J-S47001-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ERIC JAMES EDELINE
Appellant No. 1441 EDA 2008
Appeal from the PCRA Order April 18, 2008
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1001831-2004
BEFORE: MUNDY, J., OLSON, J., and WECHT, J.
MEMORANDUM BY MUNDY, J.: FILED AUGUST 27, 2014
Appellant, Eric James Edeline, appeals from the April 18, 2008 order
dismissing, without a hearing, his amended petition for relief filed pursuant
to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.
counsel together with a Turner/Finley
without merit.1 After careful review, we affirm the denial of PCRA relief, and
otion to withdraw.
The pertinent factual and procedural history of this case follows.
Appellant was arrested on August 20, 2004, in connection with the stabbing
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1
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super 1988) (en banc).
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of victim, Tom Murphy in the 2200 block of York Street in the City of
Philadelphia. The case proceeded to a jury trial.
After a trial commencing on August 4, 2005,
and ending August 5, 2005, [Appellant] was found
guilty of first-degree felony aggravated assault, 18
Pa.C.S. § 2702, and possessing an instrument of
crime (PIC), 18 Pa.C.S. § 907, by a jury. On
September 28, 2005, [Appellant] was sentenced to
assault conviction, and concurrently sentence[d] to 2
1
An appeal was filed on October 18, 2005, but
later marked discontinue[d] by the Superior Court on
April 20, 2006 (2972 EDA 2005). On September 29,
2006, [Appellant] filed a pro se Petition for Relief
pursuant to the Post Conviction Relief Act, 42 Pa.C.S.
§ 9541, et seq. On February 21, 2007, Norman
Orville Scott, Esquire, was appointed to represent
[Appellant]. On October 12, 2007, an Amended
court erred in sentencing [Appellant] pursuant to the
second strike provision of the sentencing code
2
On January
31, 2008, a Motion To Dismiss was filed by the
Commonwealth. On March 10, 2008, th[e PCRA]
court filed a dismissal Notice pursuant to Pa. R.Crim.
P. 907. On April 18, 2008, th[e PCRA] court entered
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1
The court determined that this conviction was a
second conviction for a crime of violence under 42
Pa.C.S. §9714(a)(1), after the Commonwealth
introduced the Common Pleas Quarter Session file,
CP-51-CR-0605361-2001, establishing that
[Appellant] had previously been convicted of first-
degree felony robbery on November 1, 2001.
2
mended
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court [err] in sentencing [Appellant] pursuant [to]
the two strikes provision of the sentencing code
where [Appellant] had not previously been provided
a sufficient opportunity to rehabilitate himse
PCRA Court Opinion, 7/25/08, at 1-2 (footnotes in original).
Appellant filed a timely notice of appeal on May 16, 2008.2
Concurrently with his notice of appeal, Appellant filed a concise statement of
errors complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b), although not ordered to do so. The trial court filed its
Rule 1925(a) opinion on July 25, 2008.
counsel filed a Turner/Finley letter brief, together with a motion to
withdraw as counsel. Appellant has not filed any response.
On appeal, Counsel raises the following issue for our review.
[1.] Did the PCRA court err in finding the sentence
and dismissing the PCRA petition without a
hearing?
Turner/Finley Letter Brief at 3.
request to withdraw from representation. Our Supreme Court has
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2
The inordinate delay since the filing of the notice of appeal was occasioned
-appointed counsel,
requiring this Court to issue two remands to the trial court to determine the
tion and an order for compliance, on October
10, 2008, February 6, 2013, and August 23, 2013, respectively.
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articulated the requirements PCRA counsel must adhere to when requesting
to withdraw, which include the following.
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the nature and extent of his review;
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each issue the petitioner wished to have reviewed;
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meritless[.]
Commonwealth v. Pitts, 981 A.2d 875, 876 (Pa. 2009), quoting Finley,
supra Counsel must also send to the petitioner: (1) a copy of the
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a statement advising petitioner of the right to proceed pro se or by new
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super.
2007).
[W]here counsel submits a petition and no-
merit letter that do satisfy the technical demands of
Turner/Finley, the court - trial court or this Court -
must then conduct its own review of the merits of
the case. If the court agrees with counsel that the
claims are without merit, the court will permit
counsel to withdraw and deny relief. By contrast, if
the claims appear to have merit, the court will deny
counsel to file an
Id. (citation omitted).
Instantly, we determine that PCRA counsel has complied with the
requirements of Turner/Finley. Specifically, Turner/Finley
letter and petition to withdraw detail the nature and extent of PCRA
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pro se PCRA
petition and determine that the sole issue lacks merit. PCRA counsel
without merit. Additionally, counsel served Appellant with a copy of the
petition to withdraw and Turner/Finley brief, advising Appellant that, if
PCRA counsel was permitted to withdraw, Appellant had the right to proceed
pro se or with privately retained counsel. As noted, Appellant has not filed
any response. We proceed, therefore, to conduct an independent merits
.
