J-S76003-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    JUSTIN RAPHAEL JOHNSON,

                             Appellant               No. 1344 WDA 2017


             Appeal from the PCRA Order Entered August 16, 2017
                 In the Court of Common Pleas of Erie County
                          Criminal Division at No(s):
                           CP-25-CR-0002847-2014
                           CP-25-CR-0002848-2014


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.:                    FILED FEBRUARY 05, 2019

        Appellant, Justin Raphael Johnson, appeals from the post-conviction

court’s August 16, 2017 order denying his petition for relief filed pursuant to

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Additionally,

Appellant’s counsel, Alison M. Scarpitti, Esq., has filed a petition to withdraw

from representing Appellant, along with an Anders1 brief. While a

Turner/Finley2 no-merit letter is the appropriate filing when counsel seeks

to withdraw on appeal from the denial of PCRA relief, we will accept Attorney

Scarpitti’s Anders brief in lieu of a Turner/Finley no-merit letter.       See
____________________________________________


1   Anders v. California, 386 U.S. 738 (1967).

2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011)

(“Because an Anders brief provides greater protection to a defendant, this

Court may accept an Anders brief in lieu of a Turner/Finley letter.”) (citation

omitted).    After careful review, we affirm the PCRA court’s order denying

Appellant’s petition and grant Attorney Scarpitti’s petition to withdraw.

      The facts underlying Appellant’s convictions are not pertinent to his

present appeal. This Court previously summarized the procedural history of

his case, as follows:

            On May 6, 2015, Appellant entered a negotiated guilty plea
      to possession of a controlled substance at Docket No. CP–25–CR–
      0002847–2014, and PWID and possession of a firearm prohibited4
      at Docket No. CP–25–CR–0002848–2014. As part of the
      negotiated guilty plea, the Commonwealth nolle prossed the
      remaining charges against Appellant.5
         4   18 Pa.C.S. § 6105(a)(1).
         5   At   Docket    No.     CP–25–CR–0002847–2014,        the
         Commonwealth nolle prossed two counts of PWID, one
         count of possession of a controlled substance, and one count
         of possession of drug paraphernalia. At Docket No. CP–25–
         CR–0002848–2014, the Commonwealth nolle prossed one
         count of possession of a controlled substance, one count of
         possession of drug paraphernalia, one count of receiving
         stolen property, one count of firearms not to be carried
         without a license, and one count of conspiracy to commit
         receiving stolen property.

         On June 30, 2015, the trial court sentenced Appellant to a term
      of 40 to 80 months’ incarceration on the PWID conviction, a term
      of 60 to 120 months’ incarceration on the possession of a firearm
      prohibited conviction to be served consecutively to the PWID
      sentence, and [a] term of 3 years’ probation for the possession of
      a controlled substance conviction to be served consecutively to
      the possession of firearms prohibited conviction. Appellant’s
      aggregate sentence was therefore 100 to 200 months’
      incarceration followed by 3 years’ probation.

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            Appellant did not file a direct appeal. However, on
      September 23, 2015, Appellant filed a [PCRA] petition … claiming
      ineffective assistance of counsel and seeking the reinstatement of
      his post-sentence and direct appeal rights. The PCRA court
      granted Appellant’s PCRA petition on January 21, 2016.

            On February 19, 2016, Appellant filed a motion for
      reconsideration/modification of sentence, which the trial court
      denied on February 22, 2016. On March 21, 2016, Appellant filed
      a notice of appeal.

Commonwealth v. Johnson, No. 420 WDA 2016, unpublished memorandum

at 2-3 (Pa. Super. filed Oct. 25, 2016).          On appeal, this Court affirmed

Appellant’s judgment of sentence, see id., and he did not file a petition for

allowance of appeal with our Supreme Court.

