J-S77034-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KEVIN SOETH, :
:
Appellant :
: No. 3937 EDA 2017
Appeal from the PCRA Order November 3, 2017
in the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0004140-2015
BEFORE: OTT, J., DUBOW, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 30, 2019
Kevin Soeth (Appellant) appeals from the order entered November 3,
2017, dismissing his petition filed under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. Counsel has filed a petition to withdraw
and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).1 Upon review,
1
In this Court, counsel filed an Anders brief seeking to withdraw as counsel
on appeal.
A Turner/Finley no-merit letter, however, is the appropriate
filing. See Commonwealth v. Turner, [544 A.2d 927 (Pa.
1988)]; Commonwealth v. Finley, [550 A.2d 213 (Pa. Super.
1988)] (en banc). Because 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.
Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004).
Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011).
* Retired Senior Judge assigned to the Superior Court.
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we grant counsel’s petition to withdraw and affirm the order of the PCRA
court.
On January 19, 2016, Appellant entered a negotiated guilty plea to one
count of terroristic threats. That same day, Appellant entered a negotiated
guilty plea at a separate docket number, CP-23-CR-0003945-2015 (docket
number 3945-2015), to one count of fleeing or attempting to elude an
officer. On February 2, 2016, Appellant was sentenced to nine to 23
months’ incarceration followed by three years’ probation, to run concurrently
with his sentence at docket number 3945-2015.2 Appellant did not appeal
his judgment of sentence.
On July 25, 2016, Appellant pro se filed a PCRA petition at the
aforesaid docket numbers, alleging his guilty pleas were entered
involuntarily due to ineffective assistance of counsel. The PCRA court
appointed counsel, who submitted a Turner/Finley “no merit” letter. On
September 1, 2017, the PCRA court issued a notice of its intent to dismiss
Appellant’s petition pursuant to Pa.R.Crim.P. 907. Appellant did not file a
response and on November 3, 2017, the PCRA court dismissed Appellant’s
petition but did not grant counsel’s request to withdraw. On December 1,
2017, Appellant, through counsel, filed two identical notices of appeal, one
at each of the aforementioned docket numbers. Likewise, on December 22,
2
Appellant received an identical sentence at docket number 3945-2015.
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2017, counsel filed two identical notices of intent to file an Anders brief
pursuant to Pa.R.A.P. 1925(c)(4).3,4
Before we may 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
3
In light of counsel’s statement of intent to file an Anders brief, the PCRA
court opted not to enter “any opinion on the merits.” PCRA Court Opinion,
8/17/2018, at 3.
4
The appeal at docket number 3945-2015 was docketed with this Court at
3934 EDA 2017 and on December 6, 2018, this Court issued an unpublished
memorandum affirming the order denying PCRA relief. See Commonwealth
v. Soeth, 2018 WL 6381168 (Pa. Super. December 6, 2018) (unpublished
memorandum).
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counsel that the claims are without merit, the court will permit
counsel to withdraw 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).
We are satisfied that counsel has complied with the technical
requirements of Turner and Finley. We now turn to the substantive issue
contained in counsel’s brief. In his brief, counsel states the following
question for this Court’s review: “Was [plea] counsel ineffective in that
[Appellant] did not receive good time credit in reference to the concurrent
sentences of nine [to 23] months that he received at” docket numbers 3945-
2015 and 4140-2015. Anders Brief at 4 (unnecessary capitalization
omitted). Specifically, in his PCRA petition and brief on appeal, Appellant
avers that but for counsel’s “faulty” advice concerning time credit, he would
not have entered his plea. PCRA Petition, 7/25/2016, at ¶ 13; Anders Brief
at 8. Because Appellant challenges the actions of plea counsel, we observe
the following.
“Allegations that counsel misadvised a criminal defendant in the plea
process are properly determined under the ineffectiveness of counsel
subsection of the PCRA [42 Pa.C.S. § 9543(a)(2)(ii),] not the [sub]section
specifically governing guilty pleas [42 Pa.C.S. § 9543(a)(2)(iii)].”
Commonwealth v. Lynch, 820 A.2d 728, 730 n.2 (Pa. Super. 2003).
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It is well-established that counsel is presumed to have
provided effective representation unless the PCRA
petitioner pleads and proves all of the following: (1) the
underlying legal claim is of arguable merit; (2) counsel’s
action or inaction lacked any objectively reasonable basis
designed to effectuate his client’s interest; and (3)
prejudice, to the effect that there was a reasonable
probability of a different outcome if not for counsel’s error.
