Com. v. Hamlet, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TAVAUGHN PIERRE HAMLET :
:
Appellant : No. 1817 MDA 2018
Appeal from the PCRA Order Entered October 12, 2018
In the Court of Common Pleas of York County
Criminal Division at No: CP-67-CR-0005677-2015
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY STABILE, J.: FILED JUNE 10, 2019
Appellant, Tavaughn Pierre Hamlet, appeals from the October 12, 2018
order entered in the Court of Common Pleas of York County, denying his
petition for collateral relief pursuant to the Post Conviction Relief Act,
42 Pa.C.S.A. §§ 9541-9546. Appellant’s counsel filed a Turner/Finley1 letter
brief contending any issues raised on appeal would lack merit and be frivolous.
Counsel also has filed a motion to withdraw. Following review, we grant
counsel’s motion to withdraw and affirm the PCRA court’s denial of relief.
The PCRA court provided the following factual background:
On January 22, 2015, at approximately 9:51 p.m., members of
the Drug Enforcement Agency and York County Drug Task Force
executed a federal search warrant and forced entry to
[Appellant’s] home located at 4096 Majestic Court, Dover
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1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988).
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Township. [Appellant] arrived home shortly after the officers’
entry. Police immediately arrested [Appellant], who was carrying
$11,900.00 on his person. Upon waiving his rights under
Miranda, [Appellant] admitted that he owned a handgun and that
it was located under the mattress in the master bedroom. Officers
retrieved the handgun from underneath the mattress. Further,
[Appellant] possessed over $50,000.00 in cash and a digital scale
in his bedroom closet. [Appellant] has convictions in the State of
Maryland that preclude him from possessing a firearm in
Pennsylvania.
[Appellant] was charged with: (1) Person Not to Possess Firearms
under 18 [Pa.C.S.A.] § 6105(a)(1) and (2) Possession of Drug
Paraphernalia under 35 P.S. § 780-113(a)(32). The
Commonwealth withdrew Count 2 at the lower court.
PCRA Court Opinion, 10/12/18, at 1-2.
The PCRA court explained that Appellant’s counsel filed a motion to
suppress evidence and obtain information regarding the search warrant and
the GPS tracking of Appellant’s cell phone. Subsequently, counsel assisted
Appellant in negotiating a plea. Appellant entered a guilty plea to the gun
charge and, on September 2, 2016, was sentenced to three and a half to seven
years in a state correctional institution. Id. at 2. Appellant did not either
seek to withdraw his guilty plea or file a direct appeal. Id. at 3.
On April 28, 2017, Appellant filed a timely pro se PCRA petition,
asserting his prior record score was incorrectly calculated, resulting in an
abuse of discretion on the part of the sentencing court.2 Counsel was
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2 Appellant also argued sentencing court error relating to the forfeiture of
$70,000 cash. However, the forfeiture issue was addressed in a separate
proceeding that was subsequently appealed to this Court and then transferred
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appointed and the case ultimately proceeded to a hearing on August 6, 2018.
During the hearing, PCRA counsel argued that plea counsel was ineffective in
relation to Appellant’s prior record score calculation because it included
incorrect calculations for Appellant’s previous convictions in Maryland. The
Commonwealth countered that Appellant waived the claim when he agreed to
a negotiated sentence. By order entered October 12, 2018, the PCRA court
denied Appellant’s petition. This timely appeal followed.
Counsel filed a Turner/Finley letter brief and a motion to withdraw
with this Court. Before considering the merits, if any, of Appellant’s appeal,
we must address whether PCRA counsel has met the requirements of
Turner/Finley.
In Commonwealth v. Rykard, 55 A.3d 1177 (Pa. Super. 2012), this
Court explained:
The Turner/Finley decisions provide the manner for post-
conviction counsel to withdraw from representation. The holdings
of those cases mandate an independent review of the record by
competent counsel before a PCRA court or appellate court can
authorize an attorney’s withdrawal. The necessary independent
review requires counsel to file a “no-merit” letter detailing the
nature and extent of his review and list each issue the petitioner
wishes to have examined, explaining why those issues are
meritless. The PCRA court, or an appellate court if the no-merit
letter is filed before it, [] then must conduct its own independent
evaluation of the record and agree with counsel that the petition
is without merit.
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to the Commonwealth Court by order entered on January 17, 2017.
Commonwealth v. Hamlet, 2082 MDA 2016.
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Id. at 1184 (citing Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa.
2009)).
We find that PCRA counsel has complied with Turner/Finley. PCRA
counsel has petitioned for leave to withdraw and filed a Turner/Finley no-
merit letter detailing the nature and scope of his review, listing the appellate
issues, and explaining why the issues are meritless. Finally, PCRA counsel
informed Appellant of his right to hire a new lawyer or file a pro se response.3
See Commonwealth v. Widgins, 29 A.3d 816, 818-19 (Pa. Super. 2011).
