J-S77006-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOSE LUIS TORRES

                            Appellant                No. 2550 EDA 2013


              Appeal from the PCRA Order Entered August 7, 2013
               In the Court of Common Pleas of Delaware County
               Criminal Division at No: CP-23-CR-0005138-2007


BEFORE: STABILE, JENKINS, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                       FILED FEBRUARY 09, 2015

        Appellant, Jose Louis Torres, appeals from the August 7, 2013 order

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

42 Pa.C.S.A. §§ 9541-46. Counsel has filed an application to withdraw 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 application to

withdraw.

        This prosecution arose from a January 5, 2007 incident in which the

victim arrived at his apartment to find an armed intruder later identified as

Appellant. A struggle ensued, during which Appellant fired two shots but did
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S77006-14


not injure the victim. Appellant was seventeen years old at the time of the

burglary. Based on the severity of the charges, which included attempted

murder and aggravated assault, the prosecution commenced in the court of

common pleas criminal division rather than in juvenile court. In the midst of

a July 14, 2009 jury trial, Appellant elected to plead guilty to aggravated

assault, four counts of burglary, and one count of persons not to possess a

firearm.1    After a colloquy, the trial court accepted Appellant’s plea and

imposed an aggregate 5½ to 11 years of incarceration.

       Appellant did not file a direct appeal. He filed a timely pro se PCRA

petition on July 12, 2010.        The petition alleged, among other things, that

counsel was ineffective for failing to seek decertification from criminal to

juvenile court pursuant to 42 Pa.C.S.A. § 6322. On February 28, 2011, the

PCRA court filed its Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s

petition without a hearing.       The PCRA court denied the petition on July 1,

2011. Appellant filed a timely appeal from that order.

       On February 7, 2012, this Court issued a memorandum affirming in

part and reversing and remanding in part. Commonwealth v. Torres, 60

A.3d 846 (Pa. Super. 2012) (unpublished memorandum).                 The panel

____________________________________________


1
   18 Pa.C.S.A. §§ 2702(a)(1), 3502(a)(1) and (2), 6105. While giving a
statement to police concerning the January 5, 2007 burglary, Appellant
admitted his participation in three additional burglaries. For this reason,
Appellant was facing charges of burglary with a person present
(§ 3502(a)(1)) and without a person present (§ 3502(a)(2)).



                                           -2-
J-S77006-14


rejected all but one of Appellant’s arguments, that being his assertion that

counsel was ineffective for failing to seek a transfer from criminal to juvenile

court.    Based on the record, the panel was unable to ascertain whether

counsel had a reasonable strategic basis for failing to request decertification.

Id. at 11. The panel remanded for a hearing limited to that issue. Id.

         The remand hearing occurred on August 7, 2013.        At the hearing,

Appellant’s counsel introduced the report of Dr. Steven Mechanick. 2 In his

report, Dr. Mechanick opined that Appellant would not have been amenable

to rehabilitation in the juvenile justice system.      Dr. Mechanick’s report

noted, among other things, Appellant’s age at the time of his arrest, and his

extensive history of juvenile delinquency. N.T. Hearing, 8/7/13, at 5. The

Commonwealth introduced evidence of Appellant’s history, which included

adjudications of delinquency for simple assault and aggravated assault, as

well as a firearms charge that was pending at the time of Appellant’s arrest

in the instant matter. At the conclusion of the hearing, the trial court issued

the order on appeal.3


____________________________________________


2
   By order of December 12, 2012, the PCRA court authorized appointment
of an expert witness to assess Appellant’s amenability to treatment.
3
    Counsel initially proceeded under Anders v. California, 386 U.S. 738
(1967). In an August 1, 2014 order, this Court returned counsel’s brief and
directed him to follow the Turner/Finley procedure applicable to collateral
review. This explains the delay between the trial court’s August 7, 2013
final order and our decision.



                                           -3-
J-S77006-14


      We   first   assess   counsel’s    compliance   with   the   dictates   of

Turner/Finley.

