Com. v. Park, J.

J-S27004-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA JAMES PARK :
:
Appellant : No. 344 WDA 2021
Appeal from the PCRA Order Entered February 4, 2021
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0001171-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA JAMES PARK :
:
Appellant : No. 345 WDA 2021
Appeal from the PCRA Order Entered February 4, 2021
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0001176-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA JAMES PARK :
:
Appellant : No. 346 WDA 2021
Appeal from the PCRA Order Entered February 4, 2021
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0001177-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
J-S27004-21
:
v. :
:
:
JOSHUA JAMES PARK :
:
Appellant : No. 347 WDA 2021
Appeal from the PCRA Order Entered February 4, 2021
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0001178-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA JAMES PARK :
:
Appellant : No. 348 WDA 2021
Appeal from the PCRA Order Entered February 4, 2021
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0001179-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA JAMES PARK :
:
Appellant : No. 349 WDA 2021
Appeal from the PCRA Order Entered February 4, 2021
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0001180-2017
BEFORE: OLSON, J., NICHOLS, J., and COLINS, J.*
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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MEMORANDUM BY OLSON, J.: FILED: SEPTEMBER 30, 2021
Appellant, Joshua James Park, appeals from the order entered on
February 4, 2021, in the Criminal Division of the Court of Common Pleas of
Blair County that dismissed his first petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, after an evidentiary
hearing. Appointed counsel has filed a petition to withdraw and a brief
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).1, 2
Counsel’s brief ostensibly raises two issues requested by Appellant, namely,
that ineffective assistance on the part of trial counsel caused Appellant to
enter an invalid guilty plea and that Appellant was entitled to additional credit
for time served based on his belief that his sentence would commence
____________________________________________
1 These cases were consolidated pursuant to Pa.R.A.P. 513 by order of this
Court entered on April 13, 2021. Additionally, because Appellant included a
notice of appeal at each PCRA court docket affected by the order dismissing
his petition, his notices of appeal are compliant with our Supreme Court’s
mandate in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). Lastly,
counsel for Appellant filed the instant appeal on March 11, 2021, pursuant to
a PCRA court order granting an extension of the appeal deadline until April 15,
2021. Because counsel filed this appeal well before the trial court’s extended
deadline, we may consider this appeal to be timely filed. See
Commonwealth v. Patterson, 940 A.2d 493, 498-500 (Pa. Super. 2007).
2 Although counsel styled his brief as having been filed pursuant to Anders v.
California, 386 U.S. 738 (1967), we note that an Anders brief governs the
withdrawal of counsel from direct appeal. Nevertheless, as Anders imposes
stricter requirements for withdrawal than those set forth in Turner/Finley,
this Court accepts Anders-compliant briefs in the context of collateral review.
Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004).
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immediately on the date of sentencing despite the existence of a parole
violation. We affirm and grant counsel's petition to withdraw.
The PCRA court prepared a Pa.R.A.P. 1925(a) opinion setting forth the
pertinent procedural history:
On April 8, 2019, [Appellant] entered guilty pleas to resolve six
(6) pending drug-related cases. In all cases save one, [Appellant]
entered guilty pleas to possession with intent to deliver/delivery,
criminal conspiracy, and criminal use of a communication facility.
At CR 1171-2017, his guilty plea was to an ungraded
misdemeanor of use/possession of drug paraphernalia.
Consistent with the plea agreement, [Appellant] received an
aggregate sentence of no less than three years and no more than
15 years in the state correctional system. [Appellant] was
afforded [] all appropriate credit for time served and he was also
deemed to be eligible [for the Recidivism Risk Reduction Incentive
(RRRI) program, 61 Pa.C.S.A. §§ 4501-4512], with an RRRI
minimum sentence of 27 months. There was no post-sentence
motion nor any direct appeal filed by [Appellant]. His guilty plea
counsel was Scott Pletcher, Esq. [(Attorney Pletcher)].
On April 6, 2020, [Appellant] filed [a petition for collateral relief].
