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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES ALSTON :
:
Appellant : No. 3364 EDA 2018
Appeal from the PCRA Order Entered November 19, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002060-2015
BEFORE: OLSON, J., STABILE, J., and STRASSBURGER*, J.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 23, 2019
Appellant, James Alston, appeals from the November 19, 2018 order
denying his petition filed pursuant to the Post-Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546. In this appeal from the denial of PCRA relief,
Appellant’s court-appointed counsel filed an application to withdraw as counsel
and a no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927
(Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)
(en banc). As we conclude that counsel fulfilled the procedural requirements
of Turner/Finley, and this appeal is without merit, we grant counsel’s
petition to withdraw as counsel and affirm the PCRA court’s order denying
Appellant’s PCRA petition.
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* Retired Senior Judge assigned to the Superior Court.
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The facts, as established at Appellant’s guilty plea hearing, are as
follows:
On November 16, 2014, the victim, Alfonso Gonzalez, went to [a
home along Jasper Street in the City and County of Philadelphia
where Appellant’s son, James J. Alston, Jr., resided]. The victim
owed [Appellant’s] son money. When the victim [arrived],
[Appellant] answered the door, pulled the victim [inside] and
started to beat him by punching him all over his body. [Appellant]
went through the victim’s pockets, removed his wallet, and
threatened him by saying, “I’ll kill for my children.” [Appellant]
then left that location and came back with a firearm. During the
time [Appellant] was gone, [his co-defendant], [Appellant’s] son,
continued to beat the victim. After [Appellant] returned, he put
the gun in the victim’s face and again tried to demand money. At
one point, [Appellant] showed the victim that there were bullets
in the firearm. The victim was beaten with a bat. He was tazed
[sic] all over his body. When [Appellant returned,] three [sic]
other individuals who go by the names of Country, Cuz, Fats, and
Muslim, had come over to the residence and they also participated
in the beating.
N.T. Plea Hearing, 11/14/16, at 14-15, and 19.
On November 14, 2016, the trial court accepted Appellant’s open guilty
plea to aggravated assault - attempting or causing serious bodily injury (18
Pa.C.S.A. § 2702(a)(1)) and carrying a firearm on the public streets of
Philadelphia (18 Pa.C.S.A. § 6108). After receiving a presentence report and
mental health evaluation, the trial court, on March 2, 2017, imposed an
aggregate sentence of two and one-half to five years’ imprisonment followed
by ten years’ probation. Appellant filed a motion for reconsideration of his
sentence on March 13, 2017, which was denied by operation of law on July
11, 2017. Appellant never filed a direct appeal.
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Appellant filed a pro se PCRA petition on July 10, 2017.1 Appellant’s
petition alleged that trial counsel was ineffective in assuring Appellant that he
would be given credit for time served for the period he spent on house arrest,
failing to adequately investigate Appellant’s case, failing to seek
reconsideration of Appellant’s sentence and to file a notice of appeal despite
requests to do so, failing to object to the trial court’s deviation from the
sentencing guidelines, and failing to subject the Commonwealth’s case to
meaningful adversarial testing. Appellant’s PCRA Petition, 7/10/17, at 3. On
October 17, 2017, PCRA counsel filed a Turner/Finley letter asking to
withdraw since Appellant’s claims lacked merit. The PCRA court conducted a
hearing on November 19, 2018 and, thereafter, dismissed Appellant’s petition.
This timely appeal followed.
On appeal, Appellant’s court-appointed counsel again petitioned to
withdraw pursuant to Turner/Finley. Therefore, prior to addressing the
merits of the issues raised in counsel’s Turner/Finley letter, we must
____________________________________________
1Appellant’s pro se PCRA petition predated the denial (by operation of law) of
his motion for reconsideration of sentence. As such, the petition was filed
before Appellant’s judgment of sentence became final. Nevertheless, we
perceive no error in the PCRA court entertaining the petition since Appellant
never pursued a direct appeal. Compare Commonwealth v. Leslie, 757
A.2d 984 (Pa. Super. 2000) (PCRA court should have dismissed petition
without prejudice as premature given pendency of direct appeal).
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determine whether counsel met the procedural requirements necessary to
withdraw.
Counsel seeking to withdraw in PCRA proceedings:
must review the case zealously. Turner/Finley counsel
must then submit a “no-merit” letter to the PCRA 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 —
PCRA 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. Muzzy, 141 A.3d 509, 510–511 (Pa. Super. 2016)
(internal quotations, citations, and corrections omitted). In this case, counsel
fulfilled the procedural requirements for withdrawing as PCRA counsel and
Appellant has not responded to counsel’s efforts to withdraw. Therefore, we
must determine whether the claims raised in the petition lack merit. Upon
review, we conclude that the claims advanced in Appellant’s petition lack
merit. Therefore, we agree with counsel that, pursuant to Turner/Finley,
any claim on appeal is “without merit.”
