J-S56030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    DAVID BERMUDEZ

                             Appellant               No. 1149 EDA 2017


              Appeal from the PCRA Order entered March 2, 2017
             In the Court of Common Pleas of Northampton County
               Criminal Division at No: CP-48-CR-0001205-2016


BEFORE: BOWES, STABILE, and PLATT*, JJ.

MEMORANDUM BY STABILE, J.:                      FILED NOVEMBER 09, 2017

        Appellant, David Bermudez, appeals from the March 2, 2017 order

entered in the Court of Common Pleas of Northampton County, denying his

request for collateral relief under the Post Conviction Relief Act, 42 Pa.C.S.A.

§§ 9541-46. PCRA counsel has filed a no-merit brief and petitioned this Court

to withdraw under Turner/Finley.1 Upon review, we grant the petition to

withdraw and affirm the order of the PCRA court denying Appellant’s PCRA

petition.

        The PCRA court summarized the relevant background as follows:



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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      On August 19, 2016, [Appellant] plead guilty [] to one count of
      burglary as a felony of the first degree and one count of robbery
      as a felony of the first degree. [Appellant] was sentenced to 36
      to 72 months on the burglary charge and a consecutive 48 to 96
      months on the robbery charge. [Appellant] was represented by
      [plea counsel].

      [Appellant] filed the instant PCRA [petition] on December 5, 2016.
      [Counsel] was appointed to represent [Appellant]. A PCRA issue-
      framing conference was held before the [PCRA court] on January
      6, 2017, followed by a hearing on February 21, 2017, at which
      [PCRA counsel] asserted the following issues on [Appellant’s]
      behalf: that [plea counsel] was ineffective for inducing [Appellant]
      to enter an involuntary and unknowing guilty plea; and for failing
      to provide [Appellant] with written discovery related to his case
      until after [Appellant]’s plea and sentencing.

PCRA Court Opinion, 3/2/17, at 1-2.

      The PCRA court denied Appellant’s petition on March 2, 2017.           This

appeal followed.

      On July 3, 2017, Appellant’s PCRA counsel filed in this Court an

application to withdraw as counsel and a no-merit letter, wherein counsel

raises two issues for our review: (i) whether trial counsel was ineffective for

unlawfully inducing him into entering an involuntary and unknowing guilty

plea, and (ii) whether trial counsel was ineffective for failure to share physical

discovery material with him. Turner/Finley Brief at 2.

      Before we may consider these issues, we must address whether PCRA

counsel has met the requirements of Turner/Finley. For PCRA counsel to

withdraw under Turner/Finley in this Court:

      (1)   PCRA counsel must file a no-merit letter that details the
            nature and extent of counsel’s review of the record; lists the


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            appellate issues; and explains why those issues are
            meritless.

      (2)   PCRA counsel must file an application to withdraw; serve the
            PCRA petitioner with the application and the no-merit letter;
            and advise the petitioner that if the Court grants the motion
            to withdraw, the petitioner can proceed pro se or hire his
            own lawyer.

      (3)   This Court must independently review the record and agree
            that the appeal is meritless.

See Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super. 2011)

(citing or quoting Turner, Finley, Commonwealth v. Pitts, 981 A.2d 875

(Pa. 2009), and Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2008),

overruled in part by Pitts).

      We find that PCRA counsel has complied with Turner/Finley.            PCRA

counsel has petitioned for leave to withdraw and filed a Turner/Finley no-

merit letter. Further, PCRA counsel informed Appellant of his right to hire a

new lawyer or file a pro se response.

      We now address whether this appeal is indeed meritless. “On appeal

from the denial of PCRA relief, our standard of review requires us to determine

whether the ruling of the PCRA court is supported by the record and free of

legal error.” Widgins, 29 A.3d at 819.




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J-S56030-17



       As noted, Appellant claims counsel was ineffective for unlawfully

inducing him to enter into the guilty plea and for failing to share discovery

material with him before entering a guilty plea.2 We disagree.

       The right to effective assistance extends to the plea process:

       [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.

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013)

(citation omitted).

Moreover,

       to establish prejudice, “the defendant must show that there is a
       reasonable probability that, but for counsel’s errors, he would not
       have pleaded guilty and would have insisted on going to
       trial.” [Commonwealth v. Rathfon, 899 A.2d 365, 369-70 (Pa.
       Super. 2006)] (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106
       S.Ct. 366, 88 L.Ed.2d 203 (1985)). “The reasonable probability
       test is not a stringent one”; it merely refers to “a probability
       sufficient to undermine confidence in the outcome.” Id. at
       370 (quoting Commonwealth v. Hickman, 799 A.2d 136, 141
       (Pa. Super. 2002)).

Id.




____________________________________________


2 Section 9543(a)(2)(ii) permits collateral relief for “[i]neffective assistance of
counsel which, in the circumstances of the particular case, so undermined the
truth-determining process that no reliable adjudication of guilt or innocence
could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).

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        Regarding the first allegation (i.e., plea counsel induced him to enter

into the guilty plea), our review of the record fails to show anything supporting

the plea was other than voluntary or knowingly. See PCRA Court Opinion,

3/2/17, at 2-3. Briefly, the record shows Appellant was informed of his rights,

and unequivocally stated that he understood the nature of the charges, factual

basis for the charges, the penalties associated with the charges, and the

nature of the plea and its consequences. Thus, “it is clear that [Appellant]

was made aware of the terms of his bargain, and he received the benefit of

that bargain. [Appellant]’s guilty plea was both voluntary and knowing.” Id.

at 3.

        Regarding the second allegation (i.e., plea counsel failed to timely

provide him with a physical copy of discovery material), the PCRA court noted:

        [Appellant]’s contention that he would not have pled guilty if he
        had a physical copy of the discovery prior to his guilty plea must
        fail under the standard set forth above. First, [plea counsel] had
        a reasonable basis to decline to provide [Appellant] with a physical
        copy of the discovery prior to the plea. [Plea counsel] testified at
        the PCRA hearing that he was concerned that if he provided the
        written discovery to [Appellant] in the prison, [Appellant] would
        utilize the assistance of another inmate to translate the
        documents, as [Appellant] was not proficient in English, which
        could create a “jailhouse snitch” who could potentially testify
        against [Appellant]. [Plea counsel] further testified that he
        declined [Appellant’s] request to have the discovery documents
        sent to [Appellant]’s brother after [Appellant] commented that he
        “would not have to worry about witnesses” if that occurred.
        Furthermore, [Appellant] cannot establish that he was prejudiced
        by counsel’s failure to give him a physical copy of the written
        discovery prior to the plea where all the testimony demonstrates
        that [plea counsel] spent a significant amount of time reviewing
        the evidence against [Appellant] with him and in reviewing and
        preparing the negotiated guilty plea.

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J-S56030-17



PCRA Court Opinion, 3/2/17, at 3-4. Upon review of the record, we agree

with the above analysis and conclusion that Appellant is not entitled to relief

on the instant claim.

      In light of the foregoing, we conclude the PCRA court properly found

Appellant is not entitled to relief on his claims. Moreover, our review of the

record does not reveal any other meritorious issues.

      Counsel’s petition to withdraw granted. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/2017




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