Com. v. Valcarel, L. ( 2020 )

J-S05018-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LLOYD J. VALCAREL :
:
Appellant : No. 1102 MDA 2018
Appeal from the PCRA Order entered June 1, 2018,
in the Court of Common Pleas of York County,
Criminal Division at No(s): CP-67-CR-0001772-2011.
BEFORE: SHOGAN, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY KUNSELMAN, J.: FILED JUNE 30, 2020
Lloyd J. Valcarel appeals from the order denying his petition for relief
filed pursuant to the Post Conviction Relief Act (“PCRA”).1 Additionally,
Valcarel’s court-appointed PCRA counsel has filed a petition to withdraw from
representation, as well as a “no-merit” letter pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc) (hereinafter “the Turner/Finley no-merit
letter”). We grant counsel’s petition and affirm the PCRA court’s order.
The relevant factual and procedural history underlying this appeal can
be summarized as follows. On the evening of February 12, 2011, as police
responded to a report of a robbery, they observed a car matching the
____________________________________________
1 See 42 Pa.C.S.A. §§ 9541-9546.
J-S05018-20
description of the assailants’ vehicle. When police attempted to initiate a
traffic stop, the driver of the vehicle attempted to elude police and a chase
ensued. The vehicle eventually crashed, and police arrested the occupants,
one of whom was Valcarel. Police thereafter charged Valcarel with robbery,
conspiracy to commit robbery, and related offenses.
Valcarel retained counsel, Lori Yost, Esquire, to represent him in the
action. In 2012, as part of a negotiated plea agreement, Valcarel pleaded
nolo contendere to robbery and conspiracy to commit robbery in exchange for
an aggregate prison term of four to ten years. The trial court accepted
Valcarel’s plea, and sentenced him in accordance with the plea agreement.
Valcarel did not file a post-sentence motion or a direct appeal.
In 2013, Valcarel filed a timely pro se PCRA petition. The PCRA court
took no action on that petition.2 In 2017, Valcarel filed a second pro se PCRA
petition asserting plea counsel’s ineffectiveness. The PCRA court appointed
Valcarel counsel, who filed an amended petition asserting more specific claims
of plea counsel’s ineffectiveness. The PCRA court conducted an evidentiary
hearing on the ineffectiveness claims. On June 1, 2018, the PCRA court denied
Valcarel’s petition. On July 3, 2018, Valcarel filed a timely notice of appeal.3
____________________________________________
2 The record is unclear as to why the PCRA court took no action on Valcarel’s
initial petition.
3Although the PCRA court’s order denying PCRA relief was filed on June 1,
2018, it was not served on Valcarel until June 4, 2018. See Pa.R.A.P.
-2-
J-S05018-20
Both Valcarel and the PCRA court complied with Pa.R.A.P. 1925. This Court
then issued a briefing schedule. Valcarel’s PCRA appellate counsel failed to
file a brief. We then remanded this matter to the PCRA court to determine
whether PCRA appellate counsel had abandoned Valcarel. On remand, the
PCRA court granted Valcarel’s motion for change of counsel, and appointed
Charles Hobbs, Esquire, as replacement PCRA appellate counsel. Attorney
Hobbs determined that Valcarel’s ineffectiveness claims lacked merit, and
accordingly filed a petition to withdraw from representation and a
Turner/Finley no-merit letter.
In the Turner/Finley no-merit letter, Attorney Hobbs raises the
following issues for our review:
I. Trial counsel was not ineffective for failing to call Dayna
Pruitt as a witness.
II. Trial counsel was not ineffective for failing to file a requested
appeal.
III. [Valcarel’s] no-contest plea was not unlawfully induced.
Turner/Finley No-Merit Letter, at 13, 16, 17 (unnecessary capitalization
omitted).
Prior to addressing Valcarel’s claims on appeal, we must address
Attorney Hobb’s petition to withdraw as counsel. Pursuant to Turner/Finley,
____________________________________________
108(a)(1), (d)(1) (appeal period only begins to run on the date the clerk
“mails or delivers copies of the order to the parties”). Thus, Valcarel’s appeal
is timely, as it was filed within thirty days of the date that the clerk mailed
Valcarel a copy of the PCRA court’s order.
