Com. v. Bird, M. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MATTHEW JOSEPH BIRD :
:
Appellant : No. 943 MDA 2018
Appeal from the PCRA Order Entered May 1, 2018
In the Court of Common Pleas of Northumberland County Criminal
Division at No(s): CP-49-CR-0000972-2013
BEFORE: OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: MAY 22, 2019
Matthew Bird appeals from the order denying his Petition filed under the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Bird’s PCRA
counsel has filed a Petition to Withdraw and an Anders1 brief. We affirm the
order of the PCRA court and grant counsel’s request to withdraw.
In September 2013, Bird was on state parole for a conviction for which
the trial court had originally sentenced him approximately 1 to 7 years’
imprisonment, when he was charged with six new drug-related offenses.
Melissa Norton, Esquire of the Public Defender’s office, represented Bird and
engaged in plea negotiations on his behalf with the Commonwealth. Prior to
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* Retired Senior Judge assigned to the Superior Court.
1 See Anders v. California, 386 U.S. 738 (1967).
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the entry of a plea, Attorney Norton sent a letter to Bird, dated October 21,
2013, wherein she wrote:
In response to your recent correspondence I will request that the
district attorney consider recommending that your sentence on
the above case run concurrent to the sentences you are now
serving. However, please be aware that the Court of Common
Pleas cannot, by law, run a sentence concurrent to a state
revocation sentence. The dockets do not indicate that you are
serving a revocation sentence, but the dockets are not always
current and reliable sources of information. I am sure you know if
you are currently serving a revocation sentence.
Attorney Norton’s Letter to Bird, 10/21/13 (emphasis in original); Tr. Ct. Op.,
5/1/18, at 2.
Prior to a plea, the record reflects that Bird discussed his eligibility and
desire for the Recidivism Risk Reduction Incentive (“RRRI”) program and Boot
Camp. Guilty Plea Hearing, 11/4/13, at 2. Ultimately, Bird entered a guilty
plea agreement where he agreed to plead guilty to one count of possession
with intent to deliver a controlled substance, with the remaining counts to be
nolle prossed and with his sentence to fall within the bottom section of the
standard range of the Sentencing Guidelines. Id. Bird executed a written plea
colloquy, on October 25, 2013, and on November 4, 2013, he entered his
guilty plea before the trial court. During a January 13, 2014 sentencing
hearing, Attorney Norton indicated that Bird was seeking eligibility for the
RRRI program and for boot camp. Sentencing Hearing, 1/13/14 at 2. The trial
court also inquired about whether a concurrent sentence was part of Bird’s
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plea agreement and both the Commonwealth and Attorney Norton indicated
that it was not. Id.Ultimately, the trial court sentenced Bird to 15 to 60 months’
incarceration. Id. at 4. However, the court determined that Bird was eligible
for boot camp and the RRRI program, thereby reducing his minimum
incarceration term to slightly under a year. Id. The court attempted to make
Bird’s new sentence concurrent but to no avail because his former sentence
was a state revocation sentence Id.2
Although he did not file a direct appeal, Bird filed a timely, pro se PCRA
petition in October 2014. We note with disapproval that Bird’s petition
languished for some time due to a lack of action by the Public Defender’s
office. Finally, PCRA counsel filed a motion for a hearing in June 2016, and
an initial hearing was held in October 2016. However, a full hearing was not
conducted until April 30, 2018,3 and the PCRA court finally denied Bird’s
petition on May 1, 2018.
Bird filed the instant timely appeal and a Pa.R.A.P. 1925(b) statement.
However, in this Court, Bird’s PCRA counsel filed a Petition to Withdraw as
counsel as well as an Anders brief stating that Bird’s appeal is frivolous. We
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2 Pursuant to 61 Pa.C.S.A. 6138(a)(5.1), when a defendant’s state parole is
revoked as a result of a new conviction, the defendant must serve the balance
of his original term before serving a new sentence.
3At his PCRA hearing, Bird indicated that he is still serving parole in connection
with the instant case. PCRA hearing, 4/30/18, at 10.
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review the Petition to Withdraw prior to reaching the merits of Bird’s claims.
See Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007).
Counsel requesting to withdraw from PCRA representation must file a
“no merit” brief that conforms to the requirements of Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d
213 (Pa.Super. 1988) (en banc). See Commonwealth v. Muzzy, 141 A.3d
509, 510-11 (Pa.Super. 2016). A Turner/Finley brief must detail “the nature
and extent of counsel’s diligent review of the case, listing the issues which
petitioner wants to have reviewed, explaining why and how those issues lack
merit, and requesting permission to withdraw.” Id. Counsel must send the
petitioner a copy of the brief, a copy of counsel’s petition to withdraw, and “a
statement advising petitioner of the right to proceed pro se or by new
counsel.” Id. at 511. If counsel fulfills these requirements, then this Court
must conduct its own review of the case, and, if the claims are without merit,
permit counsel to withdraw. Id.
