J-S59037-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SEAN MICHAEL ADEE                          :
                                               :
                       Appellant               :   No. 1790 EDA 2019

              Appeal from the PCRA Order Entered May 29, 2019
      In the Court of Common Pleas of Bucks County Criminal Division at
                       No(s): CP-09-CR-0004389-2016


BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                           FILED MARCH 13, 2020

       Sean Michael Adee appeals pro se from the denial of his petition filed

pursuant to the Post-Conviction Relief Act, (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. Adee claims that the sentence imposed was illegal, challenges the

discretionary aspects of his sentence, and asserts that the PCRA court erred

by accepting counsel’s Turner/Finley1 letter and granting her permission to

withdraw. We affirm.

       On January 30, 2017, Adee pleaded nolo contendere to two counts each

of homicide by vehicle and recklessly endangering another person, and to

summary citations for disregarding a traffic lane, reckless driving, and



____________________________________________


1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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prohibited text based communications.2 Sentencing was deferred for the

preparation of a presentence investigation report.

       On July 14, 2017, the trial court sentenced Adee to the statutory

maximum sentence of three and one half to seven years of incarceration for

each count of homicide by vehicle. The court ordered Adee to serve the

sentences consecutively, for an aggregate sentence of seven to 14 years in

prison. The court imposed no further penalty on the other counts. The trial

court denied Adee’s motion for reconsideration. Adee did not file a direct

appeal.

       On August 24, 2018, Adee filed a timely first PCRA petition. The court

appointed counsel, who filed an amended petition, arguing that plea counsel

was ineffective per se for failing to file a direct appeal. Adee filed a pro se

objection to the petition, asserting that counsel had raised different issues

than Adee wanted. On January 25, 2019, counsel filed a response averring

that there was a breakdown in the attorney-client relationship and requesting

appointment of conflict counsel. The court granted the request and appointed

conflict counsel. Conflict counsel subsequently filed a petition to withdraw as

counsel together with a Turner/Finley no merit letter, averring that there

were no meritorious issues. On April 24, 2019, the PCRA court granted conflict

counsel’s request to withdraw.



____________________________________________


2See 75 Pa.C.S.A. § 3732(a); 18 Pa.C.S.A. § 2705; and 75 Pa.C.S.A. §§
3309(1), 3736(a), and 3316(a), respectively.

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      The court then issued a Pa.R.Crim.P. 907 notice of its intent to dismiss

the petition, and Adee filed a pro se response. Adee claimed that conflict

counsel abrogated her duties and abandoned his issues, and asserted that

counsel misapprehended the law when she concluded that he was not serving

an illegal sentence. See Response to Pa.R.Crim.P. 907 Notice, at 2-4. The

PCRA court dismissed Adee’s PCRA petition and this timely appeal followed.

      Adee raises three issues on appeal.

         1. Does a PCRA court err in refusing to cure the imposition of
            illegal sentences stemming from a single accident where
            such is not authorized by the Vehicle Code, violates the
            Double Jeopardy Clauses, merger doctrine and stare decisis
            as it relates to two deaths resulting in a single injury to the
            Commonwealth?

         2. Does the PCRA court err in refusing to address the propriety
            of meting [sic] the maximum sentence, for a single act,
            where Appellant has no prior record, others similarly
            situated were not similarly treated and sentencing appears
            to be based on an impermissible animus that may require
            recusal as equal protections under the law are implicated?

         3. Does the PCRA court err in dismissing a petition, absent a
            hearing, without issuing independent reasoning for
            dismissal nor addressing the potential for amendment and
            other matters of record relating to Appellant’s claims, when
            Appellant’s fundamental and substantive right to the
            assistance of counsel on his first PCRA was abrogated when
            appointed counsel failed to meet the requirements of filing
            a no-merit letter?

Adee’s Br. at 4.

      We review the denial of a PCRA petition to determine whether the record

supports the court’s ruling and whether the ruling is free of legal error. See

Commonwealth v. Calhoun, 52 A.3d 281, 284 (Pa.Super. 2012).