-3-
J-S05018-20
independent review of the record by competent counsel is required before
withdrawal on collateral appeal is permitted. See Commonwealth v. Pitts,
981 A.2d 875, 876 n.1 (Pa. 2009). In Pitts, our Supreme Court explained
that such independent review requires proof of:
1. A “no-merit” letter by PC[R]A counsel detailing the nature and
extent of his review;
2. The “no-merit” letter by PC[R]A counsel listing each issue the
petitioner wished to have reviewed;
3. The PC[R]A counsel’s “explanation,” in the “no-merit” letter, of
why the petitioner’s issues were meritless;
4. The PC[R]A court conducting its own independent review of the
record; and
5. The PC[R]A court agreeing with counsel that the petition was
meritless.
Id. (citation and brackets omitted). Further, PCRA counsel seeking to
withdraw from representation in this Court must contemporaneously forward
to the petitioner a copy of the petition to withdraw that includes (1) a copy of
both the “no-merit” letter, and (2) a statement advising the PCRA petitioner
that, upon the filing of counsel’s petition to withdraw, the petitioner has the
immediate right to proceed pro se, or with the assistance of privately retained
counsel. Commonwealth v. Muzzy, 141 A.3d 509, 511-12 (Pa. Super.
2016).
Here, in the Turner/Finley “no merit” letter, Attorney Hobbs described
the extent of his review, identified the issues that Valcarel sought to raise,
and explained why the issues lacked merit. In addition, Attorney Hobbs
-4-
J-S05018-20
provided Valcarel with a notice of his intention to seek permission to withdraw
from representation, a copy of the Turner/Finley “no merit” letter, and
advised Valcarel of his rights in lieu of representation.4 Thus, we conclude
that Attorney Hobbs has substantially complied with the requirements
necessary to withdraw as counsel. See Commonwealth v. Karanicolas,
836 A.2d 940, 947 (Pa. Super. 2003) (holding that substantial compliance
with requirements to withdraw as counsel will satisfy the Turner/Finley
criteria). We now independently review Valcarel’s claims to ascertain whether
they entitle him to relief.
In reviewing the denial of a PCRA Petition, we examine whether the
PCRA court’s determination “is supported by the record and free of legal
error.” Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007) (citations
omitted).
Additionally, when a petitioner alleges trial counsel’s ineffectiveness in
a PCRA petition, he must prove by a preponderance of the evidence that his
conviction or sentence resulted from ineffective assistance of counsel “which,
____________________________________________
4 Attorney Hobbs’ initial correspondence to Valcarel incorrectly advised him
that he had to await a ruling from this Court on the petition to withdraw before
he could proceed pro se or retain private counsel to represent him. See
Letter, undated, at 1. As noted above, Attorney Hobbs was required to advise
Valcarel that he had the immediate right to exercise these options. See
Muzzy, 141 A.3d at 511-12. Accordingly, we ordered Attorney Hobbs to send
Valcarel a revised letter correctly informing him of his rights. Attorney Hobbs
complied with the order. Valcarel, however, elected not to pursue either of
these options, and did not file a response to the no-merit letter.
-5-
J-S05018-20
in the circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could
have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii). The petitioner must
demonstrate:
(1) that the underlying claim has arguable merit; (2) that no
reasonable basis existed for counsel’s actions or failure to act; and
(3) that the petitioner suffered prejudice as a result of counsel’s
error. To prove that counsel's chosen strategy lacked a reasonable
basis, a petitioner must prove that an alternative not chosen
offered a potential for success substantially greater than the
course actually pursued. Regarding the prejudice prong, a
petitioner must demonstrate that there is a reasonable probability
that the outcome of the proceedings would have been different
but for counsel’s action or inaction. Counsel is presumed to be
effective; accordingly, to succeed on a claim of ineffectiveness[,]
the petitioner must advance sufficient evidence to overcome this
presumption.
Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (internal
citations and quotation marks omitted). A failure to satisfy any prong of the
test for ineffectiveness will require rejection of the claim. Commonwealth
v. Martin, 5 A.3d 177, 183 (Pa. 2010).
