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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

    LAWRENCE V. LARSEN

                             Appellant                No. 1171 WDA 2017


               Appeal from the PCRA Order entered July 17, 2017
               In the Court of Common Pleas of Jefferson County
               Criminal Division at No: CP-33-CR-0000318-2016


BEFORE: BENDER, P.J.E., STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                          FILED AUGUST 21, 2018

        Appellant, Lawrence V. Larsen, appeals from the July 17, 2017 order

dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-46.         Counsel has filed a brief and no merit letter in

accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). We

affirm the order and grant counsel’s petition to withdraw.

        On May 8, 2015, the Commonwealth filed a criminal complaint charging

Appellant with driving under the influence (“DUI”)/general impairment, 75

Pa.C.S.A. § 3802(a)(1). Because Appellant refused to consent to a blood test,

and because this was his third DUI offense, Appellant was facing a first-degree

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*   Retired Senior Judge assigned to the Superior Court.
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misdemeanor conviction with a mandatory minimum of one year of

incarceration, a fine of at least $2,500.00, and temporary loss of his driver’s

license followed by a period of ignition interlock. Prior to the disposition of

Appellant’s case, the United States Supreme Court handed down its decision

in Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), in which it held that

the federal constitution does not permit criminalization of the refusal to

consent to a blood test.      On August 3, 2016, Appellant accepted the

Commonwealth’s post-Birchfield plea offer and pled guilty to DUI as a

second-degree misdemeanor.       That same day, the trial court sentenced

Appellant to time served to two years less one day, followed by one day of

probation, and a $500.00 fine.    Appellant did not file a direct appeal, and

therefore his judgment of sentence became final on September 2, 2016.

      Appellant filed a timely first pro se PCRA petition on December 27, 2016.

Counsel filed an amended petition on May 5, 2017. The PCRA court conducted

a hearing on July 12, 2017. On July 17, 2017, the court entered the order on

appeal, dismissing Appellant’s petition. This timely appeal followed.

      Before we address the merits of Appellant’s appeal, we consider the

adequacy of counsel’s Turner/Finley filings.       Turner/Finley procedure

involves the following:

           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.

Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011) (quoting

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

petition and no merit letter comply with the first three requirements above,

and counsel has served copies of his fillings on Appellant. Appellant has not

filed any response. We therefore proceed with our review.

      “On appeal from the denial of PCRA relief, an appellate court’s standard

of review is whether the ruling of the PCRA court is free of legal error and

supported by the record.” Commonwealth v. Jones, 932 A.2d 179, 181

(Pa. Super. 2007). The Turner/Finley letter addresses four issues Appellant

wished to raise, the first of which is that trial counsel unlawfully induced

Appellant’s plea. To prevail on this claim, he must plead and prove that his

plea was “unlawfully induced where the circumstances make it likely that the

inducement caused the petitioner to plead guilty and the petitioner is

innocent.” 42 Pa.C.S.A. § 9543(a)(2)(iii).

      The record contains no evidence that Appellant was induced, or that he

is innocent. At the plea hearing, Appellant initially asked to “fire” the public

defender representing him.     N.T. Plea Hearing, 8/3/16, at 4.       Appellant

claimed he was coerced into waiving his preliminary hearing, that counsel


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failed to respond to letters, and that counsel told him the judge would “hang”

him if he went to trial. Id. at 5-6. Appellant also asked for alcohol rehab as

a condition of his guilty plea. Id. at 6-7. The trial judge refused to make any

promises without the benefit of a drug and alcohol evaluation. Id. at 8. The

court recessed for an hour to permit Appellant to discuss the matter with his

public defender and decide whether he wanted to enter a plea or proceed to

trial, with or without counsel. Id. at 8-9. Upon returning to the courtroom,

Appellant pled guilty, indicating that he understood all of the questions in his

written plea colloquy. Id. at 10-11. The court conducted an on-the-record

colloquy at which Appellant confirmed that he understood his rights and the

maximum fines and punishments.         Id. at 11.    Appellant stated that he

reviewed the facts with defense counsel and wished to plead guilty. Id. at

12. For all of the foregoing reasons, we agree with counsel that Appellant

cannot establish that defense counsel induced his guilty plea, or that he is

innocent.

      Next, the Turner/Finley letter states that Appellant wishes to argue

that the trial court denied Appellant due process by denying Appellant’s pre-

trial motion challenging counsel’s effectiveness.     In Commonwealth v.

Holmes, 79 A.3d 562 (Pa. 2013), our Supreme Court held that, absent limited

circumstances, assertions of ineffective assistance must await collateral

review.     We discern no basis upon which the trial court erred in denying

Appellant’s pre-trial motion.


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      On collateral review, Appellant wishes to assert that counsel was

ineffective for advising him to waive his preliminary hearing. To establish that

counsel was ineffective, a petitioner must plead and prove that (1) the

underlying issue is of arguable merit; (2) counsel had no reasonable strategic

basis for the action or inaction; and (3) counsel’s error prejudiced the

petitioner. Commonwealth v. Travaglia, 661 A.2d 352 (Pa. 1995), cert.

denied, 516 U.S. 1121 (1996).          Here, Appellant’s claim fails for lack of

arguable   merit.    Appellant,   at    his   guilty   plea,   conceded   that   the

Commonwealth had sufficient evidence of his guilt of DUI/general impairment.

Clearly, he cannot establish prejudice stemming from counsel’s decision not

to force the Commonwealth to establish a prima facie case at the preliminary

hearing.

      Finally, the Turner/Finley brief notes that Appellant wishes to

challenge the sufficiency of the evidence because there is no blood test or

other evidence confirming his intoxication and because the original dispatch

leading officers to the scene of Appellant’s arrest identified his vehicle as

having an Illinois plate, instead of Iowa (the plate number was correct). See

N.T. PCRA Hearing, 7/12/17, at 6-7. This argument cannot prevail because

insufficiency of the evidence is not a basis for relief on collateral review. 42

Pa.C.S.A. § 9543. Furthermore, Appellant’s general impairment conviction did

not require evidence of his blood alcohol content. Finally, the error regarding

the license plate would not have undermined a police officer’s identification of


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Appellant as the intoxicated driver of the vehicle in question. To the extent

Appellant wished to argue that counsel was ineffective for advising him to

plead guilty where the Commonwealth had insufficient evidence of his guilt,

he would have failed because the underlying issue lacks arguable merit.

      In summary, we agree with counsel’s assertion that the issues Appellant

wishes to raise lack merit. Our own review of the record has identified no

other potentially meritorious issues. We therefore affirm the order dismissing

Appellant’s petition and grant counsel’s petition to withdraw.

      Order affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2018




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