Therefore, we must consider whether this appeal is indeed meritless.
“On appeal from the denial of PCRA relief, our standard of review
requires us to determine whether the ruling of the PCRA court is supported by
the record and free of legal error.” Widgins, 29 A.3d at 819. As this Court
has instructed:
We review an order dismissing a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of record. We will not disturb a PCRA court’s ruling if it
is supported by evidence of record and is free of legal error. This
Court may affirm a PCRA court’s decision on any grounds if the
record supports it. Further, we grant great deference to the
factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. However, we
afford no such deference to its legal conclusions. Where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review plenary.
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3There is no indication in the record to suggest Appellant hired new counsel.
He did not file a pro se response with this Court.
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Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
Again, at issue is Appellant’s contention that plea counsel was ineffective
with respect to the calculation of Appellant’s prior record score leading to
imposition of an incorrect sentence.4 The PCRA court determined Appellant’s
claim is not only waived but also meritless. The court noted that “[f]ailure to
withdraw one’s plea, combined with failure to take direct appeal bars
consideration of an attack of the guilty plea in collateral proceedings when the
petitioner has been advised of his post-sentence rights.” PCRA Opinion,
10/12/18, at 6 (citing Commonwealth v. Scott, 465 A.2d 678, 679 (Pa.
Super. 1983)). See also 42 Pa.C.S.A. § 9544(b) (“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 postconviction proceeding”).
As the PCRA court explained, Appellant initialed and signed a written
plea colloquy, evidencing his understanding of his post-sentence rights.
However, Appellant declined to exercise those rights, despite voicing concerns
about the prior record score calculations at the time of sentencing. PCRA
Opinion, 10/12/18, at 7 (citing Notes of Testimony, PCRA Hearing, 8/6/18, at
5). Consequently, Appellant is barred from collaterally attacking his plea and
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4In his Turner/Finley letter brief, counsel also examined the forfeiture issue.
As noted above, the forfeiture issue is not before us.
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the “claim is deemed waived and not cognizable to the PCRA court.” Id. (some
capitalization omitted).
The PCRA court also determined that Appellant’s claim lacked merit,
even if not waived. The court noted that entering a guilty plea results in
waiver of all grounds for appeal, except voluntariness of the plea, jurisdiction
of the court, and legality of sentence. Id. at 7-8 (citing Commonwealth v.
Boyd, 835 A.2d 812, 815 (Pa. Super. 2003)). Here there was no question of
the court’s jurisdiction or the legality of Appellant’s sentence. With respect to
the voluntariness of the appeal, the court explained, “[t]he focus of the inquiry
is whether the accused was misled or misinformed and acted under that
misguided influence when entering the plea.” Id. at 8 (quoting
Commonwealth v. Flood, 627 A.2d 1193, 1199 (Pa. Super. 1993)).
Here, Appellant not only completed a written plea colloquy but also
responded to the court’s questions during an oral colloquy at sentencing,
agreeing to a term of three and a half to seven years and acknowledging he
faced a maximum sentence of ten years in prison. Id. at 9 (citing Notes of
Testimony, Guilty Plea Hearing, 4/29/16, at 3 and Written Plea Colloquy,
4/29/16, at 6). As the court further noted, Appellant rejected two other plea
offers before accepting the plea for the sentence imposed. As the court
observed, “[Appellant] actively negotiated with the Commonwealth until he
struck a deal that he could live with irrespective of any calculated prior record
score.” Id. at 10. Moreover, during the PCRA hearing, there was a question
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as to whether the Probation Department even calculated Appellant’s prior
record score or furnished a pre-sentence investigation report because the
court did not order one. Id. In addition, Appellant could not recall the prior
record score he believed was assessed or provide any evidence that his
Maryland convictions should yield a prior record scored lower than that
calculated. “These deficiencies greatly impede [Appellant] from meeting his
burden of proving by a preponderance of evidence that plea counsel’s
ineffectiveness resulted in [Appellant] entering an involuntary plea.” Id.
The court concluded:
In examining the totality of the circumstances surrounding the
entry of [Appellant’s] plea and whether he understood its
connotations and subsequent consequences, this court finds that
[Appellant] entered a voluntary and knowing plea and that he was
not misled nor misinformed when he tendered his guilty plea. The
calculation of [Appellant’s] prior record score, if there was any
such calculation, has no bearing on the voluntariness of
[Appellant’s] plea.
Id. at 11 (some capitalization omitted). Therefore, even if not waived,
Appellant’s claim lacked merit because he failed to prove, by a preponderance
of evidence, that he entered into an involuntary plea due to plea counsel’s
ineffectiveness. Id.
Based on its independent review of the record, the PCRA court agreed
with counsel’s legal assessment that Appellant’s claims lacked merit. Our
review of the record confirms that the PCRA court’s ruling is supported by the
evidence and is free of legal error. Therefore, we shall not disturb it.
Motion to withdraw granted. Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/10/2019
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