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Brown v. Folino

March 7, 2008


The opinion of the court was delivered by: Christopher C. Conner United States District Judge

(Judge Conner)


Presently before the court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, filed by petitioner Terry Brown ("Brown"), an inmate currently incarcerated at the State Correctional Institution at Greene ("SCI-Greene") in Waynesburg, Pennsylvania. (Doc. 1.) Brown is challenging his state sentence in the Court of Common Pleas for Luzerne County ("Luzerne County trial court" or "trial court"). For the reasons that follow, the petition will be denied.

I. Statement of Facts

On June 11, 1998, before the Luzerne County trial court Brown entered a plea of guilty on charges of aggravated assault, robbery, assault by a prisoner, escape, theft by unlawful taking, terroristic threats, unlawful restraint, simple assault, and recklessly endangering another person.*fn1 At the plea hearing, Brown, represented at the time by Thomas S. Cometa, Esquire, waived his right to sentencing within sixty (60) days in light of a pending federal sentence on unrelated charges.*fn2 (Doc. 16 at 4.) The trial court informed Brown that it would entertain a motion to withdraw his guilty plea after Brown received his federal sentence. (Id. at 3.) Attorney Cometa and the district attorney agreed to recommend a sentence which would run concurrent rather than consecutive to the federal sentence. (Id.) The trial court announced that it would defer ruling on the issue of consecutive versus concurrent sentences pending the results of the federal sentencing. (Id.)

On February 25, 1999, the United States District Court for the Middle District of Pennsylvania sentenced Brown to a term of imprisonment of three hundred (300) months, to run concurrently with Brown's 1995 Bradford County sentence. Following several continuances, the Luzerne County sentencing hearing was held on March 5, 1999.*fn3 At the hearing, the trial court stated its intention to sentence Brown to a term of imprisonment consecutive rather than concurrent to any other state or federal sentence. In light of this development, the trial court also provided Brown the option of withdrawing his guilty plea. Thereafter, Brown elected to withdraw his guilty plea and the matter was scheduled for trial.

On June 24, 1999, Brown reconsidered his decision to proceed to trial and, once again, entered a plea of guilty to all the charges.*fn4 The trial court then sentenced Brown to a term of imprisonment for a period of not less than six (6) years nor more than twelve (12) years, to run consecutive to any other state and federal sentence being served by Brown.

Brown filed a timely, counseled notice of appeal in the Pennsylvania Superior Court, raising the following issues:

Is a court which participates in discussions and/or negotiations relative to a plea agreement which results in a guilty plea, bound to comply with the terms and conditions of that agreement?

Is counsel ineffective in advising or permitting the Appellant to withdraw his guilty plea and in not insisting upon the counsel's compliance with a negotiated plea agreement? (Doc. 16 at 44.) The superior court affirmed the judgment of sentence, holding that the failure of Brown's counsel*fn5 to include a statement required by Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure rendered all issues raised on appeal waived. Commonwealth v. Brown, 764 A.2d 1119 (Pa. Super. Ct. 2000) (mem.).

Thereafter, Brown was appointed new counsel, Brian Corcoran, Esquire, who filed a petition for collateral relief under Pennsylvania's Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 ("PCRA"), in the trial court seeking reinstatement of Brown's direct appeal rights nunc pro tunc. On January 4, 2001, the trial court granted the PCRA petition, reinstating Brown's direct appeal rights. The trial court also appointed new counsel, Joseph M. Cosgrove, Esquire. In the interim, Brown filed a pro se brief in the superior court with respect to his direct appeal. The superior court directed Attorney Cosgrove to file an amended brief, which raised the following issues:

I. Appellant was denied his right under the Interstate Agreement on Detainers Act not to be returned to federal custody prior to full disposition of the present matter, thus requiring reversal of the present conviction and discharge of Appellant.

II. The confusion surrounding entry of Appellant's plea of guilty either: (A) entitle [sic] him to the benefit of his perceived bargain concerning a concurrent sentence; or (B) render [sic] said plea constitutionally infirm in that it was not knowingly and voluntarily entered.

