J-S34019-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARK G. REYNOLDS,
Appellant No. 824 MDA 2015
Appeal from the PCRA Order April 10, 2015
In the Court of Common Pleas of Luzerne County
Criminal Division at Nos: CP-40-CR-0000335-2013; CP-40-CR-0000856-
2013
BEFORE: PANELLA, STABILE, and JENKINS, JJ.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 15, 2016
Appellant, Mark G. Reynolds, appeals from the April 10, 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.
Appellate counsel has filed an Anders1 brief and a petition to withdraw
pursuant to Turner/Finley.2 Upon review, we affirm and grant the petition
to withdraw.
____________________________________________
1
Counsel filed two briefs pursuant to Anders v. California, 386 U.S. 738
(1967).
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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This Court previously addressed the factual situation in its 2014
memorandum.
Briefly, on November 18, 2013, Appellant pled guilty to
theft by deception (18 Pa.C.S.A. § 3922(a)(3)) at docket
number 335 and to two counts of terroristic threats with
intent to terrorize (18 Pa.C.S.A. § 2706(a)(1)) and
resisting arrest (18 Pa.C.S.A. § 5104) at docket number
856. On January 3, 2014, the trial court sentenced
Appellant to thirteen to thirty months’ incarceration in a
state correctional institution for his convictions for theft by
deception, and the two counts of terroristic threats. The
trial court also sentenced Appellant to nine to eighteen
months’ imprisonment for the resisting arrest conviction.
The court ordered the sentences to run concurrently.
On January 13, 2014, Appellant filed a motion to
modify his sentence, requesting that he be permitted to
serve his sentence at the Luzerne County Correctional
Facility (county facility). The trial court denied the motion
on January 16, 2014. Appellant appealed to this Court.
Following Appellant’s filing of a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal, in which he
argued that the trial court abused its discretion in refusing
to allow him to serve his sentence at the county facility,
the trial court issued a Pa.R.A.P. 1925(a) opinion on April
17, 2014. In its Rule 1925(a) opinion, the trial court
concluded that Appellant’s challenge to the discretionary
aspects of the sentence imposed was meritless.
Specifically, the trial court concluded that Appellant failed
to raise a substantial question.
On July 10, 2014, Appellant’s counsel filed a motion
to withdraw as counsel and filed an Anders brief, wherein
counsel raises a single issue for our review: “Whether the
[t]rial [c]ourt abused its discretion in sentencing
[Appellant].”
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Commonwealth v. Reynolds, No. 477 MDA 2014, unpublished
memorandum, at 1-2 (Pa. Super filed Dec. 8, 2014). This Court affirmed
the judgment of sentence and granted counsel’s petition to withdraw.
The trial court summarized the subsequent factual and procedural
history as follows.
[Appellant] filed a pro se [PCRA p]etition. On December
18, 2014 Jeffrey Yellen, Esquire was appointed as counsel
and was directed to determine the necessity for the filing
of any supplement to [Appellant’s] pro se [m]otion.3 No
supplemental petition or brief was filed by counsel. On
March 31, 2015, [the PCRA court] granted a [m]otion from
Attorney Jeffrey Yellen to “[a]ppoint [n]ew [c]ounsel.”
[The PCRA court] subsequently entered an [o]rder
appointing Allyson Kacmarski, Esquire as [c]ounsel
for[Appellant].
On April 10, 2015, a hearing was held on
[Appellant’s PCRA petition], when upon conclusion of the
testimony presented and arguments of counsel, [the PCRA
court] denied his requested relief on the record.
[Appellant] was advised of his appellate rights prior to the
conclusion of the hearing.
[Appellant] filed a timely, pro se, [n]otice of [a]ppeal
directly to the Superior Court of Pennsylvania on May 5,
2015. [Appellant’s] pro se appeal was docketed at 824
MDA 2015. Subsequently, [Appellant’s] [c]ourt appointed
[c]ounsel field a timely [n]otice of [a]ppeal on May 11,
2015 which was docketed at 859 of 2015. [FN1] Attorney
Kacmarski also filed a “[p]etition to [w]ithdraw as
[c]ounsel” and her [m]otion was granted.
