Com. v. Rosembert, A.

J-S46034-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : ALBERTO MELLON ROSEMBERT, : : Appellant : No. 2002 MDA 2013 Appeal from the PCRA Order entered on October 2, 2013 in the Court of Common Pleas of Luzerne County, Criminal Division, No. CP-40-CR-0001198-2011 BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ. JUDGMENT ORDER BY MUSMANNO, J.: FILED AUGUST 18, 2014 Alberto Mellon Rosembert (“Rosembert”) appeals from the Order denying his first Petition for relief pursuant to the Post Conviction Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. Rosembert’s counsel, Matthew P. Kelly, Esquire (“Kelly”), has filed a Turner/Finley1 Brief and a Petition to Withdraw as Counsel. We deny the Petition to Withdraw and direct Kelly to either file a proper Turner/Finley “no-merit” letter and petition to withdraw, or file an advocate’s brief. The procedure for withdrawal by PCRA counsel pursuant to Turner/Finley is as follows: 1) A “no-merit” letter by PCRA counsel detailing the nature and extent of his review; 1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). J-S46034-14 2) The “no-merit” letter by PCRA counsel listing each issue the petitioner wished to have reviewed; 3) The PCRA counsel’s “explanation,” in the “no-merit” letter, of why the petitioner’s issues were meritless; 4) The PCRA court conducting its own independent review of the record; and 5) The PCRA court agreeing with counsel that the petition was meritless. Commonwealth v. Pitts, 981 A.2d 875, 876, n.1 (Pa. 2009) (citation and brackets omitted). Further, PCRA counsel seeking to withdraw must contemporaneously forward to the petitioner a copy of the petition to withdraw that includes “(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.” Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011). Here, Kelly provided Rosembert with notice of his intention to seek permission to withdraw from representation, a copy of the Turner/Finley Brief filed on his behalf, and advised Rosembert of his rights in lieu of representation. However, while Kelly identified the issues that Rosembert sought to raise in the Turner/Finley Brief, Kelly failed to detail the nature and extent of his review, or explain why the issues lack merit. See Pitts, 981 A.2d at 876 n.1. -2- J-S46034-14 Thus, within thirty (30) days of the date this Order is filed, we order Kelly to file a proper Turner/Finley “no-merit” letter and fulfill the additional requirements to withdraw under Turner/Finley, or file an advocate’s brief. In the event Kelly files an advocate’s brief, the Commonwealth will be permitted thirty (30) days to respond from the filing of the brief. Petition to Withdraw denied; panel jurisdiction retained. -3- : s- 5 if Co 0:3 if - l '-\ \ /' . Circulated 12/29/2014 04:07 PM COMMONWEALTH OF PENNSYLVANIA: IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY v. CRIMINAL DIVISION ALBERTO MELLON ROSEMBERT alkla "SMURK", Defendant No. 1198 CR 2011 OPINION PROCEDURAL HISTORY The Defendant, Alberto Mellon;Rosemb6It,:wl1s'arrestecl on October 14, 2010 for the following charges: CorniptOigahi:zati()rts, lR Pa.C.S.A.'91 1 (b) (3); Corrupt Organizatioris; 18 Pa;C.S.A.~11(b}(1-4); Manufactu~e,Delivery and Possession with the Intent to Deliver a Controlled Substance, 35 Pa.C.S.A. 780 - 113 (a) (3), 7 counts; Criminal Use of a Communication Facility; 18 Pa. C.S.A. 7512 (a). On January 3, 2012, Attorney David Lampman was appointed to represent the Defendant. Thereafter, on April 23, 2012, the Defendant, Alberto Mellon Rosembert, plead guilty to the following offenses before the Honorable Senior Judge Kenneth Brown; Corrupt Organizations, (Count 1); Delivery of a Controlled Substance, (Count 4) (Heroin); Delivery of a Controlled Substance, (Count 6) (Heroin). The Defendant, Alberto Mellon Rosembert, waived his right to a presentence investigation and agreed on the record to proceed to immediate sentencing. Subsequent thereto, the Honorable Senior Judge Kenneth Brown, sentenced the Defendant as follows: 1. Delivery of a Controlled Substance, Count 6: 3-6 years state confinement; 1 Circulated 12/29/2014 04:07 PM 2. Delivery of a Controlled Substance, Count 4: 2-4 years state confinement, consecutive to Count 6; 3. Corrupt Organizations, Count 1: 21 months to 4 years state' confinement, consecutive to Count 6 and Count 4. The Defendant filed the instant Post-Conviction Collateral Relief Petition (hereinafter Petition) claiming ineffective assistance of counsel seeking to be allowed to withdraw his guilty plea or to have his appellate rights reinstated. ISSUES PRESENTED , ..