The PCRA court may deny an ineffectiveness claim if the
petitioner’s evidence fails to meet a single one of these prongs.
Moreover, a PCRA petitioner bears the burden of demonstrating
counsel’s ineffectiveness.
Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)
(internal citations omitted).
Allegations 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.
Thus, 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. The reasonable probability test is not a stringent one; it
merely refers to a probability sufficient to undermine confidence
in the outcome.
Commonwealth v. Barndt, 74 A.3d 185, 192-93 (Pa. Super. 2013)
(citations and quotation marks omitted).
As noted supra, Appellant’s appeal at docket number 3945-2015,
which is identical in form and substance to the appeal in this case, was
affirmed by a panel of this Court in December 2018. See Soeth, supra.
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Therein, this Court determined that Appellant’s ineffective assistance of
counsel issue was without merit for the following reasons.
Here, [Appellant] was incarcerated between April 28, 2015
and May 28, 2015. The 30-day credit attributable to that period
of incarceration was applied to a Montgomery County case in
which he entered a guilty plea on September 2, 2015. See N.T.
Guilty Plea, 1/19/16, at 5. On the record at [Appellant’s] guilty
plea hearing, counsel for the Commonwealth stated the
following:
MR. DOHERTY: Okay, that being said, [at docket
number 3945-2015, Appellant] will be entering a
negotiated plea of guilty to Information Count # 1,
fleeing or [eluding], it’s a felony of the third degree
with a recommended sentence of 9 to 23 months,
followed by three years consecutive probation, there
is also a mandatory $500 fine. [Appellant’s] time
served is not to include the period of one month that
the [Appellant] pled guilty on a Montgomery County
case on September 2nd, 2015, that was – and he was
given credit for one month from April the 28th, 2015
to May 28th, 2015, so just so that is not going to
be double counted towards his credit on this
case or any other case.[5]
Later in the hearing, the trial court colloquied [Appellant] as
follows:
THE COURT: Do you have any questions now of your
attorney or this Court?
5
At Appellant’s sentencing hearing, the Commonwealth echoed these same
terms with respect to time credit applied to the docket number at issue in
this appeal: “And on [docket number 4140-2015], negotiated plea of guilty
to information count #1, terroristic threats, a misdemeanor of the first
degree, 9 to 23 months with three years consecutive probation, again, the
time served of April 28th to May 28th of 2015 not to count towards his time
served.” N.T., 2/2/2016, at 4 (unnecessary capitalization omitted).
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[APPELLANT]: Yeah, what was the – I didn't hear
what he said with [docket number 4140-2015] what
was that deal again?
MR. DOHERTY: It’s the same sentence.
[APPELLANT]: Okay.
THE COURT: Both are the same, both are the same
concurrent. Both sentences are the same and they
run concurrently, so they run at the same time.
[APPELLANT]: It’s just not going to count for that
one month?
THE COURT: Just that one month is not going to
count because you’ve already gotten credit for it
from Montgomery County.
[APPELLANT]: All right.
THE COURT: Right.
[APPELLANT]: Is there good time on the both of the
cases?
THE COURT: That’s up to the prison to determine
good time and you will, if you deserve good time,
they'll give it to you, but I don't determine good
time.
Based on the foregoing excerpts from the guilty plea hearing, it
is clear that [Appellant] was aware at the time he entered his
plea that he would not receive the 30-day credit for time served
on this case and that the correctional institution would determine
whether he was entitled to receive good time. “[A] defendant is
bound by the statements he makes during his plea colloquy, and
may not assert grounds for withdrawing the plea that contradict
statements made when he pled.” Commonwealth v. Kelly, 5
A.3d 370, 382 n.11 (Pa. Super. 2010). [Appellant’s] claim that
counsel misled him regarding time credit is belied by the record
in this matter. Rather, the record demonstrates that [Appellant]
entered a knowing, intelligent, and voluntary guilty plea.
Accordingly, his ineffectiveness claim must fail.
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Soeth, 2018 WL at *3 (emphasis added; unnecessary capitalization,
footnote and some citations omitted).
Upon our independent review, we agree with the learned panel of this
Court that Appellant’s sole claim on appeal is belied by the record. Prior to
accepting Appellant’s plea, the trial court engaged in a discussion, cited
supra, that directly discussed credit for time served and credit for good time.
Based on the foregoing, Appellant cannot now claim that he was unaware or
misinformed about these particular points of his sentence when entering his
plea. Accordingly, we affirm the order of the PCRA court denying his PCRA
petition and grant counsel’s petition to withdraw.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/19
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