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      In his first issue, Adee claims that the trial court imposed an illegal

sentence    when   it   imposed   two    maximum   sentences   to   be   served

consecutively—one for each count of homicide by vehicle. He claims that his

consecutive sentences violate double jeopardy because the sentences should

have merged, and because he is being punished twice for a single accident.

See Adee’s Br. at 10-17. We disagree.

      The PCRA affords relief for, among other things, sentences that are

illegal because they violate principles of double jeopardy or merger.

Commonwealth v. Rouse, 191 A.3d 1, 5 (Pa.Super. 2018). The prohibition

against double jeopardy is set forth in the United States and Pennsylvania

Constitutions. See Pennsylvania Const. Art. 1, § 10 (“No person shall, for the

same offense, be twice put in jeopardy of life or limb”); U.S. Const. amend.

V. (“nor shall any person be subject for the same offence to be twice put in

jeopardy of life or limb”).

      The Sentencing Code governs merger for sentencing purposes and

provides:

      No crime shall merge for sentencing purposes unless the crimes
      arise from a single criminal act and all of the statutory elements
      of one offense are included in the statutory elements of the other
      offense. Where crimes merge for sentencing purposes, the court
      may sentence the defendant only on the higher graded offense.

42 Pa.C.S.A. § 9765. However, “the same facts may support multiple

convictions and separate sentences for each conviction except in cases where

the offenses are greater and lesser included offenses.” Commonwealth v.

Anderson, 650 A.2d 20, 22 (Pa. 1994).

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      Adee’s sentences do not violate the doctrine of merger. The court did

not sentence Adee for greater and lesser-included offenses for the same set

of facts. Rather, he was sentenced for one count of homicide by vehicle for

the death of Ian McNeill, and one count of homicide by vehicle for the death

of Jane McNeill. Both offenses were homicide by vehicle, and neither

constituted a greater or lesser offense. Thus, the convictions do not merge.

Anderson, 650 A.2d at 22.

      Nor was there any double jeopardy violation. Where the legislature

intended that each injury constitutes a separate offense, “a single act which

injures   multiple   victims   can   be    the   basis   for   multiple   sentences.”

Commonwealth v. Frisbie, 485 A.2d 1098, 1100 (Pa. 1984). In Frisbie, our

Supreme Court determined that convictions for recklessly endangering

another person do not merge where the defendant has endangered several

people in a single incident. The Court explained that the plain language of the

statute refers to placing another person in danger, such that it concluded

that the legislature intended that each individual person placed in danger

constitutes a separate offense. See id.

      In the instant case, the Crimes Code definition of the crime of homicide

by vehicle similarly refers to causing the death of another person. See 75

Pa.C.S.A. § 3732(a) (“Any person who recklessly or with gross negligence

causes the death of another person while engaged in the violation of any

law . . . applying to the operation or use of a vehicle . . . is guilty of homicide

by vehicle . . . when the violation is the cause of death.”) (emphasis added).

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Accordingly, we conclude pursuant to Frisbie that a defendant commits a

separate offense of homicide by vehicle for each person killed. As such, the

trial court’s sentencing Adee for two offenses, where two people were killed

from his single act, does not constitute a violation of double jeopardy. Adee’s

first issue is meritless.

      In his second issue, Adee claims that the trial court erred when it

imposed an unreasonable and excessive sentence. He claims that the

sentencing court failed to comply with the sentencing statutes and that the

sentence was the result of judicial bias. See Adee’s Br. at 18-22. Adee asserts

that he is not challenging the discretionary aspects of sentencing. See id. at

18.

      We disagree that Adee is not challenging discretionary aspects of

sentencing. Adee’s argument consists of allegations that the court departed

from the sentencing guidelines and imposed a statutory maximum sentence,

see id. at 19; considered irrelevant factors, see id.; punished him because

of a “retaliatory animus,” id. at 21; and imposed a harsher sentence than

various other cases involving homicide by vehicle, see id. at 22.

