Com. v. MacColl, D.

J. S58015/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DENNIS JAY MACCOLL, : No. 278 MDA 2017
:
Appellant :

Appeal from the PCRA Order, January 11, 2017,
in the Court of Common Pleas of Lancaster County
Criminal Division at No. CP-36-CR-0002834-2013

BEFORE: GANTMAN, P.J., SHOGAN, J., AND FORD ELLIOTT, P.J.E.

JUDGMENT ORDER BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 13, 2017

Dennis Jay MacColl appeals, pro se, from the order of January 11,

2017, dismissing his PCRA1 petition without a hearing and allowing

appointed counsel to withdraw. We affirm.

The history of this case was set forth at length in the PCRA court’s

comprehensive March 17, 2017 opinion. (Docket #28.) To summarize,

appellant entered a negotiated guilty plea on July 10, 2013 to multiple

counts of simple assault and terroristic threats and received the agreed-upon

sentence of 6 to 23 months’ incarceration followed by 5 years of probation.

Appellant’s sentence was below the mitigated range of the guidelines.

Appellant did not take a direct appeal. On August 28, 2015, appellant

1 Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
J. S58015/17

appeared for a parole/probation violation hearing. Following the hearing,

parole and probation were revoked, and appellant was resentenced on

November 10, 2015 to 2½ to 5 years’ incarceration. Post-sentence motions

were denied, and appellant filed a timely appeal. On September 9, 2016,

this court affirmed the judgment of sentence. Commonwealth v. MacColl,

158 A.3d 173, 2016 WL 5886755 (Pa.Super. Sept. 9, 2016) (unpublished

memorandum).

A timely pro se PCRA petition was filed on November 7, 2016.

Counsel was appointed and filed a petition to withdraw and Turner/Finley2

“no-merit” letter addressing the issues raised in appellant’s petition. On

December 13, 2016, the PCRA court issued 20-day notice of intent to

dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907(a).

Appellant filed a pro se response on January 5, 2017; and on January 11,

2017, the PCRA court dismissed appellant’s petition and granted PCRA

counsel leave to withdraw. This timely appeal followed. Appellant complied

with Pa.R.A.P. 1925(b), and the PCRA court has filed a Rule 1925(a)

opinion.3

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

3The PCRA court ordered appellant to file a Rule 1925(b) statement within
21 days “of the date Defendant receives this Order.” (Docket #26.) The
Rule 1925 order was filed on February 3, 2017, and mailed to appellant at
SCI-Laurel Highlands via first-class mail and certified mail. (Id.) Appellant’s
Rule 1925(b) statement is dated Sunday, February 26, 2017 and bears a
postmark of Monday, February 27, 2017. (Docket #27.) Ordinarily,

-2-
J. S58015/17

Although the PCRA court erroneously concluded in its Rule 1925(a)

opinion that appellant’s PCRA petition was untimely filed, it nevertheless

addressed the issues appellant raised on the merits. We determine that the

merits review of the Honorable Donald R. Totaro’s 22-page Rule 1925(a)

opinion ably and comprehensively disposes of the matter, discussing each of

the issues raised in appellant’s PCRA petition and on appeal with appropriate

citation to relevant authority and without legal error. Therein, Judge Totaro

thoroughly explains why all of appellant’s issues are either waived,

previously litigated, or wholly meritless and no purpose would be served by

further proceedings. In addition, appellant has cited no authority for the

proposition that appointed PCRA counsel was required to interview him prior

to filing a withdrawal petition and Turner/Finley letter. We will affirm the

order dismissing appellant’s PCRA petition on the basis of the merits review

contained in Judge Totaro’s March 17, 2017 opinion.

appellant’s concise statement would be considered untimely because it was
not placed in the prison mail within 21 days of the PCRA court’s order.
Nevertheless, we will not find waiver since the PCRA court explicitly provided
that the Rule 1925(b) statement shall be filed within 21 days of the date
appellant “receives” the order, and presumably, it took at least 1-2 days for
the order to arrive at SCI-Highlands and be placed into appellant’s hands.

-3-
J. S58015/17

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/13/2017

-4-
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PA R.A.P. 1925 OPINION

BY TOTARO, J.

Before the Superior Court of Pennsylvania is an appeal from an order dismissing the pro

se Motion for Post Conviction Collateral Relief ("PCRA")filed by Dennis Jay MacColl

("Appellant"). On January 11, 2017, this court issued an order dismissing the PCRA motion

without a hearing and granting leave for Christopher P. Lyden, Esquire ("PCRA counsel") to

withdraw as counsel. On January 27, 2017, Appellant filed a Notice of Appeal. For the reasons

that follow, the appeal should be denied.

PROCEDURAL AND FACTUAL BACKGROUND

Appellant was charged with one count of simple assault and one count of terroristic

threats, at docket 2823-20i3, for an incident which allegedly occurredon May 18, 2013. See

Information.1 Appellant was additionally charged with one count of simple assault and two

counts of terroristic threats, at docket 2834-2013, for an incident which allegedly occurred on

May 25, 2013. See Information.

On July 10, 2013, Appellant tendered a negotiated guilty plea on both dockets.2 At 2823-

2013, Appellant admitted to striking Dorothy Coll ("Coll"), pulling her hair, throwing her to the

1
18 Pa.C.S.A. § 2701(a)(l) and 18 Pa.C.S.A. § 2706 (a)(l) respectively.
2
Appellant was represented by Michael E. McHale, Esquire ("trial counsel").
ground, threatening to kill her, and telling her that spending the rest of his life in jail would be

worth it if she died. (Notes of Testimony, Guilty Plea at 23-24) (hereinafter ''N. T.G.P. ").

