Com. v. Dicks, W.

J-S15028-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
WILLIAM DICKS, :
: No. 774 EDA 2017
Appellant :

Appeal from the PCRA Order February 3, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001238-2008

BEFORE: STABILE, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.: FILED OCTOBER 24, 2018

Appellant William Dicks appeals from the Order entered by the

Philadelphia County Court of Common Pleas dismissing his Petition filed

pursuant to the Post-Conviction Relief Act, 42 Pa.C.S. §§ 9541-46 (“PCRA”).

After careful review, we affirm.

In August 2006, the Commonwealth charged Appellant with one count

of Rape and twelve related sexual offenses in connection with his abuse of his

then-girlfriend’s six-year-old daughter. On January 8, 2013, Appellant

entered a negotiated plea of nolo contendre to one count of Indecent Assault

of a Person Less than Thirteen Years Old, 18 Pa.C.S. § 3126(a)(7), and one

count of Corruption of Minors, 18 Pa.C.S. § 6301(a)(1). In exchange, the

Commonwealth nolle prossed the remaining eleven charges. The court

sentenced Appellant that same day to the negotiated term of two to four years’
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incarceration on the Indecent Assault charge, followed by a term of five years’

probation on the Corruption of Minors charge, and ordered that Appellant

receive credit for time served.1 Appellant did not file a post-sentence motion

or a direct appeal.

On August 5, 2013, Appellant filed a timely pro se PCRA Petition alleging

ineffective assistance of counsel, stating that counsel failed to investigate

adequately exculpatory DNA and alibi evidence, which ultimately caused

Appellant to enter an involuntary no-contest plea.2 He also contended that

he entered the nolo contendre plea because he thought that with credit for

time served, he would be released that day. The court appointed PCRA

counsel, who filed a Turner/Finley3 letter on May 24, 2016.

After the PCRA court issued a Pa.R.Crim.P. 907 Notice based on the

Turner/Finley letter, Appellant objected, disputing the adequacy of PCRA

counsel’s review of Appellant’s claims, and raising additional issues, i.e., (1)

plea counsel was ineffective for failing to file a post-sentence motion to

withdraw his plea and a direct appeal as requested; and (2) Appellant had not

received proper credit for time served. PCRA counsel responded to Appellant’s

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1The court indicated on its Order of Sentence that the credit for time served
was to be calculated by the prison system.

2The Commonwealth notes that trial counsel stated at the plea hearing,
“DNA testing was one” and “was inconclusive.” See Commonwealth’s Letter
Brief, dated 12/7/16, at 3 (citing N.T., 1/8/13, at 12-13).

3 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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objections, and subsequently filed an Amended Petition requesting a hearing

on Appellant’s claim that he had asked plea counsel to file a post-sentence

motion and a direct appeal, in addition to the ineffective assistance of plea

counsel issues pertaining to the DNA and alleged alibi evidence.

After several continuances, the PCRA court conducted an evidentiary

hearing on February 3, 2017, at which PCRA counsel represented Appellant.

Appellant appeared via video from prison. Plea counsel testified that Appellant

untimely requested that plea counsel try to withdraw the nolo contendre plea.

Counsel also testified that Appellant never requested that plea counsel file a

direct appeal. Further, plea counsel testified regarding Appellant’s claims

pertaining to the DNA evidence and Appellant’s alibi, noting that neither would

have been exculpatory if they had gone to trial.

Appellant testified that he had left a voicemail for plea counsel to

withdraw his plea and sent a letter. Appellant did not proffer a copy of the

letter.

Following the hearing, the PCRA court dismissed Appellant’s Amended

PCRA Petition, concluding that (1) Appellant failed to meet his burden of

proving that he had timely asked counsel to file a post-sentence motion to

withdraw his plea and a direct appeal; and (2) plea counsel had investigated

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the DNA and alibi evidence prior to Appellant’s entry of the nolo contendre

plea.4

Appellant timely appealed. Appellant and the trial court complied with

Pa.R.A.P. 1925. Appellant raised the following issue in his counseled Pa.R.A.P.

