Com. v. Wilson, W.

J-S43017-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM A. WILSON, :
:
Appellant : No. 1779 WDA 2017
Appeal from the PCRA Order October 25, 2017
In the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-04-CR-0000396-2015,
CP-04-CR-0001013-2013, CP-04-CR-0001014-2013,
CP-04-CR-0001015-2013, CP-04-CR-0002157-2013
BEFORE: STABILE, J., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY DUBOW, J.: FILED JANUARY 30, 2019
Appellant, William A. Wilson, appeals from the October 25, 2017 Order
entered in the Beaver County Court of Common Pleas dismissing his first
Petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546. Additionally, Appellant’s appointed counsel, Simone S.
Temple, Esquire, has filed an Anders1 Brief and a Petition to Withdraw as
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1 See Anders v. California, 386 U.S. 738 (1967). Counsel has filed an
Anders Brief. The proper mechanism when seeking to withdraw in PCRA
proceedings is a Turner/Finley letter. See Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc). However, because an Anders brief provides greater
protection to a criminal appellant, we may accept an Anders brief in lieu of a
Turner/Finley no-merit letter. Commonwealth v. Widgins, 29 A.3d 816,
817 n.2 (Pa. Super. 2011); Commonwealth v. Fusselman, 866 A.2d 1109,
1111 n.3 (Pa. Super. 2004).
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Counsel. After careful review, we grant Attorney Temple’s Petition to
Withdraw and affirm.
A detailed recitation of the underlying facts is not necessary to an
understanding of our analysis of the issues that Appellant raises on appeal.
Briefly, on March 7, 2016, Appellant entered negotiated guilty pleas at five
separate dockets to two counts of Persons Not to Possess Firearms, two counts
of Possession of a Controlled Substance with Intent to Deliver (“PWID”), and
Possession of a Small Amount of Marijuana.2 That same day, the trial court
sentenced Appellant to the negotiated aggregate term of five to fifteen years’
incarceration, followed by ten years’ probation.
Appellant did not file a direct appeal. Appellant’s Judgment of Sentence
became final thirty days later on April 6, 2016, upon expiration of the time to
file a direct appeal. See Pa.R.A.P. 903(a); 42 Pa.C.S. § 9545(b)(3).
On March 16, 2017, Appellant filed a pro se PCRA Petition, his first,
alleging that plea counsel failed to file a direct appeal and requesting the
appointment of PCRA counsel. The PCRA court appointed Attorney Temple,
who filed an Amended PCRA Petition asserting, inter alia, that plea counsel
was ineffective for misinforming him about the terms of the plea agreement.
After conducting an evidentiary hearing, at which Appellant and his plea
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218 Pa.C.S. § 6105; 35 P.S. § 780-113(a)(30); and 35 P.S. § 780-113(a)(31),
respectively.
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counsel testified, the PCRA court denied Appellant’s PCRA Petition on October
25, 2017.
This timely appeal followed. Both Appellant and the PCRA court
complied with Pa.R.A.P. 1925.
On May 8, 2018, Attorney Temple filed an Anders Brief and Petition to
Withdraw as Counsel, concluding that there were no non-frivolous issues to
be raised on appeal since the PCRA Petition was wholly without merit.
Appellant did not file a pro se response.3
Counsel presents three issues in her Anders Brief for our review:
I. Whether [Appellant’s] guilty pleas on March 7, 2016 were
knowing, intelligent[,] and voluntary?
II. Whether plea counsel was ineffective for failing to file a post-
sentence motion or a direct appeal on [Appellant’s] behalf
following his plea and sentence on March 7, 2016?
III. Whether [Appellant’s] appeal of the denial of his [PCRA
Petition] is frivolous and wholly without merit?
Anders Brief at 6.
Before we consider Appellant’s arguments, we must review Attorney
Temple’s request to withdraw from representation. Pursuant to
Turner/Finley, independent review of the record by competent counsel is
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3 On February 16, 2018, this Court denied without prejudice Appellant’s Motion
to file a response to Attorney Temple’s anticipated Anders Brief and instructed
him to renew his request. Appellant has not renewed his request now that
Attorney Temple has filed her Anders Brief and Appellant has not filed a
substantive response or a brief.
