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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
EDWARD TILLMAN
Appellant No. 2075 EDA 2016
Appeal from the PCRA Order June 8, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0004427-2014
BEFORE: FORD ELLIOTT, P.J.E., STABILE, J., and MOULTON, J.
MEMORANDUM BY MOULTON, J.: FILED JULY 07, 2017
Edward Tillman appeals from the June 8, 2016 order entered in the
Montgomery County Court of Common Pleas dismissing his petition filed
under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. On
appeal, counsel has filed an Anders1 brief and a petition to withdraw as
counsel. We affirm and grant counsel’s petition to withdraw.
The PCRA court set forth the following factual and procedural history:
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1
Anders v. California, 386 U.S. 738 (1967). Because counsel seeks
to withdraw on appeal from a denial of PCRA relief, he should have filed a
no-merit brief pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en
banc), rather than an Anders brief. However, “[b]ecause an Anders brief
provides greater protection to a defendant, this Court may accept an
Anders brief in lieu of a Turner/Finley letter.” Commonwealth v.
Widgins, 29 A.3d 816, 817 n.2 (Pa.Super. 2011). We will refer to counsel’s
brief as a Turner/Finley Br.
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On April 27, 2015, [Tillman] – then represented by
Daine Arthur Grey, Jr., Esquire – appeared before the
undersigned and entered a negotiated guilty plea to
corrupt organizations1, person not to possess firearm2,
criminal conspiracy3, and multiple counts of possession of
a controlled substance with intent to deliver [(“PWID”)]4.[2]
That same date, the undersigned sentenced [Tillman] in
accordance with the terms of his plea agreement with the
Commonwealth, imposing an aggregate sentence of not
less than nine (9) nor more than twenty (20) years
imprisonment.
1
18 Pa.C.S.A. §911(B)(1)[.]
2
18 Pa.C.S.A. §6105(A)(1)[.]
3
18 Pa.C.S.A. §903(A)(1)[.]
4
35 P.S. §780-113(A)(30)[.]
On May 5, 2015, Mr. Grey filed on [Tillman’s] behalf a
timely post-sentence motion to withdraw [Tillman’s] guilty
plea. In this motion, [Tillman] contended that his guilty
plea was not knowingly, voluntarily, and intelligently
rendered because he “was feeling intense pressure at the
time of his plea, from his co-defendant who happened to
be his girlfriend, and felt confused and unsure during the
entire process.”
Following transcription of the notes of testimony for
[Tillman’s] guilty plea hearing, the undersigned reviewed
the record and determined that [Tillman] was not entitled
to withdraw his guilty plea on the basis of the claims raised
in his post-sentence motion. Accordingly, by order dated
June 26, 2015, the undersigned denied [Tillman’s] post-
sentence motion, stating the court’s reasoning at some
length in our order.
____________________________________________
2
An information charged Tillman with 65 counts following the
investigation of a drug trafficking organization. Tillman pled guilty to six
counts of PWID, and one count each of corrupt organizations, person not to
possess firearms, and criminal conspiracy.
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On July 24, 2015, [Tillman] filed, pro se, a notice of
direct appeal to the Superior Court of Pennsylvania. That
same date, [Tillman] also filed a request that counsel be
appointed to represent him on appeal. By order dated July
31, 2015, the undersigned appointed John W. Aitchison,
Esquire, to represent [Tillman] as appellate counsel. The
undersigned subsequently became aware that, on July 30,
2015, [Tillman] had filed, pro se, a petition for
reconsideration of our order denying his post-sentence
motion. Given that [Tillman] had already filed his direct
appeal before filing his pro se motion for reconsideration,
the undersigned denied said motion for reconsideration by
order dated August 10, 2015.
On August 19, 2015, Mr. Aitchison filed on [Tillman’s]
behalf a statement of errors complained of on appeal,
pursuant to Pennsylvania Rule of Appellate Procedure
1925(b). On February 1, 2016, Mr. Aitchison filed a
praecipe for discontinuance in the Superior Court,
withdrawing [Tillman’s] direct appeal (2290 EDA 2015).
