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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KYLE WUNDER
Appellant No. 845 MDA 2015
Appeal from the PCRA Order May 1, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0004642-2012
BEFORE: BOWES, OTT, and FITZGERALD, * JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MARCH 11, 2016
Appellant, Kyle Wunder, appeals from the order entered in the
Lancaster County Court of Common Pleas denying his first, timely petition
filed pursuant to the Post Conviction Relief Act1 (“PCRA”). Appellant
challenges the validity of his plea and contends trial counsel was ineffective
for failing to investigate a plea offer by the Commonwealth and failing to file
a direct appeal. PCRA counsel has filed with this Court a Turner/Finley2
letter and petition for leave to withdraw. Because the PCRA court committed
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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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an error of law, we vacate the order, deny the petition to withdraw, and
remand for further proceedings.
The facts underlying Appellant’s convictions are not relevant to our
disposition. On July 12, 2013, Appellant pleaded guilty to one count each of
first-degree murder,3 robbery,4 burglary,5 and two counts of criminal
conspiracy.6 On August 15, 2013, the trial court imposed a sentence of life
without the possibility of parole. Appellant did not file a post-sentence
motion or a direct appeal.
On August 28, 2014, Appellant filed a timely pro se PCRA petition.
The PCRA court appointed counsel for Appellant on September 11, 2014, and
PCRA counsel filed an amended petition on December 1, 2014. In
Appellant’s amended PCRA petition, he alleged ineffective assistance of
counsel based on trial counsel’s failures to investigate a plea offer and file a
requested direct appeal. Appellant’s Amended PCRA Pet., 12/1/14, at 2
(unpaginated). Alternatively, Appellant alleged trial counsel was ineffective
for failing to “hold the Commonwealth to the terms of the plea
agreement[.]” Id.
3
18 Pa.C.S. § 2502(a).
4
18 Pa.C.S. § 3701(a)(1)(i).
5
18 Pa.C.S. § 3502(a).
6
18 Pa.C.S. § 903(a)(1).
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The PCRA court held an evidentiary hearing on February 24, 2015.
Appellant testified that he saw an e-mail from the district attorney to his
counsel in April of 2013 indicating that if Appellant was willing to plead
guilty, the Commonwealth would allow him to plead to second-degree
murder. N.T. PCRA Hr’g, 2/24/15, at 5-6. Appellant testified that he was
under the “impression” that he would enter a plea to second-degree murder.
Id. at 15. However, Appellant testified that he was not “disputing” that his
plea to first-degree murder was voluntary. Id. The Commonwealth
proceeded to review Appellant’s guilty plea colloquy with Appellant on the
record. Id. at 17-18. Thereafter, the Commonwealth asked Appellant,
“[d]id you or did you not choose to plead guilty to first degree murder
knowing the nature of the charge and knowing the facts that backed up that
charge?” Id. at 18. Appellant responded, “[k]nowingly, yes.” Id.
Trial counsel explained at the hearing that the Commonwealth did not
offer a plea of second-degree murder for Appellant. Id. at 27-28. He
testified, “there were discussions about offering [Appellant’s] brother
second[-degree murder] in exchange for his cooperation. Second[-degree
murder] was never on the table for [Appellant].” Id. at 28. Trial counsel
further testified that the Commonwealth had notified him of its intent to
seek the death penalty in Appellant’s case, and his strategy was to avoid the
imposition of the death penalty. Id. at 32-33.
After the evidence came out, after I was able to
review the evidence, the gravity and weight of the
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evidence against [Appellant], I knew that the
Commonwealth had a tremendous amount of
evidence to convict him.
* * *
There are certain death penalty cases where
the Commonwealth seeks the death penalty and
they’re kind of grasping at straws. That was not the
case here. So I knew he had a very high chance of
getting the death penalty. Getting that off the table
and getting a plea was of utmost importance.
Id. at 32-33.
Appellant also testified regarding his request for a direct appeal:
[Appellant’s PCRA counsel:] You were sentenced on
August 15th of 2013. Did you have any discussion
before either of those dates with [trial counsel] in
regards to appeal?
[Appellant:] On the date of July, [trial counsel] came
and saw me at the prison, at Lancaster County, with
the plea agreement and all that, and we talked about
any motions for relief, for restitution and any other
forms of relief I could get filed-wise in the courts.
Q. Okay. Now, that would have been before your
sentence correct?
A. Yes.
* * *
Q. After you were sentenced, did you speak with
[trial counsel] at all in regards to this appeal?
