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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA
IN THE SUPERIOR COURT OF
PENNSYLVANIA
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Appellant
v.
MEMORANDUM BY SULLIVAN, J.:
FILED MARCH 17, 2023
The Commonwealth appeals from the order granting the Post-Conviction
Relief Act1 (“PCRA”) petition of Lekirr Brown (“Brown”). We reverse.
The PCRA court provided the factual and procedural history, which we
set forth in relevant part as follows:
Appeal from the PCRA Order Entered January 10, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002118-2012
EFORE: KING, J., SULLIVAN, J., and STEVENS, P.J.E.*
B
EKIRR BROWN
No. 265 EDA 2022
[In the early hours of the morning in November 2011, Brown
shot his victim Zandar Cotton in the stomach outside of a bar.
See generally Commonwealth v. Brown, 258 A.3d 539 (Pa.
Super. 2021) (unpublished memorandum at *1).] [I]n July []
2012, [following] a bench trial, [Brown] was found guilty of the
following charges: attempted murder, aggravated assault,
possession of a firearm prohibited . . ., carrying firearms in public
in Philadelphia . . ., and possession of an instrument of crime . . ..
[Brown] was found not guilty of firearms not to be carried without
a license . . .. [I]n December [] 2012, the [trial court] . . . imposed
. . . [an] aggregate sentence [of] ten to twenty years [of
incarceration].
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* Former Justice specially assigned to the Superior Court.
See 42 Pa.C.S.A. §§ 9541–9546.
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[I]n February [] 2013, [Brown] filed his first PCRA petition
and then an amended PCRA petition [i]n March [] 2013, wherein
he claimed that his trial counsel was ineffective because he did
not timely petition the [trial c]ourt to appoint counsel for appeal.
[Following reinstatement of Brown’s direct appeal rights nunc pro
tunc,] the Superior Court affirmed [Brown’s] judgment of
sentence [i]n June [] 2014. [Brown] filed a [p]etition for
[a]llowance of [a]ppeal to the Supreme Court of Pennsylvania [i]n
June[] 2014[,] and his petition was denied on October 7, 2014.
[Brown timely filed his second PCRA petition.] . . .[O]n
March 2, 2018, th[e PCRA c]ourt issued an order denying . . .
post[-]conviction relief.
[Brown appealed to the Superior Court[,] which dismissed
the appeal in April 2019, based on substantial defects in Brown’s
brief.] [Brown] filed his [third petition seeking reinstatement of
his right to appeal nunc pro tunc the dismissal of his second
petition. By agreement of the parties,] . . . [t]he PCRA Court . . .
reinstated [Brown’s] right to file an appeal of the dismissal of his
second PCRA petition[] nunc pro tunc.
I]n June [] 2020, [Brown] filed a [n]otice of [a]ppeal of the
dismissal of his [second] PCRA petition.
On June 21, 2021, the Superior Court vacated the PCRA
[c]ourt’s March 2, 2018 order in part, affirmed it in part, and
remanded for an evidentiary hearing . . . on the newly raised issue
of whether [Brown’s] trial counsel failed to notify [him] of a plea
deal offered by the prosecution. The Superior Court found that
[Brown’s] first two claims of ineffective assistance of counsel had
no merit. . .. [See Brown, 258 A.3d 539.]
In his PCRA [p]etition, [Brown] argued that trial counsel . . .
was ineffective for failing to notify [him] of a plea deal offered by
* * * *
* * * *
* * * *
* * * *
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the prosecution. A docket entry dated April 2, 2012, states
“Commonwealth’s Offer Rejected.” At a[ PCRA] evidentiary
hearing, held on November[] 2, 2021, [Brown] contended that he
was never informed of any offer:
PCRA Counsel:
Were you ever presented by [trial
counsel] with any guilty plea offer?
Brown]:
No, I was never informed by him.
CRA Counsel:
Did you ever ask him for a guilty plea
offer?
Brown]:
Yes, I did.
CRA Counsel:
And what did [trial counsel] state to
you?
Brown]:
He said it was—it wasn’t—nothing was
offered. He’s going to handle it.
* * * *
Commonwealth]: So you agree that you reached a deal in
the drug case, but you did not have any
deal conveyed to you on the—on the
attempted murder case, is that your
testimony today?
Brown]:
Yes, that’s my testimony. He said there
wasn’t any offers.
The PCRA Court concluded, and both counsel for [Brown] as
well as for the Commonwealth agreed, that the transcripts from
April 2, 2012 were inconclusive with regard[] to the details of a
plea deal:
[PCRA Court]:
We also don’t have any sort of record
from the plea date or what would have
been the plea date as to what the offer
was extended, if that offer was in fact
conveyed to . . . Brown, and if it was
.T.[,] 11/2/11[,] at 12-13, 15.
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rejected. We just have, as I understand
it from the written transcripts, the crier
in the room essentially saying offer was
rejected, and giving it a trial date. Is
that accurate, [c]ounsel?
CRA Counsel:
Yes, Your Honor.
