J-S68013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

WILLIAM MOORE,

                            Appellant                  No. 1738 WDA 2015


                  Appeal from the PCRA Order October 1, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0006900-2008


BEFORE: SHOGAN, SOLANO, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED NOVEMBER 04, 2016

       Appellant, William Moore, appeals from the order denying his petition

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

9541-9546.       In addition, counsel for Appellant has filed a petition to

withdraw 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).            After review, we grant counsel’s petition to

withdraw and affirm the order of the PCRA court.

       In its opinion, the PCRA court set forth the relevant facts and

procedural history of this matter as follows:


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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            [Appellant] was charged [on August 19, 2008] with Rape
     of a Child,1 Unlawful Contact with a Minor,2 Statutory Sexual
     Assault,3 Aggravated Indecent Assault,4 Indecent Exposure,5
     Endangering the Welfare of a Child6 and Corruption of Minors7 in
     relation to a series of incidents between [Appellant] and his
     paramour’s granddaughter which occurred when she was
     between the ages of nine (9) and 13. [Appellant] appeared
     before this Court on September 21, 2010, and, pursuant to a
     plea agreement with the Commonwealth, entered a plea of nolo
     contend[e]re to the Unlawful Contact, Statutory Sexual Assault
     and Aggravated Indecent Assault charges. The remaining
     charges were withdrawn. Also pursuant to the plea agreement,
     he was immediately sentenced to a term of imprisonment of
     three and one half (3½) to seven (7) years, with a subsequent
     term of probation of five (5) years. No Post-Sentence Motions
     were filed and no direct appeal was taken.
          1
              18   Pa.C.S.A.   §3121(c)
          2
              18   Pa.C.S.A.   §6318(1)
          3
              18   Pa.C.S.A.   §3122.1
          4
              18   Pa.C.S.A.   §3125(a)(7)
          5
              18   Pa.C.S.A.   §3127(a)
          6
              18   Pa.C.S.A.   §4304(a)
          7
              18   Pa.C.S.A.   §6301(a)

           No further action was taken until August 20, 2013, when
     [Appellant] filed a Petition to Vacate Illegal Sentence. Given its
     untimely nature, this Court returned the Petition to [Appellant]
     with instructions on how to obtain the appropriate PCRA Petition
     forms. Thereafter, [Appellant] filed a pro se Post Conviction
     Relief Act Petition on September 30, 2013. Counsel was
     appointed to represent [Appellant], but she later filed a Turner
     “No-Merit” letter and sought permission to withdraw.
     [Appellant’s] PCRA Petition was subsequently dismissed as
     untimely on December 17, 2013. [Appellant] sought appellate
     review, and in a Memorandum Opinion dated October 6, 2014,
     the Superior Court vacated this Court’s Order of December 17,
     20138 and remanded the case to allow [Appellant] to proceed on
     with a timely PCRA Petition. [Commonwealth v. Moore, 34
     WDA 2014, 108 A.3d 104 (Pa. Super. filed October 6, 2014)
     (unpublished memorandum).]
          8
            The Superior Court reasoned that a Motion to
          Withdraw Guilty Plea which appeared on the docket

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            as being filed on December 10, 2010, but of which
            this Court had no notice, should have been treated
            as a timely Post Conviction Relief Act Petition.

            Pursuant to the Superior Court’s instructions, counsel was
      appointed to represent [Appellant], and a PCRA Petition was filed
      on February 19, 2015 and accepted as timely. Following a
      thorough review of the record and an evidentiary hearing, this
      Court denied the Petition on October 1, 2015. This appeal
      followed.

PCRA Court Opinion, 4/12/16, at unnumbered 1-2.

      On June 28, 2016, PCRA counsel filed a petition to withdraw and a

Turner/Finley letter. When counsel seeks to withdraw from representing a

petitioner in a collateral appeal, the following conditions must be met:

      1. As part of an application to withdraw as counsel, PCRA
      counsel must attach to the application a “no-merit” letter[;]

      2. PCRA counsel must, in the “no-merit” letter, list each claim
      the petitioner wishes to have reviewed, and detail the nature
      and extent of counsel’s review of the merits of each of those
      claims[;]

      3. PCRA counsel must set forth in the “no-merit” letter an
      explanation of why the petitioner’s issues are meritless[;]

      4. PCRA counsel must contemporaneously forward to the
      petitioner a copy of the application to withdraw, which must
      include (i) a copy of both the “no-merit” letter, and (ii) a
      statement advising the PCRA petitioner that, in the event the
      trial court grants the application of counsel to withdraw, the
      petitioner has the right to proceed pro se, or with the assistance
      of privately retained counsel;

      5. The court must conduct its own independent review of the
      record in light of the PCRA petition and the issues set forth
      therein, as well as of the contents of the petition of PCRA
      counsel to withdraw; and




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      6. The court must agree with counsel that the petition is
      meritless.

Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa. Super. 2008) (internal

punctuation marks omitted).

