Com. v. Horan, C. ( 2019 )


Menu:
  • J   -S70041-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    CORNELIUS HORAN
    Appellant                       No. 4085 EDA 2017
    Appeal from the PCRA Order November 13, 2017
    In the Court of Common Pleas of Delaware County
    Criminal Division at No(s): CP-23-CR-0002369-2015
    BEFORE:      GANTMAN, P.J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
    MEMORANDUM BY GANTMAN, P.J.:                         FILED JANUARY 07, 2019
    Appellant, Cornelius Horan, appeals from the order entered in the
    Delaware County Court of Common Pleas, which denied his first petition filed
    under the Post Conviction Relief Act at 42 Pa.C.S.A. §§ 9541-9546. We affirm
    and grant counsel's petition to withdraw.
    The relevant facts and procedural history of this case are as follows. On
    July 14, 2015, Appellant entered      a   negotiated guilty plea to two counts of
    robbery-threat of immediate serious injury (18 Pa.C.S.A. 3701(a)(1)(ii))         and
    one count of robbery-taking property from other by force however slight (18
    Pa.C.S.A. 3701(a)(1)(v)), in connection with his June 28, 2014 attempted
    robbery of   a 7 -Eleven   convenience store and robbery of   a   Rite -Aid Pharmacy.
    On the same day, the court sentenced Appellant to an aggregate           term of ten
    (10) to twenty (20) years' incarceration, plus costs and restitution. Appellant
    J   -S70041-18
    did not file an appeal.
    Appellant timely filed his first pro se PCRA petition on August 5, 2016,
    and the PCRA court appointed counsel on August 8, 2016. On September 14,
    2016, counsel filed     a   petition to withdraw, which the PCRA court granted. The
    PCRA    court appointed new counsel on May 23, 2017, who filed               a   motion for
    leave to withdraw and        a   Turner/Finley'      no   merit letter on October 2, 2017.
    On October 10, 2017, the PCRA court issued notice of its                 intent to dismiss
    Appellant's PCRA petition without           a   hearing, per Pa.R.Crim.P. 907. The PCRA
    court dismissed the petition on November 13, 2017, without addressing
    counsel's request to withdraw.
    Appellant timely filed      a   notice of appeal on December 12, 2017.           On
    December 13, 2017, the PCRA court ordered Appellant to file                      a   concise
    statement of errors complained of on appeal, per Pa.R.A.P. 1925(b). Current
    PCRA counsel filed on January 2, 2018, a Rule              1925(c)(4) statement of intent
    to file an Anders2 brief. Counsel has also filed with this Court             a   petition to
    withdraw representation and             a   brief, designated as an Anders brief, on
    September 24, 2018.
    Before counsel can withdraw representation under the PCRA, the law
    requires counsel to satisfy the mandates of Turner/Finley. Commonwealth
    1 Commonwealth v. Turner, 
    518 Pa. 491
    , 
    544 A.2d 927
     (1988);
    Commonwealth v. Finley, 
    550 A.2d 213
     (1988).
    2   Anders   v.   California, 
    386 U.S. 738
    , 
    87 S.Ct. 1396
    , 
    18 L.Ed.2d 493
     (1967).
    -2
    J   -S70041-18
    v.   Karanicolas, 
    836 A.2d 940
    , 947 (Pa.Super. 2003).
    ...Turner/Finley counsel must review the case zealously.
    Turner/Finley counsel must then submit a "no -merit"
    letter to the trial court, or brief on appeal to this Court,
    detailing the nature and extent of counsel's diligent review
    of the case, listing the issues which the petitioner wants to
    have reviewed, explaining why and how those issues lack
    merit, and requesting permission to withdraw.
    Commonwealth v. Wrecks, 
    931 A.2d 717
    , 721 (Pa.Super. 2007).
    Withdrawal       as   counsel   in    this   context    also   includes    certain     notice
    requirements: Counsel must contemporaneously serve on Appellant copies of
    the "no -merit" letter or brief, the petition to withdraw, and             a   letter with   a
    statement advising Appellant that he has the immediate right to file              a   brief in
    this Court pro se or with new privately -retained counsel within 30 days.
    Commonwealth v. Muzzy,               
    141 A.3d 509
     (Pa.Super. 2016).            To withdraw,
    counsel must assure this Court of counsel's compliance with these technical
    requirements. 
    Id.
    Instantly, counsel submitted         a   Turner/Finley brief      on appeal (even
    though counsel designated it as an Anders brief) and              a   petition to withdraw
    as counsel.3 Both the brief and counsel's petition to          withdraw demonstrate he
    3   In the context of a PCRA petition and request to withdraw, the appropriate
    filing is a "no -merit" letter/brief. See Turner, 
    supra;
     Finley, 
    supra.
     But
    see Commonwealth v. Fusselman, 
    866 A.2d 1109
    , 1111 n.3 (Pa.Super.
    2004), appeal denied, 
    584 Pa. 691
    , 
    882 A.2d 477
     (2005) (stating Superior
    Court can accept Anders brief in lieu of Turner/Finley letter, where PCRA
    counsel seeks to withdraw on PCRA appeal). Instantly, counsel incorrectly
    designated the brief filed on appeal as an Anders brief, but we will treat it as
    -3
    J   -S70041-18
    has made a conscientious examination of the record               in   this case and
    determined the appeal      is   totally frivolous.   Counsel notified Appellant of
    counsel's request to withdraw, advised Appellant of his right to retain new
    counsel and/or raise any points he might deem worthy of consideration, and
    furnished Appellant with   a    copy of the petition and the brief prepared for this
    appeal.      Thus,   counsel    has   substantially complied with the technical
    requirements of Turner/Finley, notwithstanding the designation on the
    appellate brief. See Karanicolas, 
    supra.
     Accordingly, we proceed with our
    independent assessment. See Turner, 
    supra at 494-95
    , 
    544 A.2d at
    928-
    29 (stating appellate court must conduct independent analysis and agree with
    counsel that appeal is frivolous).      Appellant has not responded to counsel's
    petition.
    Appellant raises one issue in the Turner/Finley brief:
    WAS...APPELLANT PRESSURED BY TRIAL COUNSEL TO
    ENTER INTO A NEGOTIATED GUILTY PLEA?
    (Turner/Finley Brief at 4).
    Appellant claims plea counsel was ineffective because plea counsel
    pressured Appellant into entering the negotiated guilty plea, despite counsel's
    knowledge of Appellant's mental health issues.            Appellant also contends
    a   Turner/Finley brief.
    We think that the misnomer is largely attributable to
    the language in Rule 1925(c)(4), referring only to Anders v. California,
    
