J-S17030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    ROBERT BRUNDAGE, JR.                       :
                                               :   No. 3549 EDA 2017
                       Appellant               :

               Appeal from the PCRA Order September 28, 2017
      In the Court of Common Pleas of Wayne County Criminal Division at
                        No(s): CP-64-CR-0000033-2014


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

MEMORANDUM BY LAZARUS, J.:                                 FILED JUNE 26, 2018

        Robert Brundage, Jr., appeals from the order, entered in the Court of

Common Pleas of Wayne County, denying his petition filed pursuant to the

Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. After careful review,

we reverse and remand for reinstatement of Brown’s direct appellate rights.

        On May 7, 2015, Brundage entered an open guilty plea to one count of

criminal attempt - criminal homicide.1 On August 20, 2015, the trial court

sentenced Brundage to eight to twenty years’ incarceration. Brundage filed a

motion for reconsideration of sentence, which the trial court denied on August

31, 2015. Brundage did not directly appeal his judgment of sentence.

        On or about August 4, 2016, Brundage timely filed a pro se PCRA

petition. Brundage retained private counsel, Brett J. Riegel, Esquire, and filed
____________________________________________


1   18 Pa.C.S.A. § 901(a), 18 Pa.C.S.A. § 2501.
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an amended PCRA petition on or about February 2, 2017. On September 28,

2017, following an evidentiary hearing, the trial court denied Brundage’s PCRA

petition. Brundage timely appealed. Both Brundage and the PCRA court have

complied with Pa.R.A.P. 1925.     On appeal, Brundage raises the following

issues for our review:

      1. Was the trial court’s [determination] that defense counsel was
      effective an error, when defense counsel failed to have an
      evaluation of [Brundage’s] sobriety performed, even though
      [Brundage’s] sobriety was the most important factor in defense
      counsel’s theory of the case?

      2. Was the trial court’s determination that defense counsel was
      effective an error, when defense counsel failed to notify
      [Brundage] of his right to counsel, appointed counsel, and waiver
      of appellate rights so that [Brundage] could seek timely review?

Brief of Appellant, at 4.

      In Brundage’s two issues on appeal, he avers trial counsel, Corey J.

Kolcharno, Esquire, rendered ineffective assistance of counsel. Our standard

of review regarding an order dismissing a petition under the PCRA is as

follows:

      This Court analyzes PCRA appeals in the light most favorable to
      the prevailing party at the PCRA level. Our review is limited to
      the findings of the PCRA court and the evidence of record and we
      do not disturb a PCRA court’s ruling if it is supported by evidence
      of record and is free of legal error. Similarly, we grant great
      deference to the factual findings of the PCRA court and will not
      disturb those findings unless they have no support in the record.
      However, we afford no such deference to its legal conclusions.
      Where the petitioner raises questions of law, our standard of
      review is de novo and our scope of review is plenary. Finally, we
      may affirm a PCRA court’s decision on any grounds if the record
      supports it.


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Commonwealth v. Benner, 147 A.3d 915, 920 (Pa. Super. 2016), quoting

Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015).

      Our standard of review for claims of ineffective assistance of counsel is

well settled:

      [C]ounsel is presumed effective, and to rebut that presumption,
      the PCRA petitioner must demonstrate that counsel’s performance
      was deficient and that such deficiency prejudiced him. To prevail
      on an ineffectiveness claim, the petitioner has the burden to prove
      that[:] (1) the underlying substantive claim has arguable merit;
      (2) counsel whose effectiveness is being challenged did not have
      a reasonable basis for his or her actions or failure to act; and (3)
      the petitioner suffered prejudice as a result of counsel’s deficient
      performance. The failure to satisfy any one of the prongs will
      cause the entire claim to fail.

Benner, 147 A.3d at 920 (citations and quotations omitted).

      First, Brundage claims Attorney Kolcharno’s decision not to “have an

evaluation of his sobriety performed” prejudiced his trial defense.     Brief of

Appellant, at 4.

      As a general rule, matters of trial strategy are left to the
      determination of counsel, and a defendant is not entitled to
      appellate relief simply because a chosen strategy is unsuccessful.
      Strategic choices made after thorough investigation of law and
      facts relevant to plausible options are virtually unchallengeable[.]
      . . . The decision not to present a particular defense is a
      tactical one and will not be deemed ineffective stewardship
      if there is a reasonable basis for that position.