Appellant was sentenced to serve 6 to 23 months in Lancaster County Prison ("LCP") on each

count, concurrent to one another. See Sentencing Order.

At 2834-2013, Appellant admitted pulling Coll from a chair and threatening to have her

and Victoria Burkhart ("Burkhart") killed if they called police. (N.T.G.P. at 24). Appellant was

placed on probation for two years on the charge of simple assault and five years of concurrent

probation on the two counts of terroristic threats.3 See Sentencing Order. This sentence was

made consecutive to the jail sentence imposed at 2823-2013. Id. Appellant did not appeal.

On August 28, 2015, Appellant appeared before the court with trial counsel for a parole

and probation violation (PV) hearing on the above-referenced dockets. Appellant stipulated to

some violations and a hearing was held on other alleged violations. (Notes of Testimony, PV

Hearing at 3-4) (hereinafter ''N.T.P.V."). Following the hearing Appellant was found in violation

of probation and parole on both informations, they were revoked, and sentencing was deferred

pending the completion of a Pre-Sentence Investigation ("PSI") Report. Id. at 59.

On November 10,2015, Appellant was sentenced to serve the unexpired balance of his

sentence at docket 2823-2013. (Notes of Testimony, PV Sentencing at 24) (hereinafter

"N.T.P.V.S."). At docket 2834-2013, Appellant received an aggregate sentence of 2'12 to 5 years

in jail on all counts. Id. at 24-25.

3
With a prior record score of "5," the recommended minimum sentence for each count on both
dockets was between 6-16 months incarceration. See Sentencing Guidelines Worksheet. The mitigated
range of the sentencing guidelines called for a minimum sentence of at least 3 months in jail on each
count. Id. Appellant also admitted to violating a Protection From Abuse order by going to Coll's
residence on a separate occasion, where he was found at the scene by police. (N.T.G.P. at 23).

2
 On November 20, 2015, trial counsel filed a post-sentence motion which was denied on

November 23, 2015. On December 10, 2015, Chad W. Zimmerman, Esquire, ("appellate

counsel"), an assistant public defender, filed a Notice of Appeal to the Superior Court of

Pennsylvania at docket 2834-2013 only, claiming the aggregate jail sentence of 2Yi to 5 years

was an abuse of discretion which showed a bias of the sentencingjudge. See Statement of Errors

Complained of on Appeal. On September 9, 2016, the Superior Court affirmed the judgment of

sentence. See Commonwealth v. MacColl, 2156 MDA 2015 (Pa. Super. September 9, 2016).

On November 7, 2016, Appellant filed a prose PCRA Motion alleging that trial counsel.

provided ineffective assistance of counsel by: (1) failing to seek dismissal of all charges when the

Commonwealth conceded there was no victim or witness to prosecute the case; (2) failing to

object when the court sentenced him to 2Yi to 5 years incarceration for his first probation

violation on two misdemeanor charges; (3) failing to review his case or provide a meaningful and

vigorous defense; (4) representing him on July 10, 2013, because counsel was recently

terminated from his employer for ethical violations; and (5) failing to ask the trial court to recuse

himself from the case for bias towards Appellant. · See PCRA Motion.

On November 10, 2016, the court appointed Christopher P. Lyden, Esquire, as PCRA

counsel. On November 18, 2016, after investigating Appellant's claims, PCRA counsel

submitted a no-merit letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)

and Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), with a copy to Appellant, expressing the

opinion that there were no meritorious issues to pursue on behalf of Appellant. Counsel

simultaneously filed a Motion to Withdraw as Counsel, complying with the requirements of

Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2006) (overruled on other grounds).

3
 In his Letter, PCRA counsel found the PCRA court did not have jurisdiction to review

Appellant's first claim because it was not timely filed and there were no timeliness exceptions.

See No-Merit Letter. Counsel noted the second and fifth issues were previously litigated on

direct appeal, while Appellant's fourth issue had no merit because trial counsel is duly licensed

to practice law in Pennsylvania. Id Finally, PCRA counsel dismissed the third issue by noting

that Appellant "simply made a conclusive accusation unsupported by any facts warranting relief."

Id PCRA counsel also conducted an independent review and found no meritorious claims. Id 4

Thereafter, this court conducted an independent review of the record, concluding on

December 13, 2016 that Appellant's PCRAmotion was patently frivolous, the allegations were

not supported by the record, and the court intended to dismiss the motion without a hearing. See

Rule 907 Notice. Pursuant to Pa.R.C.P. 907, Appellant was informed he had twenty days to file

a response and show good cause why his motion should not be dismissed. Id.

On December 29, 2016, Appellant submitted a written response opposing the dismissal of

his PCRA Motion. Because his response did not contain anything new for the court's

consideration that would result in a change to the findings as detailed in the Rule 907 Notice, the

court filed an order dismissing Appellant's PCRA motion. 5 See Order, 1 /11 /17.

