Com. v. Nixon, B.

J. S93009/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : V. : : BRANDON A. NIXON, : : Appellant : No. 1174 EDA 2016 :

Appeal from the PCRA Order March 23, 2016 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0000509-2011

BEFORE: DUBOW, SOLANO AND PLATT*, JJ. MEMORANDUM BY DUBOW, J.: FILED MARCH 15, 2017

Appellant, Brandon A. Nixon, appeals from the March 23, 2016 Order entered in the Philadelphia County Court of Common Pleas denying his first Petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm on the basis of the PCRA court’s June 6, 2016 Opinion.

The relevant facts and procedural history are as follows. In September 2008, Appellant and his co-conspirator entered a private residence in the middle of the night through a window, struck a female resident in the head with a gun, pushed her into the dining room table that shattered, and then threw her infant son at her. When her brother came to investigate,

* Retired Senior Judge Assigned to the Superior Court.

J. S93009/16

Appellant struck him in the head several times with a gun and pushed him down the basement stairs, causing him to suffer severe injuries, including a broken jaw and hemorrhaging. After a long investigation, the Commonwealth obtained DNA evidence linking Appellant to the violent home invasion and on March 10, 2011, the Commonwealth charged Appellant with numerous crimes.

During pre-trial negotiations, the Commonwealth made an initial plea offer to Appellant of six (6) to twelve (12) years in prison, which Appellant rejected. Appellant believed that he should not serve more than two (2) years in prison because he lacked a significant criminal history. The Commonwealth refused to offer less.

On December 15, 2011, Appellant entered an open guilty plea to Conspiracy to Commit Burglary, Burglary, and two counts of Robbery.1 In exchange for Appellant’s plea, the Commonwealth agreed to waive all mandatory minimum sentences and sentencing enhancements, provided that Appellant met with Detectives to provide additional information about how the crimes occurred.

After the plea was entered but before sentencing, Appellant’s counsel, Steve Jarmon, Esq. (“Attorney Jarmon”), reached out to the Commonwealth to inquire what they would be recommending at the time of Appellant’s

1 18 Pa.C.S. § 903(a); 18 Pa.C.S. § 3502(a); 18 Pa.C.S. § 3701(a)(1)(i) and (ii), respectively.

-2-

J. S93009/16

sentencing hearing. N.T. PCRA Hearing, 6/19/15, at 28-29. Assistant District Attorney John Pavloff, Esq. (“ADA Pavloff”), who represented the Commonwealth during the plea hearing, told Attorney Jarmon, “I’ll stick with my plea offer, six years.” Id. at 29.

Prior to sentencing, Appellant met with Detectives and failed to provide any information relating to the crimes. Appellant indicated that he was high on drugs during the crimes and did not remember anything.

At sentencing, unsatisfied with Appellant’s proffer to Detectives, the Commonwealth recommended that the court sentence Appellant to eleven (11) to twenty-two (22) years’ incarceration, a higher recommendation than the initial plea offer, but did not seek any mandatory minimum sentences or sentencing enhancements.2

On March 22, 2012, the court sentenced Appellant to an aggregate term of nine (9) to twenty (20) years’ incarceration. Appellant timely filed a Post-Sentence Motion on March 26, 2012, which the court denied on August 17, 2012, after an evidentiary hearing.

On September 13, 2012, Appellant filed a direct appeal and this Court affirmed Appellant’s Judgment of Sentence on July 30, 2013.

2 Deputy District Attorney Ronald C. Yen, Esq., ADA Pavloff’s supervisor, represented the Commonwealth at sentencing as ADA Pavloff’s employment with the Chester County District Attorney’s Office had been terminated.

-3-

J. S93009/16

Commonwealth v. Nixon, No. 2563 EDA 2012 (Pa. Super. filed July 30, 2013) (unpublished memorandum).

On August 27, 2014, Appellant filed a timely and counseled PCRA Petition. On October 23, 2014, the PCRA court ordered Appellant to file an Amended PCRA Petition, which Appellant filed on March 6, 2015, after the PCRA court granted several extensions. The PCRA court held an evidentiary hearing on Appellant’s PCRA Petition on June 19, 2015 and February 11, 2016. On March 23, 2016, the PCRA court denied and dismissed Appellant’s PCRA Petition.

Appellant timely appealed. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925(b).

Appellant presents the following issue for our review: “Whether the [t]rial [c]ourt erred by denying Appellant’s [PCRA Petition] where Appellant’s [t]rial [c]ounsel was ineffective for failing to sufficiently advise Appellant of the risks associated with an open guilty plea, rendering that plea involuntary and unknowing?” Appellant’s Brief at 4.