Contemporaneously, in an [o]rder dated May 14, 2015,
[the PCRA court] appointed Mary Deady, Esquire to
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3
Upon review of the record it is unclear why counsel was appointed prior to
the filing of Appellant’s pro se PCRA petition.
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represent [Appellant] in the instant appeal. That same
day, [the PCRA court] issued an [o]rder directing Attorney
Deady to file a 1925(b) [s]tatement of [ma]tters
[c]omplained of on [a]ppeal within 21 days. [FN2]
Appellate counsel filed a [s]tatement of [m]atters
[c]omplained of on [a]ppeal on June 25, 2015. The
Commonwealth filed a response to [Appellant’s]
[s]tatement of [m]atters [c]omplained of on [a]ppeal on
July 8, 2015.
[FN1. The [a]ppeal docketed at 859 MDA 2015 was
[d]ismissed by an [o]rder of the Superior Court dated July
10, 2015 pursuant to Pa.R.A.P. 3517. An [o]rder of the
Superior court dated July 15, 2015 gave effect to
[Appellant’s] pro se [a]ppeal docketed at 824 [MDA] 2015,
commenting that [Appellant] filed a [d]ocketing
[s]tatement. The Superior court’s comment continued to
direct Attorney Kacmarski to enter her appearance in 824
MDA 2015. The Superior Court Docket indicates that
Attorney Deady entered her appearance in the instant
appeal docketed at 824 [MDA] 2015 on July 27, 2015.]
[FN2. On June 10, 2015, [the PCRA court] granted
[c]ounsel’s [m]otion for an extension of time to file
[Appellant’s] 1925(b) statement and [the PCRA court]
[o]rdered that same be submitted no later than June 25,
2015.]
PCRA Court Opinion, 9/4/2015, 1-2.
Appellant’s counsel filed, in this Court, a petition to withdraw as
counsel and an Anders brief, wherein counsel raises two issues for review:
I. Whether [Appellant’s] guilty plea was knowing, voluntarily and
intelligently entered?
II. Whether PCRA counsel was ineffective in failing to either obtain or
utilize a psychiatric evaluation that was approved by the [PCRA]
court?
Anders Brief, 8/22/16, at 3.
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Before we may consider these issues, we must address whether
Appellate counsel has met the requirements of Turner/Finely. In order 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 the 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 Commownealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009);
Turner, 544 A.2d at 928; Finley, 550 A.2d at 215).
This Court finds that Appellate counsel has complied with
Turner/Finely. Appellate counsel has petitioned for leave to withdraw and
filed a second Anders brief,4 which we accept in lieu of a Turner/Finley no-
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4
Appellant’s counsel first filed an Anders brief on March 28, 2016. This
Court found that the first Anders brief was deficient because it did not
address all issues raised by Appellant in his Rule 1925(b) statement. On this
Court ordered Appellate counsel to comply with all the requirements of
Turner/Finley within thirty days if counsel desired to pursue his petition to
withdraw. Counsel complied on August 22, 2016.
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merit letter.5 Furthermore, Appellant counsel has informed Appellant of his
right to hire a new lawyer or file a pro se response.
Next, this Court must determine whether the appeal is indeed
meritless.
[A]n appellate court reviews the PCRA court’s finding of
fact to determine whether they are supported by the
record, and reviews its conclusions of law to determine
whether they are free from legal error. 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.
To establish trial counsel’s ineffectiveness, a petitioner
must demonstrate: (1) the underlying claim has arguable
merit; (2) counsel had no reasonable basis for the course
of action or inaction chosen; and (3) counsel’s action or
inaction prejudiced the petitioner.
Furthermore, [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 ineffective
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. Counsel is presumed effective,
and to rebut that presumption, the PCRA petitioner must
demonstrate that counsel’s performance was deficient and
that such deficiency prejudiced him.
Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa. Super. 2014)
(internal quotations and citations omitted).
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5
Anders v. California, 386 U.S. 738 (1967), set 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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Appellant’s first issue is that his guilty plea was not knowing,
voluntary, and intelligently made because 1) he received a sentence longer
than he expected because of the ineffective assistance of counsel, and 2) he
was under the influence of multiple psychotropic medications.