      In the present case, counsel complied with the requirements for

withdrawal from a collateral appeal.     In the motion filed with this Court,

counsel alleged that he extensively reviewed the case, evaluated the issues,

and concluded there were no issues of merit. Counsel also listed the issues

relevant to this appeal, and explained why, in his opinion, the appeal is

without merit. In addition, counsel averred that he sent Appellant a copy of

the motion to withdraw and the no-merit letter, which advised Appellant of

his right to proceed pro se or through privately retained counsel. Thus, we

will allow counsel to withdraw if, after our review, we conclude that the

issues relevant to this appeal lack merit.

      In the Turner/Finley letter, counsel raised the following issues:

      1. Whether trial counsel gave ineffective assistance when
      counsel failed to explain to Appellant that because Appellant did
      not plead guilty but instead plead nolo contendere, Appellant
      would not be released until he admitted his guilt?

      2. Whether trial counsel gave ineffective assistance when
      counsel promised that Appellant would be released at his
      minimum if he plead nolo contendere?

Turner/Finley Letter at 3-4.

      In addition, after PCRA counsel filed his Turner/Finley letter and

petition to withdraw as counsel, Appellant filed a pro se response and


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objection to the Turner/Finley letter and counsel’s petition. In Appellant’s

pro se response, the only “issue” he appears to raise is an assertion that

PCRA counsel admitted to him that counsel “made errors” and “deeply

apologized” for mistakes in the Turner/Finley Letter.           Appellant Pro Se

Response, 9/2/16.

       The admission of errors and apology were, in fact, statements counsel

made in a June 29, 2016 letter that he mailed to this Court and Appellant

wherein counsel apologized to our Court for a misstatement of fact in the

Turner/Finley letter.        Letter, 6/29/16.    That misstatement was based on

counsel’s errant belief that Appellant was no longer incarcerated rendering

the PCRA petition moot.1 Id. Counsel recognized his mistake and requested

this Court to disregard that incorrect statement.        Id.   We conclude that,

aside from referencing counsel’s apology for his misstatement, Appellant has

not raised any other issues or claims of error in his pro se response.

Accordingly, we address only counsel’s petition to withdraw and the issues

presented in the Turner/Finley letter.



____________________________________________


1
  We point out that a PCRA petition is not rendered moot and a PCRA
petitioner is not ineligible for relief simply because the petitioner is not
incarcerated. Rather, in order to be eligible for PCRA relief, a petitioner
must be currently serving a sentence of imprisonment or be on probation
or parole. 42 Pa.C.S. § 9543(a)(1)(i). Ultimately, counsel’s misstatement
is of no moment as Appellant is currently eligible for relief under 42
Pa.C.S. § 9543(a)(1)(i) because he remains incarcerated.



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      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”    Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc)). This Court is limited to determining whether the evidence

of record supports the conclusions of the PCRA court and whether the ruling

is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). A PCRA court’s credibility findings are to be accorded great

deference.     Commonwealth v. Dennis, 17 A.3d 297, 305 (Pa. 2011)

(citation omitted). “Where the record supports the PCRA court’s credibility

determinations, such determinations are binding on a reviewing court.” Id.

(citation omitted).

      Both issues raised in the Turner/Finley letter are based on

allegations that Appellant received ineffective assistance of counsel.      In

order to plead and prove ineffective assistance of counsel a petitioner must

establish: (1) that the underlying issue has arguable merit; (2) counsel’s

actions lacked an objective reasonable basis; and (3) actual prejudice

resulted from counsel’s act or failure to act. Commonwealth v. Stewart,

84 A.3d 701, 706 (Pa. Super. 2013) (en banc). A claim of ineffectiveness

will be denied if the petitioner’s evidence fails to meet any one of these

prongs. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). Counsel

is   presumed    to   have   rendered    effective   assistance   of   counsel.


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Commonwealth v. Montalvo, 114 A.3d 401, 410 (Pa. 2015). We have

explained that trial counsel cannot be deemed ineffective for failing to

pursue a meritless claim.        Commonwealth v. Loner, 836 A.2d 125, 132

(Pa. Super. 2003) (en banc). “We need not analyze the prongs of an

ineffectiveness claim in any particular order. Rather, we may discuss first

any prong that an appellant cannot satisfy under the prevailing law and the

applicable facts and circumstances of the case.”          Commonwealth v.

Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (citing Commonwealth v.

Albrecht, 720 A.2d 693, 701 (Pa. 1998)).

