J-S48032-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDWARD STREET,
Appellant No. 215 MDA 2017
Appeal from the PCRA Order January 11, 2017
in the Court of Common Pleas of Lancaster County
Criminal Division at Nos.: CP-36-CR-0000277-2014
CP-36-CR-0005848-2013
BEFORE: OTT, J., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 12, 2017
Appellant, Edward Street, appeals from the order denying his first
petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§
9541-9546. Counsel appointed to represent Appellant has filed a
Turner/Finley1 “no merit” letter with this Court, along with a petition for
leave to withdraw as counsel.2 We affirm the PCRA court’s denial of the
PCRA petition, and grant counsel’s petition to withdraw.
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*
Retired Senior Judge assigned to the Superior Court.
1
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
2
Neither Appellant nor the Commonwealth has filed a brief in this case.
Appellant has not responded to the petition to withdraw.
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We take the factual and procedural history from the PCRA court’s
January 11, 2017 opinion denying Appellant’s PCRA petition, and our
independent review of the certified record. (See PCRA Court Opinion and
Order, 1/11/17).
On November 5, 2013, [Appellant] knocked on the door of
41 E. Filbert Street, Lancaster City, Pennsylvania, and forced his
way into the residence when the door was opened. Once inside,
[Appellant] repeatedly struck Sandra Geibe in the head while
demanding money and her credit card. [Appellant] then entered
the bedroom of Robert Rineer, demanded more money, struck
Rineer in the head, and left Rineer unconscious. . . .
(Id. at 1) (record citations omitted). Appellant was arrested and charged at
Docket No. 5848-2013, with burglary, aggravated assault, and robbery.3
“Additionally, at Docket No. [277-2014], Appellant was charged with another
burglary[4] that occurred on November 6, 2013, when Appellant entered the
residence of Albert Honsher and Robert Wilson and took several items from
their residence without permission.” (Commonwealth v. Street, No. 2174
MDA 2014, unpublished memorandum, at *1 (Pa. Super. filed June 26,
2015)).
On August 14, 2014, Appellant entered counseled open guilty pleas at
both docket numbers. (See N.T. Guilty Plea Hearing, 8/14/14, at 2, 9). On
November 7, 2014, following completion of a pre-sentence investigation
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3
See 18 Pa.C.S.A. §§ 3502(a), 2702(a), and 3701(a), respectively.
4
See 18 Pa.C.S.A. § 3502(a).
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report (PSI), the trial court sentenced Appellant to an aggregate sentence of
not less than twenty nor more than sixty years of incarceration at Docket
No. 5848-2013, and a concurrent sentence of not less than three nor more
than twenty years of incarceration at Docket No. 277-2014. Appellant did
not request to withdraw his guilty plea either during the sentencing hearing,
or via post-sentence motion. On November 19, 2014, the trial court granted
Appellant’s request to file a post-sentence motion nunc pro tunc, and denied
his post-sentence motion to modify his sentence. (See Order, 11/19/14).
On June 26, 2015, this Court affirmed the judgment of sentence,
concluding that: the trial court did not abuse its discretion in imposing its
sentence, Appellant waived his challenge to the validity of his guilty plea,
and his claim of judicial misconduct was unsupported. (See Street, supra
at *9-12). This Court further concluded that Appellant’s issues were wholly
frivolous and granted counsel’s petition to withdraw. (See id. at *12).
Appellant did not petition our Supreme Court for allowance of appeal.
On June 1, 2016,5 Appellant filed a timely pro se PCRA petition. The
PCRA court appointed counsel, Dennis C. Dougherty, Esq., who filed an
amended petition on September 23, 2016, alleging plea counsel’s
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5
“[T]he prisoner mailbox rule provides that a pro se prisoner’s document is
deemed filed on the date he delivers it to prison authorities for mailing.”
Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011), appeal
denied, 46 A.3d 715 (Pa. 2012) (citation omitted). Appellant certified that
he placed his petition in the prison mailbox on June 1, 2016.
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ineffectiveness. The PCRA court conducted an evidentiary hearing on
December 15, 2016, and, on January 11, 2017, it issued an order and
opinion denying Appellant’s petition. (See PCRA Ct. Op., at 7-8). Appellant
timely appealed.
On February 6, 2017, counsel filed a statement of intent to file an
Anders/McClendon6 brief in lieu of a statement of errors complained of on
appeal.7 See Pa.R.A.P. 1925(c)(4). Counsel filed a Turner/Finley letter
and a petition to withdraw from further representation with this Court. This
Court entered an order on May 17, 2017, notifying Appellant that he was
permitted to file a response to counsel’s “no merit” letter either pro se or via
retained counsel within thirty days. (See Order, 5/17/17). Appellant has
not filed a response to counsel’s “no merit” letter. Preliminarily, we must
review whether counsel is entitled to withdraw.
. . . Turner/Finley counsel 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 the petitioner wants to have reviewed,
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6
See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185, 1188 (Pa. 1981).
7
It is well settled that “[c]ounsel petitioning to withdraw from PCRA
representation must proceed not under Anders but under Turner [supra]
and Finley, [supra].” Commonwealth v. Wrecks, 931 A.2d 717, 721
(Pa. Super. 2007). In this case, counsel later acknowledged this initial error
and proceeded pursuant to Turner/Finley. (See Turner/Finley Letter,
5/15/17, at 1, n.1).
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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 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.
Wrecks, supra at 721 (citations omitted).
Here, counsel identified the issue that Appellant wanted to have
reviewed, explained why and how it lacked merit, sent Appellant a copy of
his request for permission to withdraw and his Turner/Finley “no merit”
letter, and advised Appellant of his right to proceed pro se or retain other
counsel. We have determined that counsel has substantially complied with
the requirements of Turner/Finley. Accordingly, we will proceed with our
independent review of the merits of Appellant’s claims.