Here, the brief that PCRA counsel filed is styled as an Anders brief,
which is proper in a direct appeal, rather than a Turner/Finley brief.
However, because an Anders brief, which alleges that the issues are frivolous,
rather than meritless, affords greater protection to a defendant, we may
accept an Anders brief in lieu of a Turner/Finley brief. See
Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa.Super. 2011).
The instant Anders brief details PCRA counsel’s review of the case,
describes the issues Bird desires to raise on appeal, and explains why counsel
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believes those issues are frivolous (which presupposes that the issues are
meritless); thus, it meets the Turner/Finley requirements. Furthermore,
PCRA counsel has filed a copy of a letter he sent to Bird wherein he explains
that he finds Bird’s issues lack merit but advised him that he could proceed
pro se, or “hire an attorney at your own expense,” to file a brief on his behalf.
Letter to Bird, dated January 16, 2019. PCRA counsel indicated that he
attached a copy of his Anders brief and Petition to Withdraw to the letter. Id.As counsel has met the preliminary, procedural requirements of
Turner/Finley, we turn to whether our review indicates that Bird’s issues
have merit.
In his Anders brief, PCRA counsel identifies two issues for appeal: (1)
“Whether counsel for [Bird] at the time of the entry of the plea was ineffective
in failing to advise him that his negotiated sentence could not be served
concurrently with his state revocation sentence? and (2) Whether the [PCRA]
court erred in determining that [Bird’s] plea was not unlawfully induced when
[Bird] entered a plea with the erroneous but good faith expectation that his
sentence would be served concurrently with his state parole sentence?”
Anders brief at 7.4
We begin by noting that, our review of a denial of PCRA relief “is limited
to the findings of the PCRA court and the evidence of record, viewed in the
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4 At his PCRA hearing, Bird indicated that he was surprised to learn, upon his
incarceration, that he would have to serve “a two year back hit” in
connection with the revocation of his state parole. PCRA hearing at 10.
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light most favorable to the prevailing party at the PCRA court level.”
Commonwealth v. Medina, 92 A.3d 1210, 1214 (Pa.Super. 2014) (en
banc). We are bound by any credibility determinations made by the PCRA
court and supported by the record, but apply a de novo standard of review to
the PCRA court’s legal conclusions. Id. at 1214-15.
Ineffective assistance is a cognizable claim under the PCRA. See 42
Pa.C.S.A. § 9543(a)(2)(ii). “Counsel is presumed effective, and [a petitioner]
has the burden of proving otherwise.” Commonwealth v. Brown, 161 A.3d
960, 965 (Pa.Super. 2017). To overcome this presumption, a petitioner must
plead and prove that: “(1) the underlying 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). Failing to satisfy
even one of these factors requires this Court to reject the claim.
Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa. 2008).
Where a defendant enters a guilty plea on advice of counsel, “the
voluntariness of the plea depends on whether counsel’s advice was within the
range of competence demanded of attorneys in criminal cases.”
Commonwealth v. Wah, 42 A.3d 335, 338-39 (Pa.Super. 2012). Further, a
defendant’s lack of understanding of the collateral consequences of a guilty
plea does not render such plea involuntary unless counsel provided false or
misleading advice. Commonwealth v. Brandt, 74 A.3d 185, 195-97
(Pa.Super. 2013).
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In the case sub judice, the crux of both of Bird’s potential issues lies in
his contention that his trial counsel, Attorney Norton, improperly led him to
believe that the trial court could impose a sentence to be served concurrently
with the state parole he was then serving. However, as noted above, Attorney
Norton clearly informed Bird, in writing, that a state revocation sentence could
not be served concurrently with his new sentence. Thus, there is no arguable
merit to the claim that trial counsel was ineffective for failing to impart this
information to Bird. Therefore, Bird’s claim that his guilty plea was involuntary
due to the ineffective assistance of his trial counsel must fail. See Wah, 42
A.3d at 338-39; Brandt, 74 A.3d at 195-97.
Likewise, Bird’s claim that he entered a plea only in anticipation of a
concurrent sentence is also belied by the record because the terms of his
written guilty plea colloquy did not contain any mention of a concurrent
sentence, nor did Bird’s trial counsel require as much during Bird’s sentencing
hearing. Thus, Bird’s second issue also does not merit relief.
Further, our own review of the record has uncovered no other
meritorious issues for appeal. Accordingly, we affirm the order of the PCRA
court and grant PCRA counsel’s Petition to Withdraw.
Order affirmed. Petition to Withdraw Granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/2019
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