Com. v. Calhoun, T. ( 2015 )

J-S28019-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TODD V. CALHOUN,
Appellant No. 1205 MDA 2014
Appeal from the PCRA Order June 20, 2014
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0006309-2009
BEFORE: BOWES, ALLEN and LAZARUS, JJ.
CONCURRING MEMORANDUM BY BOWES, J.: FILED JUNE 05, 2015
I concur in the result reached by the majority but disagree with the
type of review that it conducted when allowing counsel to withdraw. Our
Supreme Court outlined the steps that counsel and the court must take
when PCRA counsel seeks to withdraw pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550
A.2d 213 (Pa.Super. 1988) (en banc):
1) A “no-merit” letter by PCRA counsel detailing the nature
and extent of his review;
2) The “no-merit” letter by PCRA counsel listing each issue
the petitioner wished to have reviewed;
3) The PCRA counsel's “explanation”, in the “no-merit”
letter, of why the petitioner's issues were meritless;
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4) The PCRA court conducting its own independent
review of the record; and
5) The PCRA court agreeing with counsel that the petition
was meritless.
Commonwealth v. Pitts, 603 1, 3, 981 A.2d 875, 876 n.1 (Pa. 2009)
(emphasis added; quoting Finley, supra at 215).
In Pitts, the procedural posture was that PCRA counsel withdrew
before the PCRA court. When counsel’s withdrawal occurs, as in the present
case, before this Court, we necessarily stand in the shoes of the PCRA court.
Accordingly, as enunciated in Pitts, we must conduct our own independent
review of the record and agree with counsel that PCRA relief is unavailable.
My conclusion in this regard is further cemented by our recent decision in
Commonwealth v. Freeland, 106 A.3d 768 (Pa.Super. 2014).
In Freeland, the defendant was denied PCRA relief and appealed.
PCRA counsel then sought to withdraw from representation before this Court
under Turner/Finley. We first outlined counsel’s obligations and then
turned to the requirements placed on the court when faced with withdrawal
in the PCRA context. We expressly stated: “The PCRA court, or an
appellate court if the no-merit letter is filed before it then must
conduct its own independent evaluation of the record and agree with
counsel that the petition is without merit.” Id. (emphasis added; citation
omitted). We permitted counsel to withdraw therein but only after
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indicating: “On independent review, we find no other claims of merit.” Id.
at 780. We thus did not confine our review to the issues raised by counsel,
as does that majority herein. Rather, we conducted an independent review
of the record.
As the majority fails to indicate that it conducted a review of the
record, I have conducted that review and found no other meritorious claims.
I did find another issue outlined in the amended PCRA petition. Specifically,
in that document, Appellant averred that his trial counsel was ineffective for
advising him to reject a plea offer. Appellant outlined in that petition that
this advice was premised upon trial counsel’s belief that a pending motion to
dismiss under Rule 600 would be granted. Appellant testified to this effect
at the PCRA hearing. He reported that he was offered a plea deal in July
2010 of time served plus one year probation. N.T. PCRA Hearing, 6/20/14,
at 19. Appellant claimed that he declined that offer since, “I was led to
believe that I would win rule 600 due to my constitutional right was violated;
so I was made aware not to take the deal.” Id. Appellant’s motion to
dismiss was subsequently denied, and we affirmed on direct appeal.
Trial counsel testified at the PCRA hearing and confirmed that the plea
offer was made. Counsel contradicted Appellant’s testimony that counsel
advised Appellant to reject the offer. Instead, counsel said that he conveyed
the plea offer to Appellant, but Appellant himself refused to plead guilty.
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Counsel continued, “The reason he did not want to take the deal was
because he was on state parole. That was the reason he did not want to
take it.” Id. at 39-40. Counsel specifically denied offering Appellant any
advice on the matter and testified, “It was his decision.” Id. at 40.
Counsel’s memory of events is confirmed by Appellant’s testimony at
sentencing. While exercising his right to allocution, Appellant said that he
had rejected a plea offer to time served. Appellant told the court, “Your
Honor, on July 12th I was offered a plea agreement of time served. I did not
do the plea agreement due to the fact wholeheartedly I feel I was not part of
a crime.” N.T. Sentencing, 11/24/10, at 18. Appellant’s reason for rejecting
the offer, as outlined at sentencing, differs from counsel’s recollection of why
Appellant refused to plead guilty. Nevertheless, Appellant admitted at
sentencing that it was his decision not to plead guilty. Hence, I believe that
this other contention raised in the PCRA petition lacks merit as the record
establishes that it was Appellant’s choice to reject the plea offer and that
counsel did not advise him to reject it.
I recognize that this claim was not raised in the Pa.R.A.P. 1925(b)
statement and is not preserved. Nevertheless, PCRA counsel, in order to
withdraw, has a responsibility to analyze all issues the petitioner seeks to
have reviewed. This question was presented in the amended PCRA petition
and pursued by Appellant at the PCRA hearing. Hence, it is appropriate to
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address it. Given that the contention is meritless, counsel’s failure to
present it in this appeal, in any event, should not be considered an
impediment to the grant of withdrawal. See Commonwealth v.
Liebensperger, 904 A.2d 40 (Pa.Super. 2006) (counsel permitted to
withdraw due to fact PCRA petition was untimely, even though counsel’s no-
merit brief was defective since it did not raise issues that the PCRA petition
wanted to pursue and did not properly establish why issues lacked merit).
Additionally, my review of the record confirms that there are no other
issues in the PCRA petition and no non-waivable issues. Hence, I concur in
the result.