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required before withdrawal on collateral appeal is permitted.
Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009). Counsel is then
required to submit a “no merit” letter (1) detailing the nature and extent of
his or her review; (2) listing each issue the petitioner wished to have
reviewed; and (3) providing an explanation of why the petitioner’s issues were
meritless. Id. The court then conducts its own independent review of the
record to determine if the Petition is meritless. Id. “Counsel must also send
to the petitioner: (1) a copy of the ‘no-merit’ letter/brief; (2) a copy of
counsel’s petition to withdraw; and (3) a statement advising petitioner of the
right to proceed pro se or by new counsel.” Commonwealth v. Wrecks, 931
A.2d 717, 721 (Pa. Super. 2007) (citation omitted).
Our review of the record discloses that Attorney Temple has complied
with each of the above requirements. In addition, Attorney Temple sent
Appellant copies of the Anders Brief and Petition to Withdraw, and advised
him of his rights in lieu of representation. See Commonwealth v. Widgins,
29 A.3d 816, 818 (Pa. Super. 2011). Since Attorney Temple has complied
with the Turner/Finley requirements, we now proceed with our independent
review of the record and the merits of Appellant’s claims.
We review the denial of a PCRA petition to determine whether the record
supports the PCRA court’s findings and whether its Order is otherwise free of
legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014).
Further, “[t]he PCRA court’s findings will not be disturbed unless there is no
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support for the findings in the certified record.” Commonwealth v.
Johnson, 945 A.2d 185, 188 (Pa. Super. 2008).
Guilty Plea
Appellant first claims that he did not enter his guilty pleas knowingly,
intelligently, or voluntarily because plea counsel was ineffective for failing “to
adequately explain to him the details and terms of the plea offers . . . .”
Anders Brief at 12, 14.
The law presumes counsel has rendered effective assistance.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). The
burden of demonstrating ineffectiveness rests on Appellant. Id. To satisfy
this burden, Appellant must plead and prove by a preponderance of the
evidence that: “(1) his underlying claim is of arguable merit; (2) the particular
course of conduct pursued by counsel did not have some reasonable basis
designed to effectuate his interests; and, (3) but for counsel’s ineffectiveness,
there is a reasonable probability that the outcome of the challenged
proceeding would have been different.” Commonwealth v. Fulton, 830 A.2d
567, 572 (Pa. 2003). Failure to satisfy any prong of the test will result in
rejection of the appellant’s ineffective assistance of counsel claim.
Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).
Further, “[a]llegations of ineffectiveness in connection with the entry of
a guilty plea will serve as a basis for relief only if the ineffectiveness caused
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[A]ppellant to enter an involuntary or unknowing plea.” Fears, 86 A.3d at
806-07 (citation omitted).
Appellant’s underlying claim is without merit. Here, the PCRA court
determined that Appellant entered his guilty plea voluntarily, knowingly, and
intelligently. See PCRA Court Opinion, filed 12/12/17, at 3. The PCRA court
opined as follows:
Additionally, in review of [Appellant’s] Guilty Plea Colloquy,
[Appellant] stated he was entering the pleas of his own free will,
that no threats were made to him to enter pleas of guilty, and that
no promises other than the Plea Agreement that had been
negotiated had been made to him. Lastly, in review of the
transcript of the Guilty Plea on March 7, 2016, it is clear that the
terms of [Appellant’s] sentence were fully stated on the record by
not only the Assistant District Attorney but also this Court upon
imposing the sentence. At no point during the pleas or sentence
did [Appellant] communicate to this Court he did not understand
the terms of the sentence, nor did he communicate he felt forced
to enter the pleas.
Id. at 3. We agree with the PCRA Court’s analysis.
After carefully reviewing Appellant’s written and oral guilty plea
colloquies, we conclude that the record belies Appellant’s claims. Appellant
acknowledged on the record that he was entering a negotiated guilty plea to
an aggregate term of five to fifteen years’ incarceration, followed by ten years’
probation. See N.T., 3/7/16, at 8-17, 23-25. Additionally, Appellant
acknowledged on the record that he was not induced or coerced into pleading
guilty. See id. at 14-15. He also acknowledged on the record that he was
satisfied with the representation of his attorney. See id. Moreover,
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Appellant’s signed guilty plea colloquy confirms his oral statements on the
record. See Guilty Plea Colloquy, 3/7/16, at 1-4.
