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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                           Appellee

                      v.

KYLE WUNDER

                           Appellant                   No. 845 MDA 2015


                    Appeal from the PCRA Order May 1, 2015
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0004642-2012


BEFORE: BOWES, OTT, and FITZGERALD, * JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED MARCH 11, 2016

        Appellant, Kyle Wunder, appeals from the order entered in the

Lancaster County Court of Common Pleas denying his first, timely petition

filed pursuant to the Post Conviction Relief Act1 (“PCRA”).          Appellant

challenges the validity of his plea and contends trial counsel was ineffective

for failing to investigate a plea offer by the Commonwealth and failing to file

a direct appeal.    PCRA counsel has filed with this Court a Turner/Finley2

letter and petition for leave to withdraw. Because the PCRA court committed




*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.

2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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an error of law, we vacate the order, deny the petition to withdraw, and

remand for further proceedings.

        The facts underlying Appellant’s convictions are not relevant to our

disposition. On July 12, 2013, Appellant pleaded guilty to one count each of

first-degree murder,3 robbery,4 burglary,5 and two counts of criminal

conspiracy.6 On August 15, 2013, the trial court imposed a sentence of life

without the possibility of parole.          Appellant did not file a post-sentence

motion or a direct appeal.

        On August 28, 2014, Appellant filed a timely pro se PCRA petition.

The PCRA court appointed counsel for Appellant on September 11, 2014, and

PCRA counsel filed an amended petition on December 1, 2014.                          In

Appellant’s amended PCRA petition, he alleged ineffective assistance of

counsel based on trial counsel’s failures to investigate a plea offer and file a

requested direct appeal.            Appellant’s Amended PCRA Pet., 12/1/14, at 2

(unpaginated). Alternatively, Appellant alleged trial counsel was ineffective

for    failing   to   “hold   the    Commonwealth    to   the   terms   of   the   plea

agreement[.]” Id.




3
    18 Pa.C.S. § 2502(a).
4
    18 Pa.C.S. § 3701(a)(1)(i).
5
    18 Pa.C.S. § 3502(a).
6
    18 Pa.C.S. § 903(a)(1).


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     The PCRA court held an evidentiary hearing on February 24, 2015.

Appellant testified that he saw an e-mail from the district attorney to his

counsel in April of 2013 indicating that if Appellant was willing to plead

guilty, the Commonwealth would allow him to plead to second-degree

murder. N.T. PCRA Hr’g, 2/24/15, at 5-6. Appellant testified that he was

under the “impression” that he would enter a plea to second-degree murder.

Id. at 15. However, Appellant testified that he was not “disputing” that his

plea to first-degree murder was voluntary.        Id.   The Commonwealth

proceeded to review Appellant’s guilty plea colloquy with Appellant on the

record.   Id. at 17-18.   Thereafter, the Commonwealth asked Appellant,

“[d]id you or did you not choose to plead guilty to first degree murder

knowing the nature of the charge and knowing the facts that backed up that

charge?” Id. at 18. Appellant responded, “[k]nowingly, yes.” Id.

     Trial counsel explained at the hearing that the Commonwealth did not

offer a plea of second-degree murder for Appellant.      Id. at 27-28.    He

testified, “there were discussions about offering [Appellant’s] brother

second[-degree murder] in exchange for his cooperation.      Second[-degree

murder] was never on the table for [Appellant].” Id. at 28. Trial counsel

further testified that the Commonwealth had notified him of its intent to

seek the death penalty in Appellant’s case, and his strategy was to avoid the

imposition of the death penalty. Id. at 32-33.

            After the evidence came out, after I was able to
            review the evidence, the gravity and weight of the

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           evidence against [Appellant], I knew that the
           Commonwealth had a tremendous amount of
           evidence to convict him.

                                 *    *    *

                 There are certain death penalty cases where
           the Commonwealth seeks the death penalty and
           they’re kind of grasping at straws. That was not the
           case here. So I knew he had a very high chance of
           getting the death penalty. Getting that off the table
           and getting a plea was of utmost importance.

Id. at 32-33.

     Appellant also testified regarding his request for a direct appeal:

           [Appellant’s PCRA counsel:] You were sentenced on
           August 15th of 2013. Did you have any discussion
           before either of those dates with [trial counsel] in
           regards to appeal?

           [Appellant:] On the date of July, [trial counsel] came
           and saw me at the prison, at Lancaster County, with
           the plea agreement and all that, and we talked about
           any motions for relief, for restitution and any other
           forms of relief I could get filed-wise in the courts.

