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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ALTRICK M. TAYLOR
Appellant No. 1366 MDA 2015
Appeal from the PCRA Order Dated June 30, 2015
In the Court of Common Pleas of Luzerne County
Criminal Division at Nos: CP-40-CR-0003278-2012, CP-40-CR-0003281-
2012, CP-40-CR-0004263-2012, and CP-40-CR-0002665-2013
BEFORE: PANELLA, STABILE, and JENKINS, JJ.
MEMORANDUM BY STABILE, J.: FILED JUNE 22, 2016
Appellant Altrick M. Taylor appeals from the June 30, 2015 order of the
Court of Common Pleas of Luzerne County (“PCRA court”), denying relief
under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46.
PCRA counsel has filed a no-merit brief and petitioned to withdraw under
Turner/Finley.1 Upon review, we affirm and grant the petition to withdraw.
Briefly, after pleading guilty to various crimes, including possession of
a firearm, possession of a controlled substance (cocaine), receiving stolen
property, driving under the influence, and possession with intent to deliver
(heroin), Appellant was sentenced to an aggregate term of 5 to 10 years’
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1
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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imprisonment, followed by one year of probation. Appellant did not file a
direct appeal. On July 17, 2014, Appellant filed a timely PCRA petition,
raising ineffective assistance of counsel claims. On June 30, 2015, the PCRA
court denied Appellant relief. Appellant timely appealed to this Court.
On January 29, 2016, Appellant’s PCRA counsel filed in this Court an
application to withdraw as counsel and a no-merit letter, wherein counsel
raises two issues for our review:
1. Whether trial counsel was ineffective in failing to object when
the trial court indicated that she was related to the victim in
this case.
2. Whether trial counsel was ineffective by allegedly
guaranteeing [] Appellant a specific sentence of 2 years to 4
years upon pleading guilty.
Turner/Finley Brief at 1.
Before we may consider these issues, we must address whether PCRA
counsel has met the requirements of Turner/Finley. For PCRA counsel to
withdraw under Turner/Finley in this Court:
(1) PCRA counsel must file a no-merit letter that details the
nature and extent of counsel’s review of the record; lists
the appellate issues; and explains why those issues are
meritless.
(2) PCRA counsel must file an application to withdraw; serve
the PCRA petitioner with the application and the no-merit
letter; and advise the petitioner that if the Court grants
the motion to withdraw, the petitioner can proceed pro se
or hire his own lawyer.
(3) This Court must independently review the record and
agree that the appeal is meritless.
See Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super. 2011)
(citing or quoting Turner, Finley, Commonwealth v. Pitts, 981 A.2d 875
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(Pa. 2009), and Commonwealth v. Friend, 896 A.2d 607 (Pa. Super.
2008), overruled in part by Pitts).
We find that PCRA counsel has complied with Turner/Finley. PCRA
counsel has petitioned for leave to withdraw and filed an Anders brief,
which we accept in lieu of a Turner/Finley no-merit letter.2 Finally, PCRA
counsel informed Appellant of his right to hire a new lawyer or file a pro se
response.
We now turn to this appeal to determine whether it is indeed
meritless. “On appeal from the denial of PCRA relief, our standard of review
requires us to determine whether the ruling of the PCRA court is supported
by the record and free of legal error.” Widgins, 29 A.3d at 819.
As noted, both issues on appeal implicate the ineffectiveness of trial
counsel. Specifically, whether trial counsel was ineffective in failing to seek
the trial judge’s recusal and in guaranteeing Appellant a sentence of two to
four years’ imprisonment.
A PCRA petitioner is entitled to relief by showing that his conviction is
a result of ineffective assistance of counsel. 42 Pa.C.S.A. § 9543(a)(2)(ii).
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2
Anders v. California, 386 U.S. 738 (1967), sets forth the requirements to
withdraw on direct appeal, which are more stringent than the Turner/Finley
requirements that apply on collateral appeal. See Widgins, 29 A.3d at 817
n.2. “Because an Anders brief provides greater protection to a defendant,
this Court may accept an Anders brief in lieu of a Turner/Finley letter.”
Id.
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“To prevail on an [ineffectiveness] claim, a PCRA petitioner must plead and
prove by a preponderance of the evidence that (1) the underlying legal claim
has arguable merit; (2) counsel had no reasonable basis for acting or failing
to act; and (3) the petitioner suffered resulting prejudice.”
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super.
2015) (en banc). “A petitioner must prove all three factors of the ‘Pierce[3]
test,’ or the claim fails.” Id.
Instantly, our review of the record reveals that the first ineffectiveness
claim is without merit as it lacks a factual basis. Contrary to Appellant’s
assertion, the trial judge never stated that she was related to one of the
victims. As the PCRA court noted in its Pa.R.A.P. 1925(a) opinion, the trial
judge “was aware that one of the victims was one of her son’s friends, the
grandmother. [The trial judge] further indicated that she simply had
knowledge of this individual but made it perfectly clear that she was not
related to either of the victims, Kevin Toole or Donna Roman.”4 PCRA Court
Opinion, 11/12/15, at 3 (emphasis in original).
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3
Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
4
We note that the trial judge here complied with Section 2.11 of the Code of
Judicial Conduct, relating to disqualification. Comment 5 to Section 2.11
provides that “[a] judge should disclose on the record information that the
judge believes the parties or their lawyers might reasonably consider
relevant to a possible motion for disqualification[.]”
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We now turn to Appellant’s second ineffectiveness claim, which also is
wholly without merit for lack of a factual predicate. Instantly, the PCRA
court found credible Appellant’s trial counsel’s testimony at the PCRA hearing
to the extent trial counsel testified that he did not promise or guarantee
Appellant a sentence of two to four years’ imprisonment. See N.T. PCRA
Hearing, 3/17/15 at 17, 20-21.
In sum, PCRA counsel has complied with Turner/Finley. We have
reviewed the record, and we are convinced that no meritorious appellate
issues exist. Accordingly, we affirm the denial of PCRA relief and grant the
petition to withdraw.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/2016
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