A PCRA petitioner is entitled to relief if he pleads and proves that prior
counsel rendered ineffective assistance of counsel. 42 Pa.C.S.A.
§ 9543(a)(2)(ii). “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). “Allegations of ineffectiveness in connection with
the entry of a guilty plea will serve as a basis for relief only if the
ineffectiveness caused the defendant to enter an involuntary or unknowing
plea.” Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002)
(citation omitted). “Where the defendant enters his plea on the advice of
counsel, the voluntariness of the plea depends on whether counsel’s advice
was within the range of competence demanded of attorneys in criminal
cases.” Id. (citations omitted) (internal quotation marks omitted).
Furthermore, a defendant “is bound by one’s statements made during a plea
colloquy, and may not successfully assert claims that contradict such
statements.” Commonwealth v. Muhammad, 794 A.2d 378, 384 (Pa.
Super. 2002) (citation omitted).
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In the matter sub judice, Appellant argues that trial counsel was
ineffective in failing to inform the Appellant of the sentence he would
receive. Appellant’s trial counsel informed Appellant of the range and
maximum sentence he was facing when he plead. See N.T. PCRA Hearing,
4/10/15, at 66-69; see also N.T. Guilty Plea, 11/18/13, at 4. Appellant was
aware that he was serving back time on a parole violation at the time of his
plea. N.T. Guilty Plea, 11/18/13, at 7. Additionally, trial counsel informed
Appellant that it was an open plea and there were no guarantees he would
be sentenced to probation. See N.T. PCRA Hearing, 4/10/15, at 66-69.
Furthermore, Appellant answered in the negative when asked whether
“[a]nybody [was] forcing or threatening you to plead guilty here today,” and
“[h]ave any promises been made to you in connection with your plea other
than what’s part of your plea agreement.” N.T. Guilty Plea, 11/18/13, at 7.
Because Appellant is unable to establish that the underlying claim has
merit, Appellant’s claim fails.
Next, Appellant asserts that his plea was not knowing, voluntary, or
intelligently made because he was under the influence of psychotropic
medication. At his guilty plea hearing, the following exchange occurred.
PCRA Court: “Are you under the influence of any drugs
or alcohol today:
Appellant: “No.”
PCRA Court: “Are you suffering from any type of illness
or impairment, or is there anything that might affect your
ability to understand today’s proceedings?”
Appellant: “No.”
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N.T. Guilty Plea, 11/18/13 at 4. Additionally, Attorney Donovan testified
that Appellant’s answers during the plea colloquy were coherent. N.T. PCRA
Hearing, 4/10/15, at 68. As discussed above, Appellant is bound by the
statements made in the plea colloquy and cannot subsequently contradict
those statements. See Muhammad, 794 A.2d at 394. Furthermore, the
PCRA court found, “having the benefit of observing the demeanor of
[Appellant] at the guilty plea hearing, sentencing hearing and the PCRA
hearing, it is our view that [Appellant’s] testimony that he was on
medications ‘or dreaming’ at the time of his pleas should be discounted.”
N.T. PCRA Hearing, 4/10/15, at 11-12. As the record supports the PCRA
court’s credibility determination, the determinations are binding on this
Court. See Commonwealth v. Spotz,18 A.3d 244, 259 (Pa. 2011) (citing
Commonwealth v. Johnson, 966 A.2d 523, 532, 539 (Pa. 2009)).
Appellant’s claim fails.
Appellant’s second issue raised on appeal regards PCRA counsel’s
ineffectiveness, specifically, Appellant asserts PCRA counsel was ineffective
for failing to obtain or use a psychiatric evaluation. Claims of ineffective
assistance of PCRA counsel cannot be raised for the first time on appeal.
See Commonwealth v. Henkel, 90 A.3d, 16, 20 (Pa. Super. 2014); see
also Commonwealth v. Ford, 44 A.3d 1190, 1201 (Pa. Super. 2012);
Commonwealth v. Colavita, 993 A.2d 874, 893 n. 12 (Pa. 2010).
Therefore, this Court is unable to review Appellant’s claim of ineffective
assistance of PCRA counsel.
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Order affirmed. Counsel’s petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/15/2016
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Com. v. Reynolds, M.
Combined Opinion