In his [petition, Appellant] alleged primarily that [ineffective
assistance of counsel unlawfully induced an invalid guilty plea].
He identified Robert S. Donaldson, Esq. [(Attorney Donaldson)]
and Attorney Pletcher as serving as his counsel of record relative
to the underlying cases.
On May 11, 2020, [the PCRA court] appointed [Paul M. Puskar,
Esq. (Attorney Puskar)] as PCRA counsel and provided Attorney
Puskar [60] days to file [an] amended PCRA petition. No []
amended PCRA petition was filed. [The PCRA court] held a status
conference with counsel on July 30, 2020 and the matter
proceeded to an evidentiary hearing on October 27, 2020.
[Appellant testified at the October 27, 2020 hearing]. It was
stipulated by counsel that a transcript from the April 8, 2019 guilty
plea/sentencing hearing would be prepared and incorporated into
the record. [The court] also scheduled the matter for further
hearing to allow an opportunity for either the Commonwealth or
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[Appellant] to call Attorney Donaldson and/or Attorney Pletcher as
an additional witness. Such further hearing was held on
December 20, 2020, at which time Attorney Puskar confirmed on
the record that he personally spoke to Attorney Pletcher and that
he and [Appellant] agreed [to call neither Attorney Pletcher nor
Attorney Donaldson] as an additional witness.
[The PCRA court dismissed Appellant’s petition by order entered
on February 4, 2021. This appeal followed.]
PCRA Court Opinion, 5/14/21, at 1-3.
We begin by determining whether counsel has satisfied the
requirements for withdrawal. In Turner, our Supreme Court “set forth the
appropriate procedures for the withdrawal of court-appointed counsel in
collateral attacks on criminal convictions[.]” Turner, 544 A.2d at 927. These
traditional requirements for proper withdrawal of PCRA counsel, originally set
forth in Finley, were expanded by this Court in Commonwealth v. Friend,
896 A.2d 607 (Pa. Super. 2006), abborogated in part, Commonwealth v.
Pitts, 981 A.2d 875 (Pa. 2009),3 which provides: 1) as part of an application
to withdraw as counsel, PCRA counsel must attach to the application a “no-
merit” letter; 2) PCRA counsel must, in the “no-merit” letter, list each claim
the petitioner wishes to have reviewed, and detail the nature and extent of
counsel's review of the merits of each of those claims; 3) PCRA counsel must
set forth in the “no-merit” letter an explanation of why the petitioner's issues
are meritless; 4) PCRA counsel must contemporaneously forward to the
____________________________________________
3 Pitts held that this Court in Friend improperly addressed, on its own motion,
the sufficiency of a no-merit letter filed before the PCRA court.
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petitioner a copy of the application to withdraw, which must include (i) a copy
of both the “no-merit” letter, and (ii) a statement advising the PCRA petitioner
that, in the event the trial court grants the application of counsel to withdraw,
the petitioner has the right to proceed pro se, or with the assistance of
privately retained counsel; 5) the court must conduct its own independent
review of the record in the light of the PCRA petition and the issues set forth
therein, as well as of the contents of the petition of PCRA counsel to withdraw;
and, 6) the court must agree with counsel that the petition is meritless. See
Friend, 896 A.2d at 615 (footnote omitted).
After careful review and consideration, we conclude that counsel has
minimally complied with the requirements of Turner/Finley. In this case,
counsel filed a petition to withdraw on June 7, 2021, attaching a copy of his
no-merit letter. At the same time, counsel forwarded his no-merit letter to
Appellant. The no-merit letter included a statement advising Appellant that
he had the right to proceed pro se, retain private counsel, and raise any issues
he deemed appropriate with this Court.
Although counsel’s no-merit letter to Appellant explained that counsel
reviewed the entire record in this case, the letter did not separately list each
issue Appellant sought to raise for purposes of appellate review. Moreover,
counsel’s no-merit letter did not explain why Appellant’s claims lacked merit.