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“This Court's standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error.” Commonwealth v.
Rizvi, 166 A.3d 344, 347 (Pa. Super. 2017). The PCRA court’s credibility
determinations are entitled to great deference and “we are bound by the PCRA
court's credibility determinations where there is record support for those
determinations.” Commonwealth v. Santiago, 855 A.2d 682, 694 (Pa.
2004).
In order to succeed on an ineffective assistance of counsel claim,
the petitioner must show: (1) that the claim is of arguable merit;
(2) that counsel had no reasonable strategic basis for his or her
action or inaction; and [](3) that, but for the errors and omissions
of counsel, there is a reasonable probability that the outcome of
the proceedings would have been different. In the context of a
guilty plea, an appellant must show that plea counsel's
ineffectiveness induced him to plea. If the appellant makes
such a showing, we deem his plea involuntarily made and will
permit its withdrawal.
Commonwealth v. Johnson, 875 A.2d 328, 331 (Pa. Super. 2005) (citations
omitted) (emphasis added). “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. Timchak, 69 A. 3d 765, 769 (Pa. Super. 2013).
Appellant’s petition raised four issues, which we address in turn. In his
first issue, Appellant claims that plea counsel wrongly assured him that he
would receive credit for time served against his minimum sentence
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(approximately one year, seven months, and 21 days) for the period he spent
on home confinement. At the November 19, 2018 PCRA hearing, counsel
denied telling Appellant that he would receive credit for home detention.
Appellant testified that he did not discuss the issue of time credit until after
the court imposed sentence. Although the PCRA court did not expressly
address this issue in its opinion, we infer from its dismissal of Appellant’s
petition that the court determined that Appellant’s plea was not induced by
counsel’s actions since he decided to plead guilty without any assurances
regarding credit for time served. Because Appellant cannot make the showing
required to establish his entitlement to relief, we conclude that there is no
merit to this claim.
In his second issue, Appellant claimed that his counsel failed to
investigate his case and was inadequately prepared for trial.2 At his plea
hearing, however, Appellant agreed to the Commonwealth’s recitation of the
facts and admitted that he assaulted the victim and possessed a firearm on
the public streets of Philadelphia. Appellant offers no factual support for a
claim of innocence and no evidence to buttress his contentions regarding
counsel’s alleged inadequate investigation and preparation for proceedings
before the trial court. Accordingly, this claim merits no relief.
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2 Appellant’s petition also leveled a claim that counsel failed to subject the
Commonwealth’s case to meaningful adversarial testing. We have merged
this claim into our discussion of the adequacy of counsel’s investigatory and
preparatory efforts.
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In his third issue, Appellant claims that trial counsel improperly failed to
seek reconsideration of his sentence and, furthermore, failed to file a direct
appeal, despite Appellant’s requests that counsel do so. Contrary to the first
aspect of Appellant’s claim, the record confirms that counsel filed a motion to
reconsider Appellant’s sentence on March 13, 2017 and that the motion was
denied by operation of law on July 11, 2017. As for Appellant’s direct appeal
claim, the record shows that Appellant and counsel offered divergent
testimony at the November 19, 2018 PCRA hearing. Appellant testified that
he asked counsel to file a direct appeal and counsel denied any such request.
To establish his entitlement to relief, Appellant needed to prove that he
requested an appeal and that counsel disregarded the request without
justification. See Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999).
We infer from the PCRA court’s denial of relief that it credited the testimony
of counsel and rejected that offered by Appellant. Because the PCRA court
found that no appeal was requested, no relief is due on this claim. Moreover,
we see no evidence in the record that triggered counsel’s independent duty to
consult with Appellant about the benefits and drawbacks of filing an appeal.
See Roe v. Flores-Ortega, 528 U.S. 470 (2000). As such, this claim also
fails.
Finally, Appellant claims that counsel was ineffective in failing to object
to the sentencing court’s deviation from the sentencing guidelines. In
developing this claim, Appellant’s pro se petition refers only to the guidelines
applicable to his firearms offense and overlooks the applicable guidelines for
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the offense of aggravated assault. The record reflects that Appellant’s
minimum sentence of two and one-half years was below the standard
guideline range for aggravated assault. As such, there is no merit to
Appellant’s claim that counsel was ineffective in failing to object to the court’s
application of the sentencing guidelines.
We agree with PCRA counsel that Appellant’s petition is devoid of
meritorious claims. Moreover, after conducting our own review, we find there
are no meritorious claims. As such, we affirm the dismissal of the petition and
grant counsel’s application to withdraw.
Order affirmed. Application to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/23/19
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