We review the denial of a PCRA Petition to determine whether the record supports the PCRA court’s findings and whether its Order is otherwise free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This Court grants great deference to the findings of the PCRA court if they are supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super. 2007). We give no such deference, however, to the court’s

-4-

J. S93009/16

legal conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).

To be eligible for relief pursuant to the PCRA, Appellant must establish, inter alia, that his conviction or sentence resulted from one or more of the enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2). Appellant must also establish that the issues raised in the PCRA petition have not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3).

In the instant case, Appellant avers that plea counsel was ineffective. See Appellant’s Brief at 4; 42 Pa.C.S. § 9543(a)(2)(ii). This claim lacks merit.

The law presumes counsel has rendered effective assistance. Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). The burden of demonstrating ineffectiveness rests on Appellant. Id. To satisfy this burden, 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.” Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the test will result in rejection of the appellant’s ineffective assistance of counsel claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002). Further,

-5-

J. S93009/16

“[a]llegations of ineffectiveness in connection with the entry of a guilty plea will serve as a basis for relief only if the ineffectiveness caused [A]ppellant to enter an involuntary or unknowing plea.” Fears, supra at 806-07 (citation omitted).

The Honorable Anthony A. Sarcione, sitting as both the sentencing court and the PCRA court, has authored a comprehensive, thorough, and well-reasoned Opinion, citing to the record and relevant case law in addressing Appellant’s ineffectiveness claim. The record supports the PCRA court’s findings and its Order is otherwise free of legal error. We affirm on the basis of the PCRA court’s June 8, 2016 Opinion which concluded that the underlying claim is without merit because: (1) after Appellant rejected the Commonwealth’s negotiated plea offer, Attorney Jarmon’s advice to tender an open plea was a reasonable one designed to effectuate Appellant’s interests; (2) Attorney Jarmon testified credibly that he informed Appellant about the risks of entering an open guilty plea, specifically that the Commonwealth could recommend a sentence in excess of the original offer and that the sentencing court could order a sentence in excess of the original offer; (3) Appellant acknowledged on the record that he understood what an open plea was; (4) Appellant acknowledged on the record that he had “no idea” what the sentence was going to be; (5) Appellant acknowledged on the record that he understood the maximum penalty for each offense was twenty (20) years’ incarceration; (6) Appellant

-6-

J. S93009/16

acknowledged on the record that the sentencing court could deviate up or down from the sentencing guidelines as long as it stayed within the statutory maximum; (7) Appellant was adequately apprised by both plea counsel and the sentencing court of the court’s sentencing discretion and ability to impose a term in excess of that recommended by the Commonwealth; and (8) the record demonstrates that Appellant’s plea was knowing, voluntary, and intelligent. See PCRA Court Opinion, 6/8/16, at 10-14.

The parties are instructed to attach a copy of the PCRA court’s June 6, 2016 Opinion to all future filings.

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/15/2017

-7-

Circulated 02/15/2017 11:15 AM Oit:rc··,EIV r:: ,., - . FD I ••

s:\admin\sarcione\Nixon Brandon 151 PCRA 1925a.docx

. II.IN o u 2om ~LIC DEF~NC::R COMMONWEAL TH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS

vs. : CHESTER COUNTY, PENNSYLVANIA BR.ANDON NIXON : NO. 15-CR~0000509-2011

: CRIMINAL ACTION-PCRA

Nicholas J. Casenta, Jr., Esquire, Chief Deputy District Attorney, for the Commonwealth Ellen B. Koopman, Esquire, for the Defendant

OP I N ION SUR R U L E 1 9 2 5 (a)

Before this Honorable reviewing Court is Defendant Brandon Nixon's counseled appeal from our denial of his first counseled PCRA Petition, which was file August 27, 2014.1 We issued our Order denying Defendant's Petition on March 23 2016.2 Defendant filed his Notice of Appeal on April 15, 2016. Thus, Defendant's appea is timely. See Pa. R.A.P. 903(a)("Except as otherwise prescribed by this rule, the noticJ of appeal required by Rule 902 (manner of taking appeal) shall be filed within 30 day after the entry of the order from which the appeal is taken.").