      Each of Adee’s claims challenges the discretionary aspects of his

sentence, not the legality. A claim that the court imposed an above guidelines

sentence without adequate reasons presents a challenge to the discretionary

aspects of sentencing. See Commonwealth v. Twitty, 876 A.2d 433, 438

(Pa.Super. 2005). A claim that the court failed to follow the Section 9721(b)

sentencing factors pertains to the discretionary aspects of sentencing. See

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Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.Super. 2013) (en

banc). A claim that the court exercised its discretion in a way that was

motivated by personal animus implicates the discretionary aspects of a

sentence. See Commonwealth v. Robinson, 931 A.2d 15, 21 (Pa.Super.

2007) (en banc). Finally, a claim that a sentence is harsh and unreasonable

challenges the discretionary aspects of the sentence. See Commonwealth

v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013). Hence, all of Adee’s claims

concern the discretionary aspects of sentencing.

      Challenges to discretionary aspects of sentencing are not cognizable

under the PCRA. See Commonwealth v. Fowler, 930 A.2d 586, 593

(Pa.Super. 2007) (“Challenges to the discretionary aspects of sentencing are

not cognizable under the PCRA.”); see also Commonwealth v. Jordan, 772

A.2d 1011, 1016 (Pa. Super. 2001) (observing that “[t]his Court's case law

has stated that a challenge to the discretionary aspects of sentencing is a

matter that must be reviewed in the context of a direct appeal and cannot be

reviewed in the context of the PCRA”); 42 Pa.C.S.A. § 9543(a)(2). Hence,

Adee is entitled to no relief on his second issue.

      In his third issue, Adee claims that the PCRA court erred in granting

conflict counsel’s petition to withdraw. See Adee’s Br. at 24-26. He argues

that conflict counsel’s Turner/Finley letter was deficient and does not discuss

his claims related to double jeopardy, sentencing guidelines, or judicial bias.

Accordingly, he insists that the court must appoint new PCRA counsel. We

disagree.

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      As a first time PCRA petitioner, Adee is entitled to the assistance of

counsel, to diligently and competently represent him until counsel withdraws

his or her appearance. See Commonwealth v. Librizzi, 810 A.2d 692, 693

(Pa.Super. 2002). “[C]ounsel may withdraw at any stage of collateral

proceedings if, in the exercise of his or her professional judgment, counsel

determines that the issues raised in those proceedings are meritless and if the

post-conviction court concurs with counsel’s assessment.” Commonwealth

v. Glover, 738 A.2d 460, 463 (Pa.Super. 1999) (citation omitted).

      Counsel requesting to withdraw from PCRA representation must file a

“no merit” letter or brief that conforms to the requirements of Turner and

Finley. See Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012).

A Turner/Finley brief must detail “the nature and extent of counsel’s diligent

review of the case, listing the issues which petitioner wants to have reviewed,

explaining why and how those issues lack merit, and requesting permission to

withdraw.” Id. (citation omitted). Counsel must send the petitioner a copy of

the no merit brief, a copy of counsel’s petition to withdraw, and “a statement

advising petitioner of the right to proceed pro se or by new counsel.” Id.

(citation omitted). If counsel fulfills these requirements, then the PCRA court

must conduct its own review of the case, and, if the claims are without merit,

permit counsel to withdraw. See id.

      We have reviewed conflict counsel’s no merit letter and conclude that it

meets the requirements of Turner/Finley. Conflict counsel explains the

nature and extent of her review; indicates the issues that Adee wanted to

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raise and explains why the issues lacked merit; and discusses the issue that

prior counsel wanted to raise concerning filing of a direct appeal and explains

why that lacks merit. Contrary to Adee’s assertion, the letter discusses the

legality of the sentence imposed and explains that a challenge to the

discretionary aspects of his sentence, through an ineffective assistance of

counsel claim, would lack merit. See No Merit Letter, 4/15/19, at 6-7.

Therefore, we conclude that the PCRA court did not err in finding that conflict

counsel’s no merit letter met the requirements of Turner/Finley and did not

err in permitting counsel to withdraw. Adee’s third issue is meritless.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/20




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