      On January 4, 2017, Appellant filed the timely, pro se PCRA petition,

which underlies the present appeal. Garrett A. Taylor, Esq., was appointed to

represent Appellant but, rather than filing an amended petition, counsel filed

a petition to withdraw and a Turner/Finley no-merit letter. On July 5, 2017,

the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to deny

Appellant’s petition without a hearing. Appellant filed a pro se response, but

on August 16, 2017, the court issued an order denying his petition. Although

the court had not ruled on Attorney Garrett’s petition to withdraw, Appellant

filed a pro se notice of appeal. On September 18, 2017, the court issued an

order directing Appellant to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. On October 4, 2017, Appellant filed a pro se

Rule 1925(b) statement.     In response, the PCRA court issued a statement

indicating that it was relying on the rationale set forth in its Rule 907 notice

to support its dismissal of Appellant’s claims.

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       On October 9, 2017, the PCRA court issued an order denying Attorney

Garrett’s petition to withdraw. However, after procedural events occurred in

this Court that we need not discuss herein, we permitted Attorney Garrett to

withdraw, and Attorney Scarpitti entered her appearance on Appellant’s

behalf. On September 4, 2018, Attorney Scarpitti filed a petition to withdraw

and an Anders brief. Consequently, before we address the issues Appellant

seeks to raise on appeal, we must begin by determining if Attorney Scarpitti

has satisfied the requirements for withdrawal.

       In Turner, our Supreme Court “set forth the appropriate procedures for

the withdrawal of court-appointed counsel in collateral attacks on criminal

convictions[.]” Turner, 544 A.2d at 927. The traditional requirements for

proper withdrawal of PCRA counsel, originally set forth in Finley, were

updated by this Court in Commonwealth v. Friend, 896 A.2d 607 (Pa.

Super. 2006), abrogated by Commonwealth v. Pitts, 981 A.2d 875 (Pa.

2009),3 which provides:

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




____________________________________________


3 In Pitts, our Supreme Court abrogated Friend “[t]o the extent Friend
stands for the proposition that an appellate court may sua sponte review the
sufficiency of a no-merit letter when the defendant has not raised such issue.”
Pitts, 981 A.2d at 879. In this case, Attorney Scarpitti filed her petition to
withdraw and no-merit letter with this Court and, thus, our Supreme Court’s
holding in Pitts is inapplicable.


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       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 the 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

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

Friend, 896 A.2d at 615 (footnote omitted).

       Instantly, we conclude that Attorney Scarpitti has complied with the

requirements of Turner/Finley.           Specifically, in her Anders brief, counsel

details the nature and extent of her review, addresses the claims Appellant

raised in his PCRA petition,4 and discusses her conclusion that those issues

lacks merit. See Anders Brief at 8-13. Additionally, counsel served Appellant

with a copy of the petition to withdraw and Anders brief, advising Appellant

that he had the right to proceed pro se or with privately retained counsel.

Thus, we will now conduct an independent review of the merits of Appellant’s

claims.

____________________________________________


4As we note later, Attorney Scarpitti neglects to address one issue raised by
Appellant, but that error does not compel us to deny her petition to withdraw.
See Footnote 5, infra.

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       Appellant    argues     that   his      trial   counsel   acted   ineffectively   by

misinforming him about aspects of his guilty plea. Specifically, he alleges that

his counsel incorrectly led him to believe that he was pleading guilty to the

third-degree felony offense of carrying a firearm without a license, rather than

the second-degree felony offense of possession of a firearm by a person

prohibited. Appellant also insists that, because of this error by counsel, he

did not understand the maximum sentence he faced. Additionally, Appellant

claims that his appellate counsel acted ineffectively by not raising this claim

of trial counsel’s ineffectiveness on direct appeal.5

       We begin by recognizing that,

             [o]ur standard in reviewing a PCRA court order is abuse of
       discretion. We determine only whether the court’s order is
       supported by the record and free of legal error. This Court grants
       great deference to the findings of the PCRA court, and we will not
       disturb those findings merely because the record could support a



