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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
LAWRENCE V. LARSEN
Appellant No. 1171 WDA 2017
Appeal from the PCRA Order entered July 17, 2017
In the Court of Common Pleas of Jefferson County
Criminal Division at No: CP-33-CR-0000318-2016
BEFORE: BENDER, P.J.E., STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 21, 2018
Appellant, Lawrence V. Larsen, appeals from the July 17, 2017 order
dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-46. Counsel has filed a brief and no merit letter 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). We
affirm the order and grant counsel’s petition to withdraw.
On May 8, 2015, the Commonwealth filed a criminal complaint charging
Appellant with driving under the influence (“DUI”)/general impairment, 75
Pa.C.S.A. § 3802(a)(1). Because Appellant refused to consent to a blood test,
and because this was his third DUI offense, Appellant was facing a first-degree
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* Retired Senior Judge assigned to the Superior Court.
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misdemeanor conviction with a mandatory minimum of one year of
incarceration, a fine of at least $2,500.00, and temporary loss of his driver’s
license followed by a period of ignition interlock. Prior to the disposition of
Appellant’s case, the United States Supreme Court handed down its decision
in Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), in which it held that
the federal constitution does not permit criminalization of the refusal to
consent to a blood test. On August 3, 2016, Appellant accepted the
Commonwealth’s post-Birchfield plea offer and pled guilty to DUI as a
second-degree misdemeanor. That same day, the trial court sentenced
Appellant to time served to two years less one day, followed by one day of
probation, and a $500.00 fine. Appellant did not file a direct appeal, and
therefore his judgment of sentence became final on September 2, 2016.
Appellant filed a timely first pro se PCRA petition on December 27, 2016.
Counsel filed an amended petition on May 5, 2017. The PCRA court conducted
a hearing on July 12, 2017. On July 17, 2017, the court entered the order on
appeal, dismissing Appellant’s petition. This timely appeal followed.
Before we address the merits of Appellant’s appeal, we consider the
adequacy of counsel’s Turner/Finley filings. Turner/Finley procedure
involves the following:
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;
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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.
Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011) (quoting
Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009)). Counsel’s
petition and no merit letter comply with the first three requirements above,
and counsel has served copies of his fillings on Appellant. Appellant has not
filed any response. We therefore proceed with our review.
“On appeal from the denial of PCRA relief, an appellate court’s standard
of review is whether the ruling of the PCRA court is free of legal error and
supported by the record.” Commonwealth v. Jones, 932 A.2d 179, 181
(Pa. Super. 2007). The Turner/Finley letter addresses four issues Appellant
wished to raise, the first of which is that trial counsel unlawfully induced
Appellant’s plea. To prevail on this claim, he must plead and prove that his
plea was “unlawfully induced where the circumstances make it likely that the
inducement caused the petitioner to plead guilty and the petitioner is
innocent.” 42 Pa.C.S.A. § 9543(a)(2)(iii).
The record contains no evidence that Appellant was induced, or that he
is innocent. At the plea hearing, Appellant initially asked to “fire” the public
defender representing him. N.T. Plea Hearing, 8/3/16, at 4. Appellant
claimed he was coerced into waiving his preliminary hearing, that counsel
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failed to respond to letters, and that counsel told him the judge would “hang”
him if he went to trial. Id. at 5-6. Appellant also asked for alcohol rehab as
a condition of his guilty plea. Id. at 6-7. The trial judge refused to make any
promises without the benefit of a drug and alcohol evaluation. Id. at 8. The
court recessed for an hour to permit Appellant to discuss the matter with his
public defender and decide whether he wanted to enter a plea or proceed to
trial, with or without counsel. Id. at 8-9. Upon returning to the courtroom,
Appellant pled guilty, indicating that he understood all of the questions in his
written plea colloquy. Id. at 10-11. The court conducted an on-the-record
colloquy at which Appellant confirmed that he understood his rights and the
maximum fines and punishments. Id. at 11. Appellant stated that he
reviewed the facts with defense counsel and wished to plead guilty. Id. at
12. For all of the foregoing reasons, we agree with counsel that Appellant
cannot establish that defense counsel induced his guilty plea, or that he is
innocent.
Next, the Turner/Finley letter states that Appellant wishes to argue
that the trial court denied Appellant due process by denying Appellant’s pre-
trial motion challenging counsel’s effectiveness. In Commonwealth v.
Holmes, 79 A.3d 562 (Pa. 2013), our Supreme Court held that, absent limited
circumstances, assertions of ineffective assistance must await collateral
review. We discern no basis upon which the trial court erred in denying
Appellant’s pre-trial motion.
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On collateral review, Appellant wishes to assert that counsel was
ineffective for advising him to waive his preliminary hearing. To establish that
counsel was ineffective, a petitioner must plead and prove that (1) the
underlying issue is of arguable merit; (2) counsel had no reasonable strategic
basis for the action or inaction; and (3) counsel’s error prejudiced the
petitioner. Commonwealth v. Travaglia, 661 A.2d 352 (Pa. 1995), cert.
denied, 516 U.S. 1121 (1996). Here, Appellant’s claim fails for lack of
arguable merit. Appellant, at his guilty plea, conceded that the
Commonwealth had sufficient evidence of his guilt of DUI/general impairment.
Clearly, he cannot establish prejudice stemming from counsel’s decision not
to force the Commonwealth to establish a prima facie case at the preliminary
hearing.
Finally, the Turner/Finley brief notes that Appellant wishes to
challenge the sufficiency of the evidence because there is no blood test or
other evidence confirming his intoxication and because the original dispatch
leading officers to the scene of Appellant’s arrest identified his vehicle as
having an Illinois plate, instead of Iowa (the plate number was correct). See
N.T. PCRA Hearing, 7/12/17, at 6-7. This argument cannot prevail because
insufficiency of the evidence is not a basis for relief on collateral review. 42
Pa.C.S.A. § 9543. Furthermore, Appellant’s general impairment conviction did
not require evidence of his blood alcohol content. Finally, the error regarding
the license plate would not have undermined a police officer’s identification of
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Appellant as the intoxicated driver of the vehicle in question. To the extent
Appellant wished to argue that counsel was ineffective for advising him to
plead guilty where the Commonwealth had insufficient evidence of his guilt,
he would have failed because the underlying issue lacks arguable merit.
In summary, we agree with counsel’s assertion that the issues Appellant
wishes to raise lack merit. Our own review of the record has identified no
other potentially meritorious issues. We therefore affirm the order dismissing
Appellant’s petition and grant counsel’s petition to withdraw.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2018
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