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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
VANCE DAWSON,
Appellant No. 258 MDA 2016
Appeal from the PCRA Order December 21, 2015
in the Court of Common Pleas of Luzerne County
Criminal Division at No.: CP-40-CR-0001236-2013
BEFORE: OTT, J., DUBOW, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED DECEMBER 28, 2016
Appellant, Vance Dawson, appeals from the order of December 21,
2015,1 which dismissed, following a hearing, his first petition brought under
the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Counsel
has filed a petition to withdraw.2 For the reasons discussed below, we grant
counsel’s request to withdraw and affirm the dismissal of the PCRA petition.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Appellant filed his pro se notice of appeal on February 1, 2016. At that
time, the PCRA court had not entered the December 21, 2015 order
disposing of the petition on the docket. By order of March 4, 2016, this
Court directed the PCRA court to enter the December 21, 2015 order on the
docket. The PCRA court complied.
2
Counsel mistakenly filed a “ No Merit/Turner Finley Brief” comparable to a
brief pursuant to Anders v. California, 386 U.S. 738 (1967). However, a
(Footnote Continued Next Page)
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On January 13, 2014, Appellant entered a counseled negotiated guilty
plea to two counts each of possession with intent to deliver a controlled
substance (PWID)3 and criminal conspiracy,4 and one count of criminal use
of a communication facility.5 In return for the plea, the Commonwealth
agreed to withdraw the remaining eleven charges and the parties agreed to
an aggregate, concurrent standard-range sentence of not less than two nor
more than four years of imprisonment. (See N.T. Guilty Plea Hearing,
1/13/14, at 8-9). The parties agreed that the sentence included a
mandatory minimum sentence on one count of PWID. (See id. at 9).
On February 28, 2014, the trial court sentenced Appellant in
accordance with the terms of the negotiated guilty plea. (See N.T.
Sentencing, 2/28/14, at 10). At sentencing, the Commonwealth stated the
mandatory minimum sentence made no difference in the sentencing scheme
because Appellant’s prior record score put him in the two-year sentence
_______________________
(Footnote Continued)
Turner/Finley no-merit letter is the correct filing. See Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc). Because an Anders brief provides greater
protection to a defendant, this Court may accept an Anders brief instead of
a Turner/Finley letter. See Commonwealth v. Widgins, 29 A.3d 816,
817 n.2 (Pa. Super. 2011).
3
35 P.S. § 780-113(a)(30).
4
18 Pa.C.S.A. § 903.
5
18 Pa.C.S.A. § 7512(a).
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range. (See id. at 6). Appellant did not file any post-sentence motions,
never sought to withdraw his guilty plea, and did not file a direct appeal.
On December 4, 2014, Appellant, acting pro se, filed a PCRA petition
alleging ineffective assistance of plea counsel and that his sentence was
illegal pursuant to the United States Supreme Court’s decision in Alleyne v.
United States, 133 S. Ct. 2151 (2013). (See Petition for Post Conviction
Relief, 12/04/14, at 5-8). The PCRA court subsequently appointed counsel.
On December 21, 2015, the PCRA court held an evidentiary hearing.
At the hearing, the parties agreed that Appellant “has an absolute right to be
fully resentenced” under Alleyne. (N.T. PCRA Hearing, 12/21/15, at 3).
However, PCRA counsel noted that, because of his prior record score,
resentencing would not “really help him.” (Id. at 2). Moreover, counsel
stated that Appellant was concerned that a resentencing might have a
negative impact because of a pending hearing on a parole violation, the
possible loss of credit for some time served, and a disruption of some his
programming in prison. (See id. at 2-3).
Because of this, Appellant agreed, on the record, that he wished to
drop all other issues raised in the PCRA petition and just have the original
sentencing order amended to remove the world “mandatory.” (Id. 4; see
id. at 4-5). The Commonwealth also agreed, noting that because of
Appellant’s prior record score, the original minimum guideline sentence was
the same as the mandatory minimum sentence he had received. (See id. at
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5). Thus, in accordance with the agreement of the parties, the PCRA court
issued an order amending the original sentencing order to remove any
reference to the term “mandatory,” and otherwise dismissed the PCRA
petition. (See id. at 6-7; see Order, 12/21/15).