On February 25, 2016, Mr. Aitchison filed on [Tillman’s]
behalf the instant petition pursuant to the [PCRA]. In said
petition, [Tillman] contended that his guilty plea resulted
from ineffectiveness on the part of Mr. Grey.
On April 11, 2016, the Commonwealth filed a response
to [Tillman’s] PCRA petition, requesting that the petition be
dismissed on the basis that all of the claims raised in the
petition were belied by the record and/or were without
merit. The Commonwealth also contended that [Tillman]
would, in any event, be unable to present evidence on his
claims at any evidentiary hearing because the petition
failed to attach witness certifications as required by 42
Pa.C.S. §9545(d)(1). On May 3, 2016, [Tillman] filed an
amended PCRA petition, attaching witness certifications for
Mr. Grey and for [Tillman] himself.
Upon review of the record, the undersigned determined
that [Tillman] was not entitled to PCRA relief. Accordingly,
on May 10, 2016, the undersigned notified [Tillman],
pursuant to Pa.R.Crim.P. 907(a), of this court’s intention to
dismiss his PCRA petition without a hearing. [Tillman] did
not respond to the court’s Rule 907(a) Notice, and the
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undersigned entered our final order dismissing [Tillman’s]
petition on June 8, 2016.
On July 6, 2016, Mr. Aitchison filed on [Tillman’s] behalf
a timely appeal to the Superior Court of Pennsylvania. By
order dated July 7, 2016, the undersigned directed Mr.
Aitchison to file a statement of the errors complained of on
appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b).
On August 1, 2016, Mr. Aitchison filed a statement
expressing his intention to file an Anders/McClendon
brief in lieu of filing a statement of errors complained of on
appeal.
Opinion, 8/8/16, at 1-2.
Before we may address the merits of Tillman’s appeal, we must
determine whether his PCRA counsel has satisfied the requirements for
withdrawal under Turner/Finley. Counsel must “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.” Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa.Super.
2012) (internal citation omitted). Counsel also must serve copies of the
petition to withdraw and no-merit letter on the petitioner and advise the
petitioner that he or she has the right to proceed pro se or with privately
retained counsel. Commonwealth v. Widgins, 29 A.3d 816, 818
(Pa.Super. 2011).
In his petition to withdraw, PCRA counsel states that he “conducted a
conscientious examination of the record,” interviewed Tillman, and “reviewed
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case law and legal theories provided by” Tillman. Pet. to Withdraw as
Counsel for Appellant at ¶ 5.3 PCRA counsel stated he reached the
determination that the appeal is frivolous and is without basis in law or fact.
Id. ¶ 6. PCRA counsel also mailed a copy of the petition and brief to Tillman
and informed him that, if he wished to continue the appeal, Tillman could
retain private counsel or proceed without counsel. Id. at ¶ 7. Further,
counsel’s Turner/Finley brief filed with this Court explained why the issue
raised in the PCRA petition lacked merit. We conclude that PCRA counsel
has complied with the dictates of Turner/Finley. Therefore, we will address
the issues raised in the Turner/Finley brief and Tillman’s pro se response.
PCRA counsel raises the following issue in his Turner/Finley brief:
“Whether the trial court erred by dismissing [Tillman’s] petition pursuant to
the [PCRA]?” Turner/Finley Br. at 8. Tillman also filed a pro se response
raising additional issues, which we discuss below.
Counsel states that Tillman contends that his trial counsel was
ineffective for: failing to ensure he understood the factual basis of the plea;
permitting Tillman to plead guilty to corrupt organizations where the charge
lacked a factual basis; and coercing him to enter a guilty plea by informing
____________________________________________
3
Although counsel’s brief states that he interviewed “Mr. Burton” by
phone and reviewed correspondence forwarded by “Mr. Burton,” it appears
that counsel mistakenly referenced “Mr. Burton,” rather than “Mr. Tillman.”
