Com. v. Adee, S.

J-S59037-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SEAN MICHAEL ADEE :
:
Appellant : No. 1790 EDA 2019
Appeal from the PCRA Order Entered May 29, 2019
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0004389-2016
BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED MARCH 13, 2020
Sean Michael Adee appeals pro se from the denial of his petition filed
pursuant to the Post-Conviction Relief Act, (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. Adee claims that the sentence imposed was illegal, challenges the
discretionary aspects of his sentence, and asserts that the PCRA court erred
by accepting counsel’s Turner/Finley1 letter and granting her permission to
withdraw. We affirm.
On January 30, 2017, Adee pleaded nolo contendere to two counts each
of homicide by vehicle and recklessly endangering another person, and to
summary citations for disregarding a traffic lane, reckless driving, and
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1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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prohibited text based communications.2 Sentencing was deferred for the
preparation of a presentence investigation report.
On July 14, 2017, the trial court sentenced Adee to the statutory
maximum sentence of three and one half to seven years of incarceration for
each count of homicide by vehicle. The court ordered Adee to serve the
sentences consecutively, for an aggregate sentence of seven to 14 years in
prison. The court imposed no further penalty on the other counts. The trial
court denied Adee’s motion for reconsideration. Adee did not file a direct
appeal.
On August 24, 2018, Adee filed a timely first PCRA petition. The court
appointed counsel, who filed an amended petition, arguing that plea counsel
was ineffective per se for failing to file a direct appeal. Adee filed a pro se
objection to the petition, asserting that counsel had raised different issues
than Adee wanted. On January 25, 2019, counsel filed a response averring
that there was a breakdown in the attorney-client relationship and requesting
appointment of conflict counsel. The court granted the request and appointed
conflict counsel. Conflict counsel subsequently filed a petition to withdraw as
counsel together with a Turner/Finley no merit letter, averring that there
were no meritorious issues. On April 24, 2019, the PCRA court granted conflict
counsel’s request to withdraw.
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2See 75 Pa.C.S.A. § 3732(a); 18 Pa.C.S.A. § 2705; and 75 Pa.C.S.A. §§
3309(1), 3736(a), and 3316(a), respectively.
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The court then issued a Pa.R.Crim.P. 907 notice of its intent to dismiss
the petition, and Adee filed a pro se response. Adee claimed that conflict
counsel abrogated her duties and abandoned his issues, and asserted that
counsel misapprehended the law when she concluded that he was not serving
an illegal sentence. See Response to Pa.R.Crim.P. 907 Notice, at 2-4. The
PCRA court dismissed Adee’s PCRA petition and this timely appeal followed.
Adee raises three issues on appeal.
1. Does a PCRA court err in refusing to cure the imposition of
illegal sentences stemming from a single accident where
such is not authorized by the Vehicle Code, violates the
Double Jeopardy Clauses, merger doctrine and stare decisis
as it relates to two deaths resulting in a single injury to the
Commonwealth?
2. Does the PCRA court err in refusing to address the propriety
of meting [sic] the maximum sentence, for a single act,
where Appellant has no prior record, others similarly
situated were not similarly treated and sentencing appears
to be based on an impermissible animus that may require
recusal as equal protections under the law are implicated?
3. Does the PCRA court err in dismissing a petition, absent a
hearing, without issuing independent reasoning for
dismissal nor addressing the potential for amendment and
other matters of record relating to Appellant’s claims, when
Appellant’s fundamental and substantive right to the
assistance of counsel on his first PCRA was abrogated when
appointed counsel failed to meet the requirements of filing
a no-merit letter?
Adee’s Br. at 4.
We review the denial of a PCRA petition to determine whether the record
supports the court’s ruling and whether the ruling is free of legal error. See
Commonwealth v. Calhoun, 52 A.3d 281, 284 (Pa.Super. 2012).