1925(b) Statement of Matters Complained of on Appeal:

[The trial c]ourt erred by denying [Appellant’s] Amended PCRA
Petition because the evidence adduced at the hearing on this
matter established that he timely and repeatedly asked his prior
counsel to withdraw his guilty plea and to otherwise pursue a
direct appeal if necessary.

Appellant’s Pa.R.A.P. 1925(b) Statement, filed May 27, 2017.

Appellant’s counsel subsequently filed a Turner/Finley letter brief and

a Petition to Withdraw with this Court. In response, Appellant filed a pro se

Brief, raising the following question for our consideration:

Whether [PCRA] counsel rendered ineffective assistance of
counsel during his respective tenure of representation for the filing
of a Turner/Finley “no-merit” brief during appellate proceedings?

Appellant’s Brief at 4 (unnecessary capitalization omitted; misspellings

corrected). Although the sole issue stated in Appellant’s Brief’s Statement of

Questions Involved is a challenge to the fact that appellate PCRA counsel filed

a Turner/Finley “no merit” brief with this Court, Appellant’s pro se Brief is

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4 The court also stated: “The bottom line I believe here to Mr. Dicks’ complaint
is that he didn’t get immediate parole, not that he didn’t understand the nature
of his no contest plea, or that he felt coerced in some way by [plea counsel].”
N.T. Hearing, 2/3/17, at 40.

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comprised of an amalgamation of boilerplate law and disjointed, summary

statements that essentially challenge the PCRA court’s failure to find that plea

counsel provided ineffective assistance.5

Before we address the potential merit of Appellant’s claims, we must

determine if counsel has complied with the technical requirements of Turner

and Finley.

Turner/Finley counsel 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 the 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.

If counsel fails to satisfy the foregoing technical prerequisites of
Turner/Finley, the court will not reach the merits of the
underlying claims but, rather, will merely deny counsel's request
to withdraw. Upon doing so, the court will then take appropriate
steps, such as directing counsel to file a proper Turner/Finley
request or an advocate's brief.

However, where counsel submits a petition and no-merit letter
that do 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
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5 Because Appellant complained about PCRA counsel’s assistance in response
to the PCRA court’s initial Rule 907 Notice, we will address Appellant’s
challenge to PCRA counsel’s stewardship generally raised in response to
counsel’s Turner-Finley letter brief filed in this Court. Commonwealth v.
Pitts, 981 A.2d 875, 879 n.3 (Pa. 2009).

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and deny relief. By contrast, if the claims appear to have merit,
the court will deny counsel's request and grant relief, or at least
instruct counsel to file an advocate's brief.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (citations

omitted).

Here, counsel indicated that he had reviewed the case, discussed the

issue about which the trial court granted a hearing, i.e., whether plea counsel

failed to file a post-sentence motion or an appeal, and explained why it lacked

merit. He also forwarded a copy of the Motion to Appellant and advised him

of his relevant rights. Accordingly, we are satisfied that counsel has

substantially complied with the technical requirements of Turner and Finley.

Thus, we will review the merits of the issue addressed in the Turner/Finley

letter, as well as the “arguments” raised by Appellant in his pro se Brief.

“On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court's findings are

supported by the record and without legal error.” Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). “[Our] scope of

review is limited to the findings of the PCRA court and the evidence of record,

viewed in the light most favorable to the prevailing party at the PCRA court

level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation

omitted). “The PCRA court's credibility determinations, when supported by

the record, are binding on this Court.” Commonwealth v. Spotz, 18 A.3d

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244, 259 (2011) (citation omitted). “However, this Court applies a de novo

standard of review to the PCRA court's legal conclusions.” Id.

The law presumes counsel has rendered effective assistance.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he

burden of demonstrating ineffectiveness rests on [A]ppellant.” Id. To satisfy

this burden, Appellant must plead and prove by a preponderance of the

evidence that: “(1) his underlying claim is of arguable merit; (2) the particular

course of conduct pursued by counsel did not have some reasonable basis

designed to effectuate his interests; and, (3) but for counsel’s ineffectiveness,

there is a reasonable probability that the outcome of the challenged

proceeding would have been different.” Commonwealth v. Fulton, 830

A.2d 567, 572 (Pa. 2003) (citation omitted). Failure to satisfy any prong of

the test will result in rejection of the appellant’s ineffective assistance of

counsel claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).