A. I know we spoke, but I can’t recall on exactly
what it was.
Q. Do you recall what – I know you mentioned
restitution, appeal about restitution. Do you recall
any specific conversation you had with [trial
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attorney] in regards to an appeal to the Superior
Court, to a higher court about your sentence?
A. I can’t recall exactly, but I can recall talking about
it, that I have asked him that he file any paperwork
that we can for relief and reconsiderations.
Q. Okay. And was anything ever filed on your
behalf?
A. No.
Id. at 7-9.
When asked by the PCRA court what his expectation of counsel was
following sentencing, Appellant explained he wanted trial counsel to file “any
form of relief” on his behalf. Id. at 21. He further reiterated he wanted
counsel to file, “[a]ny kind of motion for relief in sentencing, any basis of the
whole case. Anything.” Id. at 22.
Trial counsel testified as follows, with respect to Appellant’s request to
file a direct appeal.
I explained to [Appellant] all along that, you
know, by taking -- if we took a guilty plea, his
appellate rights would be, you know, incredibly
diminished. . . .
* * *
So we talked about the fact that if he did
appeal -- or if he did plead guilty, there would be
almost no basis whatsoever. Unless something went
wrong in the courtroom here, there would be no
basis for appeal.
And that’s, in fact, how it went down. We
talked about that. We came in here and pled guilty.
And I chatted with [Appellant] just afterward and
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talked about, you know, appeal? Nah. I think that
was his exact word, nah, n-a-h. There was no basis
for an appeal, in my opinion, and he didn’t see one.
Id. at 29.
Trial counsel further testified, in response to the PCRA court’s inquiry,
as follows.
Q. Did [Appellant] indicate to you any interest in
filing an appeal for any reason?
A. No, Your Honor. No.
Q. Did you, at any time prior to receipt of this PCRA
petition, have any indication from him contrary to
that?
A. No. No, Your Honor.
Id. at 38.
On May 1, 2015, the PCRA court filed an order and accompanying
opinion denying Appellant’s petition. The court found Appellant understood
at sentencing that he was entering a plea to first-degree murder, that he
agreed to the Commonwealth’s factual basis for the charge, and that it was
Appellant’s decision to plead guilty. PCRA Ct. Op., 5/1/14, at 6. Concerning
trial counsel’s failure to file an appeal, the PCRA court noted that Appellant
and trial counsel offered conflicting testimony regarding whether or not
Appellant requested trial counsel to file an appeal. Id. at 3. The court
reasoned, however, Appellant’s argument based on trial counsel’s failure to
file a requested appeal was meritless because Appellant conceded his
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sentence was not subject to any meritorious challenge, and Appellant could
not articulate any other specific relief to seek on appeal. Id. at 4.
On May 13, 2015, Appellant filed the instant, timely appeal. The PCRA
court did not order compliance with Pennsylvania Rule of Appellate
Procedure 1925(b). However, the PCRA court filed a statement pursuant to
Rule 1925(a) referring this Court to its May 1, 2015 order and opinion for
the reasons underlying its denial of Appellant’s petition. PCRA Ct. Order,
8/27/15. On October 20, 2015, Appellant’s PCRA counsel filed a
Turner/Finley letter and application to withdraw as counsel. Appellant filed
a pro se response on November 20, 2015.
Counsel identifies the following issues for our consideration.
I. Whether the [PCRA] court erred in determining
that Appellant’s plea was not involuntary and
induced due to a breached plea agreement and
ineffective assistance of counsel[?]
II. Whether trial counsel was ineffective for failing to
file an appeal on behalf of Appellant[?]
Turner/Finley Brief at 4.7 Additionally, Appellant argues, pro se, that trial
counsel coerced Appellant into accepting a plea. Appellant’s Pro Se Resp. at
2-3 (unpaginated).
On appeal from the grant or denial of PCRA relief, this Court examines
whether the PCRA court’s findings are supported by the record and free from
7
We have reordered counsel’s identified issues to reflect the order in which
the arguments are presented in the Turner/Finley brief.
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legal error. Commonwealth v. Walker, 110 A.3d 1000, 1003 (Pa. Super.),
appeal denied, 125 A.3d 777 (Pa. 2015).