On March 10, 2011 the Commonwealth filed an Information charging Defendant with Criminal Conspiracy to Commit Burglary (18 Pa. C.S.A. §§ 9031 3502)(Count l); Burglary (18 Pa. C.S.A. § 3502)(Count JI); Possession of an Instrument o Crime (18 Pa. C.S.A § 907{a))(Count 111); Criminal Attempt to Commit Murder of the Firs Degree (18 Pa. C.S.A. §§ 901, 1102(c), and 2502(a))(Count IV); Aggravated Assault,

' Defendant was rep,esented by privatelv-retained attorney John J. Duffy, Esquire during the PCRA Petition hearing process. For purposes of this PCRA appeal, Defendant has obtained the representation ot new counsel Assistant Chester County Public Defender Ellen B. Koopman, Esquire. J 2 The delay between the filing of Defendant's first PCRA Petition ln 2014 and our resolution of Defendant's PCRA Petition in 2016 was occasioned by considerable serious health problems on the part of his then-counsel Mr. Duffyf Many defense continuances were requested and granted to accommodate Mr. Duffy's medical needs. (See PCRA Hearing Transcript, 2/11/16, N.T. 3).

s;\adrnin\sarcione\Nixon Brandon 151 PCRA 1925a.docx Causing Serious Bodily Injury (18 Pa. C.SA § 2702(a)(1))(Count V); Aggravatei Assault-Attempting to Cause Serious Bodily Injury (18 Pa. C.S.A. § 2702(a)(1))(Count VI); Simple Assault-Causing Bodily Injury (18 Pa. C.S.A. § 2701 (a)(1))(Count VII) Recklessly Endangering Another Person (18 Pa. C.S.A. § 2705)(Count VIII); Recklessly Endangering Another Person (18 Pa. C.SA § 2705)(Count IX); Robbery-lnflictin1

Serious Bodily Injury Upon Another in the Course of Committing a Theft (18 Pa. C.S.A. l 3701 (a)(1 )(i))(Count X); Robbery-Threatening Another With, or Intentionally Puttinl

Another in Fear of, Immediate Serious Bodily Injury in the Course of Committing a Theft (18 Pa. C.S.A. § 3701(a)(1)(ii))(Count XI); and Theft of Movable Property by UnlawfJ Taking or Disposition (18 Pa. C.S.A. § 3921(a))(Count Xll), stemming from a violen home invasion robbery, by two (2) men wearing ski masks, that took place on Septembe 6, 2008, in which two adults, a male and a female, were beaten within an inch of thei lives and a baby was thrown across a room like a football. (Verbal Guilty Plea Colloquy

12/15/11, N. T. 4-12; Sentencing Hearing Transcript, 3/22/12, 18-46). The chilling facts or these horrifying crimes are related in great detail in both our September 6, 2011 Opiniol

and Order denying Defendant's Omnibus Pretrial Motion and our December 4, 201 · Opinion Sur RL1le 1925(a) issued in connection with Defendant's direct appeal. The fact of record establish that Defendant, the taller of the two perpetrators, was responsible fo the most heinous parts of the attack, including the throwing of the baby. (PCRA Hearin, Transcript, 6/19/15, N.T. 14). The Commonwealth obtained DNA evidence linkin [ Defendant to these appalling crimes. (See Deft.'s Omnibus Pretrial Motion, 6/16/11; Opinion and Order, 9/6/11; Sentencing Hearing Transcript, 3/22/12, N.T. 44 ).

During pre-trial negotiations in this matter, the Commonwealth, represented s:\admin\sarcione\Nixon Brandon 151 PCRA 1925a.doc>c by then-Assistant District Attorney John H. Pav!off, Esquire, who obtained the approval of his supervisor, Deputy District Attorney Ronald C. Yen, Esquire (PCRA Hearing

Transcript, 2/11/16, N.T. 19), made an initial plea offer to the Defendant of six (6) tj twelve (12) years in prison. (PCRA Hearing Transcript, 6/19/15, N.T. 10). Defendant

who has maintained throughout these PCRA proceedings, notwithstanding that he flied a pre-trial motion to suppress evidence, that it was always his intention to plead gui1tJ "because I already knew I was guilty[ ]" (PCRA Hearing Transcript, 6/19/15, N.T. 67) rejected this offer outright (PCRA Hearing, 6/19/15, N.T. 10-12, 15, 19), because h, believed that a sentence of no more than two (2) years' minimum was appropriate, give his lack of a significant criminal history. (PCRA Hearing Transcript, 6/19/15, N.T. 12, 15) The Commonwealth refused to offer less. (PCRA Hearing Transcript, 6/19/15, N.T. 25).

On the belief that he could achieve a result better than the offer

communicated by the Commonwealth, plea counsel advised Defendant to tender al open plea before the undersigned. (PCRA Hearing Transcript, 6/19/15, N.T. 16, 19). o 1 December 15, 2011 Defendant tendered an open guilty plea to the charges of Conspirad

to Commit Burglary (18 Pa. C.S.A. §§ 903, 3502)(Count l); Burglary (18 Pa. C.S.A. 3502(a})(Count II); Robbery-Serious Bodily Injury Inflicted (18 Pa. C.S.A 3701 (a)(1 )(i))(Count X); and Robbery-Serious Bodily Injury Threatened (18 Pa. C.S.A. • Plea Colloquy, 12/15/11, at 1-2). In exchange for his tender of the plea, th , Commonwealth, represented by then-ADA John H. Pavloff, Esquire, agreed to waive ail mandatories and sentencing enhancements so long as Defendant met with Count s:\admin\sarcione\Nixon Brandon 1'1 PCRA 192Sa.docx

Detectives and provided information about how these crimes occurred. (Verbal Guilt I

Plea Colloquy, 12/15/11, N.T. 21, 25; Written Guilty Plea Colloquy, 12/15/11, at 3).