Commonwealth v. Buksa, 655 A.2d 576, 582 (Pa. Super. 1995) (emphasis

added).




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     Here, Brundage avers Attorney Kolcharno’s failure to evaluate his

sobriety precluded him from raising a voluntary intoxication defense.

Brundage’s claim warrants no relief.

     Neither voluntary intoxication nor voluntary drugged condition is
     a defense to a criminal charge, nor may evidence of such
     conditions be introduced to negative the element of intent of the
     offense, except that evidence of such intoxication or drugged
     condition of the defendant may be offered by the defendant
     whenever it is relevant to reduce murder from a higher degree to
     a lower degree of murder.

18 Pa.C.S.A. 308. Stated otherwise, voluntary intoxication is not a defense

to criminal attempt – criminal homicide. Commonwealth v. Williams, 730

A.2d 507, 511 (Pa. Super. 1999). Thus, Attorney Kolcharno had a reasonable

basis for not evaluating Brundage’s sobriety and/or raising the defense of

voluntary intoxication. Benner, supra; Buksa, supra.

     Brundage also argues that evidence of his insobriety may have mitigated

his plea agreement.    Regarding this issue, Attorney Kolcharno stated as

follows at Brundage’s PCRA hearing:

     COMMONWEALTH: Now, [Brundage’s] [c]ounsel has asked you
     whether or not you sought various evaluations; why didn’t you do
     so?

     ATTORNEY KOLCHARNO: I didn’t feel, as I indicated before,
     based on my conversation with the District Attorney, that
     evaluations,   although  may    provide   mitigation   at
     sentencing [sic], were not going to change [the District
     Attorney’s] mind about the plea offer she was going to
     ultimately extend to us.

     Q: And do you remember raising certain items as mitigation at
     sentencing?


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       A: Yes, in fact I authored a sentencing memorandum[,] which I
       filed with the court.[2]

       Q: And to your recollection, did the Court in fact say that
       [it] had considered [Brundage’s] work on his alcoholism
       with counselors as a positive factor at sentencing?

       A: Absolutely.

N.T. PCRA Hearing, 4/27/17, at 24-25 (emphasis added).

       Attorney Kolcharno, considering several factors, did not determine that

submitting a sobriety evaluation at sentencing was a pragmatic strategy that

would further Brundage’s interests.            Buska, supra.   Moreover, the record

belies Brundage’s claim that Attorney Kolcharno’s strategy prejudiced him at

sentencing. In fact, the sentencing court, according to Attorney Kolcharno,

considered his alcoholism treatment as a mitigating factor.             N.T. PCRA

Hearing, 4/27/17, at 25.

       Next, Brundage claims that Attorney Kolcharno was ineffective for failing

to appeal the denial of his motion for reconsideration of sentence.

       Where there is unjustified failure to file a requested direct appeal,

conduct of trial counsel constitutes “prejudice” for purposes of the PCRA.

Commonwealth v. Lantzy, 736 A.2d 564, 570 (Pa. 1999). However, trial

counsel is not ineffective for failing to file a direct appeal where nothing in the

record shows that defendant requested counsel to file an appeal on his behalf.

Commonwealth v. Spencer, 892 A.2d 840, 841 (Pa. Super. 2006). In this

regard, “the better practice is for counsel to routinely consult with the

____________________________________________


2   Brundage Sentencing Memorandum, 8/19/2015.

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defendant regarding the possibility of an appeal.”     Roe v. Flores-Ortega,

528 U.S. 470, 479 (2000). However, the Supreme Court of the United States

has rejected “a bright-line rule that counsel must always consult with the

defendant regarding appeal.”       Id. at 480.      The Flores-Ortega Court

established a test for determining when counsel performed deficiently by not

filing an appeal:

      In those cases where the defendant neither instructs counsel to
      file an appeal nor asks that an appeal not be taken, we believe
      the question [of] whether counsel has performed deficiently by
      not filing a notice of appeal is best answered by first asking a
      separate, but antecedent, question: [W]hether counsel in fact
      consulted with the defendant about an appeal. We employ the
      term “consult” to convey a specific meaning – advising the
      defendant about the advantages and disadvantages of taking an
      appeal, and making a reasonable effort to discover the
      defendant’s wishes. If counsel has consulted with the defendant,
      the question of deficient performance is easily answered: Counsel
      performs in a professionally unreasonable manner only by failing
      to follow the defendant’s express instructions with respect to an
      appeal.