4
. On November 28, 2016, in response to the no-merit letter and motion to withdraw as counsel,
Appellant submitted a letter to the court objecting to the conclusion of PCRA counsel that the petition
was untimely and requesting another attorney to file an amended petition on his behalf. See Letter.
5
Inhis response, Appellant alleged that PCRA counsel failed to comply with the requirements
of Finley because counsel never contacted him to discuss the petition before seeking to withdraw as
counsel. See Response. However, as the PCRA court noted in its order, Finley does not mandate that
counsel speak with a defendant. See Order, 1/11/17. Appellant further stated he wished to explain to
PCRA counsel the issues raised in his prose petition, specifically issues 1, 3, and 4. See Response.
However; the PCRA Court conducted an independent review of all issues raised in Appellant's PCRA
petition and found them to be untimely, previously litigated, or without merit. See Order, 1/11/17.

4
 On January 27, 2017, Appellant filed a prose Notice of Appeal to the Superior Court of

Pennsylvania. A Statement of Errors Complained of on Appeal ("Statement") was filed on

March 1, 2017, alleging the PCRA court erred by: (1) granting PCRA counsel's petition to

withdraw where counsel failed to discuss the PCRA petition with Appellant; (2) requiring

Appellant to respond prose to PCRA counsel's petition to withdraw; (3) "not exercising it's

inherent power to supervise the bar, where it failed to require appointed counsel to at a minimum

discuss the petition and underlying facts with petitioner;" and (4) allowing appointed counsel to

"abandon petitioner" by withdrawing without fully investigating the PCRA petition, thus

effectively denying petitioner his constitutional right to counsel. See Statement.

This opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate

Procedure.

DISCUSSION

Before addressing the specific issues raised by Appellant in his Statement, the court will

first address the allegations made by Appellant in his PCRA motion.

To obtain relief under the PCRA, a petitioner must plead and prove by a preponderance

of the evidence that: ( 1) he has been convicted of a crime under the laws of this Commonwealth

and is currently serving a sentence of imprisonment, probation, or parole for that crime; (2) the

conviction resulted from one or more of the statutorily enumerated errors; (3) the allegation of

error has not been previously litigated or waived; and (4) the failure to litigate the issue prior to

or during trial or on direct appeal could not have been the result of any rational, strategic or

tactical decision by counsel. 42 Pa.C.S.A. § 9543. Ineffective assistance of counsel is a

statutorily enumerated error under the PCRA. 42 Pa.C.S.A. § 9543(a)(2)(ii).

5
 Appellant's first claim of ineffective assistance of counsel involves the failure by trial

counsel to timely motion the court for dismissal of all charges when the Commonwealth

allegedly conceded there was no victim or witness to prosecute the case. See PCRA Motion.

Appellant's claim in this regard is governed by 42 Pa.C.S.A. § 9545(b), which provides:

(b) Time for filing petition.-

(1) Any petition under this subchapter, including a second or subsequent petition,
shall be filed within one year of the date the judgment becomes final, unless the
petition alleges and the petitioner proves that:

(i) the failure to raise the claim previously was the result of interference by
government officials with the presentation of the claim in violation of the
Constitution or laws of this Commonwealth or the Constitution or laws of the
United States;

(ii) the facts upon which the claim is predicated were unknown to the
petitioner and could · not have been ascertained by the exercise of due
diligence; or

(iii) the right asserted is a constitutional right that was recognized by the ·
Supreme Court of the United States or the Supreme Court of Pennsylvania
after the time period provided in this section and has been held by that court
to apply retroactively.

(2) Any petition invoking an exception provided in paragraph(l) shall be filed within
60 days of the date the claim could have been presented ....

42 Pa.C.S.A. § 9545(b).

A defendant must file a PCRA motion within one year of the date judgment of sentence

becomes final unless one of the exceptions listed in 42 Pa.C.S.A. § 9545(b)(l)(i-iii) applies.

Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002). The time limit requirements

are mandatory and jurisdictional in nature, and the court may not disregard them to reach the

merits. Id Thus, if a ''PCRA petition is untimely, neither [the Superior] Court nor the trial court

6
has jurisdiction over the petition. Without jurisdiction, [there is simply no] legal authority to

address the substantive claims." Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super. 2014)

(quoting Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010)) (internal quotation marks

omitted). There is no generalized equitable exception to the one-year jurisdictional time bar

pertaining to post-conviction petitions. Commonwealth v. Brown, 943 A.2d 264, 267 (Pa. 2008).

Appellant pleaded guilty and was sentenced on July 10, 2013. Because he did not file an

appeal following his guilty plea and sentencing, judgment of sentence became final at the

expiration of the 30-day time limit for seeking direct review in the Pennsylvania Superior Court,

or on August 9, 2013. See 42 Pa.C.S.A. § 9545(b)(3). Appellant did not file his prose PCRA

motion until November 7, 2016, well beyond the one-year deadline of August 9, 2014.

Since Appellant did not file his petition within one year of the time judgment of sentence

became final, this issue is untimely unless one of the exceptions of 42 Pa.C.S.A. § 9545(b)(l)

applies. Commonwealth v. Kretchmar, 971 A.2d 1249, 1251 (Pa. Super. 2009) (citing

Commonwealth v. Murray, 753 A.2d 201 (Pa. 2000)). Those exceptions are.interference by

government officials, after-discovered evidence, or recently-recognized constitutional rights to be

applied retroactively. Commonwealth v. Baldwin, 789 A.2d 728, 730 (Pa. Super. 2001).

Appellant has the burden to plead and prove that one of these exceptions to the one-year time

requirement applies. Commonwealth v. Bronshtein, 752 A.2d 868, 871 (Pa. 2000).