The first ineffectiveness claim raised in the Turner/Finley no-merit
letter asserts trial counsel’s failure to investigate and call Dayna Pruitt as a
witness to support an alibi defense for Valcarel. When raising a claim that
counsel failed to call a potential witness, the PCRA petitioner satisfies the
performance and prejudice requirements of the ineffectiveness test by
establishing that:
(1) the witness existed; (2) the witness was available to testify
for the defense; (3) counsel knew of, or should have known of,
-6-
J-S05018-20
the existence of the witness; (4) the witness was willing to testify
for the defense; and (5) the absence of the testimony of the
witness was so prejudicial as to have denied the defendant a fair
trial.
Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa. 2009) Trial counsel’s
failure to call a particular witness does not constitute ineffective assistance
without some showing that the absent witness’ testimony would have been
beneficial or helpful in establishing the asserted defense. See id.In the instant case, the PCRA court conducted an evidentiary hearing at
which Ms. Pruitt testified that she and Valcarel were living together on the
date of the robbery. According to Ms. Pruitt, she and Valcarel spent the day
and evening together. That night, however, Valcarel received a telephone call
and stated that he needed to leave, but would be back soon. See N.T. PCRA
Hearing, 5/29/18, at 6-7. Ms. Pruitt testified that Valcarel left their home
between 10:00 p.m. and 11:00 p.m. Id. at 7-8. She did not know whether
Valcarel returned that night because she was tired and went to sleep. Id. at
9.5
Valcarel’s trial counsel, Attorney Yost, also testified at the evidentiary
hearing. According to Attorney Yost, she did not believe that Ms. Pruitt’s
testimony would have been helpful to Valcarel’s case because the timeframe
that Valcarel was with Ms. Pruitt was earlier in the day, and did not line up
____________________________________________
5 According to the affidavit of probable cause supporting the criminal
complaint, the robbery occurred at midnight. See Affidavit of Probable Cause,
2/13/11, at 3.
-7-
J-S05018-20
with the time of the robbery. Id. at 12, 18-19. Attorney Yost also indicated
that Ms. Pruitt’s testimony would not have been helpful because Valcarel was
observed on surveillance video without Ms. Pruitt immediately after the
robbery. Id. at 12.
Finally, Valcarel took the stand and testified that Ms. Pruitt was not with
him on the night the robbery was committed, and that she stayed home when
Valcarel left their residence. Id. at 35.
Based on this evidence, the PCRA court concluded that Attorney Yost
was not ineffective for failing to present Ms. Pruitt as an alibi witness in
Valcarel’s case. The PCRA court found that Ms. Pruitt’s testimony would not
have been helpful, and would likely have been detrimental to Valcarel’s case
since it would have provided opportunity for him to commit the crime rather
than an alibi. Id. at 41. As the record supports the PCRA court’s
determination, we affirm its denial of PCRA relief on Valcarel’s first
ineffectiveness claim.
The second ineffectiveness claim raised in the Turner/Finley no-merit
letter concerns trial counsel’s failure to file a direct appeal of Valcarel’s
sentence. Our Supreme Court has held that counsel’s unexplained failure to
file a requested direct appeal constitutes ineffective assistance per se, such
that the petitioner is entitled to the reinstatement of direct appeal rights nunc
pro tunc without establishing prejudice. See Commonwealth v. Lantzy,
736 A.2d 564, 572 (Pa. 1999). However, before a court will find
-8-
J-S05018-20
ineffectiveness of counsel for failing to file a direct appeal, the petitioner must
prove that he requested a direct appeal and that counsel disregarded the
request. See Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa. Super.
2011).
At the evidentiary hearing, Valcarel testified that he sent a letter to
Attorney Yost asking her to file a direct appeal. N.T. PCRA Hearing, 5/29/18,
at 36. He claimed that his PCRA counsel, Attorney Hobbs, had a copy of that
letter. Id. at 31. At the conclusion of the hearing, Attorney Hobbs asked the
PCRA court to keep the evidentiary record open so that he could locate the
letter and supplement the record. Id. at 39.
Attorney Yost testified that she had no recollection of Valcarel asking
her to file a direct appeal, and that there was nothing in her file demonstrating
that Valcarel ever made such a request. Id. at 13, 14, 19. She indicated that
Valcarel was appraised of his appellate rights, and had Valcarel asked her to
file an appeal, she would have done so. Id.