III. Appellant was denied effective assistance of counsel: (A) in the failure of counsel to raise the issue of the violation of the Interstate Agreement on Detainers prior to Appellant's sentence; and (B) in the failure of trial counsel to explore and raise the question of the voluntariness of Appellant's guilt plea, and/or his entitlement to the benefit of his perceived plea agreement. (Doc. 16-3 at 2.)

Upon consideration of the brief filed by counsel only,*fn6 the superior court affirmed the judgment of sentence. Commonwealth v. Brown, 808 A.2d 242 (Pa. Super. Ct. 2002) (mem.). Brown then filed a counseled petition for allowance of appeal in the Supreme Court of Pennsylvania. The supreme court denied the appeal on December 18, 2002. Commonwealth v. Brown, 813 A.2d 836 (Pa. 2002) (mem.).

On July 18, 2003, Brown filed a pro se PCRA petition, subsequently amended on February 17, 2004. Brown raised the following issues:

A. Petitioner was denied his state and federal constitutional rights to due process; interstate agreement on detainers and effective assistance of counsels Thomas Cometa and Demetrius Fannick.

B. Petitioner was denied his state and federal constitutional rights to due process during the June 24, 1999 pretrial conference hearing and sentencing, all on June 24, 1999.

C. Petitioner was denied his state and federal constitutional rights to due process and effective assistance of appellate counsels Peter Savage, Brian Corcoran and Joseph Cosgrove. (Doc. 16-4 at 31; Doc. 16-7 at 47.)

The Luzerne County Court of Common Pleas, now serving as the PCRA court, conducted a PCRA hearing on October 18, 2004, with John B. Pike, Esquire, appointed to represent Brown. (Doc. 16-5 at 1-6.) That same day the PCRA court denied the PCRA petition. (Id. at 5.) Thereafter, Attorney Pike was permitted to withdraw, and the PCRA court appointed Stephen A. Menn, Esquire to represent Brown on appeal. Brown, however, requested Attorney Menn's termination and permission to proceed pro se. Attorney Menn was removed, and Brown filed a timely pro se notice of appeal. Brown's appeal was denied by the superior court on October 13, 2005. Commonwealth v. Brown, 889 A.2d 110 (Pa. Super. Ct. 2005) (mem.). Thereafter, Brown filed a motion for reconsideration which was also denied. Brown then filed a timely pro se petition for allowance of appeal. The supreme court denied allocatur on July 19, 2006. Commonwealth v. Brown, 903 A.2d 536 (Pa. 2006) (mem.).

Brown filed the instant federal habeas petition on September 25, 2006. (Doc. 1.) The petition is now ripe for disposition.

II. Claims Presented in Federal Petition

In the instant petition, Brown raises claims of trial court error and ineffective assistance of trial and appellate counsel with respect to his guilty plea entered on June 24, 1999.*fn7

A. Trial Court Error - Validity of Guilty Plea

Brown claims that the trial court denied him the right to due process when it sentenced him on June 24, 1999. Specifically, he argues that the trial court improperly refused to enter his plea of not guilty on that date. He asserts that the court manufactured "its own . . . plea agreement" without consulting counsel or Brown. (Doc. 2 at 14.) He contends that he did not understand or agree to this "plea agreement," and that his guilty plea was not knowingly or intelligently entered. The relevant portions of the transcript of the June 24, 1999, proceeding belie Brown's contentions:

The court: It is my understanding that your client now wishes to enter a plea of guilty; is that correct?

Mr. Fannick: That is my understanding, yes.

The court: Mr. Brown, Mr. Fannick has in front of him a guilty plea questionnaire, did you read that questionnaire?

[Brown]: Yes.

The court: Can you read, write, and understand the English language?

[Brown]: Yes.

The court: Has anyone forced or threatened you to answer any of those questions?

[Brown]: No.

The court: Are you currently under the influence of any drugs or alcohol?

[Brown]: No.

The court: Are you suffering from any type of mental illness?

[Brown]: No.

The court: Are you under any kind of ...

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