Even on post-conviction collateral review, Appellant is bound by his
statements made at the plea colloquy under oath, and “he may not now
assert[] grounds for [challenging] the plea which contradict the statements.”
Commonwealth v. Willis, 68 A.3d 997, 1009 (Pa. Super. 2013) (citation
omitted).
Based on our review, we conclude that the record supports the PCRA
court’s determination that plea counsel was not ineffective and Appellant
entered his guilty plea voluntarily, knowingly, and intelligently.
Failure to File Direct Appeal
Appellant next claims that plea counsel failed to file a requested direct
appeal. Anders Brief at 19-22. Our Supreme Court has held that where
“there is an unjustified failure to file a requested direct appeal, the conduct
of counsel falls beneath the range of competence demanded of attorneys in
criminal cases.” Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999)
(emphasis added). Such conduct denies the accused the assistance of counsel
guaranteed by the Sixth Amendment to the United States Constitution and
Article I, Section 9 of the Pennsylvania Constitution, as well as the right to
direct appeal under Article V, Section 9. Id. The Supreme Court concluded
that the unjustified failure to file a requested direct appeal constitutes
prejudice and per se ineffectiveness for PCRA purposes. Id.-7-
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Before a court will find ineffectiveness of counsel for failing to file a direct
appeal, however, Appellant must prove that he requested an appeal and that
counsel disregarded this request. Commonwealth v. Touw, 781 A.2d 1250,
1254 (Pa. Super. 2001). In such a circumstance, a defendant is automatically
entitled to reinstatement of his appellate rights. Lantzy, supra at 572.
Counsel has a constitutional duty to consult with a defendant about an appeal
where counsel has reason to believe either (1) that a rational defendant would
want to appeal, for example, because there are meritorious grounds for
appeal, or (2) that this particular defendant reasonably demonstrated to
counsel that he was interested in appealing. Touw, supra at 1254 (citing
Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000)).
To obtain relief, Appellant must also show prejudice, which in these
circumstances requires a showing that “there is a reasonable probability that,
but for counsel’s deficient failure to consult with him about an appeal, he would
have timely appealed.” Flores-Ortega, 528 U.S. at 484.
Here, plea counsel unambiguously informed Appellant on the record that
he would need to contact him within the prescribed time period if he wanted
to file a post-sentence motion or a direct appeal. See N.T. Plea, 3/7/16, 24-
25. Appellant also signed paperwork acknowledging that he understood these
rights. Notice of Rights Following Sentence, dated 3/7/16.
At the PCRA hearing, plea counsel testified that Appellant never
indicated that he wanted to file a post-sentence motion or a direct appeal.
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N.T. PCRA, 10/18/17, at 12. Plea counsel received some communications
from Appellant related to transcripts and time credit, but nothing in those
letters informed counsel that Appellant wanted to pursue an appeal. Id. at
12-17.4
We find that the record amply supports the PCRA court’s conclusion that
plea counsel informed Appellant of his limited appeal rights following his guilty
plea, and plea counsel instructed Appellant to inform him if he wanted to file
an appeal. However, despite counsel’s clear instructions, which Appellant
acknowledged in writing and in court, the evidence believed by the trial court
indicated that Appellant did not ask plea counsel to pursue an appeal. PCRA
Court Opinion at 3. We will not disturb the court’s credibility determinations.
See Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (reiterating that
“[t]he PCRA court’s credibility determinations, when supported by the record,
are binding on this Court.”).
After review, we conclude that the record supports the PCRA court’s
findings and its Order is otherwise free of legal error. We, thus, affirm the
denial of PCRA relief.5
Order affirmed. Petition to Withdraw granted.
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4 At the PCRA hearing, Appellant claimed that he had copies of letters asking
plea counsel to file an appeal, but he “didn’t want to provide them to” PCRA
counsel. N.T. PCRA, 10/18/17, at 47.
5 Based on the foregoing, we need not address the overarching third issue in
the Anders Brief separately.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2018
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