In its order denying relief, the PCRA court indicated that Valcarel did
supplement the record with a letter that he wrote to Attorney Yost. However,
the letter did not contain a request to file a direct appeal in the instant matter.
Rather, the letter (which was unsigned and undated) requested discovery in
-9-
J-S05018-20
an unrelated drug case in which Attorney Yost was also representing Valcarel.6
PCRA Order, 6/1/18, at 1-2. In the letter, Valcarel indicated that it was
approaching thirty days since he had entered his plea in the drug case, and
he requested the discovery material “ASAP” because he was about to withdraw
“my plea.”7 Id. The PCRA court ruled that the letter requesting discovery
and referencing the withdrawal of his plea in the drug case was insufficient to
demonstrate that Valcarel requested Attorney Yost to file a direct appeal in
his separate robbery case. Id. at 2.
Based on our review, we conclude that the record supports the PCRA
court’s determination that Valcarel did not present sufficient evidence to
demonstrate that he instructed Attorney Yost to file a direct appeal in this
case. Accordingly, we affirm its denial of PCRA relief with respect to Valcarel’s
second ineffectiveness claim.
The final issue raised in the Turner/Finley no-merit letter concerns the
voluntariness of Valcarel’s plea. A nolo contendere plea has the same effect
as a guilty plea for purposes of sentencing and is considered a conviction. See
____________________________________________
6The letter was accompanied by an envelope addressed to Attorney Yost
which was postmarked within thirty days of the date of Valcarel’s plea.
7 The withdraw of a guilty or nolo contendere plea is entirely distinct from the
filing of an appeal. An appeal must be filed within thirty days from the entry
of the judgment of sentence. See Pa.R.A.P. 903(a). The time period in which
to petition for the withdraw of a plea is ten days from the entry of the plea.
See Pa.R.Crim.P. 720 (A)(1), (B)(1)(a)(i). Thus, even if Valcarel intended to
withdraw his nolo contendere plea in the drug case, he was beyond the ten-
day limit.
- 10 -
J-S05018-20
Commonwealth v. Lewis, 79 A.2d 1227 (Pa. Super. 2002). Upon entry of
a negotiated guilty plea, a defendant waives all claims and defenses other
than those sounding in the jurisdiction of the court, the validity of the plea,
and the legality of the sentence imposed. See Commonwealth v. Jabby,
200 A.3d 500, 505 (Pa. Super. 2018).
Here, as Valcarel seeks the challenge the validity of his nolo contendere
plea, he bears the burden of demonstrating that his guilty plea was
involuntary, unknowing or unintelligent. See Commonwealth v. Stork, 737
A.2d 789, 790 (Pa. Super. 1999). Importantly, the defendant is bound by the
statements he makes during the guilty plea colloquy and cannot later assert
grounds for withdrawing the plea that contradict statements he made when
pleading guilty. See Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa.
Super. 2003). Nor may a defendant challenge his guilty plea by asserting that
he lied while under oath. Id.At the evidentiary hearing, Valcarel claimed that his plea was unlawfully
induced and he is innocent. In support of his claim, Valcarel testified that on
the day that he tendered the plea he was under the influence of Depakote, a
psychotropic medication, and did not understand what he was doing. Id. at
27-28. However, Valcarel additionally testified that he accepted the plea of
four to ten years incarceration because he was facing thirty to sixty years in
prison that he would “never get back.” Id. at 28-29. Additionally, when
questioned by the PCRA court, Valcarel agreed that, when he was asked by
- 11 -
J-S05018-20
the trial court whether it was his choice to plead guilty, he answered “yes,”
and stated that no one had threatened or coerced him to enter the plea. Id.
at 32-33.
Based on the record before us, we conclude that the PCRA court’s
determination that Valcarel voluntarily entered his nolo contendere plea is
amply supported by the record. Valcarel indicated to the trial court that his
plea was voluntary, intelligently, and knowingly entered, and he cannot now
claim otherwise. See Pollard, 832 A.2d at 523. Accordingly, we affirm the
PCRA court’s denial of PCRA relief on Valcarel’s third issue.
Finally, as the record supports PCRA counsel’s determination that
Valcarel’s claims for PCRA relief lack merit, we grant Attorney Hobbs’ petition
to withdraw.
Petition to withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/30/2020
- 12 -