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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DEBORAH K. MCKISSICK,
Appellant No. 1852 MDA 2014
Appeal from the PCRA Order entered October 3, 2014,
in the Court of Common Pleas of Snyder County,
Criminal Division, at No(s): CP-55-CR-0000344-2010
BEFORE: BENDER, P.J.E., ALLEN, and OLSON, JJ.
MEMORANDUM BY ALLEN, J: FILED AUGUST 07, 2015
Deborah K. McKissick (“Appellant”) appeals pro se from the order
denying her petition for relief under the Post Conviction Relief Act (PCRA),
42 Pa.C.S.A. sections 9541-46. We affirm.
The pertinent facts are as follows:
In 2010, Appellant was a paralegal at a law office
handling Shelly Walter’s bankruptcy petition. Ms. Walter’s
[vehicle], a Ford 150 pickup truck, was scheduled to be
repossessed by GMAC, its lienholder. Appellant instructed
Ms. Walter to leave the keys inside the truck, so it could be
voluntarily surrendered to GMAC. Appellant then went to
Ms. Walter’s home while she was at a court hearing, and
took possession of Ms. Walter’s truck for Appellant’s
personal use. Appellant never made arrangements for
GMAC to repossess Ms. Walter’s vehicle. When Ms. Walter
learned that the truck registration was renewed, she
became suspicious. Ms. Walter contacted law
enforcement, and their investigation led to Appellant being
charged with [theft by unlawful taking, receiving stolen
property, and unauthorized use of a motor vehicle].
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Commonwealth v. McKissick, 64 A.3d 270 (Pa. Super. 2013), unpublished
memorandum at 1-2.
On January 26, 2011, Appellant entered into a negotiated plea. In
return for her pleading guilty to receiving stolen property, as a third-degree
felony, and the payment of restitution, the Commonwealth would withdraw
the remaining charges, and would agree to a “minimum within [the] bottom
half of [the] standard range, maximum less than 24 months.” Plea
Agreement, 1/26/11, at 1. By order entered that same date, the trial court
acknowledged Appellant’s plea agreement. The trial court further stated
that “[c]onsideration of and acceptance or rejection of the plea and the plea
agreement by the Court is deferred until the date fixed for sentencing,
pending receipt of a presentence investigation.” Order, 1/26/11, at 1.
On June 13, 2011, Appellant’s counsel filed a motion to withdraw
Appellant’s guilty plea.1 According to this motion, Appellant averred that she
“is not guilty of receiving stolen property,” and “believes she has a defense
against the charges filed against her.” Motion, 6/13/11, at 1. On June 29,
2011, new counsel entered his appearance for Appellant. By order entered
July 7, 2011, the trial court granted Appellant’s motion to withdraw her
guilty plea. The trial court stated: “The guilty plea is withdrawn in that the
____________________________________________
1
That same day, Appellant’s counsel filed a motion to withdraw from
representing Appellant.
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presentence report indicates that the court could not legally accept the plea
agreement in this case.” Order, 7/7/11, at 1. In a separate order entered
that same day, the trial court granted prior counsel’s written motion to
withdraw, and granted new counsel’s oral motion to withdraw. See Order,
7/14/11, at 1.
On July 26, 2011, the Snyder County Public Defender’s Office entered
its appearance for Appellant. Thereafter:
On December 19, 2011, the jury convicted Appellant
[on all the charges]. On February 13, 2012, the trial court
conducted a sentencing hearing, and assigned Appellant a
prior record score of five, instead of Appellant’s requested
score of four. The trial court determined that Appellant’s
convictions for theft by unlawful taking and receiving
stolen property merged, and sentenced Appellant to 12 to
24 months of incarceration, followed by 36 months of
probation. The trial court made the foregoing sentence
consecutive to Appellant’s sentence of 3 to 12 months for
her conviction of unauthorized use of an automobile.
