Com. v. Vearnon, L. ( 2017 )

J-S82028-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEWIS E. VEARNON :
:
Appellant : No. 780 WDA 2017
Appeal from the PCRA Order May 10, 2017
In the Court of Common Pleas of Beaver County Criminal Division at
No(s): CP-04-CR-0000999-2015
BEFORE: BENDER, P.J.E., STEVENS*, P.J.E., and STRASSBURGER**, J.
MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 21, 2017
Appellant Lewis E. Vearnon appeals pro se from the Order entered in
the Court of Common Pleas of Beaver County on May 10, 2017, dismissing,
without a hearing, his first petition filed pursuant to the Post Conviction
Relief Act.1 We affirm.
On March 9, 2016, Appellant pled guilty to one count of Possession
with Intent to Deliver (heroin) and one count of Delivery (heroin). The trial
court sentenced Appellant to twelve (12) months to twenty-four (24) months
in prison, and Appellant was made eligible for the Recidivism Risk Reduction
Incentive (RRRI) program with his minimum date of nine (9) months’
imprisonment. Appellant also was granted credit for the two hundred nine
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1
42 Pa.C.S.A. §§ 9541-9546.
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* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
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(209) days of incarceration he had served. Appellant did not file a post-
sentence motion or a direct appeal.
On October 7, 2016, Appellant filed a timely PCRA petition pro se.
Counsel was appointed and filed a petition to withdraw and a “no merit
letter” on January 31, 2017. In its Order entered on February 27, 2017, the
trial court granted counsel’s petition to withdraw. After providing the
necessary notice pursuant to Pa.R.Crim.P. 907 and reviewing Appellant’s
answer thereto, the PCRA court dismissed Appellant’s PCRA petition without
a hearing on May 10, 2017. Appellant timely appealed.
The PCRA court ordered Appellant to file a concise statement of the
matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), and
Appellant complied on June 30, 2017. The PCRA court filed its Opinion
pursuant to Pa.R.A.P. 1925(a) on August 8, 2017.
In his brief, Appellant presents the following Statement of Questions
Involved:
I. Whether the trial court erred in dismissing Appellant’s
petition for post-conviction collateral relief without first granting
a hearing to determine whether Appellant’s constitutional right
to a direct appeal was violated by counsel’s failure to file an
appeal when requested, where Appellant has never had a direct
appeal and claims ineffective assistance of counsel for not
challenging the propriety of sentencing and where Appellant
alleges that he directed prior counsel to file such an appeal?
II. Whether Appellant’s plea and jury waiver was not knowing
and voluntary due to counsel’s ineffectiveness, and whether
Appellant’s claim that his plea and jury waiver was not knowing
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and voluntary due to counsel’s ineffectiveness was resolved by
the trial court’s analysis?
III. Whether the trial court erred in permitting appointed
counsel to withdraw appearance, and whether appointed counsel
was ineffective for not pursuing the legal interests of Appellant?
Brief for the Appellant at 7 (underline in original; unnecessary capitalization
omitted).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court's determination
and whether the court's decision is free of legal error. Commonwealth v.
Ford, 947 A.2d 1251, 1252 (Pa.Super. 2008), appeal denied, 598 Pa. 779,
959 A.2d 319 (2008). 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, 515 (Pa.Super. 2007), appeal
denied, 593 Pa. 754, 932 A.2d 74 (2007). However, we give no such
deference to the trial court’s legal conclusions. Commonwealth v. Ford,
44 A.3d 1190, 1194 (Pa.Super 2012).
To be eligible for relief pursuant to the PCRA, an appellant must
establish, inter alia, that his conviction or sentence resulted from one or
more of the enumerated errors or defects found in 42 Pa.C.S.A. §
9543(a)(2). Appellant also must establish that the issues raised in the PCRA
petition have not been litigated or waived previously. 42 Pa.C.S.A. §
9543(a)(3). An allegation of error “is waived if the petitioner could have
raised it but failed to do so before trial, at trial, during unitary review, on
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appeal or in a prior state postconviction proceeding.” 42 Pa.C.S.A. §
9544(b).
