J-S49027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

DEBORAH K. MCKISSICK,

                        Appellant                   No. 1852 MDA 2014


          Appeal from the PCRA Order entered October 3, 2014,
            in the Court of Common Pleas of Snyder County,
          Criminal Division, at No(s): CP-55-CR-0000344-2010


BEFORE: BENDER, P.J.E., ALLEN, and OLSON, JJ.

MEMORANDUM BY ALLEN, J:                           FILED AUGUST 07, 2015

     Deborah K. McKissick (“Appellant”) appeals pro se from the order

denying her petition for relief under the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. sections 9541-46. We affirm.

     The pertinent facts are as follows:

           In 2010, Appellant was a paralegal at a law office
        handling Shelly Walter’s bankruptcy petition. Ms. Walter’s
        [vehicle], a Ford 150 pickup truck, was scheduled to be
        repossessed by GMAC, its lienholder. Appellant instructed
        Ms. Walter to leave the keys inside the truck, so it could be
        voluntarily surrendered to GMAC. Appellant then went to
        Ms. Walter’s home while she was at a court hearing, and
        took possession of Ms. Walter’s truck for Appellant’s
        personal use. Appellant never made arrangements for
        GMAC to repossess Ms. Walter’s vehicle. When Ms. Walter
        learned that the truck registration was renewed, she
        became     suspicious.     Ms. Walter       contacted law
        enforcement, and their investigation led to Appellant being
        charged with [theft by unlawful taking, receiving stolen
        property, and unauthorized use of a motor vehicle].
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Commonwealth v. McKissick, 64 A.3d 270 (Pa. Super. 2013), unpublished

memorandum at 1-2.

       On January 26, 2011, Appellant entered into a negotiated plea.       In

return for her pleading guilty to receiving stolen property, as a third-degree

felony, and the payment of restitution, the Commonwealth would withdraw

the remaining charges, and would agree to a “minimum within [the] bottom

half of [the] standard range, maximum less than 24 months.”                Plea

Agreement, 1/26/11, at 1. By order entered that same date, the trial court

acknowledged Appellant’s plea agreement.         The trial court further stated

that “[c]onsideration of and acceptance or rejection of the plea and the plea

agreement by the Court is deferred until the date fixed for sentencing,

pending receipt of a presentence investigation.” Order, 1/26/11, at 1.

       On June 13, 2011, Appellant’s counsel filed a motion to withdraw

Appellant’s guilty plea.1 According to this motion, Appellant averred that she

“is not guilty of receiving stolen property,” and “believes she has a defense

against the charges filed against her.” Motion, 6/13/11, at 1. On June 29,

2011, new counsel entered his appearance for Appellant. By order entered

July 7, 2011, the trial court granted Appellant’s motion to withdraw her

guilty plea. The trial court stated: “The guilty plea is withdrawn in that the


____________________________________________


1
  That same day, Appellant’s counsel filed a motion to withdraw from
representing Appellant.




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presentence report indicates that the court could not legally accept the plea

agreement in this case.” Order, 7/7/11, at 1. In a separate order entered

that same day, the trial court granted prior counsel’s written motion to

withdraw, and granted new counsel’s oral motion to withdraw. See Order,

7/14/11, at 1.

     On July 26, 2011, the Snyder County Public Defender’s Office entered

its appearance for Appellant. Thereafter:

           On December 19, 2011, the jury convicted Appellant
        [on all the charges]. On February 13, 2012, the trial court
        conducted a sentencing hearing, and assigned Appellant a
        prior record score of five, instead of Appellant’s requested
        score of four. The trial court determined that Appellant’s
        convictions for theft by unlawful taking and receiving
        stolen property merged, and sentenced Appellant to 12 to
        24 months of incarceration, followed by 36 months of
        probation. The trial court made the foregoing sentence
        consecutive to Appellant’s sentence of 3 to 12 months for
        her conviction of unauthorized use of an automobile.
        Further, Appellant’s minimum aggregate sentence was
        reduced to 11¼ months because the trial court determined
        that Appellant was eligible for the Recidivism Risk
        Reduction Initiative.

McKissick, unpublished memorandum at 2-3.

     On February 23, 2012, Appellant filed timely post-sentence motions.

Among her claims, Appellant asserted that the trial court erred in

miscalculating her prior record score.      On May 10, 2012, the trial court

denied Appellant’s post-sentence motions. Appellant filed a timely appeal to

this Court. On January 4, 2013, we adopted the trial court’s May 10, 2012

opinion as our own in rejecting all of Appellant’s claims and affirming her


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judgment of sentence.        McKissick, supra.         On September 9, 2013, our

Supreme     Court   denied    Appellant’s   petition    for   allowance   of   appeal.

Commonwealth v. McKissick, 74 A.3d 1031 (Pa. 2013).

