Com. v. Barbee, C. ( 2014 )

J-S52041-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CURTIS BARBEE
Appellant No. 1173 EDA 2014
Appeal from the PCRA Order July 20, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006134-2007
BEFORE: GANTMAN, P.J., ALLEN, J., and FITZGERALD, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 04, 2014
Appellant, Curtis Barbee, appeals nunc pro tunc from the order
entered in the Philadelphia County Court of Common Pleas, which dismissed
his first petition brought pursuant to the Post Conviction Relief Act
1
We affirm.
The relevant facts and procedural history of this appeal are as follows.
Taylor in the head. A jury convicted Appellant on October 20, 2008, of
possessing an instrument of crime, and two counts of first-degree murder.
The trial court sentenced Appellant on October 22, 2008, to two consecutive
____________________________________________
1
42 Pa.C.S.A. §§ 9541-9546.
_____________________________
*Former Justice specially assigned to the Superior Court.
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sentences of life imprisonment, followed by two and one half (2½) to five (5)
on March 15, 2010. See Commonwealth v. Barbee, 996 A.2d 534
(Pa.Super. 2010) (unpublished memorandum).
Appellant timely filed a pro se PCRA petition on July 19, 2010. The
PCRA court appointed counsel, who filed a mo -
Commonwealth v. Turner, 518 Pa. 491, 544 A.2d
927 (1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988)
(en banc
- ter. Thereafter, the PCRA court issued notice of its intent to
On July 20, 2012, the PCRA court dismiss
Appellant purportedly filed a notice of appeal on July 27, 2012.
Nevertheless, after inquiring into the status of his appeal, this Court sent
Appellant a letter informing him that no notice of appeal had been entered
on the docket. On May 7, 2013, Appellant subsequently filed a pro se PCRA
petition requesting reinstatement of his appellate rights nunc pro tunc,
which the PCRA court granted on April 2, 2014. On April 16, 2014, Appellant
timely filed a notice of appeal nunc pro tunc, and a voluntary concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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Appellant raises the following issue for our review:
WHETHER THE PCRA COURT ERRED WHEN DISMISSING
-MERIT
LETTER?
Our standard of review of the denial of a PCRA petition is limited to
ex
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,
nclusions. Commonwealth v. Ford, 44
A.3d 1190, 1194 (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 PCRA relief, and no purpose would be served by
any further proceedings. Commonwealth v. Wah, 42 A.3d 335, 338
(Pa.Super. 2012).
Turner/Finley -
deficient. Appellant claims he has the right to effective assistance of counsel
during his first PCRA petition, but he was deprived of that right because
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Turner/Finley. Specifically, Appellant alleges PC -
ineffectiveness, failed to explain what PCRA counsel reviewed and
investigated regarding these claims, and failed to explain why these claims
are meritless. Appellant concludes the PCRA court erred in granting PCRA
counsel. We disagree.
Preliminarily, our Supreme Co
[not] sua sponte review the sufficiency of a no-merit letter when the
Commonwealth v. Pitts, 603 Pa.
1, 9, 981 A.2d 875, 879 (2009) (determining appellant failed to raise issue
-
Nevertheless, in the present case, Appellant challenged the adequacy of
-
Turner/Finley letter, and the
-
Pitts.
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
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required to demonstrate that: (1) the underlying claim is of arguable merit;
(2) counsel 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.
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectivene Commonwealth
v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994).
Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).
On
that the particular course chosen by counsel had some
reasonable basis, our inquir
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 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 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
[appellant] alleging prejudice must show
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that errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883
(2002) (some internal citations and quotation marks omitted).
-
conviction petitioner must, at a minimum, present argumentation relative to
each layer of ineffective assistance, on all three prongs of the ineffectiveness
, 579 Pa. 490, 500, 856 A.2d
merely by focusing his attention on
argument as to how the second and third prongs of the Pierce test are met
Commonwealth v. Santiago, 579 Pa. 46, 69,
8
meaningfully discuss and apply the standard governing the review of
establishing that he is entitled to any re Commonwealth v. Bracey,
568 Pa. 264, 273 n.4, 795 A.2d 935, 940 n.4 (2001).
Turner/Finley. Appellant baldly asserts his right to effective assistance of
counsel during his first PCRA petition. Nevertheless, Appellant does not
attempt to apply the standard governing the review of ineffectiveness
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claims. Thus, Appellant has not established he is entitled to any relief on his
claim. See id.
Moreover, PCRA counsel substantially complied with the requirements
of a Turner/Finley -
to withdraw from representing a petitioner under the PCRA, Pennsylvania
law - letter
pursuant to the mandates of Turner/Finley Commonwealth v.
Karanicolas, 836 A.2d 940, 947 (Pa.Super. 2003) (emphasis in original).
[C] -
court, or brief on appeal to this Court, detailing the nature
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). Counsel
-
petition to withdraw and advise the petitioner of his right to proceed pro se
or with new counsel. Id.
will satisfy the Karanicolas, supra.
Here, PCRA counsel filed a Turner/Finley letter and motion to
withdraw as counsel with the PCRA court. PCRA counsel stated that he
notes of testimony. PCRA counsel also listed the ineffective assistance of
trial/appellate counsel claims Appellant wished to raise and explained why
the claims merit no relief. PCRA counsel indicated that he was sending
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right to proceed pro se or with private counsel. Thus, PCRA counsel
substantially complied with the Turner/Finley requirements. See
Commonwealth v. Widgins, 29 A.3d 816 (Pa.Super. 2011) (holding PCRA
counsel substantially complied with Turner/Finley requirements to
withdraw as counsel); Karanicolas, supra. Accordingly, we affirm the
Order affirmed.
*JUSTICE FITZGERALD CONCURS IN THE RESULT.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/4/2014
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