Com. v. Wilkerson, O. ( 2018 )

J-S80009-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OTIS WILKERSON :
:
Appellant : No. 3686 EDA 2016
Appeal from the PCRA Order November 28, 2016
in the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0502681-2003,
CP-51-CR-0707651-2004, CP-51-CR-0802311-2004
BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED APRIL 20, 2018
Appellant Otis Wilkerson appeals from the November 28, 2016 order
denying his first petition filed pursuant to the Post Conviction Relief Act
(“PCRA”). Additionally, Appellant’s court-appointed PCRA counsel, Stephen
T. O’Hanlon, Esquire (“Attorney O’Hanlon”), has filed a Turner/Finley1 “no
merit” letter and a separate motion to withdraw as counsel. We grant
Attorney O’Hanlon’s motion to withdraw, and affirm.
The facts underlying the instant appeal are somewhat complex.
Between 2002 and 2004, Appellant was arrested and charged for drug-
related offenses in three separate cases (collectively “the drug cases”). In
____________________________________________
1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
J-S80009-17
the first drug case, at No. CP-51-0502681-2003, Appellant, while
represented by Todd Henry, Esquire, entered a counseled open guilty plea
on June 16, 2004, to possession with intent to deliver (“PWID”). In the
second drug case, at No. CP-51-CR-0802311-2004, Appellant, while
represented by Delores Bojazi, Esquire, entered a counseled open guilty plea
on September 24, 2004, to one count each of PWID and criminal conspiracy.
In the third drug case, at No. CP-51-CR-0707651-2004, Appellant, while
represented by Timothy Strange, Esquire, entered a counseled open guilty
plea on November 16, 2004, to PWID. On that same date, Appellant
proceeded immediately to sentencing in the drug cases, which were
consolidated for sentencing purposes. The trial court imposed an aggregate
prison term of nine to twenty-three months, followed by eight years of
probation.
Between 2006 and 2008, Appellant was arrested twice, and charged
with rape and other offenses in three separate cases (collectively “the rape
cases”). On February 28, 2011, in a consolidated sentencing hearing,
Appellant entered open guilty pleas in the rape cases to three counts of
rape, two counts each of robbery, possession of an instrument of crime and
unlawful restraint, and one count of involuntary deviate sexual intercourse.
On June 7, 2011, the trial court sentenced Appellant in the rape cases to an
aggregate prison term of forty to eighty years.
Based on the pleas in the rape cases, the trial court found Appellant in
violation of his probation in the drug cases. On June 10, 2011, the trial
-2-
J-S80009-17
court conducted a consolidated violation of probation (“VOP”) hearing on the
drug cases, at which Appellant was represented by Attorney Bojazi.2 At the
VOP hearing, the trial court was informed of Appellant’s guilty pleas in the
rape cases. The trial court was also informed of Appellant’s parole in 2005,
and subsequent failure to report to his probation officer, resulting in his
arrest. At the conclusion of the hearing, the trial court imposed an
aggregate VOP sentence in the drug cases of twenty-seven to fifty-four
years in prison, to run consecutively to the sentences imposed in the rape
cases.
Following the VOP hearing, Appellant was advised, on the record, of
his rights to file a motion to reconsider sentence within ten days, and an
appeal within 30 days. On June 16, 2011, Appellant filed a pro se motion for
reconsideration of his VOP sentence.3 Following a hearing on June 21, 2011,
at which neither Appellant nor any of his counsel was present, the trial court
____________________________________________
2 According to Attorney Bojazi, Attorney Strange and another defense
attorney also appeared on Appellant’s behalf at the VOP hearing. However,
as the two of the attorneys had other engagements, it was decided that
Attorney Bojazi would stay at the VOP hearing and represent Appellant in all
three of the drug cases. See N.T. PCRA Hearing, 11/14/16, at 9-11.
3Appellant attached to his pro se filing a “Certification of Service,” wherein
he requested that copies of his filing be sent to the Public Defender’s Office
and the Motions Counter at the courthouse, and that time-stamped copies
be sent to the District Attorney’s Office and the judge of record.
-3-
J-S80009-17
entered an order denying the motion.4 Appellant did not file an appeal from
his VOP sentence.