In this case, Appellant has failed to establish that he was unable to meet the August 9,

2014 deadline for filing the PCRA motion due to any exception. In fact, Appellant wrote in his

original PCRA motion that there were no issues of after discovered evidence, "no issues dealing

with retroactivity," and no issues of governmental interference which precluded him from

7
 making a timely claim. See PCRA Motion. Therefore, because Appellant failed to meet his

burden, PCRA counsel and the PCRA court properly concluded the issue was not timely raised,

there were no exceptions, and the court did not have jurisdiction to review this claim.

Assuming, arguendo, the motion is timely, Appellant is mistaken in asserting the

Commonwealth "readily conceded" there was no competent or credible witness/victim to legally

prosecute the case. At the time of the guilty plea, victim Coll was present in the courtroom.

(N.T.G.P. at 5, 7). Although she did not want to testify against Appellant, she did testify against

him at the preliminary hearing and there was no indication she would not do so at trial if

necessary. Id at 5-7, 10-11. Moreover, Burkhart was a victim/witness to the charges at this

docket, and she was very willing to testify. Id at 11-12. Thus, as will be discussed infra, there

was no arguable merit to this underlying claim to support ineffective assistance of counsel.

In his fourth PCRA claim, Appellant also alleges trial counsel provided ineffective

assistance of counsel at his guilty plea hearing on July 10, 2013, because counsel was recently

terminated from his ,employer for an alleged "plethora of ethical violations .... " See PCRA

motion. Once again, for the reasons previously stated, this claim is untimely.

To the extent Appellant is alleging an exception based on newly-discovered evidence, the

Supreme Court of Pennsylvania has held that a motion for a new trial based on after-discovered

evidence must at the very least describe the evidence that will be presented. Commonwealth v.

Castro, 93 A.3d 818, 827 (Pa. 2014 ). Simply relying on conclusory accusations is insufficient to

warrant a hearing. Id. An evidentiary hearing is not meant to function as a fishing expedition for

any possible evidence that may support some speculative claim. Commonwealth v. Griffin, 137

A.3d 605, 610 (Pa. Super. 2016).

8
 As such, Appellant had the burden of pleading the existence of recent ethical violations

against trial counsel, and how they would have effected counsel's representation of him during a

v
guilty plea hearing held more than three years ago. In his motion, Appellant offers nothing more

than bald allegations. In response, PCRA counsel noted that trial counsel is currently licensed to

practice law in Pennsylvania. See No-Merit Letter. Thus, Appellant's claim must fail.

In his second and fifth PCRA claims, Appellant alleges trial counsel rendered ineffective

assistance of counsel by failing to ask the trial court to recuse himself from the PV hearing for

alleged bias towards Appellant, and for failing to object when the court sentenced Appellant to

2Yi to 5 years incarceration. See PCRA Motion.

To be eligible for PCRA relief, a petitioner must plead and prove by a preponderance of

the evidence that "the allegation of error has not been previously litigated or waived." 42 Pa.

C.S.A. § 9543(a)(3). An issue has been previously litigated if "the highest appellate court in

which the petitioner could have had review as a matter of right has ruled on the merits of the

issue[.]" 42 Pa. C.S.A. § 9544(a)(2).

In the present case, Appellant's· claims in this regard were previously litigated on direct

appeal, and on September 9, 2016, the Superior Court of Pennsylvania rejected those claims.

MacColl, supra, No. 2156 MDA 2015. Therefore, because these matters were previously

litigated, Appellant is not entitled to further relief.

In his third PCRA claim, Appellant alleges trial counsel provided ineffective assistance

by failing to review his case or provide a meaningful and vigorous defense/representation. See

PCRA motion. If Appellant is referring to trial counsel's conduct prior to or during the guilty

plea of July 10, 2013, his claim is untimely for the reasons previously stated.

9
 Assuming, arguendo, Appellant's claim is in reference to the guilty plea and it is deemed

timely, the court will address his allegation on the merits. To succeed on a claim of ineffective

assistance of counsel, a petitioner must specifically plead and prove facts sufficient to support a

claim. See Commonwealth v. Colavita, 993 A.2d 874, 894 (Pa. 2010). Abstract allegations will

not be considered. Id. at 895. Because Appellant has simply made a conclusory accusation

unsupported by any facts, relief is not warranted.

Moreover, to prevail on a claim of ineffective assistance of counsel, a petitioner must

show that "(1) the 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

proceedings would have been different." Commonwealth v. Lambert, 797 A.2d 232, 243 (Pa.

2001); see also Strickland v. Washington, 466 U.S. 668 (1984). Failure to address any prong will

.defeat an ineffectiveness claim. Commonwealth v. Walker, 36 A.3d 1, 7 (Pa. 2011).

When determining whether counsel's conduct had a reasonable basis for effectuating their

interest, a petitioner must establish by a preponderance of the evidence that counsel did not act in

their best interests. See Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009). A

petitioner must also establish resulting prejudice or the claim will fail. Commonwealth v. Miller,

987 A.2d 638, 648-49 (Pa. 2009). A petitioner must demonstrate that no reliable adjudication of

guilt or innocence could have occurred because ineffective assistance of counsel so undermined

the truth-determining process. Commonwealth v. Whitney, 708 A.2d 471, 476 (Pa. ·1998).

"Counsel is presumed effective, and [Appellant] bears the burden of proving otherwise."

Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014) (quoting Steele, 961 A.2d at 796) (internal

10
quotation marks omitted). Counsel is given broad discretion in determining trial tactics and

strategy. Commonwealth v. Fowler, 703 A.2d 1027; 1029 (Pa. 1997). The applicable test is not

whether alternative strategies were more reasonable employing a hindsight evaluation of the

record, but whether counsel's decision had any reasonable basis to advance the interests of a

petitioner. Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015).

The mere fact that a petitioner tenders a guilty plea does not preclude relief. Section

9543(a)(2)(ii) of the PCRA encompasses all constitutionally cognizable claims of relief.

Commonwealth ex rel. Dadario v. Goldberg, 773 A.2d 126, 131 (Pa. 2001) (claims relating to

the guilty plea process are cognizable under the PCRA). A claim of ineffective assistance of

counsel in relation to a guilty plea provides a basis for relief if a defendant can prove that the

ineffective assistance caused an involuntary or unknowing plea. Commonwealth v.

D 'Collanfield, 805 A.2d 1244; 1246-4 7 (Pa. Super. 2002). In determining whether a plea has

been voluntarily entered, an examination of the totality of the circumstances is warranted:

Commonwealth v. Allen, 732 A.2d 582, 588-89 (Pa. 1999).

Where a 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. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002)

(internal quotation marks omitted). To succeed in showing prejudice, the defendant must show it

is reasonably probable that, but for counsel's errors, he would not have pleaded guilty and would

have gone to trial. Id In determining whether a plea has been voluntarily entered, the oral and

written plea colloquy and off-the-record communications between a defendant and trial counsel

are to be considered. Allen, 732 A.2d at 588-89.

11
 During a guilty plea, the court"must conduct an inquiry with a defendant on the record

which addresses the following: (1) does the defendant understand the nature of the charges; (2) is

there a factual basis for the plea; (3) does the defendant understand his right to a jury trial; (4)

does the defendant understand he is presumed innocent until proven guilty; (5) is the defendant

aware of the permissible range of sentences; and (6) is the defendant aware the judge is not

bound by the terms of any plea agreement. Commonwealth v. Muhammad, 794 A.2d 378, 3 83

(Pa. Super. 2002); Commonwealth v. Hallock, 722 A.2d 180, 182 (Pa. Super. 1998); Pa. R. Crim.

P. 590 Cmt. The express purpose for conducting this colloquy is to ensure the defendant

understands the nature of the charges to which he is pleading and the rights he is-waiving.

Commonwealth v. Carter, 656 A.2d 463, 465 (Pa. 1995).

The questioning of a defendant may be conducted by the judge, an attorney for either

party, or by written colloquy. Commonwealth v. Harris, 589 A.2d 264, 265 (Pa. Super. 1991). If

a written colloquy is used it must be completed and signed by the defendant and made part of the

record. Id The colloquy must also be supplemented by some oral explanation. Id.

A defendant has the duty to truthfully answer all questions at the time of the guilty plea.

Commonwealth v. Vesay, 464 A.2d 1363, 1368 (Pa. Super. 1983). Consistent with this principle,

defendants are bound by the statements they make during their plea colloquy and may not assert

grounds for withdrawing the plea that contradict statements made when they pleaded guilty.

Commonwealth v. Stork, 737 A.2d 789, 790-91 (Pa. Super. 1999).

After careful review of the record, there is no evidence to suggest that trial counsel

provided ineffective assistance of counsel prior to or at the time of the guilty plea. During the

guilty plea hearing Appellant acknowledged he signed guilty plea slips and a plea agreement

12
form which listed the charges and agreed-upon sentence. (N.T.G.P. at 16-17). Appellant stated

he reviewed the forms with his attorney and understood the terms of the guilty plea. Id. The

court confirmed with Appellant that he reviewed with his attorney all of the rights listed on a

seven-page guilty plea colloquy, he understood those rights, and he signed the form. Id. at 13-

14.6 The court then reviewed some of those rights with Appellant, who stated he understood. Id

at 14-15. The court reviewed with Appellant the recommended minimum sentences contained in

the sentencing guidelines worksheet and the potential maximum sentences. Id at 17-18, 21.

The court reviewed with Appellant the elements of the crimes for which he was pleading

guilty, and Appellant stated he understood. (N.T.G.P. at 20-21). Following the prosecutor's

recitation of the facts Appellant admitted to committing these crimes. Id at 23-24. Appellant

stated it was his decision to plead guilty, he made this decision of his own free will, and he was

not forced or threatened to plead guilty. Id. at 14-15.

As noted, a defendant has the duty to truthfully answer all questions at the time of the

guilty plea, they are bound by the statements they make during the plea, and they may not assert

grounds for withdrawing the plea that contradict statements made when they pleaded guilty. In

the present case, because Appellant acknowledged committing the crimes, he is bound by his

admissions and rnay not assert grounds for withdrawing a plea which contradict that admission.·

6
Appellant signed the Guilty Plea Colloquy and Post-Sentence Rights form acknowledging he
understood he did not have to plead guilty, he had the right to a trial by jury, he understood that at trial
the Commonwealth would be required to prove his guilt beyond a reasonable doubt, he reviewed the
sentencing guidelines and maximum sentences he was facing with his attorney, he was giving up the right
to a jury trial by pleading guilty, he was entering into a negotiated plea agreement with the District
Attorney, he understood the terms of the plea agreement, it was his decision to plead guilty, he was not
threatened or forced to plead guilty, he was making this decision of his own free will, he understood his
guilty plea would have the same effect as a conviction by judge or jury, and he had sufficient time to
review this information with his attorney before pleading guilty. See Colloquy.

