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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DAVID BERMUDEZ
Appellant No. 1149 EDA 2017
Appeal from the PCRA Order entered March 2, 2017
In the Court of Common Pleas of Northampton County
Criminal Division at No: CP-48-CR-0001205-2016
BEFORE: BOWES, STABILE, and PLATT*, JJ.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 09, 2017
Appellant, David Bermudez, appeals from the March 2, 2017 order
entered in the Court of Common Pleas of Northampton County, denying his
request for collateral relief under the Post Conviction Relief Act, 42 Pa.C.S.A.
§§ 9541-46. PCRA counsel has filed a no-merit brief and petitioned this Court
to withdraw under Turner/Finley.1 Upon review, we grant the petition to
withdraw and affirm the order of the PCRA court denying Appellant’s PCRA
petition.
The PCRA court summarized the relevant background as follows:
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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On August 19, 2016, [Appellant] plead guilty [] to one count of
burglary as a felony of the first degree and one count of robbery
as a felony of the first degree. [Appellant] was sentenced to 36
to 72 months on the burglary charge and a consecutive 48 to 96
months on the robbery charge. [Appellant] was represented by
[plea counsel].
[Appellant] filed the instant PCRA [petition] on December 5, 2016.
[Counsel] was appointed to represent [Appellant]. A PCRA issue-
framing conference was held before the [PCRA court] on January
6, 2017, followed by a hearing on February 21, 2017, at which
[PCRA counsel] asserted the following issues on [Appellant’s]
behalf: that [plea counsel] was ineffective for inducing [Appellant]
to enter an involuntary and unknowing guilty plea; and for failing
to provide [Appellant] with written discovery related to his case
until after [Appellant]’s plea and sentencing.
PCRA Court Opinion, 3/2/17, at 1-2.
The PCRA court denied Appellant’s petition on March 2, 2017. This
appeal followed.
On July 3, 2017, Appellant’s PCRA counsel filed in this Court an
application to withdraw as counsel and a no-merit letter, wherein counsel
raises two issues for our review: (i) whether trial counsel was ineffective for
unlawfully inducing him into entering an involuntary and unknowing guilty
plea, and (ii) whether trial counsel was ineffective for failure to share physical
discovery material with him. Turner/Finley Brief at 2.
Before we may consider these issues, we must address whether PCRA
counsel has met the requirements of Turner/Finley. For PCRA counsel 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
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appellate issues; and explains why those 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 or quoting Turner, Finley, Commonwealth v. Pitts, 981 A.2d 875
(Pa. 2009), and Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2008),
overruled in part by Pitts).
We find that PCRA counsel has complied with Turner/Finley. PCRA
counsel has petitioned for leave to withdraw and filed a Turner/Finley no-
merit letter. Further, PCRA counsel informed Appellant of his right to hire a
new lawyer or file a pro se response.
We now address whether this appeal is indeed meritless. “On appeal
from the denial of PCRA relief, our standard of review requires us to determine
whether the ruling of the PCRA court is supported by the record and free of
legal error.” Widgins, 29 A.3d at 819.
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As noted, Appellant claims counsel was ineffective for unlawfully
inducing him to enter into the guilty plea and for failing to share discovery
material with him before entering a guilty plea.2 We disagree.
The right to effective assistance extends to the plea process:
[A]llegations 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.
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.
Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013)
(citation omitted).
Moreover,
to establish prejudice, “the defendant must show that there is a
reasonable probability that, but for counsel’s errors, he would not
have pleaded guilty and would have insisted on going to
trial.” [Commonwealth v. Rathfon, 899 A.2d 365, 369-70 (Pa.
Super. 2006)] (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106
S.Ct. 366, 88 L.Ed.2d 203 (1985)). “The reasonable probability
test is not a stringent one”; it merely refers to “a probability
sufficient to undermine confidence in the outcome.” Id. at
370 (quoting Commonwealth v. Hickman, 799 A.2d 136, 141
(Pa. Super. 2002)).
Id.
____________________________________________
2 Section 9543(a)(2)(ii) permits collateral relief for “[i]neffective 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.” 42 Pa.C.S.A. § 9543(a)(2)(ii).
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Regarding the first allegation (i.e., plea counsel induced him to enter
into the guilty plea), our review of the record fails to show anything supporting
the plea was other than voluntary or knowingly. See PCRA Court Opinion,
3/2/17, at 2-3. Briefly, the record shows Appellant was informed of his rights,
and unequivocally stated that he understood the nature of the charges, factual
basis for the charges, the penalties associated with the charges, and the
nature of the plea and its consequences. Thus, “it is clear that [Appellant]
was made aware of the terms of his bargain, and he received the benefit of
that bargain. [Appellant]’s guilty plea was both voluntary and knowing.” Id.
at 3.
Regarding the second allegation (i.e., plea counsel failed to timely
provide him with a physical copy of discovery material), the PCRA court noted:
[Appellant]’s contention that he would not have pled guilty if he
had a physical copy of the discovery prior to his guilty plea must
fail under the standard set forth above. First, [plea counsel] had
a reasonable basis to decline to provide [Appellant] with a physical
copy of the discovery prior to the plea. [Plea counsel] testified at
the PCRA hearing that he was concerned that if he provided the
written discovery to [Appellant] in the prison, [Appellant] would
utilize the assistance of another inmate to translate the
documents, as [Appellant] was not proficient in English, which
could create a “jailhouse snitch” who could potentially testify
against [Appellant]. [Plea counsel] further testified that he
declined [Appellant’s] request to have the discovery documents
sent to [Appellant]’s brother after [Appellant] commented that he
“would not have to worry about witnesses” if that occurred.
Furthermore, [Appellant] cannot establish that he was prejudiced
by counsel’s failure to give him a physical copy of the written
discovery prior to the plea where all the testimony demonstrates
that [plea counsel] spent a significant amount of time reviewing
the evidence against [Appellant] with him and in reviewing and
preparing the negotiated guilty plea.
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PCRA Court Opinion, 3/2/17, at 3-4. Upon review of the record, we agree
with the above analysis and conclusion that Appellant is not entitled to relief
on the instant claim.
In light of the foregoing, we conclude the PCRA court properly found
Appellant is not entitled to relief on his claims. Moreover, our review of the
record does not reveal any other meritorious issues.
Counsel’s petition to withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2017
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Com. v. Bermudez, D.
Combined Opinion