Com. v. Hollenbach, D. ( 2021 )

J-S30007-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID HARRY HOLLENBACH :
:
Appellant : No. 146 MDA 2021
Appeal from the PCRA Order Entered January 8, 2021
In the Court of Common Pleas of Union County Criminal Division at
No(s): CP-60-CR-0000214-2019
BEFORE: BENDER, P.J.E., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 12, 2021
Appellant, David Harry Hollenbach, appeals from the post-conviction
court’s January 8, 2021 order dismissing his timely-filed petition for relief
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
Additionally, Appellant’s counsel, Trisha Hoover Jasper, Esq., has filed a
petition to withdraw from representing Appellant, along with an Anders1 brief.
While a Turner/Finley2 no-merit letter is the appropriate filing when counsel
seeks to withdraw on appeal from the denial of PCRA relief, we will accept
Attorney Jasper’s Anders brief in lieu of a Turner/Finley no-merit letter.
See Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011)
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Anders v. California, 386 U.S. 738 (1967).
2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
J-S30007-21
(“Because an Anders brief provides greater protection to a defendant, this
Court may accept an Anders brief in lieu of a Turner/Finley letter.”) (citation
omitted). After careful review, we affirm the PCRA court’s order denying
Appellant’s petition and grant Attorney Jasper’s petition to withdraw.
The facts of Appellant’s underlying convictions are not pertinent to his
present appeal. The PCRA court summarized the relevant procedural history
of his case, as follows:
On October 1, 2019[, Appellant pled] guilty to one count of Rape
of a Child, 18 Pa.C.S. § 3121(c), a felony of the first degree[,]
pursuant to a plea agreement. Under the plea agreement[,] all
other counts in the information would be dismissed and
[Appellant] would receive a standard range sentence. On January
6, 2020[,] the court sentenced [Appellant] to incarceration of not
less than [11] nor more than [22] years in a state correctional
institution. [Appellant] did not file a post-sentence motion, nor
did he appeal his sentence.
On July 1, 2020[, Appellant] filed a pro se [PCRA] petition…. By
order dated July 9, 2020[,] the court appointed Peter Kay,
Esquire, to represent [Appellant] and ordered him to file a
counseled petition within sixty days[,] which was extended to
November 12, 2020.
On November 17, 2020[,] counsel filed a [Turner/]Finley no[-
]merit letter. [Pursuant to Pa.R.Crim.P. 907, t]he court gave
notice of [its] intent[] to dismiss [Appellant’s] petition on
December 2, 2020[,] and [it] dismissed the petition on January 7,
2021. [Appellant] filed his notice of appeal on January 27, 2021.
Pursuant to court order[, Appellant] filed his [Pa.R.A.P. 1925(b)
concise] statement of [errors] complained of [on appeal] on
February 16, 2021. On appeal[,] he raises the issue that trial
counsel did not request[,] and this court did not order[,] a
psychological evaluation, and that trial counsel was ineffective for
not moving to suppress an incriminating statement [Appellant]
gave to police. … He requested the court to appoint counsel for
the appeal[,] and this court appointed [Attorney] Jasper … to
represent [Appellant] on appeal.
-2-
J-S30007-21
PCRA Court Opinion (PCO), 5/3/21, at 1-2 (unnecessary capitalization
omitted; some spacing altered).
The PCRA court permitted Attorney Jasper to file an amended Rule
1925(b) statement on Appellant’s behalf. In response, she filed a Rule
1925(c)(4) statement of her intent to withdraw from representing Appellant.
Attorney Jasper thereafter filed with this Court a petition to withdraw and an
Anders brief (hereinafter, “no-merit letter”), asserting that Appellant has no
non-frivolous issues to raise on appeal. Again, as a Turner/Finley letter is
the appropriate filing when counsel seeks to withdraw from an appeal from
the denial of PCRA relief, we will assess Attorney Jasper’s petition to withdraw
and no-merit letter under the dictates of Turner/Finley.