      On December 6, 2013, Appellant filed a pro se PCRA petition.                 On

December 9, 2013, the PCRA court appointed counsel.                  An evidentiary

hearing originally scheduled for May of 2013 was continued so that PCRA

counsel could file either an amended petition or a “no-merit” letter and

motion to withdraw 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 July 31, 2014, PCRA counsel filed a Turner/Finley

letter in which he detailed his review of Appellant’s claims and explained why

they lacked merit. Within this letter, PCRA counsel also requested leave to

withdraw.

      On August 25, 2014, the PCRA court issued an opinion supporting

PCRA counsel’s assessment of Appellant’s PCRA petition, granted PCRA

counsel’s request to withdraw, and gave Appellant Pa.R.Crim.P. 907 notice

of intent to dismiss her PCRA petition without a hearing. On September 11,

2014, Appellant filed a lengthy, handwritten response, in which she asserted

that PCRA counsel did not personally contact her.                By order entered

September 29, 2014, the trial court directed PCRA counsel to respond to

Appellant’s allegation and inform the court whether he wished to withdraw

his Turner/Finley letter.     By letter dated October 1, 2014, PCRA counsel

denied Appellant’s allegation and reaffirmed his belief that Appellant’s PCRA

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claims were without merit.    By order entered October 3, 2014, the PCRA

court dismissed Appellant’s pro se PCRA petition.          This timely appeal

followed.   Although the PCRA court did not require Pa.R.A.P. 1925(b)

compliance, it issued a Rule 1925(a) opinion referring to an earlier opinion

supporting its Pa.R.Cim.P. 907 notice, for the reasons supporting its

dismissal of Appellant’s PCRA petition.

      In this appeal, Appellant raises the following issues:

         I. Did the [PCRA] court err when it dismissed Appellant’s
         PCRA petition without requiring [PCRA counsel] to meet
         [the] requirements of Pa.R.[Crim.]P. 904?

         II. Did the PCRA court err in determining that Appellant’s
         claim of ineffective assistance in regard to a failure to
         assert a claim of incorrect prior record score resulting in
         the loss of [a] plea bargain on the ground that the claim
         had been previously litigated on direct appeal?

         III. Did the [PCRA] Court err in its determination that the
         inclusion of the Maryland conviction did not affect
         [Appellant’s] sentence?

         IV. Did the [PCRA] court err in denying Appellant PCRA
         relief without an evidentiary hearing on her claim that
         counsel’s omission led to the loss of court entered plea, as
         the standard of assessing whether Appellant was
         prejudiced by counsel’s ineffective was erroneous?

         V. Did the [PCRA] court err when it failed to address
         whether [] Appellant was afforded ineffective assistance of
         counsel, where all prior counsel appeared to be unaware of
         the Pennsylvania Code and Sentencing Guidelines resulting
         in loss of [a] plea?

         VI. Did the [trial] court erred when it withdrew Appellant’s
         plea on July 7, 2011 based upon an erroneous pre-
         sentence investigation report which allowed probation to
         grade Maryland offense of Forgery and Counterfeit
         Documents to a Felony 2 (F2) when Maryland record[s]


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         clearly show the offense as an ungraded felony which
         resulted in loss of [the] plea entered into on January 26,
         2011?

         VII. Did appellate [counsel’s] failure to include a Pa.R.A.P.
         2119(f) [statement] constitute ineffective assistance of
         counsel and comprise Appellant’s direct appeal rights?

         VIII. Did the [trial c]ourt have jurisdiction over Appellant’s
         proceeding?

Appellant’s Brief at 8-10 (excess capitalization omitted).

      This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported   by   the    evidence   of   record   and   is   free   of   legal   error.

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).      Moreover, a PCRA court may decline to hold a

hearing on the petition if the PCRA court determines that the petitioner’s

claim is patently frivolous and is without a trace of support in either the

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011,

1104 (Pa. Super. 2001).

      To be eligible for post-conviction relief, a petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from one or more of the enumerated errors or defects in 42

Pa.C.S.A. section 9543(a)(2), and that the issues he raises have not been

previously litigated.   Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa.



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2012).     An issue has been “previously litigated” if “the highest appellate

court in which the petitioner could have had review as a matter of right has

ruled on the merits of the issue, or if the issue has been raised and decided

in a proceeding collaterally attacking the conviction or sentence.” Koehler,

36 A.3d at 131-132; 42 Pa.C.S.A. § 9544(a)(2).        If a claim has not been

previously litigated, the petitioner must prove that the issue was not waived.

An issue will be deemed waived under the PCRA “if the petitioner could have

raised it but failed to do so before trial, at trial, during unitary review, on

appeal, or in a prior state post[-]conviction proceeding.”     Id. at 132; 42

Pa.C.S.A. § 9544(b).