Further, Appellant’s minimum aggregate sentence was
reduced to 11¼ months because the trial court determined
that Appellant was eligible for the Recidivism Risk
Reduction Initiative.
McKissick, unpublished memorandum at 2-3.
On February 23, 2012, Appellant filed timely post-sentence motions.
Among her claims, Appellant asserted that the trial court erred in
miscalculating her prior record score. On May 10, 2012, the trial court
denied Appellant’s post-sentence motions. Appellant filed a timely appeal to
this Court. On January 4, 2013, we adopted the trial court’s May 10, 2012
opinion as our own in rejecting all of Appellant’s claims and affirming her
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judgment of sentence. McKissick, supra. On September 9, 2013, our
Supreme Court denied Appellant’s petition for allowance of appeal.
Commonwealth v. McKissick, 74 A.3d 1031 (Pa. 2013).
On December 6, 2013, Appellant filed a pro se PCRA petition. On
December 9, 2013, the PCRA court appointed counsel. An evidentiary
hearing originally scheduled for May of 2013 was continued so that PCRA
counsel could file either an amended petition or a “no-merit” letter and
motion to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927
(Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc). On July 31, 2014, PCRA counsel filed a Turner/Finley
letter in which he detailed his review of Appellant’s claims and explained why
they lacked merit. Within this letter, PCRA counsel also requested leave to
withdraw.
On August 25, 2014, the PCRA court issued an opinion supporting
PCRA counsel’s assessment of Appellant’s PCRA petition, granted PCRA
counsel’s request to withdraw, and gave Appellant Pa.R.Crim.P. 907 notice
of intent to dismiss her PCRA petition without a hearing. On September 11,
2014, Appellant filed a lengthy, handwritten response, in which she asserted
that PCRA counsel did not personally contact her. By order entered
September 29, 2014, the trial court directed PCRA counsel to respond to
Appellant’s allegation and inform the court whether he wished to withdraw
his Turner/Finley letter. By letter dated October 1, 2014, PCRA counsel
denied Appellant’s allegation and reaffirmed his belief that Appellant’s PCRA
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claims were without merit. By order entered October 3, 2014, the PCRA
court dismissed Appellant’s pro se PCRA petition. This timely appeal
followed. Although the PCRA court did not require Pa.R.A.P. 1925(b)
compliance, it issued a Rule 1925(a) opinion referring to an earlier opinion
supporting its Pa.R.Cim.P. 907 notice, for the reasons supporting its
dismissal of Appellant’s PCRA petition.
In this appeal, Appellant raises the following issues:
I. Did the [PCRA] court err when it dismissed Appellant’s
PCRA petition without requiring [PCRA counsel] to meet
[the] requirements of Pa.R.[Crim.]P. 904?
II. Did the PCRA court err in determining that Appellant’s
claim of ineffective assistance in regard to a failure to
assert a claim of incorrect prior record score resulting in
the loss of [a] plea bargain on the ground that the claim
had been previously litigated on direct appeal?
III. Did the [PCRA] Court err in its determination that the
inclusion of the Maryland conviction did not affect
[Appellant’s] sentence?
IV. Did the [PCRA] court err in denying Appellant PCRA
relief without an evidentiary hearing on her claim that
counsel’s omission led to the loss of court entered plea, as
the standard of assessing whether Appellant was
prejudiced by counsel’s ineffective was erroneous?
V. Did the [PCRA] court err when it failed to address
whether [] Appellant was afforded ineffective assistance of
counsel, where all prior counsel appeared to be unaware of
the Pennsylvania Code and Sentencing Guidelines resulting
in loss of [a] plea?
VI. Did the [trial] court erred when it withdrew Appellant’s
plea on July 7, 2011 based upon an erroneous pre-
sentence investigation report which allowed probation to
grade Maryland offense of Forgery and Counterfeit
Documents to a Felony 2 (F2) when Maryland record[s]
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clearly show the offense as an ungraded felony which
resulted in loss of [the] plea entered into on January 26,
2011?