In Turner, our Supreme Court “set forth the appropriate procedures for
the withdrawal of court-appointed counsel in collateral attacks on criminal
convictions[.]” Turner, 544 A.2d at 927. The traditional requirements for
proper withdrawal of PCRA counsel, originally set forth in Finley, were
updated by this Court in Commonwealth v. Friend, 896 A.2d 607 (Pa.
Super. 2006), abrogated by Commonwealth v. Pitts, 981 A.2d 875 (Pa.
2009),3 which provides:
____________________________________________
3 In Pitts, our Supreme Court abrogated Friend “[t]o the extent Friend
stands for the proposition that an appellate court may sua sponte review the
sufficiency of a no-merit letter when the defendant has not raised such issue.”
Pitts, 981 A.2d at 879. In this case, Attorney Jasper filed her petition to
withdraw and no-merit letter with this Court and, thus, our Supreme Court’s
holding in Pitts is inapplicable.
-3-
J-S30007-21
1) As part of an application to withdraw as counsel, PCRA counsel
must attach to the application a “no-merit” letter[;]
2) PCRA counsel must, in the “no-merit” letter, list each claim the
petitioner wishes to have reviewed, and detail the nature and
extent of counsel’s review of the merits of each of those claims[;]
3) PCRA counsel must set forth in the “no-merit” letter an
explanation of why the petitioner’s issues are meritless[;]
4) PCRA counsel must contemporaneously forward to the
petitioner a copy of the application to withdraw, which must
include (i) a copy of both the “no-merit” letter, and (ii) a
statement advising the PCRA petitioner that, in the event the trial
court grants the application of counsel to withdraw, the petitioner
has the right to proceed pro se, or with the assistance of privately
retained counsel;
5) the court must conduct its own independent review of the
record in the light of the PCRA petition and the issues set forth
therein, as well as of the contents of the petition of PCRA counsel
to withdraw; and
6) the court must agree with counsel that the petition is meritless.
Friend, 896 A.2d at 615 (footnote omitted).
We have received Attorney Jasper’s petition to withdraw and a brief that
we will treat as her no-merit letter. She, therefore, meets the first prong of
the above test. In counsel’s no-merit letter, she sets forth each claim
Appellant “wishes to have reviewed, and detail[s] the nature and extent of
counsel’s review of the merits of each of those claims[.]” Id. She also
includes an explanation as to why each issue is meritless. Accordingly,
Attorney Jasper has met the second and third prongs of the revised Finley
test as set forth in Friend. Attorney Jasper also states in her petition to
withdraw that she has forwarded to Appellant a copy of her petition to
withdraw and her no-merit letter. Additionally, Attorney Jasper has attached
-4-
J-S30007-21
to her petition to withdraw a letter she sent to Appellant advising him of his
right to proceed with this appeal pro se or to hire new counsel. Accordingly,
we find that Attorney Jasper has complied with the fourth prong of the revised
test set forth in Friend.
Next, this Court must conduct its own independent review of the record
in light of the issues presented in Appellant’s PCRA petition. Attorney Jasper
sets forth those issue in her no-merit letter, as follows:
1. Whether trial counsel was ineffective for not moving to suppress
an incriminating statement [Appellant] gave to the police[?]
2. Whether trial counsel was ineffective for failing to request a
psychological evaluation and whether the court erred by failing to
order such an evaluation[?]
No-Merit Letter at 6.
First, “[t]his Court’s standard of review from the grant or denial of post-
conviction relief is limited to examining whether the lower court’s
determination is supported by the evidence of record and whether it is free of
legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997)
(citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)).
