevant part, as:

(1) A person who has not been designated by the sentencing
court as ineligible and is a person convicted of a drug-related
offense who:

* * *

(iii) Is a person sentenced to a term of confinement under
the jurisdiction of the department, the minimum of which is
not more than two years, or a person who is serving a
term of confinement, the minimum of which is not
more than five years where the person is within two years
of completing the person’s minimum term.

61 Pa.C.S. § 4103(1)(iii) (emphasis added).

The PCRA court concluded that this argument is without merit, opining:

Placement within the [program] is within the Pennsylvania
Department of Correction’s discretion if it believes an eligible
person would benefit from the program and placement . . . would
be appropriate. 61 Pa.C.S.[ ] §4104(c). The Commonwealth
held sole discretion on whether to waive eligibility
requirements for [Appellant’s] ability to enter the program and
chose not to waive the necessary requirements. See 61
Pa.C.S.[ ] §4104(a)(2)(i).

Rule 907 Notice at 7 (emphasis added). We agree.

The Commonwealth did not waive admission requirements, nor did

Appellant allege that the Commonwealth would have done so in his petition,

regardless of counsel’s argument at sentencing. Moreover, Appellant

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acknowledged that based on his aggregate sentence, he was an “ineligible”

person pursuant to Section 4103. For these reasons, Appellant failed to

demonstrate how his ineffectiveness claim was of arguable merit, and as such,

no relief is due. See Johnson, 179 A.3d at 1158; Fears, 86 A.3d at 806–07;

Wah, 42 A.3d at 338.

In his third argument, Appellant contends trial counsel “induced [him]

to enter a guilty plea while [Appellant] had valid defenses . . . based on

[c]ounsel’s assertion” that Appellant could not afford to proceed to trial.

Appellant’s Brief at 20. Appellant avers that he initially was not aware that he

had struck an individual and had attempted to return to the scene of the

accident. Id. at 14. Appellant also alleges he informed his attorney he was

interested in this defense and counsel refused to explore it further. Id. at 14.

Appellant asserts that without an evidentiary hearing, the PCRA court could

not determine whether this claim had arguable merit, whether counsel had a

reasonable basis for the conduct, and whether Appellant experienced

prejudice. Id. at 20.

We begin with Section 3742, which provides, in pertinent part:

§ 3742. Accidents involving death or personal injury

(a) General rule. — The driver of any vehicle involved in an
accident resulting in injury or death of any person shall
immediately stop the vehicle at the scene of the accident or as
close thereto as possible but shall then forthwith return to and in
every event shall remain at the scene of the accident until he has
fulfilled the requirements of section 3744 (relating to duty to give
information and render aid). . . .

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75 Pa.C.S. § 3742.

Section 3742.1 further provides that:

§ 3742.1. Accidents involving death or personal injury while not
properly licensed

(a) Offense defined. — A person whose operating privilege was
disqualified, canceled, recalled, revoked or suspended and not
restored or who does not hold a valid driver’s license and
applicable endorsements for the type and class of vehicle being
operated commits an offense under this section if the person was
the driver of any vehicle and:

(1) caused an accident resulting in injury or death of a
person; or

(2) acting with negligence that contributed to causing the
accident resulting in injury or death of a person. . . .

75 Pa.C.S. § 3742.1.

Section 3742 “itself does not contain a scienter requirement.”

Commonwealth v. Woosman, 819 A.2d 1198 (Pa. Super. 2003). In

Woosman, a panel of this Court held that under Section 3742, the

Commonwealth must establish that the “driver knew or should have known”

that he was involved in an accident involving personal injury or death. Id. at

1206.9 See also Commonwealth v. Kinney, 863 A.2d 581, 585-86 (Pa.

Super. 2004).

Here, the Commonwealth concedes that Appellant is entitled to an

evidentiary hearing regarding trial counsel’s alleged failure to inform Appellant

____________________________________________

9We note that Section 3742.1 is substantially similar to Section 3742 for the
purpose of establishing intent.

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of potential defenses because “the record does not explicitly show that this

claim is patently frivolous.” Commonwealth Brief at 9. However, the

Commonwealth maintains that even if Appellant is granted a hearing, it will

establish that counsel did discuss potential defenses, and as such, no relief

would be granted. Id.

On this claim, we conclude Appellant is entitled to an evidentiary

hearing. In several court filings, Appellant has maintained that he was not

initially aware that he struck Victim and then later attempted to return to the

scene, a defense available under 75 Pa.C.S. § 3742. See Kinney, 863 A.2d

at 588 (substantial compliance is a defense to a violation under 75 Pa.C.S. §

3742); Appellant’s Amended Petition for Post-Conviction Relief, 4/19/21, at 3

(unpaginated); Appellant’s Objection to the Court’s Notice of Intent to Dismiss

PCRA Petition, 7/19/21, at 2 (unpaginated). His statements purportedly

qualify as a valid defense under Woosman and Kinney.