    supra
     and Commonwealth v. McClendon, 
    495 Pa. 467
    , 
    434 A.2d 1185
    (1981).    We have allowed that language to cover Turner/Finley.
    Commonwealth v. Widgins, 
    29 A.3d 816
    , 817 n.2 (Pa.Super. 2011).
    - 4 -
    J   -S70041-18
    counsel confused Appellant about his exposure in reference to the pending
    charges due to Appellant's prior convictions. Appellant concludes this Court
    should reverse the trial court's decision to dismiss his PCRA petition and
    remand for further proceedings. We disagree.
    Our standard of review of the denial of                  a PCRA   petition    is    limited to
    examining whether the evidence of record supports the court's determination
    and whether its decision is free of legal error.              Commonwealth v. Conway,
    
    14 A.3d 101
     (Pa.Super. 2011), appeal denied, 
    612 Pa. 687
    , 
    29 A.3d 795
    (2011). This Court grants great deference to the findings of the PCRA court if
    the record contains any support for those findings. Commonwealth v. Boyd,
    
    923 A.2d 513
     (Pa.Super. 2007), appeal denied, 
    593 Pa. 754
    , 
    932 A.2d 74
    (2007). We give no such deference, however, to the court's legal conclusions.
    Commonwealth v. Ford, 
    44 A.3d 1190
     (Pa.Super. 2012).                                       Further,   a
    petitioner        is   not entitled to   a PCRA     hearing as   a   matter of right; the        PCRA
    court can decline to hold          a   hearing if there is no genuine issue concerning any
    material fact, the petitioner            is   not entitled to relief, and no purpose would be
    served by any further proceedings. Commonwealth v. Wah, 
    42 A.3d 335
    (Pa.Super. 2012).
    The        law     presumes       counsel     has   rendered      effective        assistance.
    Commonwealth v. Williams, 
    597 Pa. 109
    , 
    950 A.2d 294
            (2008).        When
    asserting     a    claim of ineffective assistance of counsel, the petitioner is required
    to demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel
    -5
    J   -S70041-18
    had no reasonable strategic basis for his action or inaction; and, (3) but for
    the errors and omissions of counsel, there is         a   reasonable probability that the
    outcome of the proceedings would have been different. Commonwealth v.
    Kimball, 
    555 Pa. 299
    , 
    724 A.2d 326
     (1999). The failure to satisfy any prong
    of the test for ineffectiveness will cause the claim to fail. Williams, 
    supra.
    "The threshold      inquiry in   ineffectiveness claims         is   whether the
    issue/argument/tactic which counsel has foregone and which forms the basis
    for the assertion of ineffectiveness     is   of arguable merit...." Commonwealth
    v. Pierce, 
    537 Pa. 514
    , 524, 
    645 A.2d 189
    , 194 (1994). "Counsel cannot be
    found ineffective for failing to pursue           a       baseless or meritless claim."
    Commonwealth v. Poplawski, 
    852 A.2d 323
    , 327 (Pa.Super. 2004).
    Once this threshold is met we apply the 'reasonable basis'
    test to determine whether counsel's chosen course was
    designed to effectuate his client's interests. If we conclude
    that the particular course chosen by counsel had some
    reasonable basis, our inquiry ceases and counsel's
    assistance is deemed effective.
    Pierce, 
    supra at 524
    , 
    645 A.2d at 194-95
     (internal citations omitted).
    Prejudice is established when [an appellant] demonstrates
    that counsel's chosen course of action had an adverse effect
    on the outcome of the proceedings. The [appellant] must
    show that there is a reasonable probability that, but for
    counsel's unprofessional errors, the result of the proceeding
    would have been different. A reasonable probability is a
    probability sufficient to undermine confidence in the
    outcome. In [Kimball, supra], we held that a "criminal