Appellant’s issues also challenge the effectiveness of trial and/or PCRA
counsel. When considering claims of counsel's ineffectiveness, we are
guided by a well-settled standard of review:
[C]ounsel is presumed to have provided effective representation
unless the PCRA petitioner pleads and proves that: (1) the
underlying claim is of arguable merit; (2) counsel had no
reasonable basis for his or her conduct; and (3) Appellant was
prejudiced by counsel's action or omission. To demonstrate
prejudice, an appellant must prove that a reasonable probability
of acquittal existed but for the action or omission of trial counsel.
A claim of ineffective assistance of counsel will fail if the
petitioner does not meet any of the three prongs. Further, a
PCRA petitioner must exhibit a concerted effort to develop his
ineffectiveness claim and may not rely on boilerplate allegations
of ineffectiveness.
Commonwealth v. Perry, 959 A.2d 932, 936 (Pa.Super. 2008) (citations
and quotation marks omitted).
Appellant first maintains the PCRA court erred in dismissing his
petition without an evidentiary hearing because counsel failed to file a
requested direct appeal. As stated previously, Appellant entered a
negotiated guilty plea. “Our law presumes that a defendant who enters a
guilty plea was aware of what he was doing. He bears the burden of proving
otherwise.” Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa.Super.
2003) (internal citation omitted). “[A] plea of guilty will not be deemed
invalid if the circumstances surrounding the entry of the plea disclose that
the defendant had a full understanding of the nature and consequences of
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his plea and that he knowingly and voluntarily decided to enter the plea.”
Commonwealth v. Reid, 117 A.3d 777, 783 (Pa.Super. 2015) (citation
omitted).
In addition, “[a] valid plea colloquy must delve into six areas: 1) the
nature of the charges, 2) the factual basis of the plea, 3) the right to a jury
trial, 4) the presumption of innocence, 5) the sentencing ranges, and 6) the
plea court's power to deviate from any recommended sentence.”
Commonwealth v. Morrison, 878 A.2d 102, 107 (Pa.Super. 2005);
Pa.R.Crim.P. 590, Comment.
Herein, the record reflects that Appellant’s plea was entered into
knowingly and voluntarily. During the plea and sentencing hearing,
Appellant was informed of and admitted to the charges against him, see
N.T., 3/9/16, at 10, 14; the factual bases for the plea, see id. at 14-15; his
right to a jury trial, see id. at 10; the presumption of innocence, see id. at
10-11; the sentencing ranges, see id. at 10; and the fact that his plea
constituted a violation of his state parole, see id. at 11. Several times, the
trial court noted its sentence was favorable to Appellant N.T. 3/9/16,at 5,
16.2
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2
The bottom of the standard range would have been twenty-seven months’
imprisonment and the bottom of the mitigated range was twenty-one
months’ imprisonment; thus, the negotiated sentence was completely
outside the Sentencing Guidelines. N.T., 3/9/16, at 5.
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Appellant acknowledged he had filled out the written plea colloquy
form shown to him and indicated that he fully understood his rights, as set
forth in the written colloquy, and was satisfied with his plea counsel's advice
to him. Id. at 12, 15-16. Appellant was informed that if the trial court were
to accept his guilty plea and impose the negotiated sentence, he would be
limited to only four potential grounds upon which he may pursue an appeal—
lack of jurisdiction, illegality of sentence, ineffective assistance of counsel
and failure to enter a knowing and intelligent plea. Id. at 16-17. Appellant
also understood the time period in which he must file a post-sentence
motion and a direct appeal. Id. at 22.
At the conclusion of the hearing, defense counsel indicated Appellant
wished to formally withdraw an outstanding Rule 600 motion. The trial court
explained to Appellant that were it to sentence Appellant at that time
without ruling on the motion, Appellant would be waiving any right he
otherwise may have had to request the court to consider it. Id. at 19-20.