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In his first issue, Adee claims that the trial court imposed an illegal
sentence when it imposed two maximum sentences to be served
consecutively—one for each count of homicide by vehicle. He claims that his
consecutive sentences violate double jeopardy because the sentences should
have merged, and because he is being punished twice for a single accident.
See Adee’s Br. at 10-17. We disagree.
The PCRA affords relief for, among other things, sentences that are
illegal because they violate principles of double jeopardy or merger.
Commonwealth v. Rouse, 191 A.3d 1, 5 (Pa.Super. 2018). The prohibition
against double jeopardy is set forth in the United States and Pennsylvania
Constitutions. See Pennsylvania Const. Art. 1, § 10 (“No person shall, for the
same offense, be twice put in jeopardy of life or limb”); U.S. Const. amend.
V. (“nor shall any person be subject for the same offence to be twice put in
jeopardy of life or limb”).
The Sentencing Code governs merger for sentencing purposes and
provides:
No crime shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the other
offense. Where crimes merge for sentencing purposes, the court
may sentence the defendant only on the higher graded offense.
42 Pa.C.S.A. § 9765. However, “the same facts may support multiple
convictions and separate sentences for each conviction except in cases where
the offenses are greater and lesser included offenses.” Commonwealth v.
Anderson, 650 A.2d 20, 22 (Pa. 1994).
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Adee’s sentences do not violate the doctrine of merger. The court did
not sentence Adee for greater and lesser-included offenses for the same set
of facts. Rather, he was sentenced for one count of homicide by vehicle for
the death of Ian McNeill, and one count of homicide by vehicle for the death
of Jane McNeill. Both offenses were homicide by vehicle, and neither
constituted a greater or lesser offense. Thus, the convictions do not merge.
Anderson, 650 A.2d at 22.
Nor was there any double jeopardy violation. Where the legislature
intended that each injury constitutes a separate offense, “a single act which
injures multiple victims can be the basis for multiple sentences.”
Commonwealth v. Frisbie, 485 A.2d 1098, 1100 (Pa. 1984). In Frisbie, our
Supreme Court determined that convictions for recklessly endangering
another person do not merge where the defendant has endangered several
people in a single incident. The Court explained that the plain language of the
statute refers to placing another person in danger, such that it concluded
that the legislature intended that each individual person placed in danger
constitutes a separate offense. See id.
In the instant case, the Crimes Code definition of the crime of homicide
by vehicle similarly refers to causing the death of another person. See 75
Pa.C.S.A. § 3732(a) (“Any person who recklessly or with gross negligence
causes the death of another person while engaged in the violation of any
law . . . applying to the operation or use of a vehicle . . . is guilty of homicide
by vehicle . . . when the violation is the cause of death.”) (emphasis added).
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Accordingly, we conclude pursuant to Frisbie that a defendant commits a
separate offense of homicide by vehicle for each person killed. As such, the
trial court’s sentencing Adee for two offenses, where two people were killed
from his single act, does not constitute a violation of double jeopardy. Adee’s
first issue is meritless.
In his second issue, Adee claims that the trial court erred when it
imposed an unreasonable and excessive sentence. He claims that the
sentencing court failed to comply with the sentencing statutes and that the
sentence was the result of judicial bias. See Adee’s Br. at 18-22. Adee asserts
that he is not challenging the discretionary aspects of sentencing. See id. at
18.
We disagree that Adee is not challenging discretionary aspects of
sentencing. Adee’s argument consists of allegations that the court departed
from the sentencing guidelines and imposed a statutory maximum sentence,
see id. at 19; considered irrelevant factors, see id.; punished him because
of a “retaliatory animus,” id. at 21; and imposed a harsher sentence than
various other cases involving homicide by vehicle, see id. at 22.
