Com. v. Collins, L. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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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.
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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
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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
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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]
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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).
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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
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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.- 16 -
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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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