Commonwealth]: That is accurate, Your Honor. Although
. . . there is some evidence on the
[Brown] was
that
written
record
present.
And then there’s some
questions that I will be asking [Brown].
P
[
d. at 6-7.
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The Commonwealth represent[ed] that it looked extensively
through its files and has no record of the specifics of the offer
made to [Brown’s] trial counsel. The Commonwealth indicate[ed]
that it has “no doubt” an offer was extended because of the
markings on its case file and the notation on [Brown’s] criminal
docket from April 2, 2012. The Commonwealth contacted
associates of [trial counsel] and the widow of . . . [Brown’s] initial
PCRA [c]ounsel, for the purpose of locating [Brown’s] trial records.
These attempts were unsuccessful. Both [trial counsel] and
[initial PCRA counsel] are deceased. [See id.] at 34-38.
* * * *
T]he PCRA Court, [by] order dated January 10, 2022,
granted the PCRA petition, but did not vacate [Brown’s] sentence
at that time. The PCRA Court determined that trial counsel was
ineffective but held the issue of a remedy under advisement. On
January 18, 2022, the Commonwealth filed a notice of appeal to
th[is] . . . Court. On January 24, 2022, the PCRA Court ordered
[the Commonwealth] to file a [c]oncise [s]tatement of [e]rrors
[c]omplained of on [a]ppeal, pursuant to Pa.R.A.P. 1925(b). The
Commonwealth complied and filed its statement of errors on
February 2, 2022. . ..
[
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PCRA Court Opinion, 3/24/22, at 1-6, 8-9 (unnecessarily capitalization and
some internal citations to the record omitted; paragraphs re-ordered for
clarity; bullet points added).
The Commonwealth raises the following issue for our review:
Did the lower court err in granting PCRA relief based on
counsel’s purported failure to convey a plea offer, where
[Brown] never proved what the offer was and thus failed to
demonstrate that he was prejudiced, i.e., that the offer was for
a sentence that was less than the relatively lenient one [he]
actually received?
ommonwealth’s Brief at 4.
The standard of review for an order granting a PCRA petition is well-
When reviewing an order granting PCRA relief, we must
determine whether the decision of the PCRA court is supported by
the evidence of record and is free of legal error. Moreover, we will
not disturb the findings of the PCRA court unless those findings
have no support in the certified record.
ommonwealth v. Rivera, 154 A.3d 370, 377 (Pa. Super. 2017) (internal
citations and quotations omitted). This Court analyzes PCRA appeals “in the
light most
favorable to the prevailing party at the PCRA
level.”
Commonwealth v. Steckley, 128 A.3d 826, 831 (Pa. Super. 2015) (internal
citation and quotations omitted).
In its sole appellate issue, the Commonwealth argues the trial court
erred in concluding that Brown had established prejudice based on trial
counsel’s ineffective assistance in the form of an alleged failure to convey to
Brown a plea offer. See Commonwealth’s Brief at 17. Generally speaking,
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settled:
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PCRA claims are not merely direct appeal claims that are made at
a later stage of the proceedings, cloaked in a boilerplate assertion
of counsel’s ineffectiveness. In essence, they are extraordinary
assertions that the system broke down. To establish claims of
constitutional error or ineffectiveness of counsel, the petitioner
must plead and prove by a preponderance of evidence that the
system failed (i.e., for an ineffectiveness or constitutional error
claim, that in the circumstances of his case, including the facts
established at trial, guilt or innocence could not have been
adjudicated reliably), that his claim has not been previously
litigated or waived, and where a claim was not raised at an earlier
stage of the proceedings, that counsel could not have had a
rational strategic or tactical reason for failing to litigate these
claims earlier.
Commonwealth v. Chazin, 873 A.2d 732, 734 (Pa. Super. 2005). For
ineffective assistance of counsel claims, a petitioner must plead and prove:
(1) his underlying claim is of arguable merit; (2) counsel lacked any
reasonable basis for the act or omission alleged; and (3) that the petitioner
was prejudiced as a result, that is, there is a reasonable probability that, but
for the act or omission challenged, the outcome of the proceeding would have
been different. See id. at 735. Furthermore, “[o]rdinarily, a claim of
ineffectiveness may be denied by a showing that the petitioner’s evidence fails
to meet a single one of these prongs.” Id. (internal citation and quotations
omitted).
More specifically, when a petitioner alleges ineffective assistance of
counsel for failure to convey a plea offer, the petitioner must satisfy a four-
part test: (1) an offer for a plea was made; (2) trial counsel failed to inform
him of such offer; (3) trial counsel had no reasonable basis for failing to inform
him of the plea offer; and (4) he was prejudiced thereby. See id. A showing
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of prejudice requires some evidence that “the result of the plea bargain
process would have been different had he been able to accept
the Commonwealth’s . . . offer.” Id. at 737.2
The Commonwealth argues the PCRA court erred in granting Brown’s
petition for relief based on his attorney’s failure to convey a plea offer because
Brown failed to establish prejudice. The Commonwealth concedes that an
offer was made, but maintains “there is no record of what that offer was and
[Brown] has not proffered such evidence.” Commonwealth’s Brief at 17. The
Commonwealth argues that, given Brown’s sentence was already at the low
end of the standard range—and much less than the twenty-five-year minimum
which the Commonwealth had sought at the sentencing hearing—it was
unlikely that its plea offer had been lower than the actual sentence Brown
received following his conviction at trial. See id.