[A] PCRA petitioner will be granted relief only when
he proves, by a preponderance of the evidence, that
his conviction or sentence resulted from the
[i]neffective assistance of counsel which, in the
circumstances of the particular case, so undermined
the truth-determining process that no reliable
adjudication of guilt or innocence could have taken
place. Generally, counsel’s performance is presumed
to be constitutionally adequate, and counsel will only
be deemed ineffective upon a sufficient showing by
the petitioner. To obtain relief, a petitioner must
demonstrate that counsel’s performance was
deficient and that the deficiency prejudiced the
petitioner. A petitioner establishes prejudice when
he demonstrates that there is a reasonable
probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different. . . . [A] properly pled claim of
ineffectiveness posits that: (1) the underlying legal
issue has arguable merit; (2) counsel’s actions
lacked an objective reasonable basis; and (3) actual
prejudice befell the petitioner from counsel’s act or
omission.
Id. (citation and internal quotation marks omitted).
We review counsel’s petition to withdraw for compliance with the
following procedure.
The Turner/Finley decisions provide the manner for
postconviction 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
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issues are meritless. The PCRA court, or an
appellate court if the no-merit letter is filed before it,
then must conduct its own independent evaluation of
the record and agree with counsel that the petition is
without merit. . . .
[T]his Court [has] imposed additional requirements
on counsel that closely track the procedure for
withdrawing on direct appeal. . . . [C]ounsel is
required to contemporaneously serve upon his [or
her] client his [or her] no-merit letter and application
to withdraw along with a statement that if the court
granted counsel’s withdrawal request, the client may
proceed pro se or with a privately retained
attorney. . . .
Commonwealth v. Reed, 107 A.3d 137, 140 (Pa. Super. 2014) (citations
omitted).
Instantly, counsel has complied with all the procedural requirements of
Turner/Finley. We therefore proceed to an independent evaluation in order
to determine if Appellant’s issues are without merit. See Reed, 107 A.3d at
140.
The first issue counsel identifies concerns Appellant’s plea agreement.
Specifically, Appellant asserts that his plea was not knowing or voluntary
because the Commonwealth “breached” his plea agreement, and trial
“counsel was ineffective for failing to follow through and investigate a plea
offer by the Commonwealth whereby he was offered a plea agreement for
second degree murder.” Turner/Finley Brief at 13-14. We hold Appellant
is not entitled to relief on this claim.
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We observe, “[a] criminal defendant has the right to effective counsel
during a plea process as well as during trial.” Commonwealth v. Rathfon,
899 A.2d 365, 369 (Pa. Super. 2006) (citation omitted). Further, if
counsel’s ineffectiveness caused a defendant to plead guilty involuntarily,
the defendant is permitted to withdraw his guilty plea under the PCRA. Id.
In the instant case, Appellant conceded he entered his plea knowingly
and did not dispute the voluntariness of his plea. N.T. PCRA Hr’g, at 15, 18.
Moreover, assuming, arguendo, he saw an email8 from the Commonwealth
offering second-degree murder, Appellant testified he was aware of this offer
in April, three months before he knowingly and voluntarily pleaded guilty to
first-degree murder. See id. at 10. Appellant reiterated at the PCRA
hearing he understood to what he was pleading guilty, and we discern no
basis on which to grant Appellant relief.
Based on the foregoing, we conclude the PCRA court’s findings are
supported by the record, and Appellant has failed to carry his burden to
demonstrate his plea was involuntarily induced. See Walker, 110 A.3d at
1003; Rathfon, 899 A.2d at 369. Therefore, we agree with counsel that
this issue is without merit. See Turner/Finley Brief at 19-20; Reed, 107
A.3d at 140.
8
Trial counsel testified, contrary to Appellant’s claim, the Commonwealth
never offered Appellant a plea to second-degree murder. N.T. PCRA Hr’g, at
28.
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We next address the issue raised in Appellant’s pro se response to
counsel’s Turner/Finley letter. Appellant argues, “[t]here simply was no
benefit in this plea that counsel advised [Appellant to] take.” Appellant’s Pro
Se Resp. at 3. He contends trial counsel coerced him into waiving his
constitutional rights for “counsel’s own interests.” Id. at 2. We disagree.
As discussed above, Appellant’s plea to first-degree murder was
knowing and voluntary. Further, the record belies Appellant’s contentions
that counsel acted in his own interest and that the plea was of no benefit to
Appellant. Counsel testified he believed there was a strong chance Appellant
would receive the death penalty if convicted, in light of the Commonwealth’s
evidence and the gravity of the crime. N.T. PCRA Hr’g, at 32-33. Therefore,
he determined it was in Appellant’s best interest to negotiate a plea with the
Commonwealth where the death penalty would not be sought. Id. at 29;
see also id. at 25 (“My strategy from the inception was, number one, get
the death penalty off the table.”). Accordingly, Appellant has failed to
demonstrate counsel’s actions lacked an objectively reasonable basis, and
his claim fails. See Walker, 110 A.3d at 1003.