        Moreover, to the extent Appellant challenges the effectiveness of prior

counsel, we note: To obtain relief under the PCRA premised on a claim that

counsel was ineffective, a petitioner must establish by a preponderance of

the evidence that counsel's ineffectiveness so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could

have taken place.     Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa.

2009). “Generally, counsel’s performance is presumed to be constitutionally

adequate, and counsel will only be deemed ineffective upon a sufficient

showing by the petitioner.” Id. This requires the petitioner to demonstrate

that:    (1) the underlying claim is of arguable merit; (2) counsel had no

reasonable strategic basis for his or her action or inaction; and (3) petitioner

was prejudiced by counsel's act or omission.        Id. at 533.    A finding of


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“prejudice” requires the petitioner to show “that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.”     Id.   Counsel cannot be deemed

ineffective for failing to pursue a meritless claim.    Commonwealth v.

Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc), appeal denied, 852

A.2d 311 (Pa. 2004).

     In her first issue, although Appellant claims that PCRA counsel did not

comply with Pa.R.Crim.P. 904, her true claim is that he did not comply with

all of the Turner/Finley requirements. More specifically, Appellant asserts

that PCRA counsel did not file a separate request to withdraw, failed to have

meaningful contact with her so that her post-conviction issues could be

properly presented, and failed to inform her that she could proceed with

privately retained counsel. See Appellant’s Brief at 14-21.

     This Court has recently summarized:

            The Turner/Finley decisions provide the manner for
        [PCRA] 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 issues are meritless. The
        PCRA court, or an appellate court, if the no-merit letter is
        filed before it, see Turner, supra, then must conduct its
        own independent review of the record and agree with
        counsel that the petition is without merit.            See
        [Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa.
        2009)].


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             In Commonwealth v. Friend, 896 A.2d 607 (Pa.
         Super. 2006), abrogated in part by Pitts, supra, this
         Court imposed additional requirements on counsel that
         closely track the procedure for withdrawing on direct
         appeal.    Pursuant to Friend, counsel is required to
         contemporaneously serve upon his client his no-merit
         letter and application to withdraw along with a statement
         that if the court granted counsel’s withdraw request, the
         client may proceed pro se or with a privately retained
         attorney. Though Chief Justice Castille noted in Pitts that
         this Court is not authorized to craft procedural rules, the
         Court did not overturn this aspect of Friend as those
         prerequisites did not apply to the petitioner in Pitts. See
         [Pitts, 987 A.2d at 881 (Castille, C.J., concurring)].

            After the decision in Pitts, this Court held in
         Commonwealth v. Widgins, 29 A.3d 816 (Pa. Super.
         2011), that the additional procedural requirements of
         Friend were still applicable during collateral review.

Commonwealth v. Freeland, 106 A.2d 768, 774-775 (Pa. Super. 2014)

(citation omitted).

       Our review of the record supports the PCRA court’s conclusion that

PCRA     counsel      substantially   complied       with   the   requirements     of

Turner/Finley and their progeny. With regard to PCRA counsel’s failure to

file a separate request to withdraw, the PCRA court noted:               “The proper

procedure is for counsel to file a separate Petition to Withdraw. In this case

counsel included a request to withdraw within the body of his ‘no merit

letter.’ We are not going to insist that counsel take the step of now filing a

formal Petition to Withdraw.”         We agree.       In addition, in response to

Appellant’s assertion in her pro se response that PCRA counsel did not

communicate     with     her,   the   PCRA   court    directed    PCRA   counsel   to


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acknowledge whether he did so.              We cannot disturb the PCRA court’s

decision to credit PCRA counsel’s account of his communication with

Appellant.   See Commonwealth v. Harmon, 738 A.2d 1023, 1025 (Pa.

Super. 1999) (explaining that when a PCRA court’s determination of

credibility is supported by the record, it cannot be disturbed on appeal).

      Although   Appellant        complains   that    PCRA counsel did      not fully

comprehend the issues she wished to raise, we note that Appellant filed a

timely pro se response to the PCRA court’s Pa.R.Crim.P. 907 notice, in which

she alerted the PCRA court of these perceived shortcomings.                     Finally,

Appellant suffered no prejudice. Appellant asserts that “[w]hile this [failure]

may not appear to affect [her] claim, [] if [she] knew she had a right to

obtain private counsel [she] may have.” Appellant’s Brief at 19. During the

course of her criminal proceedings, Appellant has been represented by both

privately retained counsel and court-appointed counsel.                  As a trained

paralegal,   Appellant    filed    a   lengthy     response   to   the   PCRA   court’s

Pa.R.Crim.P. 907 notice, in which she correctly cited pertinent case authority

as well as the sentencing guidelines and the Pennsylvania Code.                  Given

these circumstances, PCRA counsel’s failure to comply with Friend does not

serve as a basis for remand.           For the foregoing reasons, Appellant’s first

issue is without merit.