VII. Did appellate [counsel’s] failure to include a Pa.R.A.P.
2119(f) [statement] constitute ineffective assistance of
counsel and comprise Appellant’s direct appeal rights?
VIII. Did the [trial c]ourt have jurisdiction over Appellant’s
proceeding?
Appellant’s Brief at 8-10 (excess capitalization omitted).
This Court’s standard of review regarding an order dismissing a
petition under the PCRA is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA
court’s findings will not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,
1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a
hearing on the petition if the PCRA court determines that the petitioner’s
claim is patently frivolous and is without a trace of support in either the
record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011,
1104 (Pa. Super. 2001).
To be eligible for post-conviction relief, a petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from one or more of the enumerated errors or defects in 42
Pa.C.S.A. section 9543(a)(2), and that the issues he raises have not been
previously litigated. Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa.
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2012). An issue has been “previously litigated” if “the highest appellate
court in which the petitioner could have had review as a matter of right has
ruled on the merits of the issue, or if the issue has been raised and decided
in a proceeding collaterally attacking the conviction or sentence.” Koehler,
36 A.3d at 131-132; 42 Pa.C.S.A. § 9544(a)(2). If a claim has not been
previously litigated, the petitioner must prove that the issue was not waived.
An issue will be deemed waived under the PCRA “if the petitioner could have
raised it but failed to do so before trial, at trial, during unitary review, on
appeal, or in a prior state post[-]conviction proceeding.” Id. at 132; 42
Pa.C.S.A. § 9544(b).
Moreover, to the extent Appellant challenges the effectiveness of prior
counsel, we note: To obtain relief under the PCRA premised on a claim that
counsel was ineffective, a petitioner must establish by a preponderance of
the evidence that counsel's ineffectiveness so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could
have taken place. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa.
2009). “Generally, counsel’s performance is presumed to be constitutionally
adequate, and counsel will only be deemed ineffective upon a sufficient
showing by the petitioner.” Id. This requires the petitioner to demonstrate
that: (1) the underlying claim is of arguable merit; (2) counsel had no
reasonable strategic basis for his or her action or inaction; and (3) petitioner
was prejudiced by counsel's act or omission. Id. at 533. A finding of
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“prejudice” requires the petitioner to show “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. Counsel cannot be deemed
ineffective for failing to pursue a meritless claim. Commonwealth v.
Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc), appeal denied, 852
A.2d 311 (Pa. 2004).
In her first issue, although Appellant claims that PCRA counsel did not
comply with Pa.R.Crim.P. 904, her true claim is that he did not comply with
all of the Turner/Finley requirements. More specifically, Appellant asserts
that PCRA counsel did not file a separate request to withdraw, failed to have
meaningful contact with her so that her post-conviction issues could be
properly presented, and failed to inform her that she could proceed with
privately retained counsel. See Appellant’s Brief at 14-21.
This Court has recently summarized:
The Turner/Finley decisions provide the manner for
[PCRA] counsel to withdraw from representation. The
holdings of those cases mandate an independent review of
the record by competent counsel before a PCRA court or
appellate court can authorize an attorney’s withdrawal.
The necessary independent review requires counsel to file
a “no-merit” letter detailing the nature and extent of his
review and list each issue the petitioner wishes to have
examined, explaining why those issues are meritless. The
PCRA court, or an appellate court, if the no-merit letter is
filed before it, see Turner, supra, then must conduct its
own independent review of the record and agree with
counsel that the petition is without merit. See
[Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa.
2009)].
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In Commonwealth v. Friend, 896 A.2d 607 (Pa.