After the plea was entered but before sentencing (PCRA Hearing Transcript, 6/19/15, N.T. 28-29), the Commonwealth, as represented by then-AD1 Pavloff, represented to plea counsel that it would not make a recommendation to thJ Court in excess of its pre-trial offer of six (6) to twelve (12) years in prison. (PCRA Hearing Transcript, 6/19/15, N.T. 29).

At some point subsequent to his plea, Defendant met with County Detectives but did not provide any further information about his crimes because, as hJ stated, he had been high on PCP at the time of the crimes and did not remembe anything about them. (PCRA Hearing Transcript, 6/19/15, N.T. 83; Post-Sentence Motion Hearing Transcript, 6/18/12, N.T. 20).3

At sentencing, dissatisfied with Defendant's proffer in his colloquy with the County Detectives (Post-Sentence Motion Hearing Transcript, 6/18/12, N.T. 31 33), the Commonwealth, then represented by Mr. Pavloff's supervisor, Deputy Distric Attorney Ronald C. Yen, Esquire, as Mr. Pavloff's employment with the Chester Count! District Attorney's Office had been terminated (PCRA Hearing Transcript, 2/11/16, N.T. 18), recommended to the Court that Defendant be given a sentence of eleven (11) years' to twenty-two (22) years confinement in a state penitentiary. (Sentencing TranscripJ

3 When this Court asked Defendant at the sentencing hearing whether he had been on drugs at the time of th crime, Defendant, contrary to his post-sentence motion hearing testimony and his PCRA hearing testimony, told thy Court, "I don't even know, your Honor. I don't recall anything." (3/22/12, N.T. 70). As we noted In our prior Rulf 192S(a) Opinion dated December 4, 2012, we find it curious that Defendant can re member nothing about the crime but does recollect quite clearly that he smoked a PCP-lacedcigarette with his co-defendant prior to the crimes.

---------~ ---------------s:\admin\sarcione\Nixon Brandon 1st PCRA 1925a.docx 3/22/12, N.T 73-74). The Commonwealth did not seek application of any mandatories ot sentencing enhancements. (Sentencing Transcript, 3/22/12, N.T. 7, 73-74).

On March 22, 2012, after the completion of a Pre-Sentence Report by the Office of Adult Probation and Parole, this Court sentenced Defendant to an aggregat term of nine (9) to twenty (20) years' confinement in a state correctional facility, a ver reasonable sentence, we consider, in light of the egregious facts of Defendant's crtrnlna conduct in this matter. (Sentencing Hearing Transcript, 3/22/12, N.T. 93). Following th denial of Defendant's post-sentence Motion to Modify and Reduce Sentence on August 17, 2012, Defendant filed a timely Notice of Appeal on September 13, 2012, challengin the length of his sentence as both excessive and allegedly disproportionate i comparison with other sentences for similar conduct in this county. This Honorabl reviewing Court affirmed Defendant's Judgment of Sentence on July 30, 2013 Defendant did not file a petition for alfocaturto the Pennsylvania Supreme Court.

Instead, on August 27, 2014, Defendant filed a timely first PCRA Petitio through privately retained counsel. Defendant's first PCRA Petition alleged that his plea counsel, Steve Jarmon, Jr., Esquire, was ineffective, essentially, for failing to persuad him to accept the Commonwealth's first very favorable plea offer and for counseHng th

Defendant to reject said offer. Defendant also accused the Commonwealth or prosecutorlal misconduct by "sandbagging" him with a recommendation for more timJ

than they had previously represented they would seek. He argued that th, Commonwealth's representation that it would seek only six (6) to twelve (12) years was an extrajudicial promise that unlawfully induced him to plead. Finally, Defendant claimed s:\admin\sarcione\Nixon Brandon 1s1 PCRA 1925a.docx that his direct appeal counsel, Lawrence Harrnelin, Esquire, was ineffective for failing to raise these issues on behalf of the Defendant.