On April 30, 2012, Appellant filed a timely pro se PCRA petition from
his VOP sentence,5 wherein he asserted that Attorney Bojazi “was to submit
a motion for reconsideration which [she] never did.” Pro Se PCRA Petition,
4/30/12, at unnumbered 1. Appellant also claimed that he did not receive a
copy of the order denying his pro se motion for reconsideration, and that
after waiting for the motion to be denied by operation of law,6 he had filed a
notice of appeal on November 10, 2011.7 Id. Appellant sought
reinstatement of his right to file a direct appeal of his VOP sentence based
____________________________________________
4 No service list was attached to the order.
5 Appellant’s petition was styled as a “Petition for Reinstatement of Appellant
Rights.” However, the PCRA court properly treated the petition as having
been filed pursuant to the PCRA. See 42 Pa.C.S. § 9542 (providing that
“[t]he action established in this subchapter shall be the sole means of
obtaining collateral relief and encompasses all other common law and
statutory remedies for the same purpose that exist when this subchapter
takes effect ….”); see also Commonwealth v. Johnson, 803 A.2d 1291,
1293 (Pa.Super. 2002) (holding that “any petition filed after the judgment of
sentence becomes final will be treated as a PCRA petition.”).
6 Pennsylvania Rule of Criminal Procedure 720(B)(3)(a) provides the trial
court 120 days in which to decide a post-sentence motion. After the
expiration of 120 days, the motion is deemed denied by operation of law,
and the thirty-day period in which to file an appeal is triggered. However,
we note that this Rule does not apply to VOP sentences. See Pa.R.Crim.P.
708(E) (providing that the filing of a motion to modify a VOP sentence will
not toll the thirty-day appeal period).
7Based on our review of the dockets for the drug cases, no notice of appeal
was filed on November 10, 2011.
-4-
J-S80009-17
on his claimed non-receipt of the order denying his pro se motion for
reconsideration. Id. He also filed an affidavit, wherein he attested that he
asked Attorney Bojazi to appeal his VOP sentence “and to challenge
discretionary aspects of sentencing.” Affidavit, 4/26/13, at unnumbered 1.
Appellant further averred: “[m]y attorney filed a [m]otion for
[r]econsideration of [s]entence but did not honor my request and file a
direct appeal.” Id.The PCRA court appointed Attorney O’Hanlon as Appellant’s PCRA
counsel. On May 3, 2013, Attorney O’Hanlon filed an amended PCRA
petition, seeking reinstatement of Appellant’s direct appeal rights nunc pro
tunc, and attaching Appellant’s affidavit as an exhibit. On July 7, 2014,
Appellant filed a pro se motion for leave of court to file a PCRA petition. On
October 10, 2014, Attorney O’Hanlon filed a supplemental amended PCRA
petition, wherein he asserted that federal criminal charges had been brought
against Philadelphia Police Officer Perry Betts (“Officer Betts”),8 and sought
leave to withdraw Appellant’s guilty pleas in the 2004 drug cases, on the
basis that the charges against Officer Betts constituted newly-discovered
____________________________________________
8 In one of the drug cases, at No. CP-51-CR-0707651-2004, Officer Betts
arrested one of two buyers who purchased heroin from Appellant. See N.T.
Sentencing, 11/16/04, at 9-10. Officer Betts did not conduct surveillance on
Appellant, or apprehend the other buyer. Id. Nor was Officer Betts involved
in Appellant’s other two drug cases. Officer Betts was subsequently indicted
on federal criminal charges unrelated to Appellant’s case, and thereafter
acquitted on all such charges.
-5-
J-S80009-17
evidence pursuant to 42 Pa.C.S. § 9545(b)(1)(ii). In response, the
Commonwealth filed a partial motion to dismiss the petition as to the claim
regarding Officer Betts.
The PCRA court conducted an evidentiary hearing, wherein Appellant
testified that he had telephoned and written to Attorney Bojazi, requesting
her to file a motion for reconsideration and a direct appeal from his VOP
sentence, but did not receive a response. N.T. PCRA Hearing, 11/14/16, at
8, 9, 11, 12, 18-19. Appellant’s sister, Yolanda Wilkerson Velasquez,
testified that she contacted Attorney Bojazi, and requested that she file an
appeal of the VOP sentence. Id. at 51. Ms. Velasquez claimed that she
made several phone calls to Attorney Bojazi. Id. Attorney Bojazi testified
that she consulted with Appellant immediately after the imposition of the
VOP sentence and urged him to permit her to file an appeal, but Appellant
directed her to take no further action in the drug cases. Id. at 22-25, 44.