Notably, Brown also concedes that there is no evidence as to what the
extended offer had been; however, he argues it was “likely that the plea offer
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2 Steckley similarly provides that a PCRA petitioner must show that,
[b]ut for the ineffective advice of counsel[,] there is a reasonable
probability that the plea offer would have been presented to the
court (i.e., that the defendant would have accepted the plea and
the prosecution would not have withdrawn it in light of intervening
circumstances), that the court would have accepted its terms, and
that the conviction or sentence, or both, under the offer’s terms
would have been less severe than under the judgment and
sentence that in fact were imposed.
128 A.3d at 832 (citing Lafler v. Cooper, 566 U.S. 156, 164 (2012)).
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would have been less than the [ten-to-twenty-year] sentence he was given.”
Brown’s Brief at 14.3 Accordingly, he maintains the PCRA court properly found
trial counsel was ineffective, and that the PCRA court was empowered to
fashion a remedy, even though the terms of the plea offer are unknown.
The PCRA court ultimately granted Brown’s PCRA petition by order of
January 10, 2022. See Order, 1/10/22. However, the court has since
reconsidered its conclusion: “Contrary to this [c]ourt’s initial determination,
[Brown’s] claim that trial counsel was ineffective cannot prevail.” PCRA Court
Opinion, 3/24/22, at 1. The PCRA court explained:
Initially, th[e PCRA c]ourt determined that [Brown’s] trial
counsel was ineffective, however, after careful review of the
record, [Brown] cannot prevail on a claim of ineffective assistance
of counsel because he cannot show that he was prejudiced by
[trial counsel’s] failure to communicate a plea deal. The notes of
testimony[,] from the date when [Brown’s] docket stated that the
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3 Brown cites a New Hampshire case for the proposition that the trial court
has discretion to fashion an appropriate remedy when it finds a defendant
received ineffective assistance of counsel during plea negotiations. See
Brown’s Brief at 15 (citing State v. Fitzgerald, 243 A.3d 1206 (N.H. 2020)).
Notably, in Fitzgerald, the terms of the State’s plea offer were known, so
that case is distinguishable. That case also involved a sentencing
enhancement that counsel failed to adequately discuss with his client during
plea negotiations. See, e.g., id. at 1217. Brown also cites Commonwealth
v. Bradshaw, 249 A.3d 1148 (Pa. Super. 2021) (unpublished memorandum);
however, in that case, this Court merely reversed and remanded for
supplemental evidentiary hearings concerning allegations of trial counsel’s
ineffectiveness for failure to convey a plea offer. Contra Brown’s Brief at 16.
Brown also cites Commonwealth v. Kruge, 249 A.3d 1164 (Pa. Super. 2021)
(unpublished memorandum), but that case involved a known plea offer, and
the parties agreed that counsel failed to inform his client during plea
negotiations about a mandatory minimum that would be triggered on
conviction at the conclusion of the trial. Contra Brown’s Brief at 16. All cases
offered by Brown are distinguishable and non-precedential in this court.
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plea offer was rejected[,] are inconclusive as to the specifics of
the plea deal. The District Attorney’s Office has no record of the
details of the plea offer that was conveyed to [trial counsel]. Both
[Brown’s] trial counsel and his initial PCRA counsel are deceased,
and their records cannot be located. [Brown] himself testified that
he was never told that a plea deal existed. To say that
[Brown’s] sentence would have been less severe if [trial
counsel] had communicated the plea deal would be purely
speculative and not based
Because of
this . . .[, Brown] cannot show that he was prejudiced and cannot
succeed on an ineffective assistance of counsel claim.
fact.
in
PCRA Court Opinion, 3/24/22, at 9 (emphasis added).
Following our review, we conclude that the PCRA court’s grant of relief
was premised on speculation unsupported by evidence of record. At the PCRA
stage of litigation, it is the petitioner’s burden to plead and prove his case.
See, e.g., Chazin, 873 A.2d at 734. Thus, it was Brown’s burden to prove
that a plea offer existed, the terms of which were more favorable than the
sentence actually received, and that, there is a reasonable probability that,
had he been presented with that offer, he would have accepted it. See id. at
735; see also Steckley, 128 A.3d at 832. Brown failed to carry his burden
of proving that an offer existed that was more favorable than the sentence he
received, because he could not establish the terms of the offer. Further, to
conclude Brown would have accepted the offer would require speculation
about the terms of the offer, given there is no basis in the record to support
this conclusion. Accordingly, we reverse the PCRA court’s order granting PCRA
relief.
Order reversed.
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oseph D. Seletyn, Esq.
Prothonotary
ate: 3/17/2023
J
D
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Judgment Entered.
