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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
NIJAH B. CARPENTER :
:
Appellant : No. 301 EDA 2017
Appeal from the PCRA Order December 13, 2016
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0004539-2010
BEFORE: DUBOW, J., MURRAY, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED OCTOBER 12, 2018
Appellant, Nijah B. Carpenter, appeals from the order dismissing his first
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546. Counsel for Appellant has filed a motion to withdraw from
representation and an Anders brief.1 We grant counsel’s petition to withdraw,
and affirm the order of the PCRA court.
We derive the following facts and procedural history from a March 2,
2016 memorandum issued by a panel of this Court and our independent
____________________________________________
1 Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
instead of a Turner/Finley no-merit letter, which is the appropriate filing in
the PCRA context. See Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc). 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) (citation omitted).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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review of the record. On November 18, 2010, a jury found Appellant guilty of
possession with intent to deliver a controlled substance. The conviction stems
from Appellant’s selling of crack cocaine while police officers were conducting
surveillance and observed the transactions. On May 13, 2011, the trial court
sentenced Appellant to a term of not less than two and one-half nor more than
ten years’ incarceration, followed by five years of probation. Appellant did not
file a post-sentence motion or a direct appeal.
On October 13, 2011, Appellant filed a timely pro se PCRA petition.
Appointed counsel filed an amended petition on July 8, 2013. The PCRA court
dismissed the petition on March 17, 2015, and Appellant appealed that
decision to this Court. On March 2, 2016, a panel of this Court vacated the
PCRA court’s order in part, and remanded the case for an evidentiary hearing
to address Appellant’s claim that sentencing counsel was ineffective for failing
to file a requested direct appeal. (See Commonwealth v. Carpenter, 2016
WL 832149, at *3 (Pa. Super. filed Mar. 2, 2016) (unpublished memorandum),
appeal denied, 141 A.3d 478 (Pa. 2016)). Our Supreme Court denied further
review.
The PCRA court held a hearing on the matter on December 13, 2016, at
which Appellant and the privately retained attorney who represented him at
sentencing testified. At the conclusion of the hearing, the court denied
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Appellant’s PCRA petition. Appellant timely appealed.2 Counsel filed a motion
to withdraw from representation and an Anders brief on January 22, 2018.
Counsel petitioning to withdraw from PCRA representation
must proceed . . . under Turner, supra and Finley, supra 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 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.
Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citation
omitted).
Upon our review of counsel’s motion to withdraw and the appellate brief
submitted on Appellant’s behalf, we conclude that counsel has substantially
complied with the procedural requirements of Turner and Finley. Therefore,
____________________________________________
2 On February 23, 2017, in response to the PCRA court’s order to file a concise
statement of errors complained of on appeal, counsel filed a statement of
intent to file an Anders brief. See Pa.R.A.P. 1925(c)(4). The PCRA court did
not file an opinion. See Pa.R.A.P. 1925(a).
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we must proceed with our independent review of this case. See Walters,
supra at 591.
The Anders brief argues that the PCRA court’s decision to credit the
testimony of sentencing counsel relating to the direct appeal, instead of
Appellant’s testimony, lacks support in the record. (See Anders Brief, at 11-
12). We disagree.
Our standard of review of the denial of a PCRA petition is
limited to examining whether the record evidence supports the
court’s determination and whether the court’s decision is free of
legal error. This Court grants great deference to the findings of
the PCRA court if the record contains any support for those
findings. If the record supports a post-conviction court’s
credibility determination, it is binding on the appellate court. A
PCRA court’s legal conclusions, however, are reviewed de novo.
Commonwealth v. Moriarty, 180 A.3d 1279, 1284 (Pa. Super. 2018)
(citations omitted).
It is a “well-settled principle that [w]e will not disturb the findings of the
PCRA court if they are supported by the record, even where the record could
also support a contrary holding[.]” Commonwealth v. Keaton, 82 A.3d 419,
426 (Pa. 2013) (citation and internal quotation mark omitted).
Here, at the PCRA hearing, the court heard from both sentencing counsel
and Appellant regarding whether he requested a direct appeal. Appellant
averred that, in open court at sentencing, he “slammed [his] hands on the
desk and said ‘I want my appeal ASAP.’” (N.T. PCRA Hearing, 12/13/16, at
7; see id. at 11-13). Appellant further testified that counsel agreed to file an
appeal, and that Appellant and various family members and friends made
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phone calls to counsel’s office and sent him letters to follow up. (See id. at
7-10, 14-15). However, on cross-examination, Appellant conceded that the
notes of testimony from the sentencing hearing do not reflect his purported
outburst, and that he did not bring the letters allegedly sent to counsel to the
PCRA hearing. (See id. at 13-15).
Counsel explained that Appellant retained him only for representation
at sentencing, to assist in avoiding imposition of a mandatory minimum five-
year sentence. (See id. at 23-24). Counsel successfully did this, and
“[Appellant] was very satisfied . . . with the sentence.” (Id. at 26; see id. at
24). Counsel testified that he had no reason to think Appellant would want to
appeal, and that he would have asked the sentencing judge to appoint an
attorney if Appellant was dissatisfied with the sentence. (See id. at 25-26).
In rendering its decision, the PCRA court noted as significant that the
notes of testimony from the sentencing hearing support counsel’s version of
events, rather than Appellant’s. (See id. at 33-34). Specifically, after the
court imposed Appellant’s sentence, it expressly advised him that if he wished
to appeal, he “ha[d] to request to the [c]ourt to have a court-appointed lawyer
to do that for you.” (N.T. Sentencing, 5/13/11, at 29). After Appellant
averred that he understood this, sentencing counsel reinforced that if he
wanted to appeal, Appellant “ha[d] to ask the [c]ourt to appoint an
attorney[.]” (Id.). Appellant again stated that he understood his rights
pertaining to an appeal. (See id. at 29-30).
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Upon review, we conclude that the record fully supports the PCRA court’s
credibility determinations regarding Appellant’s satisfaction with his sentence
and his failure to request a direct appeal. Thus, we are bound by them, and
will not disturb its finding that Appellant is not entitled to PCRA relief. See
Keaton, supra at 426; Moriarty, supra at 1284. Accordingly, we affirm the
order of the PCRA court.
Petition to withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/18
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