    [appellant] alleging prejudice must show that counsel's
    errors were so serious as to deprive the defendant of a fair
    trial, a trial whose result is reliable."
    -6
    J   -S70041-18
    Commonwealth v. Chambers, 
    570 Pa. 3
    ,   21-22, 
    807 A.2d 872
    , 883 (2002)
    (some internal citations and quotation marks omitted).
    "Allegations of ineffectiveness in connection with the entry of                      a   guilty
    plea will serve as           a    basis for relief only if the ineffectiveness caused the
    defendant to enter an involuntary or unknowing plea." Commonwealth v.
    Moser, 
    921 A.2d 526
    , 531 (Pa.Super. 2007) (internal citation omitted).
    "Where the defendant enters his plea on the advice of counsel, the
    voluntariness of the plea depends on whether counsel's advice was within the
    range of competence demanded of attorneys in criminal cases."                                        
    Id.
    Pennsylvania law does not require the defendant to "be pleased with the
    outcome of his decision to enter             a   plea of   guilty[; a]ll that   is   required is that
    his decision to plead guilty be knowingly, voluntarily and intelligently made."
    
    Id. at 528-29
    .           A       guilty plea will be deemed valid if the totality of the
    circumstances surrounding the plea shows that the defendant had                                  a   full
    understanding of the nature and consequences of his plea such that he
    knowingly     and        intelligently      entered        the   plea   of   his      own    accord.
    Commonwealth v. Fluharty, 
    632 A.2d 312
     (Pa.Super. 1993). Pennsylvania
    law presumes the defendant is aware of what he is doing when he enters                                 a
    guilty plea, and the defendant bears the burden to prove otherwise.
    Commonwealth v. Pollard, 
    832 A.2d 517
    , 523 (Pa.Super. 2003).                                     Mere
    disappointment      in   the sentence does not constitute the necessary "manifest
    injustice" to render the defendant's guilty plea involuntary. 
    Id. at 522
    .
    -7
    J   -S70041-18
    Instantly, at the guilty plea hearing on July 14, 2015, Appellant engaged
    in a   thorough oral guilty plea colloquy.         The record makes clear that plea
    counsel and Appellant discussed the possibility of obtaining Appellant's
    psychiatric and medical records, as well as the opportunity for                a   doctor to
    evaluate Appellant. Plea counsel explained the evidence the Commonwealth
    would present if the matter proceeded to trial and discussed the punishment
    Appellant might face on the pending charges due to his prior convictions.
    Finally, plea counsel informed Appellant of the rights he was relinquishing by
    pleading guilty, including his right to   a   trial by judge or jury, his right to ensure
    the Commonwealth met its burden of proof, and his limited appeal rights.
    Appellant confirmed he understood the rights he was giving up and expressed
    no reservations about his decision to plead         guilty.
    Moreover, Appellant executed         a   written guilty plea colloquy that
    affirmed his decision to plead guilty.         Nothing in Appellant's oral or written
    colloquies suggests that Appellant's plea was unknowing, unintelligent, or
    involuntary. See Fluharty, 
    supra.
     Consequently, Appellant                 is   not entitled
    to relief on his claims that counsel pressured or misled him into pleading
    guilty.     See Moser, 
    supra;
     Pollard, 
    supra.
                     Following our independent
    review of the record, we agree with counsel that the appeal is frivolous.
    Accordingly, we affirm and grant counsel's petition to withdraw.
    Order affirmed. Counsel's petition to withdraw is granted.
    -8
    J   -S70041-18
    Judgment Entered.
    J   seph D. Seletyn,
    Prothonotary
    Date: 1/7/19
    -9