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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
VINCENT L. ROBINSON
Appellant No. 1754 MDA 2015
Appeal from the PCRA Order September 8, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0004890-2013
CP-22-CR-0004903-2013
BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JULY 14, 2016
Appellant Vincent L. Robinson appeals from the order of the Dauphin
County Court of Common Pleas denying his petition filed pursuant to the
Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. Appellant’s counsel
has filed a petition to withdraw and a brief pursuant to Anders1 and
McClendon2 (“Turner/Finley brief”).3 We affirm the order of the PCRA
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1
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967).
2
Commonwealth v. McClendon, 435 A.2d 1185 (Pa.1981).
3
Because this is an appeal of an order denying a PCRA petition, counsel
should have filed a Turner/Finley no-merit letter or brief. See
Commonwealth v. Turner, 544 A.2d 927 (Pa.1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super.1988) (en banc ). However, because an
Anders brief provides greater protection to an appellant, this Court will
(Footnote Continued Next Page)
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court denying relief based on allegations of ineffectiveness for failing to file a
direct appeal and for causing Appellant to enter an involuntary and
unknowing plea. However, we remand to the PCRA court and grant
Appellant leave to amend his PCRA petition to include a claim that his
sentence was unconstitutional because the trial court imposed a mandatory
minimum sentence in violation of Alleyne v. United States, –––U.S. ––––,
133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). We deny counsel’s petition to
withdraw.
On March 17, 2014, at docket number CP-22-CR-0004890-2013
(“4890”), Appellant pled guilty to possession with intent to deliver a
controlled substance (“PWID”),4 criminal use of communication facility,5 and
unlawful possession of drug paraphernalia.6 At docket number CP-22-CR-
0004903-2013 (“4903”), Appellant pled guilty to two counts of delivery of a
controlled substance, one count of PWID, three counts of criminal use of a
_______________________
(Footnote Continued)
accept the Anders brief in lieu of a Turner/Finley letter or brief. See
Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa.Super.2011) (citing
Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3
(Pa.Super.2004)).
4
35 P.S. § 780-113(a)(30).
5
18 Pa.C.S. § 7512(a).
6
35 P.S. § 780-113(a)(32).
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communication facility, and three counts of unlawful possession of drug
paraphernalia.
On May 1, 2014, the trial court sentenced Appellant. At docket 4890,
the trial court sentenced Appellant to two to four years’ incarceration for
PWID, a consecutive five-year term of probation for criminal use of
communication facility and a concurrent one–year term of probation for
unlawful possession of drug paraphernalia. At docket 4903, the trial court
sentenced Appellant to the following, all imposed concurrently to the
sentence imposed at docket 4890: one to two years’ incarceration for each
delivery of a controlled substance and PWID conviction, one to two years’
incarceration for each criminal use of a communication facility conviction,
and one year of probation for each possession of drug paraphernalia
conviction.
The two-to-four year term of imprisonment imposed at docket 4890
for PWID may have been pursuant to the mandatory minimum sentence
provision contained in 18 Pa.C.S. § 6317 (drug-free school zones). See
Pennsylvania Commission of Sentencing Guideline Sentence Form, Docket
4890, count 1 (stating there is mandatory minimum of 24 months pursuant
to 18 Pa.C.S. § 6317); N.T. of Sentencing Hearing, 5/1/2014, at 3 (defense
counsel stated “given the fact that there’s a mandatory in this case, we’re
simply requesting that the Court have mercy on Mr. Robinson and just give
him a two-to-four year state sentence”); N.T. of PCRA Hearing, 8/25/2015,
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at 7 (Appellant testified there was a mandatory two-year minimum due to a
school zone).7
Appellant did not file post-sentence motions or a direct appeal. On
April 8, 2015, Appellant filed a timely pro se PCRA petition.8 On April 15,
2015, the PCRA court appointed counsel, who filed an amended PCRA
petition on June 1, 2015. On August 25, 2015, the PCRA court held an
evidentiary hearing. On September 8, 2015, the PCRA court dismissed the
petition. On October 7, 2015, Appellant filed a timely notice of appeal. Both
Appellant and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.
On January 27, 2016, Appellant’s counsel filed a Turner/Finley brief
and a petition to withdraw as counsel.
Before we may address the merits of Appellant’s claim, “we must
determine if counsel has satisfied the requirements to be permitted to
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7
The sentencing sheet does not indicate whether the trial court imposed a
mandatory minimum sentence. Further, there is no mention of a minimum
sentence at the guilty plea hearing.
8
The trial court sentenced Appellant on May 1, 2014. Appellant’s conviction
became final 30 days later, when his time to file a direct appeal to this Court
expired. Pa.R.A.P. 903(a) (“notice of appeal required by Rule 902 (manner
of taking appeal) shall be filed within 30 days after the entry of the order
from which the appeal is taken”). Because May 31, 2014 fell on a Sunday,
Appellant had until June 1, 2015 to file a timely PCRA petition. 1 Pa.C.S. §
1908 (When last day of time period “fall[s] on Saturday or Sunday, . . . such
day shall be omitted from the computation”). Therefore, his petition, filed
April 8, 2015, is timely.
