Com. v. Thompson, N. ( 2016 )

J-S52023-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NYRAN DALE THOMPSON
Appellant No. 3829 EDA 2015
Appeal from the PCRA Order December 7, 2015
In the Court of Common Pleas of Monroe County
Criminal Division at No: CP-45-CR-0002899-2011
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 22, 2016
Appellant, Nyran Dale Thompson, appeals from the December 7, 2015
order entered in the Court of Common Pleas of Monroe County, dismissing
his petition for collateral relief pursuant to the Post Conviction Relief Act, 42
Pa.C.S.A. §§ 9541-46. In addition, counsel has filed a Turner-Finley “no-
merit” letter1 and a petition seeking to withdraw. Upon review, we grant
counsel’s petition and affirm the order of the PCRA court.
The PCRA court summarized the relevant background as follows:
On May 6, 2014, while represented by the Monroe County Public
Defender’s Office, [Appellant] pled guilty to [p]ossession of a
[c]ontrolled [s]ubstance with [i]ntent to [d]eliver (PWID).
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
J-S52023-16
[Appellant] was immediately sentenced to incarceration of 11½
to 23 months concurrent to a separate sentence he was serving
in New York. [Appellant] was given credit for time served and
immediately released on parole. However, he was returned to
New York to finish serving his sentence there.
Subsequently, [Appellant] filed a direct appeal from the
judgment of sentence. The appeal was later discontinued.
[Appellant] is not a United States citizen but has been a
permanent resident since 1981. He is currently being held in
New York for deportation proceedings which resulted from his
conviction in this [c]ourt.
On July 9, 2015, while being held in New York, [Appellant] filed a
pro-se PCRA petition alleging that his public defender (Plea
[c]ounsel) was ineffective. On July 13, 2015, new counsel
(PCRA [c]ounsel) was appointed and a PCRA hearing was
scheduled. On August 17, 2015, PCRA [c]ounsel filed an
amended PCRA petition alleging that [p]lea [c]ounsel was
ineffective in failing to properly advise [Appellant] of the risk of
deportation before he pled guilty.
A PCRA hearing was held on December 7, 2015. At the
conclusion of the hearing, [the PCRA court] denied the []
petition. [Appellant] then filed this appeal.
PCRA Court Opinion, 2/16/16, at 1-2.
Before we consider whether the PCRA court erred in denying
Appellant’s PCRA petition and the requested relief, we must address whether
PCRA counsel has met the requirements of Turner/Finley. For PCRA
counsel to withdraw under Turner/Finley in this Court:
(1) PCRA counsel must file a no-merit letter that details the
nature and extent of counsel’s review of the record; lists
the appellate issues; and explains why those issues are
meritless.
(2) PCRA counsel must file an application to withdraw; serve
the PCRA petitioner with the application and the no-merit
letter; and advise the petitioner that if the Court grants
-2-
J-S52023-16
the motion to withdraw, the petitioner can proceed pro se
or hire his own lawyer.
(3) This Court must independently review the record and
agree that the appeal is meritless.
See Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super. 2011)
(citing or quoting Turner, Finley, Commonwealth v. Pitts, 981 A.2d 875(Pa. 2009), and Commonwealth v. Friend, 896 A.2d 607 (Pa. Super.
2008), abrogated by Pitts).
We find that PCRA counsel has complied with Turner/Finley. PCRA
counsel has petitioned for leave to withdraw and filed a Turner/Finley no-
merit letter. Finally, PCRA counsel informed Appellant of his right to hire a
new lawyer or file a pro se response.
We now turn to this appeal to determine whether it is indeed
meritless. As this Court has explained:
We review an order dismissing a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of record. We will not disturb a PCRA court’s ruling if it
is supported by evidence of record and is free of legal error.
This Court may affirm a PCRA court’s decision on any grounds if
the record supports it. Further, 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 plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
-3-
J-S52023-16
All claims raised here challenge the effectiveness of counsel (“IAC
claims”). More specifically, in his pro se reply to PCRA counsel’s petition to
withdraw, which Appellant filed after the filing of the instant appeal,
Appellant argued that PCRA counsel should have raised the following claims:
(i) plea counsel was ineffective for failing to raise a Rule 600 claim, (ii) plea
counsel coerced Appellant into taking a guilty plea, and (iii) plea counsel was
ineffective for failing to file a brief with this Court in connection with his
direct appeal. In the Turner/Finley brief filed by his PCRA counsel,
Appellant argues plea counsel was ineffective for failing to advise him about
the immigration consequences resulting from his plea.
Appellant’s IAC claims raised in his pro se reply are waived because
they were raised on appeal for the first time. See Commonwealth v.
Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (claims of PCRA counsel’s
ineffectiveness may not be raised for the first time on appeal); Ford, 44
A.3d at 1200-01 (claims of PCRA counsel ineffectiveness cannot be raised
for the first time after a notice of appeal has been taken from the underlying
PCRA matter).2
____________________________________________
2
In the alternative, should Appellant’s allegations be construed as merely
challenging plea counsel’s omissions, not PCRA counsel’s failure to challenge
plea counsel’s omissions, the pro se IAC claims raised would be nonetheless
waived because Appellant failed to include said claims in the amended PCRA
petition and his Rule 1925(b) statement. See Commonwealth v. Jones,
912 A.2d 268, 278 (Pa. 2006); Commonwealth v. Lord, 719 A.2d 306,
309 (Pa. 1998).
-4-
J-S52023-16
Accordingly, we will address only the issue raised by PCRA counsel in
her Turner/Finley brief. Appellant argues plea counsel was ineffective for
failing to inform him of immigration consequences following the entry of a
guilty plea. As also noted by the PCRA court, a review of the record belies
Appellant’s claim. See PCRA Court Opinion, 2/16/16, at 3-5.3 Indeed,
Appellant was aware of the consequences resulting from the guilty plea. Id.
at 3-4 (quoting N.T. Guilty Plea/Sentencing, 5/6/14, at 5-6). Thus, upon
review of the record, the parties’ briefs, and the relevant law, we conclude
the PCRA court adequately disposed of this claim. Accordingly, we affirm the
order of the PCRA court. We direct that a copy of the PCRA court’s February
16, 2016 opinion be filed along with this Memorandum.
Order affirmed. Petition to withdraw granted.
____________________________________________
3
In its written opinion, the PCRA court, after reviewing the record,
concluded:
[T]he record is crystal clear that [Appellant] was informed by
Plea Counsel, as well as the [trial court] and the language of the
plea form, that pleading guilty to PWID carried a significant risk
of deportation. Simply there is no doubt that [Appellant] was
made aware of the potential collateral consequences of
deportation, and therefore Plea Counsel was not ineffective.
PCRA Court Opinion, 2/16/16, at 4-5.
-5-
J-S52023-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2016
-6-
Circulated 10/31/2016 09:53 AM