____________________________________________


5 We recognize that Attorney Scarpitti does not address Appellant’s claim that
his appellate counsel acted ineffectively. However, appellate counsel clearly
could not be deemed ineffective for not raising a trial-counsel-ineffectiveness
claim on direct appeal, where such claims are properly deferred to collateral
review.     See Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013)
(reaffirming the prior holding in Commonwealth v. Grant, 813 A.2d 726 (Pa.
2002), that, absent certain circumstances, claims of ineffective assistance of
counsel should be deferred until collateral review under the PCRA). Moreover,
because we agree with Attorney Scarpitti, for the reasons stated infra, that
Appellant’s trial-counsel-ineffectiveness claim is meritless, his appellate-
counsel-ineffectiveness claim necessarily fails, as well. See Commonwealth
v. Hannibal, 156 A.3d 197, 214 (Pa. 2016) (concluding that a claim of
appellate counsel’s ineffectiveness fails where the underlying claim of trial
counsel’s ineffectiveness is meritless). Thus, we will disregard Attorney
Scarpitti’s omission of this claim.

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      contrary holding. We will not disturb the PCRA court’s findings
      unless the record fails to support those findings.

            A criminal defendant has the right to effective counsel
      during a plea process as well as during trial. A defendant is
      permitted to withdraw his guilty plea under the PCRA if ineffective
      assistance of counsel caused the defendant to enter an
      involuntary plea of guilty.

         We conduct our review of such a claim in accordance with the
      three-pronged ineffectiveness test under section 9543(a)(2)(ii) of
      the PCRA. The voluntariness of the plea depends on whether
      counsel’s advice was within the range of competence demanded
      of attorneys in criminal cases.

          In order for [an] [a]ppellant to prevail on a claim of ineffective
      assistance of counsel, he must show, by a preponderance of the
      evidence, ineffective 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. [The] [a]ppellant must
      demonstrate: (1) the underlying claim is of arguable merit; (2)
      that counsel had no reasonable strategic basis for his or her action
      or inaction; and (3) but for the errors and omissions of counsel,
      there is a reasonable probability that the outcome of the
      proceedings would have been different. The petitioner bears the
      burden of proving all three prongs of the test. Moreover, trial
      counsel is presumed to be effective.

Commonwealth v. Rathfon, 899 A.2d 365, 368–69 (Pa. Super. 2006)

(internal citations and quotation marks omitted).

      In the present case, the PCRA court rejected Appellant’s ineffectiveness

claims because “there is no evidence in the record to support [his]

allegation[s].”   PCRA Court Opinion in Support of Rule 907 Notice (PCO),

7/5/17, at 4. The court explained that,

      [t]o the contrary, [Appellant’s] plea establishes he knew the
      crimes [to which] he was pleading guilty … and the range of
      punishment for which he was exposed.



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            [Appellant] signed a Statement of Understanding of Rights
     Prior to Guilty/No Contest Plea (“SURPGP”). In the presence of
     the [c]ourt and his attorney, [Appellant] acknowledged under oath
     that he understood the crimes [with which] he was charged…, the
     rights he was waiving and the maximum sentences for the crimes
     to which he was pleading.

           Paragraph 4 of the SURPGP states: “I understand that the
     maximum sentence for the crimes to which I am pleading
     guilty/no contest is at Docket No. 2847 of 2014 - Count 3:
     $25,000/3 years; and at Docket No. 2848 of 2014 - Count
     1: $100,000/10 years, Count 5: $25,000/10 years. TOTAL:
     $15,000/23 years.” (emphasis in original).

           Paragraph 5 continues: “I understand that any plea bargain
     in my case is set forth here and there has been no other bargain
     and no other promise or threat of any kind to induce me to plead
     guilty/no contest. The only plea bargain in my case is at Docket
     No. 2847 of 2014, [Appellant] will plead guilty to Count 3,
     consolidating the facts of Count 4. At Docket No. 2848 of
     2014, [Appellant] will plead guilty to Counts 1 and 5. In
     exchange, the Commonwealth will nolle prose all
     remaining Counts at both dockets, with costs on
     [Appellant].” (emphasis in original).

