SMETHPORT — Motions for post-conviction relief filed by a Smethport man serving a lengthy prison sentence for rape and assault were denied Friday in McKean County Court.
John Frederick Brown Jr., 36, was convicted by a jury on Oct. 31, 2013, of charges of rape by forcible compulsion, simple assault, indecent assault without consent, indecent assault by forcible compulsion and criminal attempted rape by forcible compulsion, according to court records.
On Jan. 17, 2014, he was sentenced to eight to 22 years in state prison.
Nearly three years after he was sentenced, Brown appeared for a Post Conviction Relief Act hearing with attorney Robert Kinnear. The hearing was before visiting Senior Judge William Morgan.
At Friday’s hearing, Kinnear explained that he wanted to focus on three issues that he felt had merit: whether Brown’s right to testify was preserved, whether he was denied the ability to file an appeal and what happened with a discovery request for DNA evidence.
The first to testify at the hearing was attorney Doug Garber, who represented Brown at his trial and sentencing dates.
Garber first answered questions about the discovery issue. He explained that he had sought multiple times to get any results found from rape kit testing; however, in discussions with then-District Attorney Ray Learn, his understanding was that there was no evidence that a rape kit had been used.
Regarding Brown’s right to testify, Garber said he explained to Brown that he had a right to testify on his own behalf, as well as the negatives and positives of doing so. “I had no position. I left it up to him.” He further stated, “My recollection was he told me he didn’t want to testify.”
Finally, Garber stated that Brown did not submit a request to file an appeal, and that is why he did not file one on Brown’s behalf.
Among the items Assistant District Attorney Sean Barrett submitted as evidence during the hearing were a letter Garber sent to Learn requesting any rape kit results and a motion to compel discovery. Garber withdrew the request after discussions with Learn.
Kinnear believed he recalled seeing mention of the rape kit at trial, but after Morgan, Barrett and Kinnear combed through the trial transcript, no mention could be found, and Kinnear felt the confusion was brought on because the victim did mention going to hospital, where she was treated for injuries.
Brown testified after Garber.
Brown described how he expressed his concern to Garber over not having been provided DNA evidence: “I basically told him it was very crucial to the defense to be able to have that.”
Brown agreed that he was advised of his right to testify, but said his answer at the time was, “Under the circumstances, I guess not.” He explained that when he started to hear testimony at trial, he felt it was “one-sided,” and he had to elbow Garber to get his attention to say he wanted to testify. According to Brown, he felt that Garber didn’t want him to testify.
Regarding an appeal, Brown said he told Garber verbally right after the trial and on the sentencing day that he wanted an appeal filed. However, he didn’t recall filing anything in writing requesting an appeal.
Transcripts showed he was told of his right to file an appeal within 30 days.
While there was no written record indicating Brown wanted an appeal, Morgan referred to at least two documents Brown filed — one on Feb. 3, 2014, and one on Jan. 20, 2014 — stating he did not want Garber as an attorney anymore. “He doesn’t mention anything about an appeal.”
“The court finds that there’s no evidence whatsoever that there was a rape kit,” Morgan stated. According to him, “The court can’t grant a PCRA based on an imaginary piece of evidence.”
Ruling on Brown’s right to testify, Morgan said, “It’s very clear” he was aware of his right to testify, as well as the pros and cons, and he made his decision.
Morgan also denied the third motion. “It’s clear there he didn’t ask for an appeal,” Morgan said, explaining he just asked to have Garber removed as counsel.
Brown is currently serving his sentence in the state correctional facility in Forest County.
Court records filed at the time of Brown’s arrest stated that on June 20, 2013, the female victim and her three children — ages 2, 6 and 8 — were outside their home, when Brown showed up uninvited and pulled her inside the home’s mud room. She tried to get up, and he slammed her head on the floor.
There was some struggle, and he pulled her to her feet, forced her into the bedroom, threw her on the bed, got on top of her, choked her — causing her to lose consciousness — then when she regained consciousness, raped her, court records had stated.