On October 13, 2014 the Commonwealth filed an Answer to Defendant's first PCRA Petition. After reviewing the Defendant's Petition and the Commonwealth'J Answer, on October 23, 2014 we issued an Order directing Defendant to file within thirt1 (30) days an Amended PCRA Petition complying with certain pleading requirements of the Rules of Criminal Procedure governing PCRA Petitions and the PCRA Act, 42 Par

C.S.A. § 9541 et seq. At the defense's request, on November 25, 2014 we granted thl defense additional time to file the Amended PCRA Petition required by our October 231 2014 Order. On January 5, 2015 we, again at Defendant's request, granted him sixtf

(60) more days in which to file his Amended PCRA Petition. We also gave th Commonwealth an additional twenty (20) days beyond the Defendant's deadline in whic to file an Answer to the Amended Petition if it so chose.

On March 6, 2015 Defendant filed a "Supplement to Petition for Postf

Conviction Reliefl largely complying with our October 23, 2014 directive. Thi Commonwealth, after a successful request for additional time in which to respond, filed a

Supplemental Answer to PCRA Petition on April 20, 2015. After reviewing all of thi documents flied by both parties, on May 14, 2015 we issued an Order scheduling an evidentiary hearing on all of the issues raised in the Defendant's PCRA Petition, a j supplemented on March 6, 2015. s:\admin\sarcione\Nixon Brandon 151 PCRA1925a.docx

We held an evidentiary hearing on Defendant's PCRA Petition over th course of two (2) days, June 19, 2015 and February 11 . 2016. 4 On March 23, 2016 w,

issued an Order denying and dismissing Defendant's first PCRA Petition as I

supplemented on March 6, 2015. On April 15, 2016 Defendant, through present counse Assistant Chester County Public Defender Ellen B. Koopman, Esquire, filed a timell Notice of Appeal from our March 23, 2016 Order. By Order dated Aprll 18, 2016 we directed Defendant to file within twenty-one (21) days a Concise Statement of Erro1-J Complained of on Appeal. By Order dated May 10, 2016, this Court granted defens, counsel an extension of thirteen (13) days in which to file a Concise Statement in th, above-captioned matter. Defendant timely complied with our Order, filing his Concis Statement on May 23, 2016.

In his Concise Statement, Defendant raised the foltowing issue.

1. The Court erred by denying Appellant's Petition for Post- Conviction Collateral Relief where Appellant's trial counsel was ineffective for failing to sufficiently advise Appellant of the risks associated with an open guilty plea, rendering that plea involuntary and unknowing.

(Deft. 's Concise Statement, 5/23/16, at 1, para.1 ). Having reviewed the record in light o the relevant constitutional, decisional and statutory law, we are now prepared to mak the fotlowing recommendation concerning the merits of Defendant's appeal.

Our first argument concerning Defendant's appellate issue involves thl question of waiver. As we stated earlier, Defendant filed a PCRA Petition challenginJ counsel's stewardship on the basis that counsel allegedly did not sufficiently try t

4 Again, as we noted earlier, the great delay in completing these hearings was occasioned by PCRACounsel's significant ill health. (PCRA Hearing Transcript, 2/11/16, N.T. 3).

----····~······-· s:\ad min\sarcione\Nixon Brandon 1st PCRA 192Sa.docx persuade the Defendant to accept the Commonwealth's initial plea offer and that counsel! allegedly advised Defendant to reject the Commonwealth's offer. He also challenged th, Commonwealth's alleged prosecutorial misconduct, contending that the Commonwealth'j representation that it would only seek six (6) to twelve (12) years' imprisonmen\ constituted an extrajudicial promise which unlawfully induced him to plead guilty, an~ attacked the stewardship of direct appeal counsel for failing to raise any of the foregoinJ issues on Defendant's behalf in Defendant's direct appeal. Defendant did not at any tim, raise the issue that his counsel did not sufficiently advise him of the "risks" associate!. with pleading open before the Court. Because Defendant did not raise that issue in th trial court, that issue should be deemed waived for purposes of appeal. See Pa. R.A.P 302(a)("lssues not raised in the lower court are waived and cannot be raised for the firs

time on appeal."); Commonwealth v. Roney, 79 A.3d 595 (Pa. 2013), cett. deniedi, Roney v. Pennsylvania, 135 S.Ct. 56 (U.S. Pa. 2014)(Brady claim presented for first tirnJ

on appeal from denial of PCRA petition waived for failure to properly present it before th1

lower court): Commonwealth v. Santiago, 855 A.2d 682 (Pa. 2004), reargument denier. (October 29, 2004)(a claim not raised in a PCRA petition cannot be raised for the first

time on appeal).

