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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KELVIN MARQUIS HARRIS
Appellant No. 3216 EDA 2015
Appeal from the PCRA Order October 9, 2015
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0003452-2014
BEFORE: BOWES, J., MUNDY, J., and MUSMANNO, J.
MEMORANDUM BY MUNDY, J.: FILED JULY 08, 2016
Appellant, Kelvin Marquis Harris, appeals from the October 9, 2015
order denying his first petition for relief filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Contemporaneously with this
appeal, counsel has requested leave to withdraw in accordance with
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and their progeny. After
careful review, we affirm and grant counsel’s petition to withdraw.
The PCRA court summarized the facts and procedural history following
Appellant’s evidentiary hearing on his PCRA petition as follows.
On July 13, 2015, [Appellant] entered a guilty
plea to Robbery and Criminal Conspiracy to Commit
Robbery. There was an agreed upon disposition in
the case in which [Appellant] would be sentenced to
a term of state imprisonment of not less than
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fourteen (14) years nor more than forty (40) years.
In exchange for this guilty plea, the Commonwealth
agreed not to pursue the other counts of the
Information, which included a charge of Criminal
Homicide. On the same date, th[e trial c]ourt
complied with the plea agreement and sentenced
[Appellant] to the agreed upon aggregate sentence
as stated above. Presently before th[e PCRA c]ourt
is [Appellant]’s Motion for Post Conviction Collateral
Relief that was filed on July 28, 2015, and amended
on September 3, 2015. An evidentiary hearing
relative to Defendant’s motion was conducted before
th[e PCRA c]ourt on October 8. 2015.
Sean Poll, Esquire, was appointed as a conflicts
attorney to represent [Appellant] in the above-
captioned matter. Attorney Poll negotiated with the
Commonwealth and ultimately facilitated the terms
of the guilty plea to which [Appellant] agreed. Th[e
trial c]ourt conducted an extensive verbal colloquy
with [Appellant] at the time of his guilty plea. The
Commonwealth put the agreement on the record, in
which it was agreed that the minimum sentence
would be fourteen (14) years and the maximum
sentence would be set at forty (40) years. The [trial
c]ourt even reiterated this agreement to [Appellant],
and he indicated that he understood the agreement.
In addition, [Appellant] stated that he understood
the rights that he had and the rights that he was
relinquishing by entering into the guilty plea. He
further indicated that no threats or promises were
made to him to induce him to enter the plea, and
that his guilty plea was voluntary. Finally,
[Appellant] indicated on the record that he did not
have any questions of the [trial c]ourt and that he
understood the terms and effects of the guilty plea.
Dissatisfied with the sentence (although, based
on the facts, not an unexpected sentence),
[Appellant] requested that Attorney Poll file a Post
Sentence Motion to challenge the sentence imposed.
Attorney Poll refused to comply with said request,
because in his professional opinion, the request was
absolutely frivolous. Indeed, [Appellant] received
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exactly what he had knowingly, intelligently, and
voluntarily bargained for. Then, on July 28, 2015,
[Appellant] filed his motion for post conviction
collateral relief, which was amended on September
3, 2015.
PCRA Court Opinion, 10/9/15, at 1-3 (citations omitted). As noted, following
the hearing held on October 8, 2015, the PCRA entered an order on October
9, 2015, denying Appellant’s petition. On October 27, 2015, Appellant filed
a timely notice of appeal.1
On appeal, counsel states the following issue on Appellant’s behalf.
The trial court erred in finding that trial counsel
provided effective assistance for the following
reasons: trial counsel was ineffective by failing to
file a requested motion for reconsideration of
sentence since the sentence is excessive considering
[Appellant]’s record and the circumstances.
Turner/Finley Letter Brief at 4.
Prior to considering Appellant’s issue, we must review PCRA counsel’s
request to withdraw from representation. Our Supreme Court has
articulated the requirements PCRA counsel must adhere to when requesting
to withdraw, which include the following.
1) A “no-merit” letter by PC[R]A counsel detailing
the nature and extent of his review;
____________________________________________
1
Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925. We note, on November 4, 2015, the trial court
filed a short Rule 1925(a) opinion adopting its October 9, 2015 opinion
denying Appellant’s PCRA petition.