Id. at 478.    Accordingly, we “must first assess whether consultation has

occurred; if so, deficient performance is established only if counsel failed to

file a requested notice of appeal.” Commonwealth v. Green, 168 A.3d 173,

176 (Pa. Super. 2017). Counsel must “make ‘a reasonable effort to discover

the defendant’s wishes.’” Id. at 177, quoting Flores-Ortega, supra at 478.

Furthermore, “the consultation must, at a minimum, encompass advice

regarding an actual appeal.” Id.

      In Green, appellant, filed a PCRA petition seeking reinstatement of his

appellate rights nunc pro tunc, arguing that trial counsel failed to discuss with


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him a non-frivolous ground for appeal.       There, counsel filed a motion to

suppress evidence, which the trial court denied, thus preserving appellant’s

issue.     Counsel did not recall discussing an appeal with appellant, but,

preliminarily, counsel persuaded appellant not to plead guilty to preserve

substantive appellate rights.    The PCRA Court determined that where the

appellant was aware that his issue, a suppression claim, was preserved, and

counsel informed appellant of his appellate rights, counsel sufficiently

consulted with appellant. The PCRA court also concluded that appellant had

failed to establish that a rational defendant would wish to appeal what it

viewed as a meritless suppression claim. The Green Court disagreed, finding

that where “counsel unequivocally denied discussing an appeal yet specifically

litigated appellant’s matter in a way to preserve a particular issue for appeal,”

Green, 168 A.3d at 177, counsel’s consultation fell short of Flores-Ortega’s

demand.

         Here, Attorney Kolcharno, at the time Brundage retained him as trial

counsel, repeatedly “made it clear . . . [he] would not be handling the appeal,

and [he] was not retained for the appeal, and at no point was [he] going to

do the appeal.” N.T. PCRA Hearing, 4/27/17, at 6. However, at some point,

Attorney Kolcharno counseled Brundage to enter an open plea and

subsequently filed a motion for reconsideration of sentence. Although the trial

court denied Brundage’s motion, Attorney Kolcharno litigated his plea in a

manner that preserved a substantial issue for appellate review, i.e., a

challenge to the discretionary aspects of his sentence.         Following trial,

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Attorney Kolcharno did not file a motion for leave to withdraw and continued

to communicate with Brundage and his family members. Specifically, Attorney

Kolcharno sent Brundage a letter dated September 3, 2015, which he read

into the record in its entirety at Brundage’s PCRA hearing:

       Please find enclosed an [o]rder dated August 31, 2015, signed by
       Judge Hamill denying our Petition for Reconsideration[,] which I
       previously filed on August 28, 2015. Please be advised that you
       have thirty days to file a direct appeal to [the] Pennsylvania
       Superior Court if you wish. This concludes my representation of
       your case for which I was originally retained. I wish you well in
       the future and if you have any additional question, please do
       not hesitate to contact my office or write to me directly.

Id. at 27 (emphasis added). Additionally, Brundage recalled the following

conversation with his sister:

       My sister contacted me in Graterford Prison. It was probably in
       the first week of October and she said we[ have] got to do an
       appeal.[3] And I said I don’t know nothing about an appeal. And
       she said I[ am] going to talk to [Attorney Kolcharno] and try to
       do something. And then she got back to me and said that he
       doesn’t do appeals. I said, well, tell him thank you, that I
       appreciate all he’s done for me so far and that I didn’t know what
       to do on that end because I thought I had ninety days and here I
       found out from a lot of inmates that it was thirty days. So I kind
       of figured that my time was up.

N.T. PCRA Hearing, 4/27/17, at 36 (emphasis added).

       Here, it is clear that Attorney Kolcharno litigated Brundage’s matter in

a way to preserve a substantive issue for direct appeal. Brundage entered an

open guilty plea and Attorney Kolcharno preserved a potential discretionary


____________________________________________


3Brundage’s right to appeal tolled on September 30, 2015. See Pa.R.A.P.
903(a).

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aspects of sentence claim by filling a motion for reconsideration of sentence.