In the event this Honorable reviewing Court may disagree, however, we wiljl provide the following analysis of the merits of Defendant's claim. When evaluating a

claim of ineffective assistance of counsel, the appellate court will presume that counsel i effective and places on the defendant the burden of proving otherwise. CommonweallJ'

v. Burkholder, 719 A.2d 346 (Pa. Super. 1998), appeal denied, 747 A.2d 364 (Pa. 1999)r See also Commonwealth v. Mason, 130 A.3d 601 (Pa. 2015)(counsel is presume s:\admin\sarcione\Nixon Brandon 111 PCRA 1925a.docx

effective); Commonwealth v. Burno, 94 A.3d 956 (Pa. 2014). cert. denied, Burno vj Pennsylvania, 135 S.Ct. 1493 (U.S. Pa. 2015)(defense counsel is presumed effectiv~ I I I and the burden of proving constitutional ineffectiveness rests on a defendant).

To prevail on a claim that counsel was constitutionally ineffective, a defendant must overcome the presumption of competence by showing that: (1) hi!

underlying claim is of arguable merit; (2) the particular course of conduct pursued by I counsel did not have some reasonable basis designed to effectuate his interests; and (3rI but for counsel's ineffectiveness, there is a reasonable probability that the outcome of ti] proceeding would have been different. Commonwealth v. Mason, 130 A.3d 601 (P~I 2015); Commonwealth v. Fears, 836 A.2d 52 (Pa. 2003). reargument denied (February

19, 2004), cert. denied, Fears v. Pennsylvania, 125 S.Ct. 2956 (U.S. Pa. 2005), denial 11 oosi-conviction relief aff'd, Commonwealth v. Fears, 86 A.3d 795 (Pa. 2014). I reasonable probability that the result of a proceeding would have been different, as

required to show prejudice, as an element of ineffective assistance of counsel, is ~ probability that is sufficient to undermine confidence in the outcome of the proceedingsl Commonwealth v. Burno, 94 A.3d 956 (Pa. 2014), cert. denied, Burno v. Pennsylvania! 135 S.Ct. 1493 (U.S. Pa. 2015).

Under the PCRA, the defendant must meet his burden by a preponderance of the evidence. 42 Pa. C.S.A. § 9543(a). The failure to meet any prong of the test fo ineffectiveness will require rejection of the claim. Commonwealth v. Mason, 130 A.31

601 (Pa. 2015); Commonwealth v. Burno, 94 A.3d 956 (Pa. 2014), cert. denied. Burno J. Pennsylvania, 94 A.3d 956 (Pa. 2014).

In the matter sub Judice, Defendant's underlying claim, namely, that his

s;\admin\sarcione\Nixon Brandon 1 't PCRA 1925a.docx l. counsel did not sufficient advise him of the risks associated with an open guilty plea, haj

no arguable merit. We are hard pressed to conceive of the nature of the "risks" to whic. ! Defendant alludes in his Concise Statement, other than to recognize that there is a risk i

pleading open that a judge may sentence a criminal defendant who pleads open i

excess of the amount of prison time recommended by either party. Such a risk is no

associated with a plea tendered pursuant to negotiated terms of sentence. However

Defendant's claim that he was not sufficiently advised of this risk is belied by the record.

For example, at the first PCRA hearing on June 19, 2015, plea counsel

stated, w1th regard to his advice concerning Defendant's option of tendering an ope

plea,

A I talked to Brandon about it, explained the best l could what that meant. I was clear that, you know, just because if we do an open guilty plea, there's risks. The judge could give him more. The judge could say regardless of what the DA ls asking for, he could give you more.

0. Are you saying you told him that?

A. Yes.

0. And you told him what?

A To the best of my recollection, I told him if you enter an open guilty plea, there's no guarantee as to what your sentence could be. The judge could give you more than the original plea offer. I believe I also told him that the DA could ask for more.

(PCRA Hearing Transcript, 6/19/15, N.T. 27-28). We credit counsel's testimony here.

When Defendant was asked at the PCRA hearing if he knew what an open

---·--·. s:\admin\sarcione\Nixon Brandon 151 PCRA 1925a.docx plea was, Defendant replied, "An open plea is when I tell the Court that I'm guilty and th judge is going to sentence me." (PCRA Hearing Transcript, 6/19/15, N.T. 68). Counse then asked, "And you don't have any idea what it's going to be." (PCRA Hearing 6/19/15, N.T. 68). Defendant replied, "No idea." (PCRA Hearing Transcript, 6/19/15

N.T. 68). 1 i On cross-examination by the Commonwealth, the following colloquy too1

place.

Q. So then Judge Sarcione asked, informed you that you could be sentenced up on eighty years. And you indicated that you understood that. Now are you saying you didn't understand that now when the judge said he could sentence you up to eighty years?

A. I understood that.

Q. So you understand that he wasn't bound by any numbers that had been thrown around previously?

A. Yes.

(PCRA Hearing Transcript, 6/19/15, N.T. 79).