His petition to withdraw confirms that he spoke with Tillman.
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him he would receive the maximum sentence if he did not plead guilty.
Turner/Finley Br. at 13.
Our standard of review from the denial of a PCRA petition “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).
To prevail on an ineffective assistance of counsel claim, the petitioner
must establish: “(1) his underlying claim is of arguable merit; (2) counsel
had no reasonable basis for his action or inaction; and (3) the petitioner
suffered actual prejudice as a result.” Commonwealth v. Spotz, 84 A.3d
294, 311 (Pa. 2014). To establish the prejudice prong when 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. “The failure to prove any one of the three [ineffectiveness] prongs
results in the failure of petitioner’s claim.” Id.
The PCRA court concluded that Tillman’s ineffectiveness claim lacked
merit. Rule 907 Notice, 5/11/16, at 7-8. The PCRA court noted that at the
guilty plea hearing, Tillman stated that his counsel had reviewed the
discovery and facts with him and that they had discussed the option of
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proceeding to trial. Id. at 7. He stated that he wanted to plead guilty, that
he was making the decision of his own free will, and that no one forced,
threatened, or coerced him to plead guilty. Id. The PCRA court further
noted that Tillman signed a written guilty plea colloquy and that he stated on
the record that the answers on the written colloquy were the same as the
answers he would provide in court. Id. at 6. The written questions included
whether he was pleading guilty of his own free will, whether he was satisfied
with his attorney’s representation, and whether he had sufficient time to talk
to his attorney. Id. He responded yes to these written questions. Id. As
the PCRA court noted, Tillman is bound by the statements made in open
court. Id. at 5-6 (citing cases).
We further note that at the guilty plea hearing, the parties discussed
the counts to which Tillman was pleading guilty and the negotiated sentence
for each count. N.T., 4/27/15, at 3-5. The trial court also discussed the
applicable maximum sentences for the crimes at issue. Id. at 14-17.
Further, the following exchange occurred regarding the charges and the
factual basis for such charges:
Q. So from April 30th of 2013 through March 31st of
2014, you were trafficking throughout Montgomery
County; is that correct?
A. Yes.
Q. Primarily heroin but also crystal methamphetamine and
cocaine.
...
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Q: You were trafficking heroin, cocaine and crystal
methamphetamine.
A: Can I talk to my lawyer?
...
(Whereupon, Mr. Grey conferred with [Tillman].)
...
Q: Mr. Tillman, you were trafficking three controlled
substances: Heroin, cocaine and methamphetamine?
A: Heroin.
Q: Are you saying that you were only trafficking heroin?
A: Yes.
Q. Now, there was a search warrant conducted at the
apartment at Theresa Hilary’s, 487 West King Street?
A. Yes.
Q. Are you familiar with that address?
A. Yes
Q. And were you using that as a base of your drug
trafficking in Pottstown, in the Bright Hope Community?
A. No.
COURT: Am I to understand then that for all the Counts
that the man is pleading guilty to his suggestion on the
record is he was trafficking heroin? My understanding is
that the conceivable maximum just climbed, because you
explained to him what they were for heroin, have you not?
[Assistant District Attorney (“ADA”)]: I have – I have
explained it to him, yes, Your Honor. But he’s pleading to
Counts open for cocaine and methamphetamine.
(Whereupon, Mr. Grey and [the ADA] conferred off the
record.)
(Whereupon, Mr. Grey conferred with [Tillman].)
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Q: Now, Mr. Tillman, I’ll ask you one more time – I know
you just spoke with your attorney – are you agreeing that
you, in fact, were trafficking cocaine, methamphetamine
and heroin.
A. Yes.
Q. And there was a significant amount of heroin that was
stolen from your apartment while juveniles burglarized it
and that heroin was, in fact, yours and you were trafficking
that?
A. Yes.
Q. And you were found in an hotel room in Philadelphia
with a significant quantity of heroin and you were
intending to distribute that as well; is that correct?
A. Yes.
...