On February 1, 2016, Appellant filed a pro se notice of appeal, which
the PCRA court deemed timely filed under the prisoner mailbox rule.6 On
March 16, 2016, the PCRA court scheduled a hearing pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), to determine if the
Appellant wished to waive his right to counsel on appeal. On April 4, 2016,
the PCRA court appointed new counsel. On April 8, 2016, the court directed
Appellant to file a concise statement of errors complained of on appeal. See
Pa.R.A.P. 1925(b). On April 26, 2016, appellate counsel requested an
extension of time, which the PCRA court granted. On May 10, 2016,
Appellant filed a timely Rule 1925(b) statement. See id. On June 28, 2016,
the PCRA court issued an opinion. See Pa.R.A.P. 1925(a).
On August 15, 2016, counsel filed a petition to withdraw in this Court.
On August 22, 2016, Appellant filed a pro se response.
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6
“[T]he prisoner mailbox rule provides that a pro se prisoner’s document is
deemed filed on the date he delivers it to prison authorities for mailing.”
Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011) (citation
omitted).
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On appeal, the Turner/Finley brief raises the following question for
our review.
I. Whether the [PCRA] court abused its discretion in
resentencing the Appellant to a mandatory sentence when he
believed he had entered into an agreement for a sentence of
[not less than eighteen nor more than thirty-six months of
incarceration?]
(Turner/Finley Brief, at 1).
In his pro se filing, Appellant appears to argue that his guilty plea was
unlawfully induced because he had a meritorious suppression issue. (See
Motion for Leave to Amend Appellant’s Brief, 8/22/16, at 1-4).
Appellant’s court-appointed counsel has petitioned this Court for
permission to withdraw and has submitted a Turner/Finley-compliant brief,
as is required for counsel seeking to withdraw on appeal of the denial of a
PCRA petition. Court-appointed counsel who seek to withdraw from
representing an appellant on appeal of a denial of a PCRA petition on the
basis that the appeal lacks merit must review the case zealously. See
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007).
Turner/Finley counsel must then submit a “no-merit” letter to
the trial court, or brief on appeal to this Court, detailing the
nature and extent of counsel’s diligent review of the case, listing
the issues which the petitioner wants to have reviewed,
explaining why and how those issues lack merit, and requesting
permission to withdraw.
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.
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Id. (citations omitted). Here, counsel has substantially complied with the
dictates of Turner/Finley.
When this Court receives a Turner/Finley brief, we conduct an
independent review of the record in light of the PCRA petition and the issues
set forth within it, as well as of the contents of the petition of counsel to
withdraw. See id. We will grant the petition to withdraw if we agree with
counsel that the petition is meritless. See id.
Appellant appeals from the dismissal of his PCRA petition. Our
standard of review for an order denying PCRA relief is well settled:
This Court’s standard of review regarding a PCRA court’s
order is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Great deference is granted to the findings of the PCRA court, and
these findings will not be disturbed unless they have no support
in the certified record.
Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations
and quotation marks omitted). Moreover, to be eligible for relief pursuant to
the PCRA, Appellant must establish that his conviction or sentence resulted
from one or more of the enumerated errors or defects found in 42 Pa.C.S.A.
§ 9543(a)(2). He must also establish that the issues raised in the PCRA
petition have not been previously litigated or waived. See 42 Pa.C.S.A. §
9543(a)(3). An allegation of error is waived “if the petitioner could have
raised it but failed to do so before trial, during unitary review, on appeal or
in a prior state post-conviction proceeding.” 42 Pa.C.S.A. § 9544(b).
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In the Turner/Finley brief, counsel challenges the discretionary
aspects of sentence,7 claiming that Appellant was not sentenced in
accordance to the terms of the plea agreement, which he believed was for
an aggregate sentence of not less than eighteen nor more than thirty-six
months of incarceration. (See Turner/Finley brief, at 7). In his pro se
response, Appellant claims that his guilty plea was coerced because he had a
meritorious suppression issue. (See Motion for Leave to Amend Appellant’s
Brief, 8/22/16, at 4).
