J-S11019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 DONTE JONES                              :
                                          :
                    Appellant             :   No. 4021 EDA 2017

               Appeal from the PCRA Order October 31, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0015919-2010

BEFORE: SHOGAN, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                              FILED MARCH 21, 2019

      Donte Jones (Appellant) appeals pro se from the order dismissing his

first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

      On February 17, 2012, a jury found Appellant guilty of first-degree

murder, attempted murder, aggravated assault, criminal conspiracy, carrying

a firearm without a license, and possession of an instrument of crime. These

convictions arose from the murder of Tawayne Foster and the attempted

murders of James Marshburn and William Brown. On March 1, 2012, the trial

court sentenced Appellant to life imprisonment.

      On December 4, 2013, this Court affirmed Appellant’s judgment of

sentence. Commonwealth v. Jones, 1940 EDA 2012 (Pa. Super. Dec. 4.

2013) (unpublished memorandum). On June 11, 2014, our Supreme Court

denied Appellant’s petition for allowance of appeal.
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      On May 22, 2015, Appellant filed a pro se PCRA petition and the PCRA

court subsequently appointed counsel. On August 10, 2017, PCRA Counsel

filed a petition to withdraw as counsel 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). On September 27,

2017, the PCRA court issued notice pursuant to Rule 907 of the Pennsylvania

Rules of Criminal Procedure of its intent to dismiss Appellant’s PCRA petition

without a hearing. On October 31, 2017, the PCRA court formally dismissed

Appellant’s PCRA petition.

      On November 28, 2017, Appellant filed a timely pro se notice of appeal.

On January 30, 2018, this Court remanded the case to the PCRA court to

dispose of PCRA Counsel’s still-pending petition to withdraw as counsel. On

February 1, 2018, the PCRA Court granted counsel’s petition to withdraw.

      On appeal, Appellant presents the following issues for review:

      1.    Did the PCRA court err and abuse its d[i]secretion by
      granting PCRA Counsel’s no-merit letter?

      2.    Did the PCRA court err and fail to follow proper procedure in
      dismissing [Appellant’s] PCRA petition in violation of
      [Turner/Finley]?

      3.     Did the PCRA court err and fail to follow proper procedure in
      dismissing [Appellant’s] PCRA petition without first notifying PCRA
      Counsel and [Appellant] of defects [in] the initial PCRA petition in
      violation of Pa.R.Crim.P. 905(B)?

      4.     Was PCRA Counsel rendered ineffective by failing to ensure
      that [Appellant] was properly made aware of and understood his
      rights and option including the option of filing an amended PCRA
      petition?

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Appellant’s Brief at 4 (unnumbered).

      We review the denial of PCRA relief by “examining whether the PCRA

court’s findings of fact are supported by the record, and whether its

conclusions of law are free from legal error.” Commonwealth v. Busanet,

54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of

the PCRA court and the evidence of record, viewed in the light most favorable

to the party who prevailed in the PCRA court proceeding.” Id.

      We address each of Appellant’s issues together, as they are related.

Appellant challenges the trial court’s decision to grant PCRA Counsel’s petition

to withdraw under Turner/Finley because PCRA Counsel failed to comply

with the technical mandates of Turner/Finley. He further asserts that PCRA

Counsel was ineffective for failing to advise Appellant of his rights under

Turner/Finley.

      Pursuant to Turner/Finley, an “[i]ndependent review of the record by

competent counsel is required before withdrawal [on collateral review] is

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

Pitts, our Supreme Court explained that such independent review requires

proof of:

      1. A “no merit” letter by PC[R]A counsel detailing the nature and
         extent of his review;

      2. The “no merit” letter by PC[R]A counsel listing each issue the
         petitioner wished to have reviewed;




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      3. The PC[R]A counsel’s “explanation”, in the “no merit” letter, of
         why the petitioner’s issues were meritless;

      4. The PC[R]A court conducting its own independent review of the
         record; and

      5. The PC[R]A court agreeing with counsel that the petition was
         meritless.

Id. (citation and brackets omitted).

      Additionally,

      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] 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.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (internal

citations omitted).

      Here, PCRA counsel filed a “no-merit” letter that detailed the nature and

extent of his diligent review of the case, listed the issue for which Appellant

sought review, explained why and how that issue lacks merit, and requested

permission to withdraw.     See Turner/Finley Letter, 8/10/17; Motion to

Withdraw as Counsel, 8/10/17. PCRA Counsel also sent Appellant a copy of

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the “no-merit” letter, a copy of his petition to withdraw, and a statement

advising Appellant of the right to proceed pro se or by privately retained

counsel.1 Thus, the record reflects that PCRA Counsel submitted a petition to

withdraw and “no-merit” letter that satisfy the technical demands of

Turner/Finley.

       Ordinarily, at this point, we would review the merits of the claims

Appellant raised on collateral review. Appellant’s brief on appeal, however,

contains no discussion of the claims raised in his PCRA petition or his response

to the PCRA court’s Rule 907 notice.             Instead, the arguments Appellant

presents in his brief relate solely to the technical mandates of Turner/Finley.

Because we have already concluded that PCRA Counsel has complied with

Tuner/Finley, we discern no basis for relief.

       With respect to Appellant’s claim that PCRA Counsel was ineffective for

failing to advise him of his rights under Turner/Finley,2 we begin with the

____________________________________________


1  Appellant faults PCRA Counsel for addressing Appellant’s copies of the
petition to withdraw, no-merit letter, and letter advising him of his rights with
the wrong inmate number, which resulted in an apparent delay in Appellant
receiving the documents. There is no dispute, however, that Appellant
received the petition to withdraw, no-merit letter, letter advising him of his
rights and he admits as much in his appellate brief. Thus, we decline to
remand this matter to the PCRA court. See Commonwealth v. Karanicolas,
836 A.2d 940, 947 (Pa. Super. 2003) (holding that substantial compliance
with the procedural requirements to withdraw as counsel will satisfy the
Turner/Finley criteria).

2 Appellant preserved this claim by raising it in his response to the PCRA
court’s Rule 907 notice. In Commonwealth v. Rykard, 55 A.3d 1177 (Pa.



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presumption that counsel rendered effective assistance. Commonwealth v.

Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that presumption,

the petitioner must establish: “(1) the underlying claim has arguable merit;

(2) no reasonable basis existed for counsel’s action or failure to act; and (3)

the petitioner suffered prejudice as a result of counsel’s error, with prejudice

measured by whether there is a reasonable probability that the result of the

proceeding would have been different.”                   Id. (citation omitted).       To

demonstrate prejudice in an ineffective assistance of counsel claim, “the

petitioner must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). If the

petitioner fails to prove any of these prongs, the claim is subject to dismissal.

Bomar, 104 A.3d at 1188.

       As   explained     above,    PCRA       Counsel    complied   with   all   of   the

Turner/Finley requirements to withdraw as counsel.                   Thus, there is no

arguable merit to Appellant’s claim of PCRA Counsel’s ineffectiveness. See

id.




____________________________________________


Super. 2012), appeal denied, 64 A.3d 631 (Pa. 2013), this Court stated that
“a petitioner waives issues of PCRA counsel’s effectiveness regarding
Turner/Finley requirements if he declines to respond to the PCRA court’s
notice of intent to dismiss.” Id. at 1186 (citation omitted).

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      In sum, we agree with the PCRA court and PCRA Counsel that there are

no meritorious issues that Appellant could pursue on collateral review, and

therefore affirm the order dismissing his PCRA petition.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/21/19




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