           Q. Okay. Now, that would have been before your
           sentence correct?

           A. Yes.

                                 *    *    *

           Q. After you were sentenced, did you speak with
           [trial counsel] at all in regards to this appeal?

           A. I know we spoke, but I can’t recall on exactly
           what it was.

           Q. Do you recall what – I know you mentioned
           restitution, appeal about restitution. Do you recall
           any specific conversation you had with [trial

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              attorney] in regards to an appeal to the Superior
              Court, to a higher court about your sentence?

              A. I can’t recall exactly, but I can recall talking about
              it, that I have asked him that he file any paperwork
              that we can for relief and reconsiderations.

              Q. Okay.     And was anything ever filed on your
              behalf?

              A. No.

Id. at 7-9.

      When asked by the PCRA court what his expectation of counsel was

following sentencing, Appellant explained he wanted trial counsel to file “any

form of relief” on his behalf.     Id. at 21.       He further reiterated he wanted

counsel to file, “[a]ny kind of motion for relief in sentencing, any basis of the

whole case. Anything.” Id. at 22.

      Trial counsel testified as follows, with respect to Appellant’s request to

file a direct appeal.

                    I explained to [Appellant] all along that, you
              know, by taking -- if we took a guilty plea, his
              appellate rights would be, you know, incredibly
              diminished. . . .

                                    *    *      *

                    So we talked about the fact that if he did
              appeal -- or if he did plead guilty, there would be
              almost no basis whatsoever. Unless something went
              wrong in the courtroom here, there would be no
              basis for appeal.

                    And that’s, in fact, how it went down. We
              talked about that. We came in here and pled guilty.
              And I chatted with [Appellant] just afterward and

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              talked about, you know, appeal? Nah. I think that
              was his exact word, nah, n-a-h. There was no basis
              for an appeal, in my opinion, and he didn’t see one.

Id. at 29.

      Trial counsel further testified, in response to the PCRA court’s inquiry,

as follows.

              Q. Did [Appellant] indicate to you any interest in
              filing an appeal for any reason?

              A. No, Your Honor. No.

              Q. Did you, at any time prior to receipt of this PCRA
              petition, have any indication from him contrary to
              that?

              A. No. No, Your Honor.

Id. at 38.

      On May 1, 2015, the PCRA court filed an order and accompanying

opinion denying Appellant’s petition. The court found Appellant understood

at sentencing that he was entering a plea to first-degree murder, that he

agreed to the Commonwealth’s factual basis for the charge, and that it was

Appellant’s decision to plead guilty. PCRA Ct. Op., 5/1/14, at 6. Concerning

trial counsel’s failure to file an appeal, the PCRA court noted that Appellant

and trial counsel offered conflicting testimony regarding whether or not

Appellant requested trial counsel to file an appeal.     Id. at 3.    The court

reasoned, however, Appellant’s argument based on trial counsel’s failure to

file a requested appeal was meritless because Appellant conceded his



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sentence was not subject to any meritorious challenge, and Appellant could

not articulate any other specific relief to seek on appeal. Id. at 4.

      On May 13, 2015, Appellant filed the instant, timely appeal. The PCRA

court did not order compliance with Pennsylvania Rule of Appellate

Procedure 1925(b). However, the PCRA court filed a statement pursuant to

Rule 1925(a) referring this Court to its May 1, 2015 order and opinion for

the reasons underlying its denial of Appellant’s petition.     PCRA Ct. Order,

8/27/15.      On October    20, 2015, Appellant’s PCRA counsel filed a

Turner/Finley letter and application to withdraw as counsel. Appellant filed

a pro se response on November 20, 2015.

      Counsel identifies the following issues for our consideration.

            I. Whether the [PCRA] court erred in determining
            that Appellant’s plea was not involuntary and
            induced due to a breached plea agreement and
            ineffective assistance of counsel[?]

            II. Whether trial counsel was ineffective for failing to
            file an appeal on behalf of Appellant[?]

Turner/Finley Brief at 4.7 Additionally, Appellant argues, pro se, that trial

counsel coerced Appellant into accepting a plea. Appellant’s Pro Se Resp. at

2-3 (unpaginated).

      On appeal from the grant or denial of PCRA relief, this Court examines

whether the PCRA court’s findings are supported by the record and free from



7
  We have reordered counsel’s identified issues to reflect the order in which
the arguments are presented in the Turner/Finley brief.
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legal error. Commonwealth v. Walker, 110 A.3d 1000, 1003 (Pa. Super.),

appeal denied, 125 A.3d 777 (Pa. 2015).

