Com. v. Kimbro, T. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TEONIA TERRI KIMBRO :
:
Appellant : No. 295 WDA 2019
Appeal from the PCRA Order Entered January 25, 2019
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0002723-2015
BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 1, 2020
Teonia Terri Kimbro appeals from the order dismissing as meritless her
petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§
9541-9546. Kimbro’s counsel has filed a Turner/Finley1 brief and a petition
to withdraw as counsel. We affirm and grant counsel’s petition to withdraw.
In January 2017, Kimbro pled guilty to third-degree murder and
burglary. 18 Pa.C.S.A. §§ 2502(c) and 3502(a)(1), respectively. The trial
court imposed a negotiated sentence of 30 to 60 years’ imprisonment. Kimbro
did not file a counseled post-sentence motion. Kimbro filed a pro se motion,
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* Retired Senior Judge assigned to the Superior Court.
1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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which the court did not address because it was a hybrid filing. Kimbro filed a
direct appeal, and new counsel was appointed.
Direct appeal counsel filed an Anders2 brief, identifying as one issue
possibly supporting the appeal the question of whether the court abused its
discretion in sentencing Kimbro. Memorandum, No. 326 WDA 2017, filed Oct.
31, 2017. The claim was that the court failed to “adequately consider her age,
her childhood history, her education, her employment history, her expression
of remorse, and her cooperation.” Id. This Court concluded the appeal was
wholly frivolous, allowed counsel to withdraw, and affirmed Kimbro’s
judgment of sentence on September 21, 2017. Kimbro did not file a petition
for allowance of appeal with the Supreme Court of Pennsylvania.
In May 2018, Kimbro filed a pro se PCRA petition, alleging trial counsel
was ineffective for failing to file a post-sentence motion to modify her sentence
and for failing to act on her pro se motion. In support of her claim, Kimbro
stated that the conviction was her first offense and she was only 18 at the
time of the offense. PCRA Petition, filed May 9, 2018, at 7. The PCRA court
appointed counsel.
Counsel filed a Turner/Finley no-merit letter and a petition to
withdraw as counsel, claiming Kimbro’s petition was untimely and, even if not
untimely, there were no meritorious claims. The PCRA court issued notice of
its intent to dismiss the petition without a hearing and, on January 25, 2019,
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2 Anders v. California, 386 U.S. 738 (1967).
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it dismissed the petition, finding Kimbro failed to raise any meritorious issues.
The court did not rule on counsel’s petition to withdraw. Kimbro filed a timely
notice of appeal.
Before this Court, counsel filed a Turner/Finley brief and petition to
withdraw as counsel. We concluded that counsel failed to comply with the
dictates of Turner/Finley. Further, because counsel’s petition to withdraw on
appeal was based solely on his mistaken conclusion that the PCRA petition
was untimely, we concluded that Kimbro was effectively deprived of her right
to counsel on appeal and remanded for the appointment of new counsel.
On remand, the PCRA court appointed new counsel, and when the case
returned to this Court, counsel submitted a Turner/Finley brief and a petition
to withdraw as counsel.3 Because counsel failed to inform Kimbro of her
immediate right to file a response, either pro se or with retained counsel, we
remanded and instructed counsel to comply with Turner/Finley. Counsel has
again filed in this Court a Turner/Finley brief and a petition to withdraw as
counsel.
When presented with a brief pursuant to Turner/Finley, we first
determine whether the brief meets the procedural requirements of
Turner/Finley. See Commonwealth v. Wrecks, 931 A.2d 717, 721
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3 The PCRA court also ordered counsel to file an amended petition or a
Turner/Finley letter in the PCRA court, and counsel complied. The PCRA
court then denied the petition again. However, as we remanded only for the
appointment of counsel on appeal, and the appeal was still ongoing, we
conclude the PCRA court lacked jurisdiction to entertain additional filings
related to the 2018 PCRA petition. See Pa.R.A.P. 1701(a).
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(Pa.Super. 2007). A Turner/Finley brief must: (1) detail the nature and
extent of counsel’s review of the case; (2) list each issue the petitioner wishes
to have reviewed; and (3) explain counsel’s reasoning for concluding that the
petitioner’s issues are meritless. Commonwealth v. Pitts, 981 A.2d 875,
876 n.1 (Pa. 2009). Counsel must also send a copy of the brief to the
petitioner, along with a copy of the petition to withdraw, and inform the
petitioner that the petitioner may now proceed pro se or retain new counsel.
Wrecks, 931 A.2d at 721. If the brief meets these requirements, we then
conduct an independent review of the petitioner’s issues. Commonwealth v.
Muzzy, 141 A.3d 509, 511 (Pa.Super. 2016).
Here, counsel’s Turner/Finley brief detailed the nature of the case,
listed the issue Kimbro wished to have reviewed, and explained counsel’s
reasoning for concluding the issue was meritless. Further, counsel sent a copy
of the brief and petition to Kimbro, and informed her she “now had the right
to proceed pro se or with privately retained counsel.” Letter from Counsel to
Kimbro, dated August 19, 2020. We conclude counsel complied with the
dictates of Turner/Finley and proceed to address the issue raised in the brief.
Counsel lists the following issue in his Turner/Finley brief: “Whether
[Kimbro’s] trial counsel was ineffective in failing to file a post sentence motion
to modify [Kimbro’s] sentence of incarceration?” Turner/Finley Br. at 4. Our
standard of review for the denial of a PCRA petition “is limited to examining
whether the PCRA court’s determination is supported by evidence of record
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and whether it is free of legal error.” Commonwealth v. Jordan, 182 A.3d
1046, 1049 (Pa.Super. 2018).
To establish an ineffectiveness claim, a petitioner must plead and prove
that: “(1) the underlying legal claim has arguable merit; (2) counsel had no
reasonable basis for his or her action or inaction; and (3) the petitioner
suffered prejudice because of counsel’s ineffectiveness.” Commonwealth v.
Paddy, 15 A.3d 431, 442 (Pa. 2011).
The PCRA court noted that on direct appeal this Court addressed
Kimbro’s underlying claim—that the trial court abused its discretion when
imposing sentence. It noted that we concluded that, because Kimbro entered
a negotiated guilty plea, she had waived any challenge to the discretionary
aspects of her sentence. Trial Court Opinion, Dec. 4, 2018, at 3-4. The PCRA
court then found that counsel cannot be deemed ineffective for failing to raise
a meritless claim and, therefore, denied the petition as meritless. Id. at 4.
This was not an abuse of discretion. Kimbro’s challenge to the
discretionary aspects of her sentence was meritless, and counsel cannot be
found ineffective for failing to file a meritless motion. See Commonwealth
v. Spotz, 896 A.2d 1191, 1211 (Pa. 2006). Further, we have conducted an
independent review of the record, and conclude there are no potentially
meritorious issues.
Order affirmed. Petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/1/2020
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