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withdraw from further representation.” Commonwealth v. Freeland, 106
A.3d 768, 774 (Pa.Super.2014). Competent PCRA counsel must conduct an
independent review of the record before we can authorize counsel’s
withdrawal. Id. The independent review
requires counsel to file a ‘no-merit’ letter detailing the
nature and extent of his review and list[ing] 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, then must conduct
its own independent evaluation of the record and agree
with counsel that the petition is without merit.
Id. (internal citation omitted).
PCRA counsel must also serve a copy of counsel’s petition to withdraw
as counsel and the ‘no-merit’ brief on petitioner and write a letter advising
the petitioner that he or she has the right to proceed pro se or with the
assistance of privately retained counsel. Commonwealth v. Widgins, 29
A.3d 816, 818 (Pa.Super.2011) (quoting Commonwealth v. Friend, 896
A.2d 607 (Pa.Super.2006), abrogated in part by Commonwealth v. Pitts,
981 A.2d 875, 876 (Pa.2009)).
PCRA appellate counsel filed a Turner/Finley brief. Counsel reviewed
the record and the applicable law and detailed the issues Appellant wished to
have examined. Counsel also mailed a copy of the no-merit brief and a copy
of his petition to withdraw as counsel to Appellant. Petition to Withdraw as
Counsel at Exh. A, Letter from Jennifer E. Tobias, Esquire to Vincent
Robinson dated January 26, 2016. Although the Turner/Finley brief does
not explain why the issues lacked merit, the letter counsel wrote to
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Appellant explains why the issues are meritless. Id. The letter further
informed Appellant of his right to proceed pro se or with privately-retained
counsel to raise any points he deemed worthy of consideration. Counsel has
substantially complied with the technical requirements of Turner/Finley.
Appellant did not submit a pro se appellate brief or a brief by private
counsel. Therefore, we will address the merits of the claims raised in the
Turner/Finley brief:
1. Whether the Appellant’s guilty plea was unlawfully
induced as a result of ineffectiveness of counsel?
2. Whether trial counsel was ineffective for failing to file a
modification of sentence and/or appeal on the Appellant’s
behalf?
Turner/Finley Brief at 5.
Our standard of review from the denial of post-conviction relief “is
limited to examining whether the PCRA court’s determination is supported by
the evidence of record and whether it is free of legal error.”
Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super.2011) (citing
Commonwealth v. Morales, 701 A.2d 516, 520 (Pa.1997)).
Appellant’s first issue claims his trial counsel was ineffective at the
guilty plea hearing because Appellant believed he would receive a two-to-
four year term of imprisonment and was unaware that an additional term of
probation could be imposed. Turner/Finley Brief at 9-12.
For ineffective assistance of counsel claims, the petitioner must
establish: “(1) his underlying claim is of arguable merit; (2) counsel had no
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reasonable basis for his action or inaction; and (3) the petitioner suffered
actual prejudice as a result.” Spotz, 84 A.3d at 311 (quoting
Commonwealth v. Ali, 10 A.3d 282, 291 (Pa.2010)). To establish the
prejudice prong where an appellant has entered a guilty plea, “the appellant
must demonstrate ‘it is reasonably probable that, but for counsel’s errors, he
would not have pleaded guilty and would have gone to trial.’”
Commonwealth v. Timchak, 69 A.3d 765, 770 (Pa.Super.2013) (quoting
Commonwealth v. Rathfon, 899 A.2d 365, 370 (Pa.Super.2006)).
“[C]ounsel is presumed to be effective and the burden of demonstrating
ineffectiveness rests on appellant.” Ousley, 21 A.3d at 1244 (quoting
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super.2010)). “The
failure to prove any one of the three [ineffectiveness] prongs results in the
failure of petitioner’s claim.” Id. (quoting Rivera, 10 A.3d at 1279).
“[T]he law does not require that [the defendant] be pleased with the
outcome of his decision to enter a plea of guilty: All that is required is that
[his] decision to plead guilty be knowingly, voluntarily, and intelligently
made.” Commonwealth v. Willis, 68 A.3d 997, 1001 (Pa.Super.2013)
(quoting Commonwealth v. Anderson, 995 A.2d 1184, 1192 (Pa.Super.
2010) (alterations in original)). A guilty plea colloquy must “affirmatively
demonstrate the defendant understood what the plea connoted and its
consequences.” Id. at 1002 (quoting Commonwealth v. Lewis, 708 A.2d
497, 501 (Pa.Super.1998)). After a defendant enters a guilty plea, “it is
presumed that he was aware of what he was doing, and the burden of
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proving involuntariness is upon him.” Id. (quoting Commonwealth v.