Super. 2006), abrogated in part by Pitts, supra, this
Court imposed additional requirements on counsel that
closely track the procedure for withdrawing on direct
appeal. Pursuant to Friend, counsel is required to
contemporaneously serve upon his client his no-merit
letter and application to withdraw along with a statement
that if the court granted counsel’s withdraw request, the
client may proceed pro se or with a privately retained
attorney. Though Chief Justice Castille noted in Pitts that
this Court is not authorized to craft procedural rules, the
Court did not overturn this aspect of Friend as those
prerequisites did not apply to the petitioner in Pitts. See
[Pitts, 987 A.2d at 881 (Castille, C.J., concurring)].
After the decision in Pitts, this Court held in
Commonwealth v. Widgins, 29 A.3d 816 (Pa. Super.
2011), that the additional procedural requirements of
Friend were still applicable during collateral review.
Commonwealth v. Freeland, 106 A.2d 768, 774-775 (Pa. Super. 2014)
(citation omitted).
Our review of the record supports the PCRA court’s conclusion that
PCRA counsel substantially complied with the requirements of
Turner/Finley and their progeny. With regard to PCRA counsel’s failure to
file a separate request to withdraw, the PCRA court noted: “The proper
procedure is for counsel to file a separate Petition to Withdraw. In this case
counsel included a request to withdraw within the body of his ‘no merit
letter.’ We are not going to insist that counsel take the step of now filing a
formal Petition to Withdraw.” We agree. In addition, in response to
Appellant’s assertion in her pro se response that PCRA counsel did not
communicate with her, the PCRA court directed PCRA counsel to
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acknowledge whether he did so. We cannot disturb the PCRA court’s
decision to credit PCRA counsel’s account of his communication with
Appellant. See Commonwealth v. Harmon, 738 A.2d 1023, 1025 (Pa.
Super. 1999) (explaining that when a PCRA court’s determination of
credibility is supported by the record, it cannot be disturbed on appeal).
Although Appellant complains that PCRA counsel did not fully
comprehend the issues she wished to raise, we note that Appellant filed a
timely pro se response to the PCRA court’s Pa.R.Crim.P. 907 notice, in which
she alerted the PCRA court of these perceived shortcomings. Finally,
Appellant suffered no prejudice. Appellant asserts that “[w]hile this [failure]
may not appear to affect [her] claim, [] if [she] knew she had a right to
obtain private counsel [she] may have.” Appellant’s Brief at 19. During the
course of her criminal proceedings, Appellant has been represented by both
privately retained counsel and court-appointed counsel. As a trained
paralegal, Appellant filed a lengthy response to the PCRA court’s
Pa.R.Crim.P. 907 notice, in which she correctly cited pertinent case authority
as well as the sentencing guidelines and the Pennsylvania Code. Given
these circumstances, PCRA counsel’s failure to comply with Friend does not
serve as a basis for remand. For the foregoing reasons, Appellant’s first
issue is without merit.
Appellant’s second issue, as well as her fourth and fifth, presuppose
that the trial court could not accept her guilty plea because of a
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miscalculation of her prior record score, and that the trial court’s actions
caused her to lose the benefit of the plea bargain. Appellant cites no record
evidence or case authority to support this claim. See Commonwealth v.
Tielsch, 934 A.2d 81, 93 (Pa. Super. 2007) (holding that undeveloped
claims will not be considered on appeal). Moreover, the calculation of
Appellant’s prior record score does not affect her ability to plead guilty to
any crime. It is a sentencing factor, which becomes relevant only after the
entry of a valid guilty plea or conviction following trial.
In her claims on direct appeal to this Court, Appellant challenged the
calculation of her prior record score. The trial court rejected Appellant’s
claim that the Commonwealth failed to meet its burden of establishing
Appellant’s prior convictions, and nevertheless concluded that any error in
Appellant’s prior record score was of no significance. The court reasoned:
[Appellant] contends our sentence was illegal because
we did not calculate her prior record score as a “4”,
instead of a “5.” [Appellant] argues that because she
challenged the score, it was the Commonwealth’s burden
to present evidence to overcome her objections.