           [A] PCRA petitioner will be granted relief only when
           he proves, by a preponderance of the evidence, that
           his conviction or sentence resulted from the
           [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. Generally, counsel’s performance is presumed
           to be constitutionally adequate, and counsel will only
           be deemed ineffective upon a sufficient showing by
           the petitioner. To obtain relief, a petitioner must
           demonstrate that counsel’s performance was
           deficient and that the deficiency prejudiced the
           petitioner. A petitioner establishes prejudice when
           he demonstrates that there is a reasonable
           probability that, but for counsel’s unprofessional
           errors, the result of the proceeding would have been
           different. . . .        [A] properly pled claim of
           ineffectiveness posits that: (1) the underlying legal
           issue has arguable merit; (2) counsel’s actions
           lacked an objective reasonable basis; and (3) actual
           prejudice befell the petitioner from counsel’s act or
           omission.

Id. (citation and internal quotation marks omitted).

     We review counsel’s petition to withdraw for compliance with the

following procedure.

           The Turner/Finley decisions provide the manner for
           postconviction     counsel     to    withdraw      from
           representation.     The holdings of those cases
           mandate an independent review of the record by
           competent counsel before a PCRA court or appellate
           court can authorize an attorney’s withdrawal. The
           necessary independent review requires counsel to
           file a “no-merit” letter detailing the nature and
           extent of his review and list each issue the petitioner
           wishes to have examined, explaining why those

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             issues are meritless.      The PCRA court, or an
             appellate court if the no-merit letter is filed before it,
             then must conduct its own independent evaluation of
             the record and agree with counsel that the petition is
             without merit. . . .

             [T]his Court [has] imposed additional requirements
             on counsel that closely track the procedure for
             withdrawing on direct appeal. . . . [C]ounsel is
             required to contemporaneously serve upon his [or
             her] client his [or her] no-merit letter and application
             to withdraw along with a statement that if the court
             granted counsel’s withdrawal request, the client may
             proceed pro se or with a privately retained
             attorney. . . .

Commonwealth v. Reed, 107 A.3d 137, 140 (Pa. Super. 2014) (citations

omitted).

       Instantly, counsel has complied with all the procedural requirements of

Turner/Finley. We therefore proceed to an independent evaluation in order

to determine if Appellant’s issues are without merit. See Reed, 107 A.3d at

140.

       The first issue counsel identifies concerns Appellant’s plea agreement.

Specifically, Appellant asserts that his plea was not knowing or voluntary

because the Commonwealth “breached” his plea agreement, and trial

“counsel was ineffective for failing to follow through and investigate a plea

offer by the Commonwealth whereby he was offered a plea agreement for

second degree murder.” Turner/Finley Brief at 13-14. We hold Appellant

is not entitled to relief on this claim.




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      We observe, “[a] criminal defendant has the right to effective counsel

during a plea process as well as during trial.” Commonwealth v. Rathfon,

899 A.2d 365, 369 (Pa. Super. 2006) (citation omitted).            Further, if

counsel’s ineffectiveness caused a defendant to plead guilty involuntarily,

the defendant is permitted to withdraw his guilty plea under the PCRA. Id.

      In the instant case, Appellant conceded he entered his plea knowingly

and did not dispute the voluntariness of his plea. N.T. PCRA Hr’g, at 15, 18.

Moreover, assuming, arguendo, he saw an email8 from the Commonwealth

offering second-degree murder, Appellant testified he was aware of this offer

in April, three months before he knowingly and voluntarily pleaded guilty to

first-degree murder.    See id. at 10.       Appellant reiterated at the PCRA

hearing he understood to what he was pleading guilty, and we discern no

basis on which to grant Appellant relief.

      Based on the foregoing, we conclude the PCRA court’s findings are

supported by the record, and Appellant has failed to carry his burden to

demonstrate his plea was involuntarily induced. See Walker, 110 A.3d at

1003; Rathfon, 899 A.2d at 369.       Therefore, we agree with counsel that

this issue is without merit. See Turner/Finley Brief at 19-20; Reed, 107

A.3d at 140.




8
  Trial counsel testified, contrary to Appellant’s claim, the Commonwealth
never offered Appellant a plea to second-degree murder. N.T. PCRA Hr’g, at
28.
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      We next address the issue raised in Appellant’s pro se response to

counsel’s Turner/Finley letter.    Appellant argues, “[t]here simply was no

benefit in this plea that counsel advised [Appellant to] take.” Appellant’s Pro

Se Resp. at 3.    He contends trial counsel coerced him into waiving his

constitutional rights for “counsel’s own interests.” Id. at 2. We disagree.

