J-S63004-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STANLEY ALAN DAVIS JR.,
Appellant No. 855 MDA 2014
Appeal from the PCRA Order February 6, 2014
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0000356-2012
BEFORE: BOWES, PANELLA, and PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 07, 2014
Stanley Alan Davis Jr. appeals from the February 6, 2014 order
denying him PCRA relief. Counsel has filed a petition to withdraw. We grant
that petition and affirm.
On December 17, 2011, Appellant was charged with homicide and
carrying a prohibited offensive weapon, based upon the following events. At
8:40 p.m. the previous evening, Wilkes-Barre police officers were dispatched
to 16 Sterling Street after police received a report that someone had been
shot in the stomach. They were met at the door of that residence by Shu-
-Howard, the victim.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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which proved fatal.
Police proceeded ups
Fred Lassiter. Mr. Lassiter witnessed the incident and told police that his
mother was shot by a man named Stanley. Mr. Lassiter, who was on the
telephone with the police dispatcher, reported that Stanley and Ms. Springer-
Howard were arguing and, when the victim told Stanley to leave, he kicked
her and shot her with a shotgun. Mr. Lassiter provided a detailed description
of the perpetrator and the clothing that he was wearing as well as a
description of his vehicle, a white work van with a rack on top containing
step ladders.
-
Barre Police Officer Kenneth Jones spotted a white van with a rack of ladders
on top of it about six blocks away from the crime scene. Officer Jones
stopped the van, and Appellant exited it. Officer Jones told Appellant to
place his hands in the air, and Appellant complied. At that point, the officer
received a detailed description of the perpetrator, which Appellant matched.
Appellant was arrested, and a shotgun, which was in plain view, was seized
from the van. After being given Miranda warnings, Appellant admitted that
he shot the victim.
After Appellant litigated an unsuccessful suppression motion, he
tendered a negotiated guilty plea on June 11, 2012, to third-degree murder
and possession of a prohibited offensive weapon. The agreed-upon sentence
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was twenty to forty years imprisonment for third-degree murder, but there
was no agreement as to the sentence that could be imposed on the weapons
charge. N.T., 6/11/12, at 5. The court conducted an extensive colloquy,
and Appellant also executed a written guilty plea colloquy. On September 5,
2012, Appellant was sentenced to twenty to forty years imprisonment for
third-degree murder with a consecutive sentence of five years probation for
possession of a prohibited offensive weapon.
Appellant did not file a direct appeal, but did file a timely PCRA
petition. Counsel was appointed. On December 13, 2013, counsel filed a
no-
murder charge should have been reduced because he was intoxicated when
he committed the crime. Counsel was permitted to withdraw on
December 20, 2013, and the PCRA Court independently concluded that the
issue raised was meritless. It also reviewed the record and noted that the
plea colloquy was unassailable and that a negotiated sentence was imposed
on the murder offense.
On January 13, 2014, the PCRA court issued notice of its intent to
dismiss the PCRA petition without a hearing. It thereafter dismissed the
petition on February 6, 2014. On February 24, 2014, the PCRA court
received a pro se request for the appointment of a different lawyer and that
request was granted. This timely appeal ensued.
Initially, we note that appellate counsel has petitioned this Court to
withdraw pursuant to the mandates of Commonwealth v. Turner, 544
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A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213
(Pa.Super. 1988) (en banc). These cases govern the procedure for
withdrawal of court-appointed counsel for purposes of post-conviction
Commonwealth v. Widgins, 29 A.3d 816, 817 (Pa.Super. 2011) (quoting
Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009)). That
independent review requires:
-
extent of his review;
-mer
petitioner wished to have reviewed;
-
why the petitioner's issues were meritless;
4) The . . . court conducting its own independent review of the
record; and
5) The . . . court agreeing with counsel that the petition was
meritless.
Widgins, supra at 818 (quoting Pitts, supra at 876 n.1). In addition,
In Commonwealth v. Friend, 896 A.2d 607 (Pa.Super.
2006), [abrogated on other grounds by Pitts, supra.] this Court
had imposed an additional requirement for counsel seeking to
withdraw in collateral proceedings:
. . . .[W]e here announce a further prerequisite
which must hereafter attend an application by
counsel to withdraw from representing a PCRA
petitioner, namely, that PCRA counsel who seeks
to withdraw must contemporaneously serve a
copy on the petitioner of counsel's application
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to withdraw as counsel, and must supply to the
-
and a statement advising the petitioner that, in
the event that the court grants the application
of counsel to withdraw, he or she has the right
to proceed pro se or with the assistance of
privately retained counsel.
Id. at 614 (emphasis in original).
Widgins, supra at 818. This additional requirement, which has not been
abrogated by our Supreme Court, is still applied by the Superior Court. Id.;
see also Commonwealth v. Rykard, 55 A.3d 1177 (Pa.Super. 2012).
Herein, counsel filed a no-merit brief and petition to withdraw. In the
petition, counsel averred that he reviewed the record and concluded that no
meritorious issue exists. Appellant attached a letter addressed to Appellant
to his petition to withdraw. With that letter, counsel enclosed a copy of the
hire private counsel, or proceed pro se and
Petition to Withdraw, 7/22/14, Exhibit 1. In his no-merit brief, counsel offers
his rationale for concluding that the issue Appellant seeks to raise is
meritless. Hence, counsel has complied with the withdrawal requirements
applicable to him.
We now review the merits of the sole contention raised on appeal,
time the crime was committed and thus, should have reduced his sentence of
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20 to
to the discretionary aspects of a sentence since Appellant maintains that a
fact should have been considered in mitigation of the sentence imposed.
However, if a defendant enters a negotiated guilty plea to an offense in
exchange for a specific sentence, and if that sentence is subsequently
imposed, a defendant is precluded from challenging the discretionary aspects
of that sentence. Commonwealth v. Reichle, 589 A.2d 1140 (Pa.Super.
1991). Herein, there was a negotiated sentence of twenty to forty years in
jail for the third-degree murder offense, and that sentence was imposed.
Hence, we agree that Appellant cannot obtain relief on this basis. We also
have conducted an independent review of the entire record and agree with
sentence. Hence, we grant the petition to withdraw and affirm.
Petition to withdraw filed by Matthew P. Kelly, Esquire, is granted.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2014
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