During Defendant's guilty plea colloquy, Defendant was advised of the following by the Court:

THE COURT: Now, since these are open pleas, we are going to go over the maximums. It appears from looking at the guilty plea colloquy, each of these offenses, and there's four of them, are felonies of the first degree. Does everyone agree with that?

MR JARMON: Yes.

MR. PAVLOFF: Yes, your Honor. s:\admin\sarcione\Nixon Brandon 1st PCRA 1925a.docl<

THE COURT: The maximum pena!ty for each offense is a twenty-five thousand dollar fine and/or twenty years imprisonment. Do you understand that? [DEFENDANT}: Yes.

THE COURT: So if they were run consecutively, it would be eighty years imprisonment and a hundred thousand dollars in fines ....

THE COURT: And let's go over the guidelines. Conspiracy to commit burglary, offense gravity score, the guidelines, young man, the DA is looking that up. The guidelines, simply they are guide posts for Hie Court to consider in fashioning a sentence for you. I can deviate above them or below them, if I give reasons. But I must stay within the statutory maximum.

[DEFENDANT]: Yes, sir. (Verbal Guilty Plea Colloquy, 12/i 5/11, 17-19)(emphasis added). The Court then proceeded to recite the application Statewide Guidelines to the Defendant. (Verbal GuiltJ Plea Colloquy, 12/15/11, N.T. 19-21).

Finally, Defendant's written guilty plea colloquy, which Defendant executed immediately prior to tendering his open plea, advises the Defendant that "This is a~

OPEN PLEA OF GUil TY to the crime(s) set forth on the previous page(s). There is n1 plea bargain or other agreement relating to the plea to those crimes except as stated

below." (Written Guilty Plea Colloquy, 12/15/11, at 3). The tenns "stated below" includej only that the Commonwealth "will waive all applicable mandatories and sentencin~ enhancements if the defendant meets with county detectives and provides information oj how the robbery occurred." (Written Guilty Plea Colloquy, 12/15/11, at 3). There are n! terms stated, other than the mandatories stated on the first page of the colloquy concerning any limits to the length of sentencing that the Commonwealth will eithe

---······--·

Ij s:\admin\sarcione\Nixon Brandon 1st PCRA 1925a.docx

recommend or that the Court will be able to impose. (Written Guilty Plea Colloquy

12/15/11, at 1, 3).

In light of all of the foregoing examples of the advice given to Defendant

concerning the ramifications of his tender of an open plea to the aforementioned charges

we find that Defendant was adequately apprised by both plea counsel and the Court o

the Court's sentencing discretion and ability to impose a term in excess of tha

recommended by the Commonwealth. Defendant's claim to the contrary has n]

substantive merit.5

Because Defendant's underlying substantive claim has no arguable merit,

Defendant's claim of ineffective assistance of counsel necessarily fails. Commonwea/11

v. Burno, 94 A.3d 956 (Pa. 2014), cert. denied, Burno v. Pennsylvania, 135 S.Ct. 149 1 (U.S. Pa. 2015)(a defendant's failure to meet the "arguable merit" prong of the test fol ineffective assistance of counsel will defeat the claim). See a/so Commonwealth v

5 Further, given that Defendant outright rejected the cornrnonweattrr's plea offer of six (6) to twelve {12) vears, or his own accord, and the Commonwealth was not willing to offer less time, counsel's advice to Defendant to tender an open plea to the charges of Conspiracy to Commit Burglary, Burglary, and two (2) counts of Robbery was a reasonable one designed to effectuate the Defendant's interests. Certainly, Defendant could have insisted upon , trial, but in that event it is likely he would have been tried on al! of the charges set forth in the Information, includini. Crtrnl nal Attempt to Commit Murder of the First Degree, bearing a maximum term of imprisonment of twenty (20) t forty (40) years in its own right, two (2) counts of Aggravated Assault, and numerous other offenses, not merely th four (4) charges to which he actually tendered his plea. Given the strength of the Commonwealth's case as well a Defendant's longstanding intention to plead because he "already knew I was guilty" (PCRA Hearing Transcripti 6/19/15, N.T. 67). pleading open was realty the only option by which he could attempt to reduce his exposure in thi1 matter and secure for himself what is in reality a very reasonable sentence given the severity of the crimej committed. Counsel's advice to plead open, to the extent it is at issue here, had a reasonable basis designed t · effectuate the Defendant's interests and was within the range of competence demanded of attorneys in crimina cases. See Commonwealth v. Fowler, 893 A.2d 758 (Pa. Super. 2006)(where the defendant enters a plea on th advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases). Accordingly, because Defendant cannot meet the reasonable basis prong of the test for ineffective assistance of counsel, plea counsel cannot be deemed ineffective fo~ counseling Defendant to enter an open plea.

s:\admin\sarcione\Nixon Brandon 1'1 PCRA 1925a.docx

Mason, 130 A.3d 601 (Pa. 2015){the failure to establish any prong of the test fo

ineffective assistance of counsel defeats the claim).