            It was clearly spelled out for [Appellant] the factual basis of
     the crimes to which he was pleading and the maximum sentences
     he could face as a result of his pleas. [Appellant] was fully
     informed of the terms of his pleas at the plea proceedings and he
     testified under oath that he understood the extent of his possible
     punishment.

        [The Commonwealth]: And Count 5 alleges on the same
        date and location you having been previously convicted of
        an offense within the [C]ommonwealth regarding such
        conduct[,] which prohibited you from possessing, using,
        controlling or selling a firearm, specifically, you did, with
        that prior conviction, possess, at the date and location set
        above, a loaded Ruger 9 millimeter handgun occurring at
        Peach and West 54th Street. Thereby, you did commit the
        crime of persons not to possess, use or manufacture,
        sell or transfer firearms, Felony of the second degree.
        How do you plead to Count 5?

        [Appellant]: Guilty.


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       Plea Transcript, May 6, 2015, p. 9 [(emphasis added).]

           In addition, the [c]ourt engaged [Appellant] in an extensive
     colloquy to ensure he understood everything before accepting the
     plea[:]

       THE COURT: [Appellant], do you understand everything
       that’s been explained to you so far?

       [Appellant]: Yes, sir.

       THE COURT: Do you have any questions at all?

       [Appellant]: No, sir.

       THE COURT: Do you understand the rights that you waive
       or give up when you enter a plea?

       [Appellant]: Yes, sir.

       THE COURT: Do you understand each of the offenses at each
       of these docket numbers that you’re entering a plea to?

       [Appellant]: Yes, sir.

       THE COURT: Do you need any further explanation of them?

       [Appellant]: No, sir.

       THE COURT: Are you guilty of each of these offenses?

       [Appellant]: Yes, sir.

       THE COURT: Do you feel like you’re being pressured or
       forced? Has anyone promised you anything to get you to
       enter the plea?

       [Appellant]: No, sir.

       THE COURT: Have you had enough time to think about what
       to do you in your case?

       [Appellant]: Yes, sir.

       THE COURT: Are you satisfied with the legal representation
       you’ve received?

       [Appellant]: Yes, sir.




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        THE COURT: Today, are you under the influence of any
        substance [that] would affect your ability to know what you
        are doing?

        [Appellant]: No, sir.

        THE COURT: Do you understand for sentencing purposes,
        you face the possibility of going to jail for 23 years
        and paying fines of up to $150,000?

        [Appellant]: Yes, sir.

        THE COURT: Anyone promise you any type of sentence in
        your case?

        [Appellant]: No, sir.

        THE COURT: Do you plead knowing and voluntary?
        Meaning, you know what you’re doing and you’re voluntarily
        entering a plea?

        [Appellant]: Knowingly.

        THE COURT: Okay. Are you voluntarily entering your plea?

        [Appellant]: Yes, sir.

     Plea Transcript, May 6, 2015, p. 9-11 [(emphasis added).]

           “A person who elects to plead guilty is bound by the
     statements he makes in open court while under oath and he may
     not later assert grounds for withdrawing his plea which contradict
     the statements he made at his plea colloquy.” Com[monwealth]
     v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003) (citing
     Com[monwealth] v. Stork, 737 A.2d 789, 790[-]91 (Pa. Super.
     1999)).

            [Appellant’s] current ineffectiveness claim stands in stark
     contrast to his voluntary and knowing guilty plea. [Appellant] has
     failed to sustain his burden of proof that his guilty pleas were
     unlawfully induced as a result of ineffective assistance of counsel.

           [Appellant’s] ineffective assistance of counsel argument
     against appellate counsel for not raising this claim on appeal is
     also unavailing because counsel is not required to pursue a
     meritless claim.

PCO at 4-6.


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      The record supports the PCRA court’s reasons for denying Appellant’s

ineffectiveness claims, and we discern no legal error in that decision.

Accordingly, we affirm the court’s order and grant Attorney Scarpitti’s petition

to withdraw.

      Order affirmed. Petition to withdraw granted. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/5/2019




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