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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


____________________________________________


*
    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

____________________________________________


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


____________________________________________


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,
____________________________________________


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
____________________________________________


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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