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 defendant to enter a1

involuntary or unknowing plea. Commonwealth v. Fears, 836 A.2d 52 (Pa. 2003)

I reargument denied (February 19, 2004), cert. denied, Fears v. Pennsylvania, 125 S.Ct

' 2956 (U.S. Pa. 2005), denial of post-conviction relief aff'd, Commonwealth v. Fears, 81 I A.3d 795 (Pa. 20'14). The record demonstrates that Defendant's plea was knowingt

voluntary and intelligent in all respects. Consequently, Defendant is not entitled to relief

from this Honorable reviewing Court. See Commonwealth v. Fowler, 893 A.2d 758 (Paj

Super. 2006)(defendant's guilty plea to third degree murder was not rendered invo!untar

and unknowing by plea counsel's belief that defendant would receive a less sever1

sentence than that imposed by the trial court; counsel testified that she never guaranteed

defendant any specific result, and record was clear that defendant knew he risked ~

twenty (20) to forty (40) year term of imprisonment and that no sentence was promised td>

him). See also Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012), appe,I denied, 63 A.3d 773 (Pa. 2013)(quoting Commonwealth v. Moser, 921 A.2d 526, 528-2f

(Pa. Super. 2007){"The law does not require that an appellant be pleased with the results I of the decision to enter a guilty plea; rather '[aJII that is required is that [appellant's

decision to plead guilty be knowingly, voluntarily and intelligently made.'").

In PCRA proceedings, an appellate court's scope of review is limited by the

PCRA's parameters; since most PCRA appeals involve mixed questions of law and fac,

the standard of review is whether the PCRA court's findings are supported by the recor ! s:\admin\sarcione\Nixon Brandon i" PCRA 1925a.docx and free of legal error. Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009), subsequenr habeas corpus proceeding denied, Pitts v. Kerestes. 2013 WL 4 718950 (E. D. Pa. 2013)I The Pennsylvania Superior Court reviews an Order dismissing a PCRA petition in th,

I light most favorable to the prevailing party at the PCRA level. Commonwealth v. Ford, 41 A.3d 1190 (Pa. Super. 2012). The Superior Court's review of an Order dismissing a

PCRA petition is limited to the findings of the PCRA court and the evidence of record

Commonwealth v. Oliver, 128 A.3d 1275 (Pa. Super. 2015); Commonwealth v. Ford, 41 A.3d 1190 (Pa. Super. 2012). The Superior Court will not disturb a PCRA court's Orde\

' dismissing a PCRA petition if the Order is supported by the evidence of record and is Ire, of legal error. Commonwealth v. Oliver, 128 A.3d 1275 (Pa. Super. 2015)] Commonwealth v. Ford, 44 A.3d 1190 (Pa. Super. 2012). The Superior Court will grant great deference lo the factual findings of the PCRA court and will not disturb thost findings unless they have no support in the record; however, the Superior Court affords no such deference to a PCRA court's legal conclusions. Commonwealth v. Oliver, 12J A.3d 1275 (Pa. Super. 2015); Commonwealth v. Ford, 44 A.3d 1190 (Pa. Super. 2012)]

A PCRA court's credibility determinations, when supported by the record, are binding 01 the appellate court. Commonwealth v. Robinson, 82 A.3d 998 (Pa. 2013). Where J PCRA petitioner raises questions of law. however, the Superior Court's standard of

review is de novo and its scope of review is plenary. Commonwealth v. Oliver. 128 A.31

1275 (Pa. Super. 2015); Commonwealth v. Ford, 44 A.3d 1190 (Pa. Super. 2012). Thl Superior Court may affirm a PCRA court's dismissal of a PCRA petition on any grounds i.

the record supports it. Commonwealth v. Oliver, 128 A.3d 1275 (Pa. Super. 2015).

~ 15 ~ s:\aclmin\sarcione\Nixon Brandon 1'' PCRA 1925a.docx

We would respectfully submit that our analysis of the issues raised t Defendant's third PCRA Petition survives the standards applicable to appellate review Our factual findings are supported by the record and our legal conclusions free of error Accordingly, we would respectfully submit that Defendant's appeal from our denial of hij first counseled PCRA Petition has no merit. We would respectfully recommend that thij Honorable reviewing Court deny and dismiss Defendant's appeal and affirm our Maren 23, 2016 Order dismissing his Petition.

BY THE COURT:

J/J ·c-·,, (/ o . __ (flv' (1, _ /,: ,X o .l-( e r-,;-L / Anthomy A.,)3arc1one, J. f I ',