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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
TYSON HERNANDEZ, :
:
Appellant : No. 1518 EDA 2016
Appeal from the PCRA Order February 5, 2016
in the Court of Common Pleas of Philadelphia County,
Criminal Division, No(s): CP-51-CR-0800861-2006
BEFORE: OLSON, SOLANO and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED MAY 19, 2017
Tyson Hernandez (“Hernandez”) appeals from the Order dismissing his
first Petition filed pursuant to the Post Conviction Relief Act. (“PCRA”)1
Additionally, Hernandez’s counsel, Todd Mosser, Esquire (“Attorney
Mosser”), has filed a Petition for Leave to Withdraw as Counsel. We grant
Attorney Mosser’s Petition, and affirm the PCRA court’s Order.
On August 29, 2006, Hernandez entered a nolo contendere plea to
possession with intent to deliver a controlled substance, and was sentenced
to a one-year probationary term. Hernandez did not file a post-sentence
motion or a direct appeal; consequently, his judgment of sentence became
final on September 28, 2006. On September 26, 2014, Hernandez filed a
“Motion for New Trial Based Upon After-Discovered Evidence; Alternatively,
for Post Conviction Collateral Relief; or Alternatively, for a Writ of Habeas
1
See 42 Pa.C.S.A. §§ 9541-9546.
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Corpus.” The PCRA court appointed Hernandez counsel. The PCRA court
determined that, although Hernandez’s claim was subsumed under the
PCRA,2 he was no longer eligible for PCRA relief because he was no longer
serving a sentence. Accordingly, the PCRA court issued a Pa.R.Crim.P. 907
Notice of its intent to dismiss the Petition without a hearing. Hernandez did
not respond to the Rule 907 Notice, and on February 5, 2016, the PCRA
court dismissed the Petition.3 Hernandez filed a timely Notice of Appeal.
The PCRA court appointed appellate PCRA counsel, Attorney Mosser, who
filed a Concise Statement of matters complained of on appeal, pursuant to
Pa.R.A.P. 1925(b). Attorney Mosser subsequently determined that
Hernandez had no meritorious claims to advance, and filed a Petition to
withdraw, along with a “no-merit letter” pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550
A.2d 213 (Pa. Super. 1988) (en banc).
Prior to addressing Hernandez’s claims on appeal, we must address
Attorney Mosser’s Petition to withdraw as counsel. Pursuant to
Turner/Finley, independent review of the record by competent counsel is
required before withdrawal on collateral appeal is permitted. See
2
As Hernandez’s claim was subsumed under the PCRA, the PCRA court
treated his Motion as a Petition filed pursuant to the PCRA.
3
The PCRA court also permitted PCRA counsel to withdraw from
representation.
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Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009). In Pitts, our
Supreme Court explained that such independent review requires proof of:
1. A “no-merit” letter by PC[R]A counsel detailing the nature and
extent of his review;
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;
4. The PC[R]A court conducting its own independent review of
the record; and
5. The PC[R]A court agreeing with counsel that the petition was
meritless.
Id. (citation and brackets omitted). Further, our Court has held that the
Supreme Court in Pitts did not expressly overrule the additional
requirement imposed by this Court in Commonwealth v. Friend, 896 A.2d
607, 615 (Pa. Super. 2006), stating
that PCRA counsel seeking to withdraw contemporaneously
forward to the petitioner a copy of the application to withdraw
that includes (i) a copy of both the “no-merit” letter, and (ii) a
statement advising the PCRA petitioner that, in the event the
trial court grants the application of counsel to withdraw, the
petitioner 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).
Here, in the Turner/Finley “no merit” letter, Attorney Mosser
described the extent of his review, identified the issues that Hernandez
sought to raise, and explained why the issues lacked merit. In addition,
Attorney Mosser provided Hernandez with a notice of his intention to seek
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permission to withdraw from representation, a copy of the Turner/Finley
“no-merit” letter, and advised Hernandez of his rights in lieu of
representation. Thus, we conclude that Attorney Mosser has substantially
complied with the requirements necessary to withdraw as counsel. See
Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa. Super. 2003)
(holding that substantial compliance with requirements to withdraw as
counsel will satisfy the Turner/Finley criteria). We now independently
review Hernandez’s claims to ascertain whether they entitle him to relief.
We review an order dismissing a petition under the PCRA
in the light most favorable to the prevailing party at the PCRA
level. This review is limited to the findings of the PCRA court
and the evidence of record. We will not disturb a PCRA court’s
ruling if it is supported by evidence of record and is free of legal
error. This Court may affirm a PCRA court’s decision on any
grounds if the record supports it. We grant great deference to
the factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. However, we
afford no such deference to its legal conclusions. Further, where
the petitioner raises questions of law, our standard of review is
de novo and our scope of review is plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
To be eligible for relief under the PCRA, the petitioner must plead and
prove by a preponderance of the evidence that he has been convicted of a
crime under the laws of this Commonwealth, “and is at the time relief is
granted … currently serving a sentence of imprisonment, probation or parole
for the crime.” 42 Pa.C.S.A. § 9543(a)(1).
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Here, Hernandez was not eligible for relief under the PCRA because, at
the time he filed his Petition, he was no longer serving a sentence of
imprisonment, probation or parole. See id.; see also PCRA Court Opinion,
6/6/16, at 4. Thus, the PCRA court’s ruling is supported by the evidence of
record and is free of legal error. We therefore affirm the dismissal of
Hernandez’s Petition.
Petition to withdraw granted; Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/19/2017
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