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2) The “no-merit” letter by PC[R]A counsel listing
each issue the petitioner wished to have reviewed;
3) The PC[R]A counsel’s “explanation”, in the “no-
merit” letter, of why the petitioner’s issues were
meritless[.]
Commonwealth v. Pitts, 981 A.2d 875, 876 (Pa. 2009), quoting Finley,
supra at 215. “Counsel must also send to the petitioner: (1) a copy of the
‘no-merit’ letter/brief; (2) a copy of counsel’s petition to withdraw; and (3) a
statement advising petitioner of the right to proceed pro se or by new
counsel.” Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super.
2007) (citation omitted).
[W]here counsel submits a petition and no-
merit letter that do satisfy the technical demands of
Turner/Finley, the court - trial court or this Court -
must then conduct its own review of the merits of
the case. If the court agrees with counsel that the
claims are without merit, the court will permit
counsel to withdraw and deny relief. By contrast, if
the claims appear to have merit, the court will deny
counsel’s request and grant relief, or at least instruct
counsel to file an advocate’s brief.
Id. (citation omitted).
Instantly, PCRA counsel has complied with the technical requirements
of Turner/Finley. Specifically, PCRA counsel’s Turner/Finley brief and
petition to withdraw detail the nature and extent of PCRA counsel’s review,
and explain and conclude that Appellant’s ineffective assistance of counsel
issue lacks merit. Additionally, PCRA counsel served Appellant with a copy
of the petition to withdraw and Turner/Finley brief, advising Appellant that
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if PCRA counsel was permitted to withdraw, Appellant had the right to
proceed pro se or with privately retained counsel. Appellant has not filed
any response. We proceed, therefore, to conduct an independent merits
review of Appellant’s issue.
We begin by noting our well-settled standard of review. “In reviewing
the denial of PCRA relief, we examine whether the PCRA court’s
determination is supported by the record and free of legal error.”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation
marks and citation omitted). “The scope of review is limited to the findings
of the PCRA court and the evidence of record, viewed in the light most
favorable to the prevailing party at the trial level.” Commonwealth v.
Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). “It is well-settled
that a PCRA court’s credibility determinations are binding upon an appellate
court so long as they are supported by the record.” Commonwealth v.
Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this
Court reviews the PCRA court’s legal conclusions de novo. Commonwealth
v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).
In his PCRA petition, Appellant alleges ineffective assistance of trial
counsel for failing to file a motion for reconsideration of sentence upon
Appellant’s request. Appellant’s Amended PCRA Petition, 9/3/15, at 1.
When reviewing a claim of ineffectiveness, we apply the following test, first
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articulated by our Supreme Court in Commonwealth v. Pierce, 527 A.2d
973 (Pa. 1987).
[C]ourts presume that counsel was effective, and
place upon the appellant the burden of proving
otherwise. Counsel cannot be found ineffective for
failure to assert a baseless claim.
To succeed on a claim that counsel was
ineffective, Appellant must demonstrate that: (1)
the claim is of arguable merit; (2) counsel had no
reasonable strategic basis for his or her action or
inaction; and (3) counsel’s ineffectiveness prejudiced
him.
…
[T]o demonstrate prejudice, appellant must
show there is a reasonable probability that, but for
counsel’s error, the outcome of the proceeding would
have been different.
Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013)
(citations and internal quotation marks omitted). “Failure to establish any
prong of the test will defeat an ineffectiveness claim.” Commonwealth v.
Birdsong, 24 A.3d 319, 329 (Pa. 2011).
Instantly, Appellant solely claims that his plea counsel was ineffective
for failing to file a motion to reconsider his negotiated sentence. However,
as the Commonwealth correctly notes in its brief, “[w]here a defendant
pleads guilty pursuant to a plea agreement specifying particular penalties,
the defendant may not seek a discretionary appeal related to those agreed
upon penalties.” Commonwealth v. Brown, 982 A.2d 1017, 1019 (Pa.
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Super. 2009). Therefore, Appellant’s claim has no merit, and counsel cannot
be ineffective for failing to raise a meritless claim. See Michaud, supra.
Based on the foregoing, we conclude the PCRA court did not err in
denying Appellant’s PCRA petition. See Fears, supra. Accordingly, we
affirm the PCRA court’s October 9, 2015 order and grant counsel’s petition to
withdraw.
Order affirmed. Petition to withdraw as counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2016
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