13
 Appellant must also show the course of conduct pursued by trial counsel did not have

some reasonable basis designed to effectuate his interests in order to establish ineffective

assistance of counsel. Presently, trial counsel negotiated a sentence where Appellant, with an

extensive prior criminal record, received a sentence below the mitigated range of sentencing

guidelines in a case where he physically assaulted and threatened to kill his victims. Rather than

face jail following an open guilty plea or conviction at trial, including the potential for state

prison within the standard range of the sentencing guidelines, Appellant was placed on probation

for all three counts at 2834-2013. The court was reluctant to accept the guilty plea because of the

lenient sentence, advising Appellant a state prison sentence was appropriate. (N.T.G.P. at 6).

The court only accepted the plea after warning Appellant that if he returned for a probation

violation he could receive a prison sentence of up to five years in jail. Id at 12, 19-20, 22, 27.

Thus, trial counsel's course of conduct had a reasonable basis designed to effectuate Appellant's

interest and was within the range of competence demanded of attorneys in criminal cases.

Additionally, Appellant must show there is a reasonable probability the outcome of the

proceedings would have been different but for counsel's ineffectiveness. Appellant has failed in

this regard as well. While Appellant asserts there were no witnesses to legally prosecute the .

case, the record establishes that Coll testified against Appellant at the preliminary hearing, she

was present in court for the guilty plea, and there was no indication she would not do so at trial if

necessary. Moreover, an independent witness (Burkhart) was more than willing to testify against

Appellant. Based on the foregoing, there is no reasonable probability the outcome would have

been different if Appellant had proceeded to trial rather than plead guilty, and for these reasons

Appellant's claim of ineffective assistance of counsel as it may relate. to his guilty plea must fail.

14
 If Appellant's claim is in reference to the PV proceedings, it would be timely. However,
. .
Appellant is not entitled to relief because he has failed to specifically plead and prove facts

sufficientto support a claim. Colavita, 993 A.2d at 894. Assuming, arguendo, there is sufficient

specificity, the record discloses that trial counsel clearly provided a meaningful and vigorous

defense. While Appellant stipulated to certain clear violations, counsel requested a hearing to

contest other alleged violations. (N.T.P.V. at 3-4, 7-8). Counsel then questioned the probation

officer and Appellant in an attempt to refute the allegations, suggesting Appellant missed certain

appointments due to his work schedule or for health reasons. Id at 11-25, 30-40, 46-47, 53-55.

Counsel also provided argument as to why Appellant should not be found in violation of certain

allegations. Id at 55-57. From counsel's questions and argument it was clear he was very

prepared and did in fact present a vigorous defense to the allegations. Id. at 11-25, 30.

At the conclusion of the hearing the court found that Appellant was in violation of his

probation for failing to report for drug testing on several occasions, traveling more than 30 miles

from his place of residence without permission, using cocaine on at least three occasions, using a

chemical agent with the intent to adulterate a urine sample, and failing. to report to several

appointments with his probation officer. (N.T.P.V. at 37-38, 50-51, 57-59). This finding was

based on Appellant's own admissions and on his lack of credibility when claiming he used a

chemical agent for· a purpose other than to adulterate a drug test.' lei. While Appellant blames

counsel for the outcome, his own admissions were the basis for the violation.

7
According to the probation officer, Appellant signed a form admitting to the use of a chemical
adulterant in an attempt to pass his drug test. (N.T .P.V. at 9-11). Appellant testified at the hearing and
denied using a chemical for that purpose, stating he was only joking. Id. at 37-38. The court did not find
Appellant to be credible. Id. at 58.

15
 Counsel also provided meaningful and vigorous representation of Appellant at the PV

sentencing held on November 10, 2015, producing certificates Appellant received while in

prison, citing Appellant's background, and raising health concerns. (N.T.P.V.S. at 4). While

recognizing that Appellant was previously warned of the potential for a state prison sentence if

he violate_d probation or parole, counsel nevertheless argued for a lesser sentence because the

underlying violations were technical in nature, this was Appellant's first violation in the present

case," and Appellant should be given credit for staying out of trouble for 1 Y:z years. Id. at 6, 10.

Moreover, counsel identified applicable sentencing code provisions and presented them

in a light most favorable to Appellant, noting that Appellant had completed some conditions of

his original sentence including a domestic violence evaluation, drug and alcohol counseling,

payment of fines and costs, full-time employment, and completion of the Promoting Responsible

Fatherhood and Beginning in the Right Direction programs. (N.T.P.V.S. at 6-11). Counsel also

provided case law to support his argument that incarceration was not warranted, while presenting

testimony from the assault victim in this case who was requesting leniency. Id. at 12-14.

It is clear from the record that Appellant's underlying claim as it may relate to the PV

hearing is not of arguable merit, the course of conduct pursued by counsel did have a reasonable

basis designed to effectuate Appellant's interests, and there is no reasonable probability the

8
outcome of the proceeding would have been different but for the actions of counsel. As

8 At sentencing the court considered the numerous unsuccessful attempts at inpatient treatment,
the gravity of the original offenses where Appellant physically assaulted and/or threatened to kill his
victims, five prior violations while on court supervision, repeated present violations over an extended
period of time while on non-custodial status, extensive prior record which included eight separate crimes
of violence, the original negotiated sentence was below the mitigated range of the sentencing guidelines,
Appellant was warned of a state prison sentence ifhe violated, and Appellant has not made any effort to
change his lifestyle or show he is amenable to treatment or rehabilitation. (N.T.P.V.S. at 14-22).

