Com. v. White, W.

J-S23010-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WESLEY B. WHITE,
Appellant No. 2486 EDA 2015
Appeal from the PCRA Order July 10, 2015
in the Court of Common Pleas of Bucks County
Criminal Division, at No(s): CP-09-CR-0000690-2013
BEFORE: PANELLA, J., OTT, J., and FITZGERALD, J.
MEMORANDUM BY PANELLA, J. FILED MAY 20, 2016
Appellant, Wesley B. White, appeals from the order granting his
request to withdraw his first petition filed pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. PCRA counsel has filed a
motion to withdraw. We affirm the PCRA court’s order, and grant counsel’s
request to withdraw.
This case arises from Appellant’s participation in a widespread
distribution of crystal methamphetamine. On November 26, 2012, Appellant
was charged with multiple criminal offenses relating to operation of the drug
ring. Appellant entered a negotiated plea to one count each of possession
with intent to deliver (“PWID”), conspiracy to commit PWID, and corrupt
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Former Justice specially assigned to the Supreme Court.
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organizations. In return, the Commonwealth withdrew the remaining thirty-
one charges. The trial court sentenced Appellant, in accordance with the plea
agreement, to an aggregate term of five to ten years, to be followed by a
five-year probationary term. Appellant did not file a direct appeal.
Appellant filed a timely pro se PCRA petition.The PCRA court appointed
counsel (“PCRA counsel”). The PCRA court scheduled an evidentiary hearing.
The PCRA court summarizes the events of that hearing as follows:
At the hearing on July 10, 2015, [Appellant], through
[PCRA] counsel, indicated to this [c]ourt that he wished to
withdraw his PCRA Petition. [Appellant] testified that he had the
opportunity to confer with [PCRA counsel] regarding this
decision, and he felt he had enough time with her to discuss his
claims and have any and all of his questions answered. He also
testified that he did not have any additional questions regarding
his decision. [Appellant] testified that he was not on medication
that could affect his ability to understand, and he testified that
no one threatened or coerced him into making the decision to
withdraw his [PCRA petition]. Furthermore, [Appellant] indicated
that he understood that if he withdrew his PCRA Petition, he
would no longer be able to bring the claims raised therein in the
future. This [c]ourt ensured that [Appellant] understood that no
one could force him to withdraw, the he was making the decision
to withdraw the petition freely and voluntarily after being
apprised of all of the pertinent facts. [Appellant] indicated that
he understood. Finally, [the PCRA court] informed [Appellant]
that there is a thirty (30) day period from which he could appeal
his decision to withdraw his PCRA petition. [Appellant] indicated
that he understood.
PCRA Court Opinion, 10/30/15, at 3-4 (citations and footnote omitted). This
timely appeal followed.
We first address PCRA counsel’s petition to withdraw. This Court has
explained:
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The Turner/Finley decisions provide the manner for
[PCRA] 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 [or her] 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, see Turner, supra, then must
conduct its own independent evaluation of the record and agree
with counsel that the petition is without merit. . . .
[T]his Court [has] imposed additional requirements on
[PCRA] counsel that closely track the procedure for withdrawing
on direct appeal. . . . [PCRA] counsel is required to
contemporaneously serve upon his [or her] client his [or her]
no-merit letter and application to withdraw along with a
statement that if the court granted counsel’s withdrawal request,
the client may proceed pro se or with a privately retained
attorney. . . .
Commonwealth v. Reed, 107 A.3d 137, 140 (Pa. Super. 2014) (citation
omitted).
Here, PCRA counsel has substantially complied with the mandates of
Turner and Finley, as summarized in Reed.1 “Accordingly, we will proceed
with our independent review of the questions presented to determine if
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1
PCRA counsel has filed a brief on Appellant’s behalf which is more in
accordance with Anders v. California, 386 U.S. 738 (1967), and the
procedure for seeking withdraw from representation on direct appeal.
Because Anders imposes stricter requirements than those imposed when
counsel seeks to withdraw during the post-conviction process, we will assess
counsel’s assertion that the issue Appellant wishes to raise has no merit
under a Turner/Finley analysis. See Commonwealth v. Fusselman, 866
A.2d 1109, 1111 n.3 (Pa. Super. 2004).
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[PCRA] counsel correctly concluded that the issues raised had no merit.”
Reed, 107 A.3d at 141.
This Court’s standard of review regarding an order dismissing a
petition under the PCRA is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error. See
Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA
court’s findings will not be disturbed unless there is no support for the
findings in the certified record. See Commonwealth v. Carr, 768 A.2d
1164, 1166 (Pa. Super. 2001).
Within her motion to withdraw, PCRA counsel avers that she received a
letter dated July 15, 2015, to appeal the PCRA court’s “dismissal” of his
PCRA. Motion, 12/23/15, at ¶ 3. PCRA counsel further avers that, in a letter
dated five days later, she “clarified that the PCRA petition had been
withdrawn, not dismissed. Counsel advised Appellant that if he wished to
appeal the voluntariness of the withdrawal of his PCRA petition, she needed
additional information from him to support the claim.” Id., at ¶ 4. PCRA
counsel explains that, although she received no response from Appellant,
“[i]n an abundance of caution,” she filed the instant appeal. Id., at ¶ 6.
This Court has never received a response to PCRA counsel’s petition to
withdraw from Appellant. This is understandable. The only claim Appellant
could raise is that he was not competent to withdraw his PCRA—a claim that,
as the PCRA court explains, is refuted by Appellant’s responses at the PCRA
hearing.
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Pursuant to Commonwealth v. Bronshtein [729 A.2d
1102, 1106 (Pa. 1999),] the Pennsylvania Supreme Court
determined that a PCRA Petitioner’s withdrawal of his petition
and waiver of his appeal rights will be upheld where said waiver
was knowing, intelligent and voluntary and subject to an
adequate waiver colloquy by defense counsel and/or the trial
court. []
As set forth above, this [c]ourt’s colloquy established that
[Appellant] was making a knowing, intelligent, and voluntary
waiver of his PCRA appeal. [Appellant] testified that he had
enough time to confer with [PCRA counsel], a well-respected
PCRA attorney, and that she answered all of his questions.
Furthermore, he indicated that he was not on any medication
which would hinder his understanding of the waiver, nor did
anyone threaten or force him in any way to waive his PCRA
appeal rights. [Appellant] also indicated that he understood he
could not raise these claims again in a successive petition, as
they would be deemed waived as a result of his withdrawal. He
also indicated his awareness of the facts surrounding his decision
to withdraw his PCRA Petition filed on August 19, 2013.
Our independent review of the facts and procedural history
of the instant case indicated to this [c]ourt that, based on the
extent of his involvement in the crystal methamphetamine
enterprise as well as the fact that, pursuant to the negotiated
guilty plea, the Commonwealth agreed to nolle pros thirty-one
(31) counts (including eight (8) deliveries) and, as such, if
[Appellant] prevailed on the merits of his PCRA Petition and was
resentenced, he could have faced a much higher sentence.
PCRA Court Opinion, 10/30/15, at 4-5.
The PCRA court’s conclusions that Appellant’s waiver of his PCRA rights
was knowing, intelligent and voluntary, and that he was competent to
provide the waiver, are amply supported by our review of the record. Thus,
we agree with PCRA counsel’s assessment of Appellant’s appeal.
Additionally, our independent evaluation of the record reveals that
Appellant’s PCRA petition is meritless. We therefore affirm the PCRA court’s
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order granting Appellant’s request to withdraw his PCRA petition, and grant
PCRA counsel’s motion to withdraw.
Order affirmed. Motion to withdraw as counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/20/2016
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