Com. v. Fultz, O., Jr.

J-S31021-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ORTHELLO LEE FULTZ JR. :
:
Appellant : No. 441 MDA 2020
Appeal from the PCRA Order Entered February 7, 2020
In the Court of Common Pleas of Mifflin County Criminal Division at
No(s): CP-44-CR-0000177-2017
BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED JULY 23, 2020
Appellant, Orthello Lee Fultz, Jr., appeals from the February 7, 2020
Order entered in the Mifflin County Court of Common Pleas denying his first
Petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546. Counsel for Appellant, Nicholas E. Newfield, Esquire, has filed
an Anders1 Brief and a Motion to Withdraw as Counsel. After careful review,
we grant counsel’s Motion to Withdraw and affirm.
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1 See Anders v. California, 386 U.S. 738 (1967). Although Counsel filed an
Anders brief, the proper mechanism when seeking to withdraw in PCRA
proceedings is a Turner/Finley brief. See Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988). 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 brief. 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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A detailed recitation of the factual and procedural history is unnecessary
to our disposition. Briefly, a jury convicted Appellant of Possession with Intent
to Deliver (“PWID”), Operating a Methamphetamine Laboratory and Illegal
Dumping of Methamphetamine Waste, and Use or Possession of Drug
Paraphernalia.2 On February 2, 2018, the trial court sentenced Appellant to
an aggregate term of five to ten years’ incarceration. On April 17, 2019, this
Court affirmed Appellant’s Judgment of Sentence. See Commonwealth v.
Fultz, 215 A.3d 619 (Pa. Super. 2019) (unpublished memorandum).
On May 15, 2019, Appellant filed pro se a timely first PCRA Petition. The
PCRA court appointed Attorney Newfield to represent Appellant, who, on
October 3, 2019, filed an Amended PCRA Petition raising a claim that
Appellant’s trial counsel, Tammy Dusharm, Esquire, had been ineffective for
failing to advise Appellant of the standard sentencing ranges or statutory
maximum sentences associated with the charged offenses. Amended Petition,
10/3/19, at ¶ 25. Appellant asserted that counsel’s ineffectiveness had
resulted in him electing to go to trial. Id.
On January 30, 2020, the PCRA court held a hearing on Appellant’s
Amended Petition at which Appellant presented the testimony of Attorney
Dusharm. Relevantly, she testified that, prior to Appellant retaining her to
represent him, the Commonwealth had made him a plea offer of 33 to 66
months incarceration. N.T., 1/30/20 at 7. She testified that she was in
____________________________________________
2 35 P.S. §§ 780-113(a)(30), 780-113.4(b)(1), and 780-113(a)(32),
respectively.
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constant communication with the District Attorney and the Assistant District
Attorney to negotiate a plea agreement and that, ultimately, the first plea
offer was the only one the Commonwealth offered Id. at 7-8. She testified
that she discussed this offer with Appellant and that she explained to him the
standard range sentences for the offenses charged. Id. at 8. She testified
that Appellant was not interested in accepting the plea offered to him by the
Commonwealth. Id. at 9.
Attorney Dusharm brought to the hearing numerous letters that she had
written to Appellant prior to his trial, including several in which she indicated
that the Commonwealth had offered him a negotiated guilty plea that included
a sentence of 33 to 66 months’ incarceration. Id.at 8-9. She testified that
she specifically explained, both in person and in correspondence, the
sentencing guidelines applicable to a conviction of possession of
methamphetamine. Id. at 10-11. She also testified that, on April 27, 2017,
she sent Appellant a letter about the maximums and standard ranges provided
by the sentencing guidelines at each offense. Id. at 11, 13-15. The PCRA
court admitted into evidence Attorney Dusharm’s case file, including the
correspondence she sent to Appellant explaining to him the applicable
sentencing guidelines and statutory maximum sentences, and an April 27,
2017 letter from the District Attorney to Attorney Dusharm explaining that,
under the specific circumstances of this case, the sentencing range for
Appellant’s PWID charge was 54 to 72 months’ incarceration.
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Appellant also testified at the PCRA hearing, stating that he received the
letters sent to him by Attorney Dusharm but that he did not read them. Id.
at 19, 21. Appellant denied discussing with Attorney Dusharm the
Commonwealth’s plea offer or the standard range sentences or other penalties
the court could impose if a jury convicted Appellant of the charged offenses.
Id. He testified that he “was under the impression that the worst he could
get was a two to four” year sentence because that is what Attorney Dusharm
told him. Id. at 20.
On February 7, 2020, the PCRA court denied Appellant’s PCRA Petition.
This timely appeal followed. Both Appellant and the PCRA court complied with
Pa.R.A.P. 1925.
Before we consider Appellant’s arguments, we must review appellate
counsel’s request to withdraw from representation. Pursuant to
Turner/Finley, counsel must conduct an independent review of the record
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 are 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
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se or by new counsel.” Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.
Super. 2007).
Our review of the record discloses that counsel has complied with each
of the above requirements. Additionally, counsel served Appellant with a copy
of the Motion to Withdraw and Anders Brief, advising him that he had the
right to proceed pro se or with privately retained counsel. Since counsel has
complied with the Turner/Finley requirements, we will proceed with our
independent review of the record and the merits of Appellant’s claims.
In the Anders Brief, counsel raises the issue of whether the PCRA court
erred in determining that Attorney Dusharm rendered effective assistance of
counsel. Anders Brief at 11.
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). This
Court grants great deference to the findings of the PCRA court if they are
supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.
Super. 2007). We likewise give great deference to the PCRA court’s credibility
determinations. Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa.
2009). We give no such deference, however, to the court’s legal conclusions.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).
A PCRA petitioner who alleges ineffective assistance of counsel “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
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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.’” Johnson, 966 A.2d at 532 (quoting 42 Pa.C.S. §
9543(a)(2)(ii)).
We presume counsel is effective. Commonwealth v. Cox, 983 A.2d
666, 678 (Pa. 2009). To overcome this presumption, a petitioner must
establish that: (1) the underlying claim has arguable merit; (2) counsel lacked
a reasonable basis for his act or omission; and (3) petitioner suffered actual
prejudice. Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015). In
order to establish prejudice, a petitioner must demonstrate “that there is a
reasonable probability that, but for counsel’s error or omission, the result of
the proceeding would have been different.” Commonwealth v. Koehler, 36
A.3d 121, 132 (Pa. 2012) (citation omitted). A court will deny the claim if the
petitioner fails to meet any one of these prongs. Commonwealth v. Jarosz,
152 A.3d 344, 350 (Pa. Super. 2016).
Instantly, the PCRA court denied Appellant PCRA relief because it
concluded that Appellant’s claim lacked arguable merit. The record supports
this finding. In particular, the trial court found credible Attorney Dursham’s
testimony that she explained to Appellant, both in person and in
correspondence, the applicable sentencing guidelines. Attorney Dursham
supported this testimony with corroborating documentary evidence.
Moreover, Appellant’s testimony that he received letters from Attorney
Dursham, but that he did not read them, undermines his claim that Attorney
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Dursham did not inform him of the guideline sentencing ranges and statutory
maximum sentences. Accordingly, Appellant is not entitled to relief on his
claim.
Order affirmed. Motion to Withdraw as Counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/23/2020
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