            Counsel petitioning to withdraw from PCRA representation
      must proceed ... under [Turner/Finley and] . . . must review
      the case zealously. Turner/Finley counsel must then submit a
      ‘no-merit’ letter to the trial court, or brief on appeal to this
      Court, detailing 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.

            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.

             [W]here counsel submits a petition and no-merit letter that
      ... satisfy the technical demands of Turner/Finley, the court —
      trial court or this 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. Doty, 48 A.3d 451, 454 (Pa. Super. 2012). Our review

of counsel’s application and no merit letter indicate that he has complied

with the technicalities of Turner/Finley. As such, we must conduct our own

review of the merits of the case.

      On review of an order denying a PCRA petition, we determine whether

the record supports the PCRA court’s findings and whether the court’s

decision is free of legal error. Commonwealth v. Fletcher, 986 A.2d 759,

774 (Pa. 2009). Here, Appellant asserts counsel’s ineffectiveness for failing

to seek decertification from the court of common pleas criminal division to




                                        -4-
J-S77006-14


juvenile court.   To obtain relief on that claim, Appellant must plead and

prove:

            (1) that the underlying issue has arguable merit; (2)
      counsel’s actions lacked an objective reasonable basis; and (3)
      actual prejudice resulted from counsel’s act or failure to act.
      Where the petitioner fails to plead or meet any elements of the
      above-cited test, his claim must fail.

            A claim has arguable merit where the factual averments, if
      accurate, could establish cause for relief. Whether the facts rise
      to the level of arguable merit is a legal determination.

             The test for deciding whether counsel had a reasonable
      basis for his action or inaction is whether no competent counsel
      would have chosen that action or inaction, or, the alternative,
      not chosen, offered a significantly greater potential chance of
      success. Counsel’s decisions will be considered reasonable if
      they effectuated his client’s interests. We do not employ a
      hindsight analysis in comparing trial counsel’s actions with other
      efforts he may have taken.

             Prejudice is established if there is a reasonable probability
      that, but for counsel’s errors, the result of the proceeding would
      have been different. A reasonable probability is a probability
      sufficient to undermine confidence in the outcome.

Commonwealth v. Stewart, 84 A.3d 701, 706-707 (Pa. Super. 2013)

(internal citations and quotation marks omitted).

      Our prior panel remanded because it was unable to ascertain whether

counsel had a reasonable strategic basis for not seeking decertification to

juvenile court. Section 6302 of the Juvenile Act excludes attempted murder

and aggravated assault from the definition of delinquent act where, as in this

case, a deadly weapon was used.       42 Pa.C.S.A. § 6302, “Delinquent Act”

(2)(ii)(C) and (2)(iii)(I).   Pursuant to § 6322 of the Juvenile Act, a

prosecution for an offense excluded from the definition of a juvenile act

                                     -5-
J-S77006-14


commences in the court of common pleas criminal division rather than in

juvenile court. 42 Pa.C.S.A. 6322(a). Section 6322(a) provides, however,

that such a prosecution can be transferred from criminal court to juvenile

court in some circumstances:

            In determining whether to transfer a case charging murder
     or any of the offenses excluded from the definition of ‘delinquent
     act’ in section 6302, the child shall be required to establish by a
     preponderance of the evidence that the transfer will serve the
     public interest.     In determining whether the child has so
     established that the transfer will serve the public interest, the
     court shall consider the factors contained in section
     6355(a)(4)(iii) (relating to transfer to criminal proceedings).