Where, as here, a petitioner claims that he received ineffective assistance of
counsel, our Supreme Court has stated that:
[A] PCRA petitioner will be granted relief only when he proves, by
a preponderance of the evidence, that his conviction or sentence
resulted from the “[i]neffective assistance of counsel which, 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.” Generally, counsel’s
performance is presumed to be constitutionally adequate, and
counsel will only be deemed ineffective upon a sufficient showing
-5-
J-S30007-21
by the petitioner. To obtain relief, a petitioner must demonstrate
that counsel’s performance was deficient and that the deficiency
prejudiced the petitioner. A petitioner establishes prejudice when
he demonstrates “that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different.” … [A] properly pled claim of
ineffectiveness posits that: (1) the underlying legal issue has
arguable merit; (2) counsel’s actions lacked an objective
reasonable basis; and (3) actual prejudice befell the petitioner
from counsel’s act or omission.
Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations
omitted).
Here, Appellant first seeks to assert that his trial counsel acted
ineffectively by not moving to suppress an incriminating statement he gave to
police. According to Attorney Jasper, Appellant believes his statement was
suppressible because “he was in his mid[-]seventies when he was charged
and convicted of these crimes, he cannot spell or write well[,] and he did and
said what the police and his attorney told him to….” No-Merit Letter at 11-12.
Appellant also suggested, in his pro se PCRA petition, that counsel should have
filed a motion to suppress on the basis that Appellant did not have counsel
present when he gave the statement. See PCRA Petition, 7/1/20, at 5
(numbered 4A).
Initially, the record confirms Attorney Jasper’s assertion that, before his
interview with police, Appellant was read his Miranda4 rights, which included
notification of his right to have counsel present. See Affidavit of Probable
Cause, 6/25/19, at 1. Appellant stated that he understood those rights, and
____________________________________________
4 Miranda v. Arizona, 384 U.S. 436 (1966).
-6-
J-S30007-21
then waived them before continuing with the interview. Id. Therefore, the
fact that Appellant did not have counsel present during his interview with
police would not have warranted suppression. “Counsel will not be deemed
ineffective for failing to raise a meritless claim.” Commonwealth v. Spotz,
896 A.2d 1191, 1210 (Pa. 2006) (citation omitted).
We also find meritless Appellant’s other arguments that counsel should
have sought suppression based on his age, his inability to spell or write well,
and because he simply followed the instructions of the police and his counsel.
First, the written and oral guilty plea colloquies completed in this case
demonstrate that Appellant’s age did not impair his ability to understand what
he was doing, or voluntarily and intelligently enter his plea. We also observe
that at the guilty plea proceeding, Appellant stated that he was not being
treated for any mental illness, and he was not taking any medication that
impaired his ability to understand what was happening. See N.T. Plea,
10/1/19, at 3. Thus, if Appellant’s age did not impede his understanding of
the plea proceedings, we fail to see how or why his age would have impacted
his understanding of his Miranda rights and the consequences of making a
statement to police.
Secondly, while Appellant now claims he cannot spell or write well, he
informed the court at the plea proceeding that he had completed twelfth
grade, and that he could read, write, and understand English. Id. Third,
there is nothing in the record suggesting that Appellant was pressured or
coerced into making his statement by his counsel or the police. At the plea
-7-
J-S30007-21
proceeding, he confirmed that no one had threatened him or promised him
anything in return for entering his plea, id. at 5, that it was his decision to
enter the plea, id. at 7, and that he did in fact commit the offense for which
he was pleading guilty, id. at 8. At no point did Appellant provide any
indication that he had been forced into making his inculpatory statement or
entering his guilty plea.
Finally, we observe that Appellant acknowledged, in both the written
and oral plea colloquies, that he understood that by pleading guilty, he was
waiving his right to file any pre-trial motions, or object to anything that he
believed was improper or illegal in his arrest or the investigation of the charges
pending against him. See Written Plea Colloquy, 10/1/19, at 4, 5; N.T. Plea
at 6. Appellant stated at the oral plea proceeding that he had no questions
about his plea or the rights he was waiving. N.T. Plea at 9. His counsel
informed the court that he believed Appellant understood everything, and that
Appellant was voluntarily and intelligently entering the plea. Id. Therefore,
not only does the record demonstrate that counsel had no valid basis for
moving to suppress Appellant’s inculpatory statement to police, but it also
shows that Appellant also knowingly, intelligently, and voluntarily waived his
right to file any such motion by pleading guilty. Consequently, we agree with
Attorney Jasper that Appellant’s first ineffectiveness claim is meritless.
