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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GEORGE DENTON MARTIN,
Appellant No. 1441 MDA 2014
Appeal from the PCRA Order Entered July 24, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0004746-2012
BEFORE: BENDER, P.J.E., OLSON, J., and OTT, J.
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 11, 2015
Appellant, George Denton Martin, appeals from the post-conviction
court’s July 24, 2014 order denying his petition for relief filed pursuant to
the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
Additionally, Appellant’s counsel, MaryJean Glick, Esq., has filed a petition to
withdraw from representing Appellant, along with an Anders1 brief. While a
Turner/Finley2 no-merit letter is the appropriate filing when counsel seeks
to withdraw on appeal from the denial of PCRA relief, we will accept Attorney
Glick’s Anders brief in lieu of a Turner/Finley no-merit letter. See
Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011)
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1
Anders v. California, 386 U.S. 738 (1967).
2
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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(“Because an Anders brief provides greater protection to a defendant, this
Court may accept an Anders brief in lieu of a Turner/Finley letter.”)
(citation omitted). After careful review, we affirm the PCRA court’s order
denying Appellant’s petition, and grant Attorney Glick’s petition to withdraw.
On February 27, 2013, Appellant entered a negotiated guilty plea to
indecent assault of a person less than 13 years of age, involuntary deviate
sexual intercourse with a child, corruption of minors, and unlawful contact
with a minor. Pursuant to the plea agreement, Appellant was sentenced to
an aggregate term of 8 to 20 years’ incarceration. Appellant did not file a
direct appeal.
Instead, on March 25, 2014, Appellant filed a counseled PCRA petition
presenting multiple claims of plea counsel’s ineffectiveness.3 On May 21,
2014, the PCRA court held an evidentiary hearing, at which Appellant and his
plea counsel, Raymond Tarnowski, Esq., testified. On July 24, 2014, the
PCRA court entered an order, accompanied by a detailed opinion, denying
Appellant’s petition. Attorney Glick subsequently entered her appearance on
Appellant’s behalf and filed a timely notice of appeal. However, on October
30, 2014, Attorney Glick filed with this Court a petition to withdraw as
counsel and an Anders Brief, asserting that Appellant had no non-frivolous
issues to raise on appeal. Again, as a Turner/Finley letter is the
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3
When Appellant filed his PCRA petition, and at the subsequent PCRA
hearing, he was represented by Joseph A. Kalasnik, Esq.
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appropriate filing when PCRA counsel seeks to withdraw, we will assess
Attorney Glick’s petition to withdraw and Anders brief under the dictates of
Turner/Finley.
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. The traditional
requirements for proper withdrawal of PCRA counsel, originally set forth in
Finley, were updated by this Court in Commonwealth v. Friend, 896 A.2d
607 (Pa. Super. 2006), abrogated by Commonwealth v. Pitts, 981 A.2d
875 (Pa. 2009),4 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
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
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4
In Pitts, our Supreme Court abrogated Friend “[t]o the extent Friend
stands for the proposition that an appellate court may sua sponte review the
sufficiency of a no-merit letter when the defendant has not raised such
issue.” Pitts, 981 A.2d at 879. In this case, Attorney Glick filed her petition
to withdraw and no-merit letter with this Court and, thus, our Supreme
Court’s holding in Pitts is inapplicable.
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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.
Friend, 896 A.2d at 615 (footnote omitted).
We have received Attorney Glick’s petition to withdraw and a brief that
we will treat as her no-merit letter. On pages 8 through 22 of her no-merit
letter, Attorney Glick discusses the ineffectiveness claims Appellant raised in
his PCRA petition, and explains why those claims are without merit.
Additionally, in her petition, Attorney Glick has sufficiently evidenced the
nature and extent of her review. She has also forwarded to Appellant a copy
of her petition to withdraw and no-merit letter. Finally, Attorney Glick
advised Appellant that he has the right to proceed with this appeal pro se or
to hire new counsel. Therefore, we conclude that Attorney Glick has
complied with the above-stated requirements for withdrawal.
Next, this Court must conduct its own independent review of the
record in light of the issues presented in Appellant’s PCRA petition. Therein,
Appellant raised multiple ineffectiveness claims, including assertions that (1)
plea counsel failed to properly investigate the case and potential defenses,
and review that information with Appellant, prior to advising Appellant to
enter a guilty plea; (2) plea counsel did not sufficiently investigate
Appellant’s history of depression and attention deficit hyperactivity disorder
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(ADHD), which precluded Appellant from entering a voluntary, knowing, and
intelligent plea; and (3) plea counsel failed to “understand and compensate
for [Appellant’s] naiveté as a traditional Mennonite regarding the court
system and how [Appellant’s] rights would be affected by various courses of
conduct in the case[.]” PCRA Petition, 3/25/14, at 3-4 (unpaginated).
Appellant further claimed that he was extremely ill in the days leading
up to the plea hearing, and that he also experienced “additional trauma”
during that period because he was charged with other offenses and
“incarcerated for the first time in his life….” Id. at 5 (unpaginated).
Appellant argued that due to his illness and being charged with additional
offenses, he asked his counsel to seek a continuance of the plea proceeding,
but counsel refused. Id. Consequently, Appellant entered his plea simply
“so he could obtain the rest and treatment that he required for his physical
and mental condition[,]” resulting in an invalid plea. Id. at 6 (unpaginated).
Appellant maintained that due to plea counsel’s conduct in these regards, his
guilty plea was invalid.
We have reviewed the certified record, the applicable law, and the
thorough opinion of the Honorable Donald R. Totaro of the Court of Common
Pleas of Lancaster County. Judge Totaro’s well-reasoned decision accurately
addresses the claims of ineffectiveness raised by Appellant in his PCRA
petition, as well as the validity of Appellant’s guilty plea as a whole. We
conclude that Judge Totaro’s determination that Appellant is not entitled to
post-conviction relief is supported by the record and is free of legal error.
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See Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)
(“Our standard of review of the denial of a PCRA petition is limited to
examining whether the court's determination is supported by the evidence of
record and free of legal error.”). Accordingly, we adopt Judge Totaro’s
opinion as our own and affirm the order denying Appellant’s PCRA petition
on the grounds set forth therein. We also grant Attorney Glick’s petition to
withdraw.
Order affirmed. Petition to withdraw granted. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/2015
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Com. v. Martin, G.
Combined Opinion