Q. And you are also pleading the conspiracy of possession
with intent to deliver. That goes hand-in-hand with the
corrupt organization, you were in agreement with Melvin
Harris, Johnathan Jackson, Anisha Harris, Teresa Hiller you
were in fact trafficking these drugs across Montgomery
County?
A. Yes.
Id. at 18-22.
We conclude that the record supports the PCRA court’s determination
that Tillman’s ineffectiveness claim lacks merit. Tillman acknowledged the
factual basis for the plea, including the factual basis for the corrupt
organization charge. Moreover, he stated in his written colloquy and at the
guilty plea hearing that he was not forced, threatened, or coerced to plead
guilty, which would include that he was not coerced into pleading guilty
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because his counsel allegedly informed he would receive the maximum
sentence if he did not.
We next address the claims raised in Tillman’s pro se response:
A. Whether the Bill of information filed in this matter
conformed with the right to formal notice of charges,
gu[a]ranteed by the Sixth Amendment of the Federal
Constitution and Article I, Section 9 of the Pennsylvania
Constitution.
B. Whether [Tillman] was punished for crimes that w[ere]
never committed or punished twice for the same offenses
in violation of the Double Jeopardy Clause of the
Constitution of the United States and our state’s
constitution counterpart.
C. Whether trial counsel was ineffective for inducing
[Tillman] to enter a negotiated guilty plea that was not
voluntary, knowing, and intelligent.
D. Whether appellate counsel was ineffective for not going
over the record in its entirety and not putting [Tillman’s]
issues before the trial court.
E. Whether trial court erred by dismissing [Tillman’s]
petition pursuant to the Post Conviction Relief Act without
an evidentiary hearing.
Tillman’s Resp. at 10-11.
Tillman first maintains that the information filed charged 17 counts of
PWID, with “absolutely no distinction between counts two(2) through
seventeen(17).” Id. at 17. He argues the information failed to provide him
notice of the charges against him, and, therefore, the trial court lacked
jurisdiction to accept the guilty plea. Id. at 21.
There are “two requirements for subject matter jurisdiction as it
relates to criminal defendants: the competency of the court to hear the
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case, and the provision of formal notice to the defendant of the crimes
charged in compliance with the Sixth Amendment of the United States
Constitution and Article I, Section 9, of the Pennsylvania Constitution.”
Commonwealth v. Jones, 929 A.2d 205, 210 (Pa. 2007). Here, Tillman
does not challenge the trial court’s competency, and we conclude that the
trial court was competent to hear the case, which involved violations of the
criminal code. See id. at 211 (“There is no question that the Philadelphia
County Court of Common Pleas, Criminal Division, was competent to hear
cases relating to criminal conspiracy and violations of the Controlled
Substance Act.”).
We must next determine whether Tillman had proper notice of the
charges. In Jones, the defendant challenged the trial court’s subject matter
jurisdiction to accept a guilty plea because the bill of information included a
charge that had been dismissed at a preliminary hearing for failure to
establish a prima facie case. 929 A.2d at 206. The Supreme Court noted
that although inclusion of the dismissed conspiracy charge on the
information was a procedural mistake, the defect, in and of itself, did not
divest the trial court of jurisdiction. Id. at 211. The Court noted that the
defendant did not claim the information failed to provide formal and specific
accusation of the conspiracy charge. Id. at 212. The Court concluded that
the defendant had notice of the charges, reasoning that: the defendant and
his counsel “were well aware of the charges, including conspiracy, as they
negotiated a plea bargain with the Commonwealth,” id. at 212, and the
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colloquy included a recitation of the facts, the criminal charges at issue, and
the relevant sentences contained in the plea bargain, id. The Court,
therefore, concluded that the Commonwealth had provided formal and
specific accusation of the crimes and the procedural flaw in the information
did not result in a lack of subject matter jurisdiction. Id. The Court held
that, because the trial court had jurisdiction to accept the guilty plea, the
defendant waived all claims or procedural deficiencies by tendering his plea.
Id.