Without a record to establish whether trial counsel had substantive

meetings with Appellant where he discussed potential defenses, this Court

cannot conclude if counsel provided ineffective assistance to Appellant. Thus,

we discern that Appellant has raised an issue of material fact as to whether

counsel reviewed potential defenses with Appellant before advising him to

seek the guilty plea agreement. See Wah, 42 A.3d at 338. Accordingly, we

find the PCRA court erred in determining that there were no genuine issues of

material fact in controversy and in denying relief without conducting an

evidentiary hearing on this matter. See id.

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In his final claim, Appellant argues trial counsel was ineffective for

meeting with him “no more than two” times between his arrest and the guilty

plea. Appellant’s Brief at 12. Appellant relies on Commonwealth v. Brooks,

839 A.2d 245 (Pa. 2003), to support his contention that counsel’s conduct was

insufficient. Id. Appellant maintains that because he “was charged with

significant crimes that carried the possibility of . . . extensive incarceration,”

he has set forth a claim meeting all three prongs of the ineffectiveness test.

Id. at 14. For these reasons, Appellant insists he is entitled to an evidentiary

hearing on the matter to determine if counsel’s conduct constituted ineffective

assistance. Id.

The PCRA court concluded Appellant’s claim is not supported by the

record, nor did he establish that he was prejudiced. See Rule 907 Notice at

6-7. We disagree.

As indicated above, Appellant relies on Brooks in support of his

argument. In Brooks, the defendant was charged with, inter alia, first degree

murder. Brooks, 839 A.2d at 247. Counsel failed to meet with the defendant

“even once before his trial on capital charges.” Id. at 250. Instead, counsel

could only “specifically recall one telephone conversation” which lasted about

twenty to thirty minutes. Id. at 249. Counsel for the defendant cited to not

“looking forward to spending time alone” with defendant as explanation for

not meeting with him. Id. Our Supreme Court concluded counsel’s lack of

contact with the defendant had no reasonable basis, prejudiced the defendant,

and found the conduct amounted to ineffective assistance of counsel. Id.

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This Court discussed Brooks and its application in Commonwealth v.

Johnson, 51 A.3d 237 (Pa. Super. 2012). In Johnson, the defendant argued

that because his counsel did not meet with him face to face until the night

before his trial, he was entitled to relief under Brooks. Johnson, 51 A.3d at

243. The Johnson Court disagreed, stating:

Our Supreme Court emphasized in Brooks that [his trial counsel]
failed to meet with his client “at all.” [Here, Johnson’s attorney]
represented [him] at his preliminary hearing and criminal
arraignment, conducted a face-to-face meeting at his preliminary
hearing, conducted another face-to-face meeting at the prison
with [Johnson] prior to trial, and performed at least one telephone
consultation. While we acknowledge that more contact may have
been advisable, we disagree with [Johnson] that the length and
frequency of the consultations alone can support a finding of
ineffectiveness. We further decline to read Brooks so rigidly that
we are precluded from evaluating the substantive impact of the
consultations [Johnson’s attorney] did perform.

Id. at 243-44 (citations omitted). This Court concluded Johnson’s attorney

was effective when he held “substantive” meetings in which he “obtain[ed]

adequate information to defend . . . against first-degree murder charges[.]”

Id. at 244 (internal quotation marks omitted).

First, we note Appellant’s reliance on Brooks is misplaced. In Brooks,

the defendant was charged with, inter alia, first degree murder. Brooks, 839

A.2d at 247. Counsel failed to meet with the defendant “even once before his

trial on capital charges[,]” instead electing to have one brief phone

conversation. Id. at 249-50. Conversely, in the present matter, trial counsel

did meet with Appellant prior to trial two separate times. Appellant’s Brief at

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12, 14. Further, Appellant, unlike the defendant in Brooks, was not facing

capital charges.

While the “length and frequency of [attorney] consultations alone”

cannot support a finding of ineffective assistance of counsel, we must consider

the “substantive impact” of any meetings counsel had with their client.

Johnson, 51 A.3d at 244. Appellant conceded that he met with trial counsel

on two occasions, but alleges that during those meetings, counsel refused to

explore potential defenses with him. Appellant’s Brief at 8, 12, 14. The record

does not currently support or refute Appellant’s assertion. Without a record

to determine if counsel did, in fact, conduct substantive discussions with

Appellant prior to the entry of the guilty plea, we cannot determine whether

counsel acted reasonably under the circumstances. For this reason, an

evidentiary hearing is necessary to determine the “substantive impact” of

counsel’s meetings with Appellant. See Johnson, 51 A.3d at 244; Wah, 42

A.3d at 338.

Order affirmed in part and reversed in part. Case remanded for

proceedings consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/26/2022

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