Attorney Bojazi stated that, after the VOP sentence was imposed, she was
never contacted by Appellant or anyone in his family. Id. at 29. Finally,
Attorney Bojazi testified that she did not receive a copy of Appellant’s pro se
motion for reconsideration, or the trial court’s order denying the motion. Id.
at 26, 32-33.
At the hearing, the Commonwealth argued that Officer Betts played an
inconsequential role in one of Appellant’s three drug cases, noting that
Officer Betts did not participate in the surveillance or arrest of Appellant, and
merely arrested one of the buyers in the case. See N.T. PCRA Hearing,
-6-
J-S80009-17
11/14/16, at 61-62. The Commonwealth further argued that the criminal
charges filed against Officer Betts involved events which occurred years after
Appellant’s arrest in that case. Id. at 62. At the conclusion of the hearing,
the PCRA court denied the Commonwealth’s partial motion to dismiss. Id.
at 62.
On November 28, 2016, the PCRA court entered its order and findings
of fact, wherein it denied PCRA relief. See Order and Findings of Fact,
11/28/16, at 1; see also id. at 1-2 (wherein the PCRA court made
credibility determinations in favor of Attorney Bojazi, and against Appellant
and his sister). Appellant filed a timely notice of appeal. The PCRA court
ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. In response, Attorney O’Hanlon filed a statement
of his intention to file a no merit letter on appeal, and identified the issues to
be preserved on appeal. The PCRA court issued its opinion pursuant to
Pa.R.A.P. 1925(a).
On August 14, 2017, Attorney O’Hanlon filed with this Court a
Turner/Finley no merit letter, along with a separate motion to withdraw as
counsel. In the Turner/Finley no merit letter, Attorney Hanlon raises two
issues for our review:
1. The PCRA court erred in failing to reinstate appellate rights
nunc pro tunc because VOP counsel was not credible during
the PCRA evidentiary hearing in her testimony relating to
[A]ppellant’s request for her to perfect [A]ppellant’s direct
appeal rights[,] and [A]ppellant was credible in his recitation
of the same issues.
-7-
J-S80009-17
2. The PCRA court erred in not vacating judgment of sentence as
to case CP-51-CR-0707651-2004 because the Commonwealth
has deemed arresting officer, Perry Betts, to be a non-
credible witness.
Turner/Finley No Merit Letter, 8/14/17, at 3, 5 (some capitalization
omitted). On September 12, 2017, Appellant filed a pro se “Objection to No
Merit” in response to Attorney O’Hanlon’s Turner/Finley no merit letter.
In reviewing the denial of a PCRA Petition, our review is limited to
examining whether the PCRA court’s findings are supported by the record
and free of legal error. See Commonwealth v. Hanible, 30 A.3d 426, 438
(Pa. 2011). We view the findings of the PCRA court and the evidence of
record in the light most favorable to the prevailing party. Id. “The PCRA
court’s credibility determinations, when supported by the record, are binding
on this Court; however, we apply a de novo standard of review to the PCRA
court’s legal conclusions.” See Commonwealth v. Mason, 130 A.3d 601,
617 (Pa. 2015).
Prior to addressing Appellant’s claims on appeal, we must address
Attorney O’Hanlon’s motion to withdraw as counsel. Pursuant to
Turner/Finley, independent review of the record by competent counsel is
required before withdrawal on collateral appeal is permitted. See
Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009). In Pitts, our
Supreme Court explained that such independent review requires proof of:
1. A “no-merit” letter by PC[R]A counsel detailing the nature and
extent of his review;
-8-
J-S80009-17
2. The “no-merit” letter by PC[R]A counsel listing each issue the
petitioner wished to have reviewed;
3. The PC[R]A counsel’s “explanation,” in the “no-merit” letter,
of why the petitioner’s issues were meritless;
4. The PC[R]A court conducting its own independent review of
the record; and
5. The PC[R]A court agreeing with counsel that the petition was
meritless.