       Moreover, ineffective assistance of counsel claims in connection with

the entry of a guilty plea2 serve as a basis for relief only if the

ineffectiveness caused the defendant to enter an involuntary or unknowing
____________________________________________


2
  We are cognizant that in the case at bar, Appellant entered a plea of nolo
contendere.

       It is well established that a plea of nolo contendere is treated as
       a guilty plea in terms of its effect upon a given case. We are
       aware that by entering a nolo contendere plea, a defendant does
       not admit that he is guilty. As the United States Supreme Court
       has held, a plea of nolo contendere is a plea by which a
       defendant does not expressly admit his guilt, but nonetheless
       waives his right to a trial and authorizes the court for purposes
       of sentencing to treat him as if he were guilty. The difference
       between a plea of nolo contendere and a plea of guilty is that,
       while the latter is a confession binding defendant in other
       proceedings, the former has no effect beyond the particular
       case.

Commonwealth v. V.G., 9 A.3d 222, 226 (Pa. Super. 2010) (internal
citations and quotation marks omitted).



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plea. Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002).

“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.”         Id.

(citation and quotation marks omitted).

      Appellant alleges that counsel informed him that he would be paroled

after serving his minimum sentence, and when Appellant was not paroled,

Appellant claimed that it was because he did not admit his guilt. The PCRA

court concluded that these issues were meritless.       PCRA Court Opinion,

4/12/16, at unnumbered 4-5. We agree.

      There is no evidence of record revealing that counsel informed

Appellant that he would be paroled after serving his minimum sentence.

Indeed, the opposite is true. At the PCRA hearing, Appellant’s plea counsel

testified that “In 15 going on 16 years of doing criminal defense work, I

have never with any defendant promised them that they would be paroled at

their minimum. That’s an impossibility.” N.T., 9/30/15, at 13. The PCRA

court was free to credit this testimony and discredit Appellant’s contrary

allegation. Dennis, 17 A.3d at 305. On review, we discern no basis upon

which to find that the PCRA court erred in crediting PCRA counsel’s

testimony. Accordingly, we conclude this issue is frivolous.

      Moreover, we find no merit in the argument that counsel was

ineffective for failing to inform Appellant that he would not be paroled if he


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pled nolo contendere as opposed to guilty. Appellant bases this claim on the

bald assertion that one cannot be paroled unless he admits his guilt to the

Pennsylvania Board of Probation and Parole. Turner/Finley letter at 4. We

fail to see how this argument amounts to ineffective assistance of counsel.

As determined above, PCRA counsel never informed Appellant that he would

be paroled at his minimum. Additionally, the PCRA court explained:

       Although plea counsel testified that he did not advise [Appellant]
       he would be required to admit his guilt before being released
       (See PCRA Hearing Transcript, p. 11), there is no evidence
       whatsoever that [Appellant’s] alleged failure to admit his guilt is
       the reason he was not released at his minimum. In fact, as the
       Commonwealth points out, [Appellant] himself has attached a
       Correctional Plan Evaluation from the Department of Corrections
       which indicates that [Appellant] had “verbalized responsibility for
       his offense” (See Commonwealth’s Answer to PCRA Petition,
       Exhibit 2).[3] Absent any evidence from the Parole Board that
       [Appellant’s] alleged failure to admit his guilt is the sole reason
       for the denial of his release, [Appellant] simply cannot sustain a
       claim for ineffectiveness in this regard.

____________________________________________


3
 The document the PCRA court references is the Department of Corrections
Correctional Plan–Evaluation. The Comments section of this form provides
as follows:

       [Appellant] successfully completed Low Intensity Sex Offender
       Programming. He earned a total of 168 out of a possible 186
       points. He attended all groups and was an active participant in
       group discussions. He verbalized responsibility for his offense,
       but does not appear to have insight into his motivation for
       offending. [Appellant] created an adequate Relapse Prevention
       Plan.

Commonwealth’s Answer to PCRA Petition, 7/9/15, at Exhibit 2 (Correctional
Plan–Evaluation).




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PCRA Court Opinion, 4/12/16, at unnumbered 4.

      We agree with the PCRA court.       There is no evidence to sustain the

averment that PCRA counsel was ineffective for failing to inform Appellant

that he would not be paroled at his minimum unless he admitted his guilt.

Such a claim presupposes that Appellant would have been paroled had he

taken responsibility for the crimes he committed.         However, as discussed

above,   the   record   reveals   that   even   after   Appellant   admitted   his

responsibility for his crimes, he was not paroled.      As both the PCRA court

and the Commonwealth point out, there are numerous reasons the

Pennsylvania Board of Probation and Parole could deny release unrelated to

a defendant’s admission of guilt.         PCRA Court Opinion, 4/12/16, at

unnumbered 4; Commonwealth’s Brief at 13-14.            Accordingly, there is no

evidence of prejudice and Appellant’s claim fails.

      For the reasons set forth above, we conclude that Appellant is entitled

to no relief. The record supports the PCRA court’s credibility determinations,

and we agree with counsel that Appellant’s claims lack merit.          Moreover,

having conducted an independent review of the record in light of the PCRA

petition, as well as the contents of counsel’s petition to withdraw and brief,

we agree that the PCRA petition is meritless and permit counsel to withdraw.

Daniels, 947 A.2d at 798.

      Petition to withdraw granted. Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/4/2016




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