Bedell, 954 A.2d 1209, 1212 (Pa.Super.2008)). “The reviewing Court will
evaluate the adequacy of the plea colloquy and the voluntariness of the
resulting plea by examining the totality of the circumstances surrounding the
entry of that plea.” Id. (citing Commonwealth v. Muhammad, 794 A.2d
378 (Pa.Super.2002)).
The PCRA court found that Appellant testified at the evidentiary
hearing that he understood that by entering an open guilty plea, the judge
was not bound by an agreed upon sentence. Order of Court, 9/8/2015, at 3.
Further, Appellant’s counsel testified that it was her practice to review
colloquies with a defendant and she never made promises to defendants that
she represented. Id. The PCRA court found Appellant failed to show his
trial counsel was ineffective. Id. at 1.9
The PCRA court’s findings were supported by the record and free of
legal error. We agree with counsel that Appellant’s claim lacked merit.
Appellant next argues his trial counsel failed to file a motion for
modification of sentence or a notice of appeal. Turner/Finley Brief at 12-
13.
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9
In addition, Appellant signed a written colloquy indicating he could be
sentenced to a maximum of 65 years’ incarceration and stated he received
no promises in exchange for his guilty plea. Guilty Plea Colloquy.
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If an appellant establishes that he asked his counsel to file a direct
appeal and that counsel ignored this request, counsel is per se ineffective
and the appellant is entitled to relief granting him the right to file a direct
appeal nunc pro tunc. See, e.g., Commonwealth v. Markowitz, 32 A.3d
706, 714 (Pa.Super.2011). To establish per se ineffectiveness, the appellant
must establish he asked counsel to file a direct appeal. Id.
The PCRA court found that counsel testified that if she had received
any call from Appellant or his family indicating that he wished to appeal, she
would have visited Appellant to determine the next step. She stated her file
contained no letters or phone messages from Appellant or his family. Order
of Court, 9/8/2015, at 3. Further counsel did not recall receiving any
communications regarding an appeal. Id. The PCRA court dismissed
Appellant’s claim, finding Appellant failed to establish counsel was
ineffective. Id. at 1, 3. This determination is supported by the record and
free from legal error.10
Because counsel filed a Turner/Finley brief, we must now conduct an
independent review of the record to determine whether there are any
meritorious issues. We find that there is an issue of arguable merit that
must be addressed. The trial court may have sentenced Appellant pursuant
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10
Appellant did not argue, and the trial court did not address, whether
counsel was ineffective for failing to consult with Appellant regarding an
appeal.
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to the mandatory minimum sentence provision contained in 18 Pa.C.S. §
6317. See Pennsylvania Commission of Sentencing Guideline Sentence
Form, Docket 4890, count 1 (stating there is mandatory minimum of 24
months pursuant to 18 Pa.C.S. § 6317); N.T., 5/1/2014, at 3 (defense
counsel stated “given the fact that there’s a mandatory in this case, we’re
simply requesting that the Court have mercy on Mr. Robinson and just give
him a two-to-four year state sentence”); N.T. of PCRA Hearing, 8/25/2015,
at 7 (Appellant testified there was a mandatory two-year minimum due to a
school zone). Section 6317 has been found unconstitutional pursuant to
Alleyne v. United States, –––U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314
(2013).11 Commonwealth v. Hopkins, 117 A.3d 247, 262 (Pa.2015). In
Alleyne, the Supreme Court of the United States found “[f]acts that
increase the mandatory minimum sentence are . . . elements and must be
submitted to the jury and found beyond a reasonable doubt.” Alleyne, ---
U.S. ---, 133 S.Ct. at 2158. In Hopkins, the Supreme Court of
Pennsylvania found that Alleyne applied to cases pending for direct review
at the time the Alleyne decision was issued. Alleyne was decided on June
17, 2013, and Appellant was not sentenced until May 14, 2014. Accordingly,
if the trial court applied the mandatory minimum sentence provision, it
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11
Whether the trial court applied a mandatory minimum sentence in
violation of Alleyne is a challenge to the legality of the sentence, which
cannot be waived and can be raised sua sponte by this Court.
Commonwealth v. Wolfe, 106 A.3d 800 (Pa.Super.2014).
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would have been error and Appellant should receive a re-sentencing hearing.
See Commonwealth v. Ruiz, 131 A.3d 54, 59-61 (Pa.Super.2015) (finding
Appellant entitled to re-sentencing where his judgment of sentence became
final after the Supreme Court issued its decision in Alleyne where he filed a
timely PCRA petition).
PCRA order denying relief based on allegations of ineffectiveness for
failing to file a direct appeal and for causing Appellant to enter an
involuntary and unknowing plea affirmed. Case remanded to the PCRA
court. Appellant granted leave to amend his PCRA petition to include a claim
that the imposition of a mandatory minimum sentence was unconstitutional.
Petition to withdraw denied. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2016
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Com. v. Robinson, V.
Combined Opinion