16
Appellant himself stated following counsel's presentation, "I wasn't taking my probation

seriously." (N.T.P.V.S. at 15).

For the reasons stated herein, Appellant's PCRA claims were untimely, previously

litigated, or frivolous. Nevertheless, Appellant asserts in his Statement on appeal that the PCRA

court erred by failing to require appointed counsel to at a minimum discuss the petition and

underlying facts with petitioner, and by granting PCRA counsel's petition to withdraw where

counsel did not discuss the PCRA petition with Appellant See Statement.

· When PCRA counsel determines issues raised in a prose PCRA motionare meritless and

the court agrees, counsel will be permitted to withdraw and the petitioner may proceed on his

own or with private counsel. Commonwealthv. Finley, 550 A.2d 213, 215 (Pa. Super. 1988).

The steps required of counsel before withdrawing are to provide a no-merit letter detailing the

nature and extent of his review, list eachissue the petitioner wished to have reviewed, and

explain why the issues are meritless. Id.; Commonwealth v. Turner, 544 A.2d 927, 928 (Pa.

1988). The PCRA court must then conduct its own independent review of the record andagree

with counsel that the petition is meritless. Finley, 550 A.2d at 215. The independent review

necessary to assure a withdrawal request by PCRA counsel requires proof to the PCRA court of

the above steps required of counsel. Id.

Meaningful participation of counsel is required. Commonwealthv. Karanicolas, 836

A.2d 940, 946 (Pa. Super. 2003). Where the record fails to demonstrate meaningful participation

by counsel appointed to represent an indigent petitioner filing his first PCRA petition, the

Superior Court will remand for appointment of new counsel. Commonwealthv. Perez, 799 A.2d

848, 852 (Pa. Super. 2002). However, neither Finley nor Turner state that counsel is required to

17
discuss the petition with a petitioner before withdrawing from a frivolous appeal, as suggested by

Appellant. Moreover, in Commonwealth v. Torres, 630 A.2d 1250 (Pa. Super. 1993), the

Superior Court found that an interview of the appellant by counsel is not required in a case

involving-a direct appeal. Id at 1255. Tue Superior Court stated as follows:

It is this determination of frivolousness which is essential under Anders, and not an
interview which may aid in making it. An interview is unnecessary in most instances,
and we find no justification in making one an additional Anders requirement. What
is essential to making a determination of frivolousness and fulfilling the duty under
Anders to advise the defendant adequately of counsel's actions and his rights is
communication with defendant by providing a copy of the Anders brief, the motion
to withdraw and a letter explaining counsel's actions and the defendant's alternative
recourses. Prior communication may or may not be necessary for counsel to fulfill
adequately his responsibility, depending on the circumstances of the particular case.

Id. at 1252. As such, the Superior Court declined to propose a per se requirement that counsel

interview or communicate with appellant prior to issuing a no-merit letter. Id at 1253 .9

Torres involved a direct appeal, and the requirements for withdrawal by appellate counsel

in such cases are found in Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981 )°,

and its federal precursor, Anders v. California, 386 U.S. 738 (1967).10 Nevertheless, the

Pennsylvania Supreme Court has noted that the Finley/Turner procedures for withdrawal of

9
In Commonwealth v. Fischetti, 669 A.2d 399 (Pa. Super 1995), where counsel provided no
indication that he interviewed appellant with regard to the direct appeal and the appellant argued this
constituted a deficiency in counsel's representation entitling him to new counsel, the Superior Court
disagreed. Id. at 400 n.l.
10
In McClen_don, the Pennsylvania Supreme Court found it "apparent [based on Anders] that the
right to withdraw is in the first instance tied to a finding, after a conscientious review of the record, that
the appeal is 'wholly frivolous."' Torres, 630 A.2d at 1251 ( citing McClendon, 434 A.2d at 1187).
McClendon imposed the Anders requirements that counsel notify appellant of his request to withdraw,
furnish appellant with a copy of the brief prepared by counsel, and advise appellant of his right to retain
new counsel or raise any points that he may deem worthy of consideration. Id. It then becomes the
responsibility of the reviewing court to make a full examination of the proceedings and make an·
independentj udgment to decide whether the appeal is in fact wholly frivolous. Id.

18
counsel in cases on collateral review are less cumbersome than those set forth in

Anders/Mctllendon. Turner, 544 A.2d at 927. In Turner, the Supreme Court stated "[i]nasmuch

as the United States Supreme Court decided in Pennsylvania v. Finley, supra, that the federal

constitutional considerations underlying the tortuous procedures of Anders do not apply under the

[PCRA ], we deem these less rigid requirements for withdrawal of counsel to satisfy Pennsylvania

law in collateral attacks on criminal convictions." Turner, 544 A.2d at 929.11

Consequently, if a lawyer is not required to speak with their client under the more

stringent Anders requirement, then it follows that a lawyer is not required to speak with their

client under Turner/Finley. As such, there was no per se requirement that PCRA counsel discuss

the petition with Appellant, the PCRA court was not required to mandate that appointed counsel

at a minimum discuss the petition with Appellant, and the PCRA court properly granted PCRA

counsel's petition to withdraw where the court conducted an extensive independent review of the

record before determining the petition was :frivolous.

Appellant further asserts in his Statement that the PCRA court erred by requiring him to

respond pro se to PCRA counsel's petition to withdraw. See Statement. However, Pa.R.Crim.P.