Notwithstanding these omissions, however, counsel’s letter enclosed a copy
of his petition to withdraw. In his petition to withdraw, counsel averred that
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he discussed with Appellant the PCRA court’s opinion and order dismissing the
instant claims for collateral relief. Counsel also explained that, after a careful
review of the record, he could not identify any meritorious issues suitable for
appellate review. Counsel’s no-merit letter also enclosed a copy of his
Turner/Finley brief, which has attached a copy of the PCRA court’s opinion.4
In its opinion, the PCRA court found no evidentiary or legal support for
Appellant’s claim that the ineffective assistance of counsel caused him to enter
an invalid guilty plea.5 See PCRA Court Opinion, 5/14/21, at 9. The court
also concluded that there is no legal support for a claim asserting that a
sentence imposed for new offenses should run concurrently to a penalty
imposed for a parole violation. See id. at 12. Under these circumstances, we
conclude that the materials forwarded by counsel, in combination, identified
Appellant’s claims for appellate review and explained why those claims lacked
____________________________________________
4 The version of the PCRA court’s opinion counsel attached to his
Turner/Finley brief was entered on the PCRA court’s docket on February 4,
2021, at the same time the court entered its order dismissing Appellant’s
petition. The February 4, 2021 opinion is identical to the opinion filed on May
14, 2021 in all material respects.
5 Specifically, the PCRA court found no evidence that a plea agreement
contemplating a six-month minimum sentence was ever reduced to writing
and signed by Appellant, his attorney, or the attorney for the Commonwealth.
See PCRA Court Opinion, 5/14/21, at 9. Moreover, no such agreement was
presented to, or accepted by, the trial court. See id. Based upon these
findings, the court found no legal basis on which to enforce such an
agreement. In fact, the court found that Appellant, in his written guilty plea
colloquy, confirmed his understanding that the terms of his plea agreement
called for a sentence of three to 15 years of incarceration, with RRRI eligibility.
See id.
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merit. We note, in addition, that Appellant has not filed a response to
counsel’s petition to withdraw.
While we have elected to accept counsel’s submissions as an example
of minimal compliance with our procedural rules under the specific
circumstances of this case, we remind counsel of his responsibility, in future
cases, to research all applicable procedures relating to the withdrawal from
representation and to make every effort to comply with those procedural
obligations fully and completely.
We now proceed to an independent review of the record to determine
whether Appellant's claims merit relief. This Court reviews an order dismissing
a petition for collateral relief under the following governing principles.
We review an order dismissing a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level.
Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa. Super.
2010). This review is limited to the findings of the PCRA court and
the evidence of record. Id. We will not disturb a PCRA court's
ruling if it is supported by evidence of record and is free of legal
error. Id. This Court may affirm a PCRA court's decision on any
grounds if the record supports it. Id. 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.
Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011).
However, we afford no such deference to its legal conclusions.
Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011);
Commonwealth v. Reaves, 923 A.2d 1119, 1124 (Pa. 2007).
Further, where the petitioner raises questions of law, our standard
of review is de novo and our scope of review is plenary.
Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa. 2010).
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).
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We have carefully reviewed the certified record, the submissions of the
parties, and the opinion issued by the PCRA court. Based upon our review,
we are satisfied that the PCRA court’s findings of fact are supported by the
record and that its legal conclusions are free of error. Moreover, because the
PCRA court has adequately and accurately addressed the issues raised in
Appellant’s petition for collateral relief, and because the record does not reveal
the existence of any meritorious issues worthy of appellate review, we affirm
the dismissal of Appellant’s petition for the reasons set forth in the PCRA
court’s opinion and adopt that opinion as our own. The parties are instructed
to attach a copy of the PCRA court’s opinion to all future filings pertaining to
the disposition of this appeal. Having determined that the PCRA court's order
should be affirmed, we grant counsel's petition to withdraw pursuant to
Turner/Finley.
Petition to withdraw as counsel granted. Order affirmed.
Judge Colins joins.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2021
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Circulated 09/17/2021 01:42 PM