Commonwealth v. Johnson, 758 A.2d 1214, 1216 (Pa. Super. 2000)

(defendant who pled guilty may challenge discretionary aspects of his

sentence as long as defendant did not agree to negotiated sentence as part of

plea agreement). However, Attorney Kolcharno concedes that he explicitly

advised Brundage that he was not, under any circumstances, going to handle

Brundage’s appeal.     The record supports that, following trial, Attorney

Kolcharno reiterated his refusal to handle Brundage’s appeal to Brundage’s

family. Furthermore, the September 3, 2015 letter does not expound upon

the advantages or disadvantages of an appeal, as Flores-Ortega demands –

it merely states Brundage had thirty days to file an appeal. In light of Attorney

Kolcharno’s failure to give Brundage any substantive advice regarding an

appeal, coupled with his repeated comments indicating he would not handle

Brundage’s appeal, we find Attorney Kolcharno’s consultation was deficient.

      Having concluded that counsel’s consultation was inadequate, we now

address whether counsel actually had a duty to consult.

      [C]ounsel has a constitutional duty to consult with a defendant
      about an appeal where counsel has reason to believe (1) that a
      rational defendant would want to appeal (for example, because
      there are non-frivolous grounds for appeal), or (2) that this
      particular defendant reasonably demonstrated to counsel that he
      was interested in appealing.

Commonwealth v. McDermitt, 66 A.3d 810, 815 (Pa. Super. 2013).

Furthermore,




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      Even in cases when the defendant pleads guilty, the court must
      consider such factors as whether the defendant received the
      sentence bargained for as part of the plea and whether the plea
      expressly reserved or waived some or all appeal rights. Only by
      considering all relevant factors in a given case can a court properly
      determine whether a rational defend would have desired an appeal
      or that the particular defendant sufficiently demonstrated to
      counsel an interest in an appeal.

Green, 168 A.3d at 178, quoting Flores-Ortega, supra at 480.

      The circumstances here are unique, insofar as Attorney Kolcharno

preemptively refused to pursue Brundage’s appeal. However, like in Green,

Attorney Kolcharno litigated Brundage’s plea in a way to preserve a particular

issue for appeal. Thus, applying the foregoing test, we find that a rational

defendant would have wanted to appeal an issue that counsel, through

procedural maneuvering, explicitly preserved.

      Clearly, the fact that Brundage entered an open guilty plea and filed a

motion for reconsideration of sentence, which preserved his discretionary

aspects issue for appellate review, is relevant to the rational defendant

inquiry.   Moreover, vindication on direct appeal would have theoretically

reduced Brundage’s sentence, an unquestionably desirable outcome.             Also

relevant to our inquiry is Attorney Kolcharno’s preemptive refusal to handle

Brundage’s appeal. Such refusal may have discouraged Brundage from

making a reasonable effort to compel Attorney Kolcharno to file an appeal on

his behalf and/or is indicia that Attorney Kolcharno would not have filed an

appeal even if he thought a rationale defendant would want him to.




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      We therefore find that Attorney Kolcharno failed to take the required

step of consulting with Brundage, following denial of his motion for

reconsideration, to ascertain whether he wished to present the preserved

discretionary aspects of sentence issue to this Court.

      We now address the prejudice prong.

      To establish that the failure to consult entitles Appellant to relief,
      he must demonstrate that “but for counsel’s deficient conduct, he
      would have appealed.” The prejudice inquiry is satisfied if
      Appellant demonstrates a nonfrivolous issue for appeal. The
      prejudice inquiry . . . is not wholly dissimilar from the inquiry used
      to determine whether counsel performed deficiently in the first
      place; specifically, both may be satisfied if the defendant shows
      nonfrivolous grounds for appeal.

Green, 168 A.3d at 179 (citation omitted). Applying this test, Brundage has

established prejudice. Attorney Kolcharno failed to provide Brundage advice

regarding an appeal of a non-frivolous discretionary aspects of sentencing

issue that he explicitly preserved for review.       Consequently, Brundage’s

appellate rights tolled. Therefore, Brundage is entitled to relief.

      Order reversed.      Case remanded with instructions.           Jurisdiction

relinquished.

      President Judge Emeritus Bender joins the Memorandum.

      Judge Kunselman joins the Memorandum and files a Concurring

Statement in which President Judge Bender and Judge Lazarus join.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/18




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