J-S63004-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                                   Appellee


                             v.

STANLEY ALAN DAVIS JR.,


                                   Appellant           No. 855 MDA 2014

                     Appeal from the PCRA Order February 6, 2014
                    In the Court of Common Pleas of Luzerne County
                  Criminal Division at No(s): CP-40-CR-0000356-2012

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

MEMORANDUM BY BOWES, J.:                            FILED OCTOBER 07, 2014

        Stanley Alan Davis Jr. appeals from the February 6, 2014 order

denying him PCRA relief. Counsel has filed a petition to withdraw. We grant

that petition and affirm.

        On December 17, 2011, Appellant was charged with homicide and

carrying a prohibited offensive weapon, based upon the following events. At

8:40 p.m. the previous evening, Wilkes-Barre police officers were dispatched

to 16 Sterling Street after police received a report that someone had been

shot in the stomach. They were met at the door of that residence by Shu-

                                                           -Howard, the victim.




____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
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which proved fatal.

      Police proceeded ups

Fred Lassiter.   Mr. Lassiter witnessed the incident and told police that his

mother was shot by a man named Stanley. Mr. Lassiter, who was on the

telephone with the police dispatcher, reported that Stanley and Ms. Springer-

Howard were arguing and, when the victim told Stanley to leave, he kicked

her and shot her with a shotgun. Mr. Lassiter provided a detailed description

of the perpetrator and the clothing that he was wearing as well as a

description of his vehicle, a white work van with a rack on top containing

step ladders.

                                                                             -

Barre Police Officer Kenneth Jones spotted a white van with a rack of ladders

on top of it about six blocks away from the crime scene.        Officer Jones

stopped the van, and Appellant exited it.     Officer Jones told Appellant to

place his hands in the air, and Appellant complied. At that point, the officer

received a detailed description of the perpetrator, which Appellant matched.

Appellant was arrested, and a shotgun, which was in plain view, was seized

from the van. After being given Miranda warnings, Appellant admitted that

he shot the victim.

      After Appellant litigated an unsuccessful suppression motion, he

tendered a negotiated guilty plea on June 11, 2012, to third-degree murder

and possession of a prohibited offensive weapon. The agreed-upon sentence

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was twenty to forty years imprisonment for third-degree murder, but there

was no agreement as to the sentence that could be imposed on the weapons

charge.     N.T., 6/11/12, at 5.   The court conducted an extensive colloquy,

and Appellant also executed a written guilty plea colloquy. On September 5,

2012, Appellant was sentenced to twenty to forty years imprisonment for

third-degree murder with a consecutive sentence of five years probation for

possession of a prohibited offensive weapon.

       Appellant did not file a direct appeal, but did file a timely PCRA

petition.   Counsel was appointed.    On December 13, 2013, counsel filed a

no-

murder charge should have been reduced because he was intoxicated when

he    committed the     crime.     Counsel   was permitted   to   withdraw   on

December 20, 2013, and the PCRA Court independently concluded that the

issue raised was meritless. It also reviewed the record and noted that the

plea colloquy was unassailable and that a negotiated sentence was imposed

on the murder offense.

       On January 13, 2014, the PCRA court issued notice of its intent to

dismiss the PCRA petition without a hearing.      It thereafter dismissed the

petition on February 6, 2014.        On February 24, 2014, the PCRA court

received a pro se request for the appointment of a different lawyer and that

request was granted. This timely appeal ensued.

       Initially, we note that appellate counsel has petitioned this Court to

withdraw pursuant to the mandates of Commonwealth v. Turner, 544

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J-S63004-14



A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213

(Pa.Super. 1988) (en banc).      These cases govern the procedure for

withdrawal of court-appointed counsel for purposes of post-conviction




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

Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009)).               That

independent review requires:

              -
     extent of his review;

                 -mer
     petitioner wished to have reviewed;

                                                    -
     why the petitioner's issues were meritless;

     4) The . . . court conducting its own independent review of the
     record; and

     5) The . . . court agreeing with counsel that the petition was
     meritless.

Widgins, supra at 818 (quoting Pitts, supra at 876 n.1). In addition,

           In Commonwealth v. Friend, 896 A.2d 607 (Pa.Super.
     2006), [abrogated on other grounds by Pitts, supra.] this Court
     had imposed an additional requirement for counsel seeking to
     withdraw in collateral proceedings:

           . . . .[W]e here announce a further prerequisite
           which must hereafter attend an application by
           counsel to withdraw from representing a PCRA
           petitioner, namely, that PCRA counsel who seeks
           to withdraw must contemporaneously serve a
           copy on the petitioner of counsel's application

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J-S63004-14


             to withdraw as counsel, and must supply to the
                                               -
             and a statement advising the petitioner that, in
             the event that the court grants the application
             of counsel to withdraw, he or she has the right
             to proceed pro se or with the assistance of
             privately retained counsel.

      Id. at 614 (emphasis in original).

Widgins, supra at 818.      This additional requirement, which has not been

abrogated by our Supreme Court, is still applied by the Superior Court. Id.;

see also Commonwealth v. Rykard, 55 A.3d 1177 (Pa.Super. 2012).

      Herein, counsel filed a no-merit brief and petition to withdraw. In the

petition, counsel averred that he reviewed the record and concluded that no

meritorious issue exists. Appellant attached a letter addressed to Appellant

to his petition to withdraw. With that letter, counsel enclosed a copy of the




hire private counsel, or proceed pro se and

Petition to Withdraw, 7/22/14, Exhibit 1. In his no-merit brief, counsel offers

his rationale for concluding that the issue Appellant seeks to raise is

meritless.   Hence, counsel has complied with the withdrawal requirements

applicable to him.

      We now review the merits of the sole contention raised on appeal,



time the crime was committed and thus, should have reduced his sentence of


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J-S63004-14


20 to

to the discretionary aspects of a sentence since Appellant maintains that a

fact should have been considered in mitigation of the sentence imposed.

However, if a defendant enters a negotiated guilty plea to an offense in

exchange for a specific sentence, and if that sentence is subsequently

imposed, a defendant is precluded from challenging the discretionary aspects

of that sentence.   Commonwealth v. Reichle, 589 A.2d 1140 (Pa.Super.

1991). Herein, there was a negotiated sentence of twenty to forty years in

jail for the third-degree murder offense, and that sentence was imposed.

Hence, we agree that Appellant cannot obtain relief on this basis. We also

have conducted an independent review of the entire record and agree with



sentence. Hence, we grant the petition to withdraw and affirm.

        Petition to withdraw filed by Matthew P. Kelly, Esquire, is granted.

Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/7/2014




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