42 Pa.C.S.A. § 6322(a).

     In turn, § 6355(a)(4)(iii) lists the following relevant considerations:

           (A)   the impact of the offense on the victim or victims;

           (B)   the impact of the offense on the community;

           (C)   the threat to the safety of the public or any
                 individual posed by the child;

           (D)   the nature and circumstances             of   the   offense
                 allegedly committed by the child;

           (E)   the degree of the child’s culpability;

           (F)   the adequacy and duration of dispositional
                 alternatives available under this chapter and in the
                 adult criminal justice system; and

           (G)   whether the child is amenable to treatment,
                 supervision or rehabilitation as a juvenile by
                 considering the following factors:

                    (I) age;

                    (II) mental capacity;

                    (III) maturity;

                                      -6-
J-S77006-14


                     (IV) the degree of          criminal   sophistication
                     exhibited by the child;

                     (V) previous records, if any;

                     (VI) the nature and extent of any prior delinquent
                     history, including the success or failure of any
                     previous attempts by the juvenile court to
                     rehabilitate the child;

                     (VII) whether the child can be rehabilitated prior
                     to the expiration of the juvenile court jurisdiction;

                     (VIII) probation or institutional reports, if any;

                     (IX) any other relevant factors[.]

42 Pa.C.S.A. § 6355(a)(4)(iii)(A-G).    Thus, had Appellant’s counsel filed a

decertification petition, Appellant would have borne the burden of proving by

a preponderance of the evidence that these factors weigh in favor of

decertification.

      We observe that trial courts have broad discretion in determining

whether to grant decertification, and this Court will not reverse the trial

court’s decision absent a “gross abuse of discretion.”      Commonwealth v.

Ruffin, 10 A.3d 336, 338 (Pa. Super. 2010).

             Although the Juvenile Act requires that a decertification
      court consider all of the amenability factors, it is silent as to the
      weight that should be assessed to each factor. The ultimate
      decision of whether to certify a minor to stand trial as an adult is
      within the sole discretion of a decertification court.              A
      decertification court must consider all the facts set forth in
      § 6355 of the Juvenile Act, but it need not address, seriatim, the
      applicability and importance of each factor and fact in reaching
      its final determination.




                                      -7-
J-S77006-14


Id.    While the law requires consideration of all of the § 6355(a)(4)(iii)

factors, the trial court need not address each factor expressly.            Id.     “The

presumption in this Commonwealth remains that if a court has facts in its

possession, it will apply them.”          Commonwealth v. Jackson, 722 A.2d

1030, 1034 (Pa. 1999).           “When evaluating the propriety of a certification

decision, absent evidence to the contrary, a reviewing court must presume

that the juvenile court carefully considered the entire record.”              Id.     In

Ruffin, this Court affirmed the trial court’s denial of the defendant’s request

for decertification.     We did so largely based on the defendant’s lengthy

history in the juvenile system and testimony that he was not amenable to

rehabilitation. Ruffin, 10 A.3d at 339-40.

       Based on considerations similar to those expressed in Ruffin, the

PCRA    court    found    that    a   decertification   petition   would   have   been

unsuccessful. Thus, the court reasoned that a reasonable basis existed for

counsel’s4 choice not to seek decertification, and that counsel’s decision did

not prejudice Appellant. We agree.

       While the record of the remand hearing evinces minimal consideration

of § 6355(a)(4)(iii)(A-F), Jackson teaches that a detailed, on-the-record

analysis of each subsection is unnecessary. The facts relevant to A through

F are largely discernible from Appellant’s guilty plea and sentencing.               We
____________________________________________


4
   We note that neither party called Appellant’s trial counsel to be a witness
at the remand hearing.



                                           -8-
J-S77006-14


must presume, pursuant to Jackson, that the PCRA court was aware of

them and that the trial judge would have been aware of them.

      Prior to the remand hearing, however, the record was silent on

subsection G, concerning Appellant’s amenability to rehabilitation.       To

alleviate that problem, Appellant’s PCRA counsel procured an expert report

on Appellant’s prospects for rehabilitation.      As we have explained, that

report turned out to be unfavorable to Appellant.       Based on the expert’s

report, as well as the other evidence of record, the PCRA court concluded a

petition to decertify would have been unsuccessful. Since the PCRA court’s

findings are supported in the record and we discern no legal error in the

court’s dismissal of Appellant’s petition, we affirm.

      Order affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2015




                                      -9-
