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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
TYRONE CARTER, : No. 2715 EDA 2016
:
Appellant :
Appeal from the PCRA Order, July 20, 2016,
in the Court of Common Pleas of Lehigh County
Criminal Division at No. CP-39-CR-0000879-2015
BEFORE: BENDER, P.J.E., RANSOM, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 27, 2017
Tyrone Carter appeals from the July 20, 2016 order that granted his
request to withdraw his petition 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), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
After careful review, we grant counsel leave to withdraw and affirm the order
of the PCRA court.
The PCRA court set forth the relevant facts and procedural history of
this case as follows.
On June 17, 2015, [appellant] entered a plea
of guilty to Person Not to Possess a Firearm,
18 Pa.C.S.A. § 6105(a)(1). In exchange for the
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plea, the Commonwealth agreed to bind the [trial
c]ourt to a five (5) to ten (10) year sentence, which
was the bottom of the standard range of the
sentencing guidelines. In addition, the
Commonwealth agreed not to pursue the other
counts of the Criminal Information. On the same
date, th[e trial c]ourt, pursuant to the plea
agreement, sentenced [appellant] to a term of
imprisonment of not less than five (5) years nor
more than ten (10) years in a state correctional
institution. Then, on May 12, 2016, [appellant] filed
a [pro se PCRA petition]. Th[e PCRA c]ourt
appointed Attorney Robert Long [(hereinafter,
“counsel”)] to represent [appellant] in that matter on
[May 16, 2016].
PCRA court opinion, 8/10/16 at 1-2.
On July 12, 2016, counsel subsequently filed a “no-merit” letter and a
petition to withdraw, in accordance with Turner/Finley. Thereafter, on
July 20, 2016, the PCRA court conducted an evidentiary hearing on
appellant’s petition. At this hearing, appellant indicated to the PCRA court,
following his consultation with counsel, that he wanted to withdraw his PCRA
petition. (See notes of testimony, 7/20/16 at 4.) The PCRA court entered
an order granting appellant’s request to withdraw his PCRA petition that
same day. On August 8, 2016, appellant filed a timely pro se notice of
appeal.1 Because appellant withdrew his PCRA petition, the PCRA court did
not rule on counsel’s Turner/Finley petition. Subsequently, counsel filed a
1
The record reflects that the PCRA court did not order appellant to file a
concise statement of errors complained on appeal, pursuant to
Pa.R.A.P. 1925(b). Nonetheless, on August 10, 2016, the PCRA court filed a
Rule 1925(a) opinion.
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second “no-merit” letter and a petition to withdraw on November 21, 2016.
On appeal, counsel raises the following issues on appellant’s behalf:
A. WAS TRIAL COUNSEL INEFFECTIVE FOR NOT
CONFRONTING OR CROSS EXAMINING HIS
CO-DEFENDANTS[?]
B. WAS THERE SUFFICIENT EVIDENCE TO PROVE
GUILT BEYOND A REASONABLE DOUBT[?]
C. DID THE COURT IMPOSE AN ILLEGAL
SENTENCE[?]
Turner/Finley brief at 4.
Prior to considering appellant’s arguments, we must address counsel’s
“no-merit” letter and petition to withdraw from representation. See
Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa.Super. 2008). In
Commonwealth v. Muzzy, 141 A.3d 509 (Pa.Super. 2016), a panel of this
court recently reiterated the procedure to be observed when PCRA counsel
files a “no-merit” letter and seeks permission to withdraw from
representation:
Counsel petitioning to withdraw from PCRA
representation must proceed ... under
[Turner/Finley] and . . . must review the case
zealously. 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 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
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petition to withdraw; and (3) a
statement advising petitioner of the right
to proceed pro se or by new counsel.
....
Where counsel submits a petition
and no[] merit letter that . . . 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.
Id. at 510-511 (some bracketed internal citations amended; case citations
omitted).
Herein, we find that counsel’s filing with this court complied with the
requirements of Turner/Finley. Specifically, counsel’s “no-merit” letter
detailed the nature and extent of counsel’s review. In preparing the
“no-merit” letter, counsel addressed the claims appellant raised in his PCRA
petition and determined that the issues lack merit. Thereafter, counsel
provided a discussion of each of appellant’s claims, explaining why each
issue is without merit. Finally, the record reflects that counsel served
appellant a copy of the no-merit letter and advised appellant that, if he was
permitted to withdraw, appellant had the right to proceed pro se or with
privately-retained counsel. Thus, we find that counsel’s request for leave to
withdraw from representation satisfied the requirements of Turner/Finley.
See Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa.Super. 2003)
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(stating that substantial compliance with requirements will satisfy the
Turner/Finley criteria).
Appellant contends that counsel was ineffective for not confronting or
cross-examining his co-defendants, the evidence was insufficient to sustain
his conviction for unlawful possession of a firearm, and that his sentence is
illegal. (Turner/Finley brief at 8-10.) Upon review, we conclude that
appellant has waived the claims he now presents on appeal.
Instantly, the record reflects that appellant knowingly and voluntarily
withdrew his pro se PCRA petition at the July 20, 2016 evidentiary hearing,
following consultation with counsel. (Notes of testimony, 7/20/16 at 2-4.)
Accordingly, the PCRA court did not have a chance to review or rule on any
of these claims, and appellant is precluded from raising these issues for the
first time on appeal. See Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower
court are waived and cannot be raised for the first time on appeal[]”).
Based on the foregoing, we affirm the July 20, 2016 order of the PCRA
court granting appellant’s request to withdraw his PCRA petition and grant
counsel’s petition for leave to withdraw as counsel.
Order affirmed. Petition for leave to withdraw as counsel granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/2017
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