Id. (citation and brackets omitted). Further, PCRA counsel seeking to
withdraw in this Court must contemporaneously forward to the petitioner a
copy of the petition to withdraw that includes (i) a copy of both the “no-
merit” letter, and (ii) a statement advising the PCRA petitioner that, upon
the filing of counsel’s petition to withdraw, the petitioner has the immediate
right to proceed pro se, or with the assistance of privately retained counsel.
Commonwealth v. Muzzy, 141 A.3d 509, 511-12 (Pa.Super. 2016).
Here, in the Turner/Finley no merit letter, Attorney O’Hanlon
described the extent of his review, identified the issues that Appellant
sought to raise, and explained why the issues lacked merit. In addition,
Attorney O’Hanlon has indicated that he provided Appellant with a notice of
his intention to seek permission to withdraw from representation, a copy of
the Turner/Finley no merit letter, and advised Appellant of his rights in lieu
of representation. See Motion to Withdraw, 8/14/17, at 2. Thus, we
conclude that Attorney O’Hanlon has substantially complied with the
requirements necessary to withdraw as counsel. See Commonwealth v.
-9-
J-S80009-17
Karanicolas, 836 A.2d 940, 947 (Pa.Super. 2003) (holding that substantial
compliance with requirements to withdraw as counsel will satisfy the
Turner/Finley criteria). We now independently review Appellant’s claims to
ascertain whether they entitle him to relief.
In Appellant’s first issue, as raised in the Turner/Finley no merit
letter, he asserts that the PCRA court erred in failing to reinstate his
appellate rights nunc pro tunc because Attorney Bojazi’s testimony at the
PCRA hearing was not credible. Attorney O’Hanlon contends that the issue
lacks merit because the PCRA court, after hearing testimony from Appellant
and his sister, deemed their testimony non-credible. Turner/Finley No
Merit Letter at 4-5. Attorney O’Hanlon asserts that the PCRA court found
credible Attorney Bojazi’s testimony that Appellant did not want her to file an
appeal, and its credibility determinations are binding on appeal. Id. at 5.
In his pro se response to the Turner/Finley no merit letter,9 Appellant
recounts his argument that his direct appeal rights should be reinstated
because he did not receive notice of the trial court’s order denying his pro se
motion for reconsideration of his VOP sentence. See Objection of No-Merit,
9/7/17, at unnumbered 2. Appellant also argues that Attorney Bojazi
____________________________________________
9Notably, portions of Appellant’s pro se response to the Turner/Finley no
merit letter appear to be missing, as his six-page response is unnumbered,
and several pages end mid-sentence, without continuance of the sentence
on the next page. Further, portions of Appellant’s response are
unintelligible. Thus, we have addressed the intact and comprehensible
portions of Appellant’s response.
- 10 -
J-S80009-17
provided ineffective assistance by abandoning her representation following
the imposition of the VOP sentence. See Objection of No-Merit, 9/7/17, at
unnumbered 3-4.
Initially, we note that Appellant’s pro se motion for reconsideration of
his VOP sentence was a legal nullity, despite the fact that the trial court
addressed and ruled on it. See Commonwealth v. Nischan, 928 A.2d
349, 355 (Pa.Super. 2007) (concluding that defendant’s pro se post-
sentence motion, filed when defendant was represented by counsel, was “a
nullity, having no legal effect”). Our courts have made clear that a
defendant who is represented by counsel may not engage in hybrid
representation by filing pro se documents. See Commonwealth v. Ali, 10
A.3d 282, 293 (Pa. 2010). As Appellant was represented by counsel at the
time he filed the pro se motion, that filing had no legal effect.
Turning to Appellant’s ineffectiveness claim, as raised in the
Turner/Finley no merit letter, our standard of review when faced with a
claim of ineffective assistance of counsel is well-settled. First, counsel is
presumed to be effective and the burden of demonstrating ineffectiveness
rests on appellant. Commonwealth v. Rivera, 10 A.3d 1276, 1279
(Pa.Super. 2010). Next, a petitioner must show (1) that the underlying
claim has merit; (2) counsel had no reasonable strategic basis for his or her
action or inaction; and (3) but for the errors or omissions of counsel, there is
a reasonable probability that the outcome of the proceedings would have
- 11 -
J-S80009-17
been different. Id. The failure to prove any one of the three prongs results
in the failure of petitioner’s claim. Id.Our Supreme Court has held that counsel’s unexplained failure to file a
requested direct appeal constitutes ineffective assistance per se, such that
the petitioner is entitled to reinstatement of direct appeal rights nunc pro
tunc without establishing prejudice. See Commonwealth v. Lantzy, 736
A.2d 564, 572 (Pa. 1999). However, before a court will find ineffectiveness
of counsel for failing to file a direct appeal, the petitioner must prove that he
requested a direct appeal and that counsel disregarded the request. See
Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa.Super. 2011).