We begin by noting the following standard of review,
from the denial of PCRA relief, our standard of
review calls for us to determine whether the ruling of
the PCRA court is supported by the record and free
Commonwealth v. Calhoun, 52
A.3d 281, 284 (Pa. Super. 2012) (citation omitted).
unless there is no support for the findings in the
Commonwealth v. Garcia, 23
A.3d 1059, 1061 (Pa. Super. 2011) (internal
quotation marks and citation omitted), appeal
denied, Pa. , 38 A.3d 823 (2012)
tled to
deference, but its legal determinations are subject to
Commonwealth v. Johnson,
600 Pa. 329, 966 A.2d 523, 532 (2009) (internal
quotation marks and citations omitted).
Commonwealth v. Nero, 58 A.3d 802, 805 (Pa. Super. 2012), appeal
denied, 72 A.3d 602 (Pa. 2013).
[T]he right to an evidentiary hearing on a post-
conviction petition is not absolute. It is within the
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support either in the record or other evidence. It is
the responsibility of the reviewing court on appeal to
examine each issue raised in the PCRA petition in
light of the record certified before it in order to
determine if the PCRA court erred in its
determination that there were no genuine issues of
material fact in controversy and in denying relief
without conducting an evidentiary hearing.
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012), quoting
Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa. Super. 2007)
(internal citations omitted), appeal denied, 940 A.2d 365 (Pa. 2007); see
also Pa.R.Crim.P. 907.
Appellant argues that the trial court erred by sentencing him under 42
Pa.C.S.A. § 9714(a)(1) as a second-strike offender. Turner/Finley Letter
Brief at 1. In his PCRA petition, Appellant cited Commonwealth v.
Shiffler, 879 A.2d 185 (Pa. 2005) as standing for the proposition that
punish more severely offenders who have persevered in criminal activity
Law in Support of Amended PCRA Petition, 10/12/13, at 5, quoting, id. at
195. Appellant argued that his acceptance of responsibility by pleading to
clear message of the Shiffler [C]ourt is that the mere conviction of a violent
felony of the first degree is insufficient to trigger where the defendant enters
a guilty plea and r Id. at 6.
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waived because he could have raised the issue before the trial court at the
ef at
4, citing 42, Pa.C.S.A. §§ 9543(a)(3), and 9544(b) (proscribing PCRA relief
for allegations of error that have or could have been raised before or at trial,
or on direct appeal); Trial Court Opinion, 7/25/08, at 2-3 (finding waiver on
the same ground).
See
Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa. Super. 2014)
(recognizing a challenge to the imposition of a mandatory sentence under
Section 9714(a)(1) is a challenge to the legality of a sentence).
It is well-established that such a claim constitutes a
nonwaivable challenge to the legality of the
were not first presented to the PCRA court in
ule 1925(b)
concise statement as challenges to the legality of the
sentence, they cannot be waived.
Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super. 2014). Further,
a legality of sentence issue is cognizable in a timely PCRA even if not raised
at sentencing or on direct appeal. Id.; see also 42 Pa.C.S.A. § 9542.
Issues relating to the legality of a sentence are
interpretation of a statute. Our standard of review
over such questions is de novo and our scope of
review is plenary.
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If no statutory authorization exists for a
particular sentence, that sentence is illegal and
subject to correction. An illegal sentence must be
vacated.
Akbar, supra (internal quotation marks and citations omitted).
Shiffler
is inapt. As we explained in Akbar, Shiffler and related cases precluded
imposition of a second-strike sentence when the predicate first-strike offense
and the second-strike offense occurred in the same criminal episode so that
no intervening opportunity to reform was afforded. Id. at 239-240. The
cooperation of a defendant in entering a first-strike plea or the leniency of a
first-strike sentence do not factor into this analysis as Appellant avers.
As the trial court explains, Appellant was sentenced for robbery,
graded as a first-degree felony, in 2001 and committed the underlying
second-strike offense of aggravated assault in 2004. PCRA Court Opinion,
7/25/08, at 3. The second-
convicted in any court of this Commonwealth of a crime of violence shall, if
at the time of the commission of the current offense the person had
previously been convicted of a crime of violence, be sentenced to a minimum
A. § 9714(a).
Felony robbery is categorized as a crime of violence for the purpose of the
statute. Id. § 9714(g). Accordingly, we agree with the trial court that
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enacted to ad
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being meritless, we conclude the PCRA court did not err in dismissing
See Wah, supra.
eal is
Order affirmed. Motion to withdraw as counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/27/2014
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