Com. v. Lane, D. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DENNIS EUGENE LANE
Appellant No. 1720 MDA 2014
Appeal from the PCRA Order entered June 4, 2014
In the Court of Common Pleas for the 39th Judicial District,
Fulton County Branch
Criminal Division at No: CP-29-CR-0000001-2011
BEFORE: BOWES, OTT, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 10, 2015
Appellant, Dennis Eugene Lane, appeals from an order denying relief
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46.
PCRA counsel has filed a no-merit brief and petitioned to withdraw under
Turner/Finley.1 We affirm and grant the petition to withdraw.
On July 12, 2011, Appellant entered a negotiated guilty plea to rape
and other sex crimes and crimes of child abuse. Appellant, who was in his
sixties, had engaged in sexual intercourse and other sex acts with a child
under the age of 16 over a three-year period. See N.T. Guilty Plea,
7/12/11, at 12-17. On March 22, 2012, the trial court determined Appellant
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1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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to be a sexually violent predator and imposed the agreed-upon sentence of
11 to 22 years in prison. Appellant did not appeal.
On March 23, 2012, Appellant filed a pro se, timely first PCRA petition.
The PCRA court appointed counsel. In an amended petition, Appellant
contended that guilty plea counsel was ineffective for failing to file a direct
appeal. The PCRA court denied relief after an evidentiary hearing, and this
appeal followed.2
On appeal, PCRA counsel directs this Court’s attention to one issue of
possible merit: whether Appellant’s guilty plea counsel rendered ineffective
assistance by failing to file a direct appeal. Before we may consider this
issue, 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
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.
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2
The PCRA court appointed current PCRA counsel after this Court ordered
the removal of former PCRA counsel, who abandoned Appellant.
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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), overruled in part by, Pitts).
We find that PCRA counsel has complied with Turner/Finley. PCRA
counsel has petitioned for leave to withdraw and filed an Anders brief,
which we accept in lieu of a Turner/Finley no-merit letter.3 Finally, PCRA
counsel informed Appellant of his right to hire a new lawyer or file a pro se
response. Appellant has filed a pro se response, which we will consider in
due course.
We now turn to this appeal to determine whether it is indeed
meritless. “On appeal from the denial of PCRA relief, our standard of review
requires us to determine whether the ruling of the PCRA court is supported
by the record and free of legal error.” Widgins, 29 A.3d at 819.
We first address the issue raised in PCRA counsel’s Anders brief. A
PCRA petitioner is entitled to relief by showing that his conviction is a result
of ineffective assistance of counsel. 42 Pa.C.S.A. § 9543(a)(2)(ii).
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3
Anders v. California, 386 U.S. 738 (1967), sets forth the requirements to
withdraw on direct appeal, which are more stringent than the Turner/Finley
requirements that apply on collateral appeal. See Widgins, 29 A.3d at 817
n.2. “Because an Anders brief provides greater protection to a defendant,
this Court may accept an Anders brief in lieu of a Turner/Finley letter.”
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Generally, ineffective assistance of counsel entails proof that (1) the
underlying claim is of arguable merit; (2) counsel had no reasonable basis
for his or her chosen course of action; and (3) resulting prejudice. See
Widgins, 29 A.3d at 819. The failure to file a requested direct appeal (or
petition for allowance of appeal) is ineffectiveness per se, meaning that
proof of prejudice is not required. Commonwealth v. Haun, 32 A.3d 697,
700 (Pa. 2011) (quoting Commonwealth v. Lantzy, 736 A.2d 564, 570-71
(Pa. 1999)).
However:
Where a defendant does not ask his attorney to file a direct
appeal, counsel still may be held ineffective if he does not
consult with his client about the client’s appellate rights. Such
ineffectiveness, however, will only be found where a duty to
consult arises either because there were issues of merit to raise
on direct appeal or the defendant, in some manner, displayed
signs of desiring an appeal.
Commonwealth v. Markowitz, 32 A.3d 706, 714 (Pa. Super. 2011). In
other words, counsel is ineffective per se if he or she fails to file a
requested appeal, whereas counsel is ineffective for failing to consult with
a defendant about appealing only if the defendant can show prejudice.
In finding this issue meritless, the PCRA court first found that
Appellant failed to request plea counsel to file a direct appeal, invalidating
any claim of ineffectiveness per se. PCRA Court Opinion, 6/5/14, at 4-5.
Regarding plea counsel’s duty to confer with Appellant, it stated:
Here, there is no evidence to suggest that [plea counsel] did not
consult with [Appellant] about his appellate rights. In fact, there
is evidence to support the opposite conclusion. [Plea counsel]
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testified that he remembered explaining to the [Appellant] his
post-sentence appellate rights after he pled guilty. He also
testified that he was “absolutely sure” the [Appellant]
“understood what was going on.” Specifically, the Fulton County
colloquy was much longer than [plea counsel] was accustomed
to[,] and whenever he had a “colloquy that’s different than the
one that we use in Cumberland County—I make some notes to
discuss with my client to make sure that he understands what
his standing was with the [c]ourt what his options would have
been.” The transcript of the guilty plea proceedings confirms
this testimony as [plea counsel] responded in the affirmative
when asked by the [c]ourt if he had sufficient time to discuss the
entry of the guilty pleas with the [Appellant]. Additionally, the
sentencing transcript shows that [Appellant] was read his post-
sentence and appellate rights and the timeliness associated with
each on the record by the [c]ourt. Regarding an appeal, [plea
counsel] testified that because [Appellant] had pled guilty[,] he
explained to him that he only had a small number of rights on
appeal in terms of issues he could raise after pleading guilty.[4]
Id. at 7 (citation of notes of testimony omitted).
We are bound by the PCRA court’s credibility determinations and we
agree with its sound analysis. Furthermore, PCRA counsel has thoroughly
explained why he believes this issue lacks merit. Appellant’s claim is
meritless because he did not request plea counsel to file an appeal, and plea
counsel did not unreasonably fail to confer with Appellant regarding his
appellate rights.
We now address Appellant’s pro se response to PCRA counsel’s
Anders brief and petition to withdraw. Appellant raises ineffectiveness of
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4
Because Appellant entered into a negotiated guilty plea, on appeal he could
challenge only the legality of his sentence, the jurisdiction of the trial court,
and the validity of the guilty plea. See Commonwealth v. Jones, 929
A.2d 205, 212 (Pa. 2007).
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PCRA counsel, ineffectiveness of plea counsel, and claims his sentence is
illegal. Appellant did not raise the first item before the PCRA court, which
means we cannot address it. See Commonwealth v. Henkel, 90 A.3d 16,
20 (Pa. Super. 2014) (en banc) (“[C]laims of PCRA counsel’s ineffectiveness
may not be raised for the first time on appeal.”). Appellant presents the
second two items in conclusory fashion, without cogent analysis or
explanation. We find those conclusory arguments unpersuasive. See
Commonwealth v. Walter, 966 A.2d 560, 566 (Pa. 2009) (finding
arguments waived for “failure to develop them in any meaningful fashion
capable of review”). Rather, Appellant appears to be using his PCRA petition
as an attempt to reduce his bargained-for sentence because of
dissatisfaction with its length. The PCRA does not provide a remedy for such
buyer’s remorse.
PCRA counsel has complied with Turner/Finley. We have reviewed
the record, and we are convinced that no meritorious appellate issues exist.
Accordingly, we affirm the denial of PCRA relief and grant the petition to
withdraw.
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Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/2015
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