The Turner/Finley letter raises three questions for this Court’s
review:
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I. [Whether] counsel provided ineffective assistance undermining
the truth-determining process so that no reliable adjudication of
guilt or innocence could have taken place[?]
II. [Whether Appellant’s] guilty plea was lawfully induced[?]
III. [Whether Appellant’s] sentence was greater than the lawful
maximum[?]
(Turner/Finley Letter, at 2-3).
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. The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified record.
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations
omitted).
Appellant’s first two issues allege the ineffectiveness of plea counsel,
arguing that counsel was ineffective for advising him to plead guilty. (See
Turner/Finley Letter, at 2, 4-8; Pro Se Petition for Post Conviction Relief,
6/1/17, at 9-19). In his first issue, Appellant contends that counsel was
ineffective for advising him to plead guilty because counsel was aware of
possibly mitigating DNA evidence, (the pants Appellant was wearing at the
time of his arrest, which he argued should have been tested for the victims’
DNA), and failed to have it tested. (See Pro Se Petition for Post Conviction
Relief, at 3-4, 14-19). In his second issue, Appellant argues that counsel
misrepresented the sentence that he would receive. (See id. at 9-13).
These issues lack merit.
To prevail on a claim alleging counsel’s
ineffectiveness under the PCRA, Appellant must
demonstrate (1) that the underlying claim is of
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arguable merit; (2) that counsel’s course of conduct
was without a reasonable basis designed to
effectuate his client’s interest; and (3) that he was
prejudiced by counsel’s ineffectiveness, i.e. there is a
reasonable probability that but for the act or
omission in question the outcome of the proceeding
would have been different.
It is clear that a criminal defendant’s right to effective
counsel extends to the plea process, as well as during trial.
However, [a]llegations 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.
Wah, supra at 338-39 (citations and quotation marks omitted); see also
Commonwealth v. Hickman, 799 A.2d 136, 140–41 (Pa. Super. 2002).
In this case, the PCRA court conducted an evidentiary hearing, during
which it heard testimony from both Appellant and his trial counsel
concerning whether Appellant’s guilty plea was knowing, intelligent and
voluntary. On January 11, 2017, the court issued an order and opinion in
which it found that Appellant was aware that he was entering into an open
plea, the trial court conducted an adequate colloquy prior to Appellant
pleading guilty, and it advised him of the maximum sentence. (See PCRA
Ct. Op., at 7-8). The court found trial counsel’s testimony that he advised
Appellant of the maximum possible sentence, to be credible. (See id. at 10;
N.T. Hearing, 12/15/16, at 94). It found Appellant’s testimony that he did
not intend to plead guilty lacked credibility, (see N.T. Hearing, at 95), and
reasoned that it was directly refuted by Appellant reiterating that he
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understood his rights, was guilty of the crimes, and wished to plead guilty,
at both the plea and sentencing hearings. (See PCRA Ct. Op., at 10). The
court then concluded that Appellant failed to establish that his plea was
involuntary, thus his ineffectiveness claim lacked merit, and therefore denied
his petition. (See id. at 11).8
Upon review, we conclude the record supports the PCRA court’s
determination that Appellant did not enter an unknowing or involuntary plea.
Furthermore, given the victims’ identification of Appellant, counsel’s advice
to plead guilty without testing Appellant’s pants for the victims’ DNA was
“within the range of competence demanded of attorneys in criminal cases.”
Wah, supra at 338-39 (citation omitted). Appellant’s first two issues are
meritless.
In the third allegation of error, the Turner/Finley letter claims that
Appellant’s sentence was illegal. (See Turner/Finley Letter, at 8-10). This
issue does not merit relief.
A challenge to the legality of a sentence is a question of law for which
our standard of review is de novo and our scope of review is plenary. See
Commonwealth v. Wolfe, 106 A.3d 800, 802 (Pa. Super. 2014), affirmed,
140 A.3d 651 (Pa. 2016) (citation omitted). “If no statutory authorization
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8
The PCRA court also stated that even if the underlying claim was of
arguable merit, Appellant failed to establish that counsel did not have a
reasonable basis for his actions, or that he was prejudiced by those actions.
(See PCRA Ct. Op., at 11-12).
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exists for a particular sentence, that sentence is illegal and subject to
correction.” Commonwealth v. Watson, 945 A.2d 174, 178–79 (Pa.
Super. 2008). The maximum sentence for a felony of the first degree is not
more than twenty years of incarceration. See 18 Pa.C.S.A. § 1103(1).
“Generally, Pennsylvania law affords the sentencing court discretion to
impose its sentence concurrently or consecutively to other sentences being
imposed at the same time or to sentences already imposed.”
Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super. 2011) (quotation
marks and citation omitted).
Here, Appellant pleaded guilty to four felonies of the first degree.
(See N.T. Hearing, at 3-5). The sentences did not merge and the sentence
imposed on each count did not exceed the twenty-year maximum. (See
N.T. Sentencing, 11/07/14, at 14-15). The trial court’s decision to impose
the sentences at Docket No. 5348-2013 consecutive to each other and
concurrent to the sentence at Docket No. 277-2014 does not render the
sentences illegal. See Prisk, supra at 533. Therefore, Appellant’s third
issue is meritless.
The PCRA court properly found that Appellant’s claims of ineffective
assistance of trial counsel lack merit. See Wah, supra at 338-39.
Moreover, our independent review of the certified record does not reveal any
other meritorious issues. See Wrecks, supra at 721.
Order affirmed. Counsel’s petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/12/2017
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Com. v. Street, E.
Combined Opinion