Here, the PCRA court determined that Appellant was accurately
advised regarding the time periods for seeking reconsideration and appeal,
and elected to file a timely pro se motion for reconsideration, thereby
demonstrating his awareness of such time periods. Order and Findings of
Fact, 11/28/16, at 2.10 The PCRA court held that Attorney Bojazi credibly
testified that “she consulted with [Appellant] immediately after the June 10,
____________________________________________
10 We note that, at the VOP hearing, Appellant was advised that he had
thirty-days in which to file a direct appeal from his VOP sentence. N.T. VOP
Hearing, 6/10/11, at 20. Appellant’s claim that his non-receipt of the order
denying his pro se motion for reconsideration prevented him from timely
filing an appeal of his VOP sentence lacks merit, not only because it was a
legal nullity, but also because Pa.R.Crim.P. 720 does not apply to a VOP
sentence. See Pa.R.Crim.P. 708(E) (providing that the filing of a motion to
modify a VOP sentence will not toll the thirty-day appeal period).
- 12 -
J-S80009-17
2011, sentencing hearing about seeking review of his VOP sentence and
advised him to do so, but that he told her to take no action and declined to
consult further.” Id. At 1. The PCRA court credited Attorney Bojazi’s
explanation that “it was her practice following sentencing to remain available
to clients (and any family members acting on a client’s behalf) in the event
that clients reflected further and wished to change prior decisions.” Id. at 2.
The PCRA court concluded that “neither [Appellant] nor any member of his
family contacted or attempted to contact [Attorney] Bojazi following the VOP
sentencing hearing—whether in writing, by telephone, or by using any other
means—to request that counsel seek further review of the VOP sentence.”
Id. at 1.11
“[A]s an appellate court, [we] may not second-guess the PCRA court’s
credibility determinations.” Commonwealth v. Donaghy, 33 A.3d 12, 16
(Pa. Super. 2011). As the PCRA court’s findings are supported by the
record, Appellant’s first issue warrants no relief.
In Appellant’s second issue, as raised in the Turner/Finley no merit
letter, he contends that the PCRA court erred in not vacating his 2004
sentence imposed in the drug cases because Officer Betts was a non-credible
witness. Attorney O’Hanlon contends that the issue lacks merit because
____________________________________________
11 The PCRA court additionally found that “[Appellant’s] filing of a pro se
motion for reconsideration, which did not purport to serve [Attorney] Bojazi,
further supports her testimony that Appellant had rejected her advice and
assistance.” Order and Findings of Fact, 11/28/16, at 2.
- 13 -
J-S80009-17
Officer Betts merely apprehended one of two buyers in one of the three drug
cases against Appellant, did not arrest Appellant, and was only tangentially
involved in that case. Turner/Finley No Merit Letter at 5-6. Additionally,
Attorney O’Hanlon argues that Officer Betts was acquitted of all criminal
charges. Id. at 6. Finally, Attorney O’Hanlon points to Appellant’s guilty
plea colloquy, wherein Appellant accepted as true the factual recitation
supporting his drug convictions, and claims that Appellant is now bound by
his representations to the trial court at his guilty plea hearing. Id. at 5; see
also N.T. Sentencing, 11/16/04 , at 9-11 (wherein Appellant accepted the
Commonwealth’s factual summary of the case against him, including the
representation that Officer Betts did not conduct surveillance or arrest
Appellant, and merely apprehended one of the buyers in the case). In his
response to the Turner/Finley no merit letter, Appellant does not address
this issue.