~. " . . . . . :. . . .>., Whether Counsel· wasineffecti\ie:" (1) In preparation for trial? (2) In failing to challenge the prior record score used or the weight of the heroin? (3)In failing to file an appeal to the Superior Court on Defendant's behalf? DISCUSSION: Ineffective Assistance of Counsel Pursuant to the Post Conviction relief Act, 42 Pa. C.S.A. Section 9543, to be eligible for relief, the Petitioner must plead and prove by a preponderance of the evidence his conviction or sentence resulted from one or more of the enumerated errors in Section 9543 (a)(2). The burden of properly pleading and proving claims or errors falls upon the Defendant. Commonwealth vs. Thomas, 44 A. 3rd 12 (pa. 2012). To obtain relief on a claim of ineffective assistance of counsel, the Petitioner must show (1) the underlying claim is of arguable merit; (2) no reasonable basis existed for Counsel's action or inaction; and (3) counsel's error caused prejudice such that there is a reasonable probability that the proceeding would have been 2 Circulated 12/29/2014 04:07 PM different absent such error. Commonwealth vs. Dennis, 17 A 3 rd 297, 301 (Pa. 2011), citing Commonwealth vs. Pierce, 527 A 2 nd 973,975 (Pa. 1987). In reviewing any particular claim of ineffectiveness, the Court need not determine whether the first two prongs of this standard are met if the record shows the Petitioner has not met the prejudice prong. Commonwealth vs. Travaglia. 541 Pa. 108,661 A. 2 nd 352, 357 (1995) cert. denied 516 U.S. 1121, 116 S.Ct. 931; Commonwealth vs. Collins, 888A. 2 nd 564 (Pa. 2005). Further, it is clear that the burden ofproying ineffe6tivellessofcounsel rests with the Petitioner because counsel' sstewardshipoiJhetri~tispresumptivelyeffective. CommonwealthVs.·., •.... . .· · · · · · < a ' . '....... ". ". . ". .' .... . . . . . . . . . Wilson, 54}Pa.. 429, 672A.2n 29J, cert. denied 519 U.S. 951,117 S. Ct. 364 (1996). To sustain a claim of ineffectiveness, the Petitioner must prove that the strategy employed by trial counsel "was so unreasonable that no competent lawyer would have chosen that course of conduct." Commonwealth vs. Williams, 640 A. 2nd 1251, 1265 (pa. 1994). The first issue raised by the Defendant asserts that trial counsel was ineffective in preparation for trial. The Defendant alleges that trial counsel was unprepared to proceed to trial. The record is clear that trial counsel did request continuances of the April 23, 2012 trial date by motion on April 17, 2012 and April 18, 2012. In counsel's motions, he contended that due to his heavy case load as a conflict counse~ he required more time to prepare. Both requests were denied by the Court. In the instant matter, Defendant's position is that, because trial counsel was unprepared for trial and did not adequately consult with him to prepare possible defenses, he felt coerced at the time of his plea hearing to enter a guilty plea. However, at that hearing, the Defendant testified that it was his decision to plead 3 Circulated 12/29/2014 04:07 PM guilty and that he was satisfied with the representation provided by counsel. Consequently, the Defendant is bound by the statements made during the plea colloquy and cannot now offer contradictory reasons for withdrawing his plea. A defendant may not be pleased with the results of entering a guilty plea, but he cannot now obtain relief by claiming he felt pressured by counsel to plead guilty. Commonwealth v. Brown, 48 A.3 rd 1275 (Pa. Super. 2012). However, the record is also clear, that on numerous occasions, trial counsel met y{iththeDef~ndarir (NT 3 7) and that there were discussions al;>o.lltthecase, ,< includii}g,th~ pr0r>,?sed'plea .offers. 'Further, trial counsel testifiea;:th.(;l~/in)iis opihion,triar'was