Next, Appellant seeks to argue that his trial counsel was ineffective for
failing to file a motion for a psychological evaluation, and that the court erred
by not ordering one. Preliminarily, Appellant’s claim of trial court error is
-8-
J-S30007-21
waived, as he could have raised this argument during the guilty plea
proceedings, or in a direct appeal from his judgment of sentence. See 42
Pa.C.S. § 9543(a)(3) (stating that, to be eligible for PCRA relief, a petitioner
must show “[t]hat the allegation of error has not been previously litigated or
waived”); 42 Pa.C.S. § 9544(b) (“For purposes of this subchapter, an issue is
waived if the petitioner could have raised it but failed to do so before trial, at
trial, during unitary review, on appeal or in a prior state post[-]conviction
proceeding.”).
Regarding Appellant’s ineffectiveness claim, he alleges that his counsel
“should have ordered a psychological evaluation [because] he didn’t know
anything about the law, he was in his mid[-]seventies, he cannot spell or write
well[,] and he just said and did what he was told by his attorney and the
police.” No-Merit Letter at 13-14. Attorney Jasper also notes that Appellant
“believes he should have had a psychological evaluation because he thought
he was getting ten years and he did not get ten years.” Id. at 14. According
to Attorney Jasper, Appellant “provides no additional reasons why he should
have [had] a psychological evaluation done or why he even believed he was
getting ten years.” Id.
We conclude this ineffectiveness claim is meritless. Again, during the
written and oral guilty-plea colloquies, Appellant indicated that he had no
mental health issues, he could read and write English, he understood
everything that was occurring, and he had not been threatened or coerced.
He also confirmed that he understood he was waiving his right to raise any
-9-
J-S30007-21
pretrial issues, which would include a request for a psychological evaluation.
Appellant’s age, his ignorance of the law, his alleged inability to spell or write
well, and his claim that he simply followed the directions of his attorney and
the police, are not legitimate grounds for counsel to have requested, or for
the court to have ordered, a psychological evaluation.
Finally, the record belies Appellant’s claim that his counsel led him to
believe that he would receive a maximum sentence of 10 years’ incarceration
if he pled guilty. See PCRA Petition at 4. At the plea proceeding, the court
explained the terms of Appellant’s plea, stating that he would plead guilty to
rape of a child in exchange for his other charges being “dismissed or nol-
prossed, and [his] receiv[ing] a standard range sentence.” N.T. Plea at 4, 5.
Appellant stated that he understood, and confirmed that other than those
terms, he had not been promised anything in exchange for his plea. Id. at 5.
Moreover, at the outset of the sentencing proceeding, Appellant’s counsel told
the court that Appellant understood he faced a mandatory term of 10 years’
imprisonment, and that Appellant hoped the court would impose a 10 to 20
year term. N.T. Sentencing, 1/6/20, at 5. When the court imposed a term of
11 to 22 years’ incarceration and asked Appellant if he had any questions
about his sentence, Appellant indicated he did not. Id. at 9. He also did not
file any post-sentence motion to withdraw his plea or for reconsideration of
his sentence. Therefore, this record belies Appellant’s claim that he entered
his plea believing that he would receive a maximum term of 10 years’
incarceration.
- 10 -
J-S30007-21
For the above-stated reasons, we agree with Attorney Jasper that
Appellant’s claims are meritless. His counsel did not act ineffectively by failing
to file a motion to suppress the statement he made to police, or a motion for
a psychological evaluation of Appellant, as nothing in the record supported
counsel’s filing such motions. Moreover, Appellant knowingly, voluntarily, and
intelligently waived his right to file pretrial motions by pleading guilty.
Accordingly, we affirm the court’s order dismissing his PCRA petition, and
grant counsel’s petition to withdraw.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2021
- 11 -