      As discussed above, Appellant’s plea to first-degree murder was

knowing and voluntary.    Further, the record belies Appellant’s contentions

that counsel acted in his own interest and that the plea was of no benefit to

Appellant. Counsel testified he believed there was a strong chance Appellant

would receive the death penalty if convicted, in light of the Commonwealth’s

evidence and the gravity of the crime. N.T. PCRA Hr’g, at 32-33. Therefore,

he determined it was in Appellant’s best interest to negotiate a plea with the

Commonwealth where the death penalty would not be sought.           Id. at 29;

see also id. at 25 (“My strategy from the inception was, number one, get

the death penalty off the table.”).     Accordingly, Appellant has failed to

demonstrate counsel’s actions lacked an objectively reasonable basis, and

his claim fails. See Walker, 110 A.3d at 1003.

      The second issue counsel identifies is “trial counsel was ineffective for

failing to file an appeal on [Appellant’s] behalf.” Turner/Finley Brief at 20.

PCRA counsel reasons that Appellant is not entitled to relief on his claim

because “[n]o appealable issues of merit exist and Appellant was unable to

state any issue that should be addressed on appeal[.]”       Id. at 21.    She


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relies, in part, on Appellant’s admission that “he had no specific relief in

mind” to support her position that Appellant’s issue is meritless. Id.

       In Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999), our

Supreme Court discussed the impact the failure to file a direct appeal has in

the context of seeking PCRA relief. The Court observed, “[s]ince the failure

to perfect a requested appeal is the functional equivalent of having no

representation at all, Strickland,[9] on its own terms, establishes the right to

relief.” Lantzy, 736 A.2d at 571 (citation omitted).

             Thus, we hold that, where there is an unjustified
             failure to file a requested direct appeal, the conduct
             of counsel falls beneath the range of competence
             demanded of attorneys in criminal cases, denies the
             accused of the assistance of counsel guaranteed by
             the Sixth Amendment to the United States
             Constitution and Article I, Section 9 of the
             Pennsylvania Constitution, as well as the right to
             direct appeal under Article V, Section 9, and
             constitutes prejudice for purposes of Section
             9543(a)(2)(ii).

Id. at 572 (footnote omitted).

       In Commonwealth v. Haun, 32 A.3d 697 (Pa. 2011), a PCRA

petitioner alleged in his petition and testified at his PCRA hearing that his

counsel failed to file a direct appeal despite petitioner’s explicit request to do

so. Haun, 32 A.3d at 701. Trial counsel testified that he had explained to

petitioner that he did not believe the trial court abused its discretion in the

handling of petitioner’s case and that petitioner never requested counsel to


9
    Strickland v. Washington, 466 U.S. 668 (1984).
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file an appeal.   Id.   The PCRA court denied relief to petitioner without

making a credibility determination regarding the disputed request for an

appeal. Id. The court reasoned petitioner was not eligible for relief because

he admitted guilt to the crimes for which he sought post conviction relief.

Id.   The Superior Court reversed the PCRA court, and our Supreme Court

affirmed holding, “a concession of guilt does not, per se, foreclose prisoner

access to the PCRA.”    Haun, 32 A.3d at 705.       Importantly, the Supreme

Court rejected the Commonwealth’s claim that the PCRA hearing established

petitioner did not request a direct appeal. Id. The Court noted, “the parties

presented conflicting evidence on the subject and the PCRA court made no

factual finding. In the circumstances, the Commonwealth cannot rely on a

credibility judgment which does not exist[.]” Id.

      Instantly, Appellant and trial counsel offered conflicting testimony

regarding the request to file a direct appeal. Compare N.T. PCRA Hr’g, at 8,

with id. at 38.    PCRA counsel’s explanation as to why Appellant’s direct

appeal argument is meritless is not relevant in light of our Supreme Court’s

analyses in Lantzy and Haun. See Turner/Finley Brief at 21. Further, the

PCRA court acknowledged that trial counsel and Appellant offered conflicting

testimony but made no factual finding as to whether the request in fact was

made. PCRA Ct. Op., 5/1/14, at 3-4; see Haun, 32 A.3d at 705. Instead, it

dismissed Appellant’s petition because Appellant conceded the trial court had

no discretion in imposing its sentence and Appellant could not articulate any


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meritorious issues to raise on appeal. Id. Our Supreme Court’s decisions in

Lantzy and Haun compel us to conclude the PCRA court committed an error

of law when it dismissed Appellant’s petition without making a credibility

determination on whether or not there was an unjustified failure by trial

counsel to file a requested direct appeal. See Walker, 110 A.3d at 1003;

Haun, 32 A.3d at 705; Lantzy, 736 A.2d at 572. Accordingly, we disagree

with counsel’s assessment of this issue and deny her petition to withdraw.

See Reed, 107 A.3d at 140.        We remand to the PCRA court for further

proceedings, including making the credibility determination necessary to

resolve Appellant’s claim of ineffectiveness.

      Order vacated.      Petition to withdraw denied.   Case remanded for

further proceedings. Panel jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/2016




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