Each of Adee’s claims challenges the discretionary aspects of his
sentence, not the legality. A claim that the court imposed an above guidelines
sentence without adequate reasons presents a challenge to the discretionary
aspects of sentencing. See Commonwealth v. Twitty, 876 A.2d 433, 438
(Pa.Super. 2005). A claim that the court failed to follow the Section 9721(b)
sentencing factors pertains to the discretionary aspects of sentencing. See
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Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.Super. 2013) (en
banc). A claim that the court exercised its discretion in a way that was
motivated by personal animus implicates the discretionary aspects of a
sentence. See Commonwealth v. Robinson, 931 A.2d 15, 21 (Pa.Super.
2007) (en banc). Finally, a claim that a sentence is harsh and unreasonable
challenges the discretionary aspects of the sentence. See Commonwealth
v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013). Hence, all of Adee’s claims
concern the discretionary aspects of sentencing.
Challenges to discretionary aspects of sentencing are not cognizable
under the PCRA. See Commonwealth v. Fowler, 930 A.2d 586, 593
(Pa.Super. 2007) (“Challenges to the discretionary aspects of sentencing are
not cognizable under the PCRA.”); see also Commonwealth v. Jordan, 772
A.2d 1011, 1016 (Pa. Super. 2001) (observing that “[t]his Court's case law
has stated that a challenge to the discretionary aspects of sentencing is a
matter that must be reviewed in the context of a direct appeal and cannot be
reviewed in the context of the PCRA”); 42 Pa.C.S.A. § 9543(a)(2). Hence,
Adee is entitled to no relief on his second issue.
In his third issue, Adee claims that the PCRA court erred in granting
conflict counsel’s petition to withdraw. See Adee’s Br. at 24-26. He argues
that conflict counsel’s Turner/Finley letter was deficient and does not discuss
his claims related to double jeopardy, sentencing guidelines, or judicial bias.
Accordingly, he insists that the court must appoint new PCRA counsel. We
disagree.
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As a first time PCRA petitioner, Adee is entitled to the assistance of
counsel, to diligently and competently represent him until counsel withdraws
his or her appearance. See Commonwealth v. Librizzi, 810 A.2d 692, 693
(Pa.Super. 2002). “[C]ounsel may withdraw at any stage of collateral
proceedings if, in the exercise of his or her professional judgment, counsel
determines that the issues raised in those proceedings are meritless and if the
post-conviction court concurs with counsel’s assessment.” Commonwealth
v. Glover, 738 A.2d 460, 463 (Pa.Super. 1999) (citation omitted).
Counsel requesting to withdraw from PCRA representation must file a
“no merit” letter or brief that conforms to the requirements of Turner and
Finley. See Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012).
A Turner/Finley brief must detail “the nature and extent of counsel’s diligent
review of the case, listing the issues which petitioner wants to have reviewed,
explaining why and how those issues lack merit, and requesting permission to
withdraw.” Id. (citation omitted). Counsel must send the petitioner a copy of
the no merit brief, a copy of counsel’s petition to withdraw, and “a statement
advising petitioner of the right to proceed pro se or by new counsel.” Id.
(citation omitted). If counsel fulfills these requirements, then the PCRA court
must conduct its own review of the case, and, if the claims are without merit,
permit counsel to withdraw. See id.
We have reviewed conflict counsel’s no merit letter and conclude that it
meets the requirements of Turner/Finley. Conflict counsel explains the
nature and extent of her review; indicates the issues that Adee wanted to
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raise and explains why the issues lacked merit; and discusses the issue that
prior counsel wanted to raise concerning filing of a direct appeal and explains
why that lacks merit. Contrary to Adee’s assertion, the letter discusses the
legality of the sentence imposed and explains that a challenge to the
discretionary aspects of his sentence, through an ineffective assistance of
counsel claim, would lack merit. See No Merit Letter, 4/15/19, at 6-7.
Therefore, we conclude that the PCRA court did not err in finding that conflict
counsel’s no merit letter met the requirements of Turner/Finley and did not
err in permitting counsel to withdraw. Adee’s third issue is meritless.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/13/20
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