The second issue counsel identifies is “trial counsel was ineffective for
failing to file an appeal on [Appellant’s] behalf.” Turner/Finley Brief at 20.
PCRA counsel reasons that Appellant is not entitled to relief on his claim
because “[n]o appealable issues of merit exist and Appellant was unable to
state any issue that should be addressed on appeal[.]” Id. at 21. She
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relies, in part, on Appellant’s admission that “he had no specific relief in
mind” to support her position that Appellant’s issue is meritless. Id.
In Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999), our
Supreme Court discussed the impact the failure to file a direct appeal has in
the context of seeking PCRA relief. The Court observed, “[s]ince the failure
to perfect a requested appeal is the functional equivalent of having no
representation at all, Strickland,[9] on its own terms, establishes the right to
relief.” Lantzy, 736 A.2d at 571 (citation omitted).
Thus, we hold that, where there is an unjustified
failure to file a requested direct appeal, the conduct
of counsel falls beneath the range of competence
demanded of attorneys in criminal cases, denies the
accused of the assistance of counsel guaranteed by
the Sixth Amendment to the United States
Constitution and Article I, Section 9 of the
Pennsylvania Constitution, as well as the right to
direct appeal under Article V, Section 9, and
constitutes prejudice for purposes of Section
9543(a)(2)(ii).
Id. at 572 (footnote omitted).
In Commonwealth v. Haun, 32 A.3d 697 (Pa. 2011), a PCRA
petitioner alleged in his petition and testified at his PCRA hearing that his
counsel failed to file a direct appeal despite petitioner’s explicit request to do
so. Haun, 32 A.3d at 701. Trial counsel testified that he had explained to
petitioner that he did not believe the trial court abused its discretion in the
handling of petitioner’s case and that petitioner never requested counsel to
9
Strickland v. Washington, 466 U.S. 668 (1984).
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file an appeal. Id. The PCRA court denied relief to petitioner without
making a credibility determination regarding the disputed request for an
appeal. Id. The court reasoned petitioner was not eligible for relief because
he admitted guilt to the crimes for which he sought post conviction relief.
Id. The Superior Court reversed the PCRA court, and our Supreme Court
affirmed holding, “a concession of guilt does not, per se, foreclose prisoner
access to the PCRA.” Haun, 32 A.3d at 705. Importantly, the Supreme
Court rejected the Commonwealth’s claim that the PCRA hearing established
petitioner did not request a direct appeal. Id. The Court noted, “the parties
presented conflicting evidence on the subject and the PCRA court made no
factual finding. In the circumstances, the Commonwealth cannot rely on a
credibility judgment which does not exist[.]” Id.
Instantly, Appellant and trial counsel offered conflicting testimony
regarding the request to file a direct appeal. Compare N.T. PCRA Hr’g, at 8,
with id. at 38. PCRA counsel’s explanation as to why Appellant’s direct
appeal argument is meritless is not relevant in light of our Supreme Court’s
analyses in Lantzy and Haun. See Turner/Finley Brief at 21. Further, the
PCRA court acknowledged that trial counsel and Appellant offered conflicting
testimony but made no factual finding as to whether the request in fact was
made. PCRA Ct. Op., 5/1/14, at 3-4; see Haun, 32 A.3d at 705. Instead, it
dismissed Appellant’s petition because Appellant conceded the trial court had
no discretion in imposing its sentence and Appellant could not articulate any
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meritorious issues to raise on appeal. Id. Our Supreme Court’s decisions in
Lantzy and Haun compel us to conclude the PCRA court committed an error
of law when it dismissed Appellant’s petition without making a credibility
determination on whether or not there was an unjustified failure by trial
counsel to file a requested direct appeal. See Walker, 110 A.3d at 1003;
Haun, 32 A.3d at 705; Lantzy, 736 A.2d at 572. Accordingly, we disagree
with counsel’s assessment of this issue and deny her petition to withdraw.
See Reed, 107 A.3d at 140. We remand to the PCRA court for further
proceedings, including making the credibility determination necessary to
resolve Appellant’s claim of ineffectiveness.
Order vacated. Petition to withdraw denied. Case remanded for
further proceedings. Panel jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/11/2016
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