With respect to Appellant’s assertion that plea counsel provided

ineffective assistance by not filing a petition to withdraw his guilty plea or a

direct appeal, we note that the Honorable Susan I. Schulman, sitting as the

PCRA court, addresses this claim in a comprehensive, thorough, and well-

reasoned opinion, citing to the record and relevant case law. After careful

review of the parties’ arguments and the record, we conclude the record

supports the PCRA’s court’s determination. Discerning no abuse of discretion

or error of law, we adopt the reasoning and analysis of the PCRA court, and

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affirm its denial of relief. See PCRA Ct. Op, dated July 24, 2017, at 8-9

(concluding Appellant’s testimony was “unconvincing” and Appellant

presented no evidence that he requested a direct appeal; noting that

Appellant’s request to file a motion to withdraw his nolo contendre plea sent

to counsel was untimely; and finding counsel’s testimony that he would have

filed a motion to withdraw if he had received a timely request to be credible.).6

In his complaint of PCRA counsel’s assistance, Appellant’s sole argument

in his Brief is that PCRA counsel should have requested a continuance of the

hearing to give Appellant time to prepare to address the “new issues of fact

raised in [the] amended Counseled [PCRA] petition[.]” Appellant’s Brief at

16. Appellant bases this claim on an assertion that he was surprised by the

hearing date so he had not brought the letters showing he had asked plea

counsel to file a post-sentence motion and a direct appeal from his cell to the

video conference room. This claim merits no relief. Id. at 12.

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6 Appellant attempts to argue in his Brief that the PCRA court erred in
concluding that plea counsel provided effective assistance with respect to
investigating and considering DNA and alibi evidence. Our review of the
record supports the PCRA court’s determination. The PCRA court thoroughly
addressed the issue with citation to, and analysis of, relevant authority as
applied to the facts of the case. Accordingly, we adopt that reasoning as our
own. See PCRA Ct. Op., at 10-15 (observing, inter alia, that counsel
reasonably investigated the evidence, and concluding that Appellant was
“‘very aware’ of his potential alibi defense and the inconclusive DNA testing,
yet pleaded no contest and expressed satisfaction with his counsel despite
these potential defenses.” (quoting N.T. Plea, 1/8/13, at 19-20)).

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Our review of the docket indicates that after counsel initially filed his

Turner-Finley letter with the PCRA court, and the court filed its Rule 907

Notice on May 25, 2016, the court granted two continuances to Appellant—

one on July 13, 2016, and another on September 6, 2016—so that Appellant

could prepare to present the issue regarding plea counsel’s failure to seek

post-sentence relief or a direct appeal. See CCP Docket. Having found the

issue of whether plea counsel failed to file requested post-sentence documents

to have merit, PCRA counsel filed Appellant’s Amended PCRA Petition on

October 7, 2016. The court scheduled a hearing, but on December 9, 2016,

the court granted a joint request for a continuance so that the evidentiary

hearing could occur with Appellant’s attendance from prison via video. On

December 14, 2016, the court scheduled the video hearing. The hearing

occurred on February 3, 2017.

Thus, from the time Appellant first raised the issue until the video

hearing, Appellant had over nine months to prepare. We conclude that the

issue underlying his complaint about PCRA counsel’s failure to ask for a

continuance is without merit. Accordingly, we conclude Appellant’s ineffective

assistance of PCRA counsel claim warrants no relief.7

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7 Appellant’s Brief contains an attempt to challenge his sentence. See
Appellant’s Brief at 14. We conclude that this claim is waived because it is
undeveloped. See Pa.R.A.P. 2119 (regarding required content of developed
argument); Commonwealth v. Clayton, 816 A.2d 217, 221 (Pa. 2002) (“[I]t

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Order affirmed. Petition to Withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/24/18

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is a well settled principle of appellate jurisprudence that undeveloped claims
are waived and unreviewable on appeal.”).

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