907(1) requires the judge to notify a defendant of the intent to dismiss their petition. Id. The

defendant then has twenty days to respond. Id. Ifno response is received or the substance of the

response has no bearing on the merits of the case the judge will dismiss the petition. Id. A

11 In Pennsylvania v. Finley, 481 U.S. 551 (1987), the Supreme Court of the United States held
that the constitutional right to appointed counsel in the Anders decision is not applicable to collateral
attacks on convictions. Id at 552~55. Thus, where a state chooses to provide appointed counsel for the
purpose of assisting an indigent criminal launch a collateral attack on his conviction, the United States
Constitution does not dictate the form which such assistance must take. Id. at 559. Finley's right to
appointed counsel rested upon Pennsylvania Rules of Criminal Procedure, which do not impose upon
appointed counsel a duty to proceed in the manner directed by Anders. Id at 551.

19
 PCRA court's notice under rules governing disposition of a PCRA petition without a hearing is

adequate when the court advises the petitioner that his issues lack merit, states the reasons for

dismissal, and informs the petitioner he has twenty days to file a response to the notice.

Commonwealth v. Smith, 121 A.3d 1049, 1055 (Pa. Super. 2015).12

Presently, the PCRA court complied with all requirements for notice of intent to dismiss

and provided Appellant an opportunity to respond. Because Appellant's response did not result

in a change to the findings as detailed in the Rule 907 Notice, an order was subsequently entered

denying the PCRA motion. As such, Appellant's claim in this regard must fail.

Finally, Appellant asserts that the PCRA court erred by allowing appointed counsel to

withdraw as counsel without fully investigating the PCRA petition, thus effectively denying

petitioner his constitutional rights. See Statement.

PCRA counsel submitted a no-merit letter that detailed the nature and extent of his

review, listed each issue Appellant wished to have reviewed, and explained why and how those

issues were meritless. Counsel provided substantive reasons, cited four cases, referenced three

different sections of a statute, and confirmed that trial counsel was licensed to practice law

despite Appellant's baseless accusations of impropriety. Counsel also stated he conducted an

independent review of the record and found no additional claims of merit for Appellant to

pursue. Therefore, PCRA counsel satisfied all the necessary Turner/Finley steps to withdraw

12
To merit entitlement to an evidentiary hearing on a claim of ineffectiveness of counsel, a
defendant must set forth an offer to prove sufficient facts upon which a reviewing court can conclude that
counsel may have in fact been ineffective. Commonwealth v. Priovolos, 715 A.2d 420, 422 (Pa. 1998)
(quoting Commonwealth v. Pettus, 424 A.2d 1332, 1335 (Pa. 1981)). Where the record reflects that the
underlying claim is of no arguable merit or no prejudice resulted, no evidentiary hearing on an ineffective
assistance claim is required. Commonwealth v. Pirela, 726 A.2d 1026,1037 (Pa. 1999). In the case sub
Judice, the record reflected the underlying claims lacked merit and a hearing was not necessary.

20
from the case. The PCRA court then conducted a thorough independent review of the record as

detailed in the Rule 907 Notice and found the petition to be meritless. Consequently, Appellant's·

assertion in this regard must fail.

Assuming, arguendo, PCRA counsel failed to comply with all of the Turner/Finley

requirements, Appellant is still not entitled to relief. In Commonwealth v. Gaerttner, 649 A.2d

139 (Pa. Super. 1994), where the Superior Court found that counsel's no merit letter fell

"considerably short of the requirements" of Turner/Finley, the Court treated counsel's failure to

comply as harmless error because no claim had been presented that would entitle the defendant to

post conviction relief and he had not been prejudiced. Id. at 143. As stated in Gaerttner:

We could have thus vacated the lower court's order granting [PCRA counsel]
permission to withdraw, and remanded this case with instructions to comply with
Finley or file an advocate's brief. We need not make such a de facto finding of
. ineffectiveness, though, because [PCRA counselj's failure clearly did not prejudice
[ defendant]."

Id. In Commonwealth v. Granberry, 644 A.2d 204 (Pa. Super. 1994), where the Superior Court

found a petitioner's PCRA issues to be without merit, the PCRA court's order denying appellant's

petition and granting counsel's motion to withdraw was affirmed even though counsel technically

failed to comply with Finley. Granberry, 644 A.2d at 210.13

CONCLUSION

Based on a thorough review of the record, this court properly denied Appellant's PCRA

Motion after concluding the issues were untimely, previously litigated, or not supported by the

13
See also Commonwealth v. Harris, 553 A.2d 428, 434 (Pa. Super. 1989), where the Superior
Court had no reluctance affirming the order denying post-conviction relief on substantive grounds when
counsel was in non-compliance with the minimum requisites of Turner/Finley but the Court's review of
the record revealed "the evidence against appellant was irrefutable, the guilty plea colloquy was
impeccable, and the sentence of imprisonment imposed was manifestly appropriate." Id.

21
I

record. For the reasons stated herein, this appeal should be denied and the PCRA court should be

affirmed.

BY THE COURT

March 17, 2017
Date
V~n.ne:-
DONALD R. TOT ARO, JUDGE

ATTEST:

copies: Lancaster County District Attorney
Dennis Jay MacColl, Appellant, SCI~Laurel Highlands, 5706 Glades Pike,
Somerset, PA 15501 (by certified mail, return receipt requested, and first
class mail)

22