We find Appellant’s claim regarding Officer Betts to be unrelated to the
VOP sentence imposed in 2011, which is the only sentence at issue in the
timely PCRA petition before us. Appellant’s claim pertains to his 2004
sentence imposed at No. CP-51-CR-0707651-2004. In order to raise a claim
regarding that sentence, Appellant was required seek PCRA relief within one
year of the date the sentence became final. See 42 Pa.C.S. § 9545; see
also Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012). Appellant’s
sentence in that case became final in December 2004, when the thirty-day
- 14 -
J-S80009-17
period in which to file an appeal expired. Thus, Appellant had until
December 2005 to file a timely PCRA petition, but failed to do so. Thus,
Appellant’s claim pertaining to Officer Betts is facially untimely.
Pennsylvania courts may consider an untimely PCRA petition if the
appellant can explicitly plead and prove one of three exceptions set forth
under 42 Pa.C.S.A. § 9545(b)(1). Any PCRA petition invoking one of these
exceptions “shall be filed within 60 days of the date the claim could have
been presented.” Id. § 9545(b)(2); see also Commonwealth v.
Albrecht, 994 A.2d 1091, 1094 (Pa. 2010).
Appellant argues that his claim falls within the newly-discovered fact
exception at section 9545(b)(1)(ii), which requires a petitioner to establish
that (1) the facts upon which the claim was predicated were unknown; and
(2) they could not have been ascertained by the exercise of due diligence.
See Commonwealth v. Bennett, 930 A.2d 1264, 1270-72 (Pa. 2007); see
also Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001) (rejecting
an attempt to invoke section 9545(b)(1)(ii) because the appellant failed to
offer any evidence that he exercised due diligence in obtaining facts upon
which his claim was based).
Our review of the record discloses no effort by Appellant to establish
that (1) the facts upon which his present claim regarding Officer Betts is
predicated were unknown to Appellant; and (2) they could not have been
ascertained by the exercise of due diligence. Nor has Appellant
- 15 -
J-S80009-17
demonstrated that his amended PCRA petition raising his claim regarding
Officer Betts was filed within sixty days of the date on which Appellant
learned of the criminal charges against Officer Betts. Thus, Appellant failed
to overcome the untimeliness of his claim regarding Officer Betts, and the
PCRA court lacked jurisdiction to address it. As Appellant’s claim regarding
Officer Betts is untimely, this Court also lacks jurisdiction to address it. See
Commonwealth v. Cox, 146 A.3d 221, 227 (Pa. 2016).
We now turn to the additional issues raised by Appellant in his pro se
response to the Turner/Finley no merit letter. Appellant claims that his
court-appointed PCRA counsel, Attorney O’Hanlon was ineffective for failing
to (1) “argue the reconsideration motion filed pro se by [A]ppellant as the
Commonwealth contends is a legal nullity and no notice of denial was
required[;]” (2) “argue in the case sub[-]judice as a double standard and
should not have been ruled upon, due to [Appellant] having counsel of
record[;]” (3) “amend petition where [A]ppellant[’s] rights were violated
pursuant to Pa.R.Crim.P. 708(B)(1)….;” (4) “amend [A]ppellant’s petition
with respect to cruel unusual punishment, a harsh sentence in violation of
the 8th Amendment[,] and challenging consecutive versus concurrent
sentences[;]” and (5) amend Appellant’s petition to include a claim that the
trial court failed to notify Appellant that any violation of the court’s probation
would subject Appellant to an enhanced sentence. Objection of No-Merit,
9/7/17, at unnumbered 5-6.
- 16 -
J-S80009-17
Appellant did not raise the issue of Attorney O’Hanlon’s ineffectiveness
in the PCRA court; therefore, the issue is not properly before us. See
Commonwealth v. Henkel, 90 A.3d 16, 21-30 (Pa.Super. 2014) (en banc)
(providing a thorough discussion of this issue, and concluding that, under
current Supreme Court precedent, a PCRA petitioner cannot assert claims of
PCRA counsel ineffectiveness for the first time on appeal).
As we conclude that each of the issues raised in Attorney O’Hanlon’s
Turner/Finley no merit letter, and in Appellant’s response thereto, lacks
merit or is not properly before us, we grant Attorney O’Hanlon’s motion to
withdraw as counsel, and affirm the PCRA court’s order denying Appellant’s
PCRA petition.
Motion of Stephen T. O’Hanlon, Esquire to withdraw as counsel
granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/18
- 17 -