***
In the present case, the Court accepted the probation
department calculation [of Appellant’s prior record score]
and was unwilling to accept [Appellant’s] challenge without
some further proof, which [Appellant] has never provided,
and which [Appellant] has now admitted does not exist
because the records have been destroyed. [Appellant
admits she cannot produce a record because it has been
destroyed, yet seeks to penalize the Commonwealth for
not producing the same nonexistent record.]
***
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Notwithstanding the calculation of the prior record
score, we agree with the Commonwealth that [Appellant’s]
argument about the prior record score is of no moment
because in giving [Appellant] a minimum sentence of 12
months, we sentenced her in the standard range sentence
of the sentencing guidelines for either prior record score.
With a score of 5[,] the standard range is 12 to 18
months; with a score of 4, it is 9 to 16 months. Given her
prior criminal history, which includes multiple offenses
involving stealth and deception akin to the present offense,
a standard range sentence was extremely lenient. [The
presentence report shows that Appellant has multiple
convictions for bad checks and a felony conviction for
forgery. Her prior case dispositions have included Rule
586 settlements, ARD, fines, probation, county
imprisonment and intermediate punishment.] Moreover,
contrary to [Appellant’s] contention, she was not “entitled”
to a sentence of intermediate punishment. She has
experienced the full menu of dispositions available in our
criminal justice system to no effect. Confinement in a
state correctional institution was the appropriate place of
confinement[.]
Trial Court Opinion, 5/10/12, at 9-12 (footnotes and citations omitted).
Appellant correctly contends in her second issue that her claim of
ineffective assistance of counsel with regard to the calculation of her prior
record score is not “previously litigated” under the PCRA. See
Commonwealth v. Hanible, 30 A.3d 426, 441-42 (Pa. 2011)
(distinguishing between previous litigation of underlying claim vis-à-vis
derivative ineffective assistance of counsel claim). Nevertheless, Appellant’s
fourth and fifth issues fail because Appellant had not established that her
guilty plea was rejected due a miscalculation of her prior record score. See
supra. Moreover, Appellant has failed to provide a sufficient factual
predicate for her claim that her correct prior record score is a “3”, based on
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her prior Maryland conviction being an ungraded felony. See Appellant’s
Brief at 15-16. Even if Appellant could establish a miscalculation, the trial
court provided ample reasons for its imposition of a state sentence,
irrespective of Appellant’s prior record score.
Finally, we summarily reject Appellant’s remaining claims. In both her
third and sixth issues, Appellant asserts trial court error. In her third issue,
Appellant asserts that the trial court erred in determining that the inclusion
of Appellant’s prior Maryland conviction did not affect the sentence it actually
imposed. See Appellant’s Brief at 26. In her sixth issue, Appellant asserts
the trial court erred in withdrawing her guilty plea based upon an erroneous
miscalculation of her prior record score. See Appellant’s Brief at 40.
Because both claims of trial court error could have been raised on direct
appeal, they are waived under the PCRA. Koehler, supra.
In her seventh issue, Appellant contends that appellate counsel’s
failure to include a Pa.R.A.P. 2119(f) statement in her appellate brief
“compromise[d] her direct appeal rights.” Appellant’s Brief at 45. According
to Appellant, “[the trial court] did not object to the absence of the Pa.R.A.P.
statement thereby making ineffective counsel appear effective.” Id. These
claims are refuted by the record. In affirming Appellant’s judgment of
sentence, we acknowledged that because the Commonwealth did not object
to Appellant’s procedural omission, Appellant’s discretionary aspects claim
was properly preserved for review. McKissick, unpublished memorandum
at 6.
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Finally, Appellant’s eighth claim that the trial court did not have
jurisdiction over her criminal proceedings is specious. Although Appellant
cites to provisions of the United States Bankruptcy Code, she has failed to
develop a coherent argument in support of this claim. Thus, we need not
consider it further. Tielsch, supra.
In sum, for the foregoing reasons, we affirm the PCRA court’s order
denying Appellant post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2015
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