Here, although the information did not provide specific factual details
for each count, Tillman similarly had notice of the charges to which he pled
guilty. A 42-page affidavit of probable cause detailing the “Edward Tillman
drug trafficking organization” accompanied the complaint.4 Further, as in
Jones, Tillman and trial counsel were able to negotiate a plea agreement
with the Commonwealth. At the guilty plea hearing, Tillman admitted to all
charges to which he pled guilty, including the PWID charges; agreed to the
negotiated sentence for each count; acknowledged the applicable maximum
sentences for each count; and agreed to the recitation of facts. Accordingly,
Tillman had notice of the charges and the trial court had subject matter
jurisdiction to accept the guilty plea. Further, because the trial court had
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4
The affidavit of probable cause accompanied the complaint, which
was initiated on May 19, 2014. An information was later filed on November
21, 2014.
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jurisdiction to accept the guilty plea, Tillman has waived any challenge to
any alleged procedural flaw in the information. See Jones, 929 A.2d at
211-12.
Tillman next maintains the sentence imposed by the trial court violated
his double jeopardy rights. He argues he did not agree to the facts
supporting all PWID charges because at the guilty plea hearing the
Commonwealth only mentioned the heroin stolen from Tillman’s apartment
and the heroin found in his hotel room. Further, similar to his prior
argument, he maintains that the court lacked jurisdiction because he did not
have formal notice of the facts underlying the offenses. This claim is
meritless.
At the guilty plea hearing, the Commonwealth delineated the counts to
which Tillman was pleading guilty and the sentences he would receive for
each count. N.T., 4/27/15, at 3-5. Tillman’s counsel agreed with the
Commonwealth’s recitation, id. at 5, and Tillman stated he had discussed
the discovery and facts with his counsel, id. at 7. Moreover, Tillman not
only admitted to the heroin located in his apartment and hotel room, he also
admitted to trafficking cocaine, methamphetamine, and heroin. Id. at 13-
23. Further, as discussed above, Tillman had formal notice of the facts
underlying the offenses. Accordingly, Tillman’s claim does not merit relief.
In his third issue, Tillman claims that trial counsel was ineffective for
inducing him to enter an unknowing and involuntary plea. Counsel
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addressed this claim in his Turner/Finley brief and, as discussed above, we
agree with counsel that the claim is meritless.
Tillman next argues that his appellate counsel, who also is his PCRA
counsel, was ineffective for failing to review the record and for failing to
raise the issues raised in his pro se response. This argument appears to
include a claim that PCRA counsel was ineffective for failing to raise in the
PCRA petition his own ineffectiveness for failing to consult with Tillman prior
to withdrawing his direct appeal. Had Tillman raised this claim in his PCRA
petition, he likely would have been entitled to a hearing to determine
whether counsel had obtained Tillman’s consent prior to withdrawing the
direct appeal. See Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999)
(noting “[w]hile a defendant has the ability to relinquish his appellate rights,
this can only be accomplished through a knowing, voluntary and intelligent
waiver” and restoring appellate rights where defendant forfeited rights only
because he was informed he would be resentenced, where such resentencing
would have been invalid). However, we cannot review this claim because a
claim of PCRA counsel ineffectiveness cannot be raised for the first time on
appeal. Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en
banc).
In his last issue, Tillman claims that the PCRA court erred by
dismissing his petition without a hearing. “A PCRA petitioner is not entitled
to an evidentiary hearing as a matter of right, but only where the petition
presents genuine issues of material fact. A PCRA court's decision denying a
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claim without a hearing may only be reversed upon a finding of an abuse of
discretion.” Commonwealth v. Walker, 36 A.3d 1, 17 (Pa. 2011)
(citations omitted). Tillman’s PCRA petition claimed his trial counsel was
ineffective for permitting him to enter an unknowing, unintelligent, and
involuntary plea. As discussed above, this issue lacked merit. Further, it did
not present a genuine issue of material fact. Accordingly, the PCRA court
did not abuse its discretion in denying the petition without an evidentiary
hearing.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2017
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