Prior to addressing the merits of the claims, we must decide if they are
properly before us. As we stated above, in order to be eligible for PCRA
relief, a petitioner must demonstrate that the issues raised in his PCRA
petition have not been previously litigated or waived. See 42 Pa.C.S.A. §
9543(a)(3). An issue has been previously litigated if “the highest appellate
court in which the petitioner could have had review as a matter of right has
ruled on the merits of the issue[.]” 42 Pa.C.S.A. § 9544(a)(2); see also
Commonwealth v. Ligons, 971 A.2d 1125, 1137 (Pa. 2009). A claim is
waived if “the petitioner could have raised it but failed to do so before trial,
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7
We note that counsel mischaracterizes the nature of Appellant’s complaint.
A claim of a breach of a plea agreement does not implicate the discretionary
aspects of sentence. See Commonwealth v. Parsons, 969 A.2d 1259,
1270 (Pa. Super. 2009) (en banc), appeal denied, 982 A.2d 1228 (Pa.
2009).
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at trial, during unitary review, on appeal or in a prior state post-conviction
proceeding.” 42 Pa.C.S.A. § 9544(b) (emphasis added).
The record in the case sub judice establishes that Appellant did not file
a direct appeal. Appellant should have raised the issues herein on direct
appeal. Thus, Appellant’s claims are waived. See Ligons, supra, at 1137.
Moreover, it is long settled that issues not raised in a PCRA or
amended PCRA petition are waived on appeal. See Commonwealth v.
Lauro, 819 A.2d 100, 103 (Pa. Super. 2003), appeal denied, 830 A.2d 975
(Pa. 2003) (finding five issues not in original or amended PCRA petition
waived). Also, as amended in 2007, Rule 1925 provides that issues that are
not included in the Rule 1925(b) statement or raised in accordance with Rule
1925(b)(4) are waived. See Pa.R.A.P. 1925(b)(4)(vii); see also
Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998), superseded by
rule on other grounds as stated in Commonwealth v. Burton, 973 A.2d
428, 430 (Pa. Super. 2009). Further, an appellant cannot raise issues for
the first time in a Rule 1925(b) statement. See Commonwealth v.
Coleman, 19 A.3d 1111, 1118 (Pa. Super. 2011) (issues raised for first time
in Rule 1925(b) statement are waived). Lastly, an appellant cannot raise a
subject for the first time on appeal. See Commonwealth v. Hanford, 937
A.2d 1094, 1098 n.3 (Pa. Super. 2007), appeal denied, 956 A.2d 432 (Pa.
2008) (new legal theories cannot be raised for first time on appeal);
Pa.R.A.P. 302(a).
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In the instant matter, the only issues raised in Appellant’s PCRA
petition were a claim of an illegal sentence and a claim of ineffective
assistance of counsel. (See Petition for Post Conviction Relief, 12/04/14, at
1-8). Appellant based both claims upon the United States Supreme Court’s
decision in Alleyne, supra. (See id.). Appellant first raised the claim that
he was not sentenced in accordance with the terms of the plea agreement in
his Rule 1925(b) statement. (See Statement of [Errors] Complained of on
Appeal Pursuant to Pa.R.A.P. 1925(b), 5/10/16, at 1). Appellant did not
raise the claim that his guilty plea was unlawfully coerced until he filed his
pro se response to counsel’s Turner/Finley brief. (See Motion for Leave to
Amend Appellant’s Brief, 8/22/16, at 4). Thus, Appellant waived all his
claims on appeal for these reasons as well and we therefore affirm the trial
court’s dismissal of his PCRA petition.
Appellant’s issues are waived. Further, this Court has conducted an
independent review of the record as required by Turner/Finley and finds
that no meritorious issues exist.
Motion to withdraw as counsel granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/28/2016
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