At that juncture, Appellant indicated he understood the ramifications of a
withdrawal of the Rule 600 motion. Id. at 20.
In light of the foregoing, we find the record establishes that Appellant
tendered a knowing, intelligent plea and received a favorable sentence;
thus, there is no merit to Appellant’s underlying claim that he was prejudiced
by counsel’s failure to file a direct appeal on his behalf, and his claim of
ineffective assistance of plea counsel necessarily fails. See Commonwealth
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v. Reaves, 592 Pa. 134, 148 n. 10, 923 A.2d 1119, 1128 n. 10 (2007)
(concluding that the failure to satisfy any prong of the test for
ineffectiveness will require rejection of the claim).
For the same reasons, we find no merit to Appellant’s second claim
that plea counsel’s ineffectiveness caused him to enter an involuntary plea.
Appellant represents that he lied during his plea colloquy so that he could
pursue his outstanding Rule 600 motion after his plea and sentencing. As
stated above, the record belies this contention, for the trial court addressed
the motion and informed Appellant that by entering his plea, he would be
unable to pursue it further.
Finally, Appellant avers the trial court erroneously permitted PCRA
counsel to withdraw and asserts appointed counsel was ineffective for failing
to pursue his legal interests. PCRA counsel cannot be held ineffective
merely for petitioning to withdraw as she is permitted to do under
Turner/Finley. See Commonwealth v. Cherry, 155 A.3d 1080, 1083
(Pa.Super. 2017) (“When appointed, counsel's duty is to either (1) amend
the petitioner's pro se Petition and present the petitioner's claims in
acceptable legal terms, or (2) certify that the claims lack merit by complying
with the mandates of Turner/Finley.” (footnote omitted)).
As stated above, appointed PCRA counsel filed a petition to withdraw
and a “no-merit” letter. In Commonwealth v. Finley, 550 A.2d 213
(Pa.Super. 1988) this Court restated the procedures to be followed when
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counsel seeks to withdraw in post-conviction proceedings. See
Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988). In Turner,
our Supreme Court endorsed an independent review by the court of the
record as a follow-up to counsel's “no-merit” letter. The independent review
necessary to secure a withdrawal request by counsel requires proof that:
PCRA counsel, in a “no-merit” letter, has detailed the nature and the extent
of his review; PCRA counsel, in the “no-merit” letter, lists each issue the
petitioner wishes to have reviewed; PCRA counsel explained, in the “no-
merit” letter, why petitioner's issues are meritless; the PCRA court
conducted its own, independent review of the record and; the PCRA court
agrees with counsel that the petition is meritless. See, Finley, 550 A.2d at
215. The PCRA court’s assessment is subject to appellate scrutiny to assure
that these constraints are followed. See, Turner, supra; Commonwealth
v. Mosteller, 633 A.2d 615, 617 (Pa.Super. 1993). Furthermore, pursuant
to Commonwealth v. Friend, 896 A.2d 607 (Pa.Super. 2006), counsel
must forward to the petitioner a copy of the “no-merit” letter and a
statement advising the petitioner that, were the PCRA court to grant
counsel’s application to withdraw, the petitioner has the right to proceed pro
se or with the assistance of privately retained counsel.
Instantly, PCRA counsel complied with all of the above requirements as
set forth in Turner/Finley. She reviewed Appellant's issues raised in his pro
se PCRA petition and concluded that none had merit. Counsel further
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concluded that, after a thorough review of the record, no other grounds for
relief were present. The PCRA court, after conducting its own independent
review, agreed with counsel that there were no meritorious issues entitling
Appellant to relief. For these reasons, we conclude that the PCRA court did
not err in permitting PCRA counsel to withdraw and dismissing Appellant's
petition without an evidentiary hearing. As such, we affirm the order
dismissing Appellant's PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2017
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