      Appellant’s second issue, as well as her fourth and fifth, presuppose

that the trial court could not accept her guilty plea because of a


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miscalculation of her prior record score, and that the trial court’s actions

caused her to lose the benefit of the plea bargain. Appellant cites no record

evidence or case authority to support this claim. See Commonwealth v.

Tielsch, 934 A.2d 81, 93 (Pa. Super. 2007) (holding that undeveloped

claims will not be considered on appeal).          Moreover, the calculation of

Appellant’s prior record score does not affect her ability to plead guilty to

any crime. It is a sentencing factor, which becomes relevant only after the

entry of a valid guilty plea or conviction following trial.

      In her claims on direct appeal to this Court, Appellant challenged the

calculation of her prior record score.      The trial court rejected Appellant’s

claim that the Commonwealth failed to meet its burden of establishing

Appellant’s prior convictions, and nevertheless concluded that any error in

Appellant’s prior record score was of no significance. The court reasoned:

            [Appellant] contends our sentence was illegal because
         we did not calculate her prior record score as a “4”,
         instead of a “5.” [Appellant] argues that because she
         challenged the score, it was the Commonwealth’s burden
         to present evidence to overcome her objections.

                                      ***

            In the present case, the Court accepted the probation
         department calculation [of Appellant’s prior record score]
         and was unwilling to accept [Appellant’s] challenge without
         some further proof, which [Appellant] has never provided,
         and which [Appellant] has now admitted does not exist
         because the records have been destroyed. [Appellant
         admits she cannot produce a record because it has been
         destroyed, yet seeks to penalize the Commonwealth for
         not producing the same nonexistent record.]

                                      ***

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            Notwithstanding the calculation of the prior record
         score, we agree with the Commonwealth that [Appellant’s]
         argument about the prior record score is of no moment
         because in giving [Appellant] a minimum sentence of 12
         months, we sentenced her in the standard range sentence
         of the sentencing guidelines for either prior record score.
         With a score of 5[,] the standard range is 12 to 18
         months; with a score of 4, it is 9 to 16 months. Given her
         prior criminal history, which includes multiple offenses
         involving stealth and deception akin to the present offense,
         a standard range sentence was extremely lenient. [The
         presentence report shows that Appellant has multiple
         convictions for bad checks and a felony conviction for
         forgery. Her prior case dispositions have included Rule
         586    settlements,    ARD,     fines,  probation,   county
         imprisonment and intermediate punishment.] Moreover,
         contrary to [Appellant’s] contention, she was not “entitled”
         to a sentence of intermediate punishment.          She has
         experienced the full menu of dispositions available in our
         criminal justice system to no effect. Confinement in a
         state correctional institution was the appropriate place of
         confinement[.]

Trial Court Opinion, 5/10/12, at 9-12 (footnotes and citations omitted).

      Appellant correctly contends in her second issue that her claim of

ineffective assistance of counsel with regard to the calculation of her prior

record   score   is   not   “previously   litigated”    under   the    PCRA.    See

Commonwealth          v.    Hanible,   30   A.3d       426,   441-42    (Pa.   2011)

(distinguishing between previous litigation of underlying claim vis-à-vis

derivative ineffective assistance of counsel claim). Nevertheless, Appellant’s

fourth and fifth issues fail because Appellant had not established that her

guilty plea was rejected due a miscalculation of her prior record score. See

supra.    Moreover, Appellant has failed to provide a sufficient factual

predicate for her claim that her correct prior record score is a “3”, based on


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her prior Maryland conviction being an ungraded felony.        See Appellant’s

Brief at 15-16. Even if Appellant could establish a miscalculation, the trial

court provided ample reasons for its imposition of a state sentence,

irrespective of Appellant’s prior record score.

        Finally, we summarily reject Appellant’s remaining claims. In both her

third and sixth issues, Appellant asserts trial court error. In her third issue,

Appellant asserts that the trial court erred in determining that the inclusion

of Appellant’s prior Maryland conviction did not affect the sentence it actually

imposed. See Appellant’s Brief at 26. In her sixth issue, Appellant asserts

the trial court erred in withdrawing her guilty plea based upon an erroneous

miscalculation of her prior record score.         See Appellant’s Brief at 40.

Because both claims of trial court error could have been raised on direct

appeal, they are waived under the PCRA. Koehler, supra.

        In her seventh issue, Appellant contends that appellate counsel’s

failure to include a Pa.R.A.P. 2119(f) statement in her appellate brief

“compromise[d] her direct appeal rights.” Appellant’s Brief at 45. According

to Appellant, “[the trial court] did not object to the absence of the Pa.R.A.P.

statement thereby making ineffective counsel appear effective.” Id. These

claims are refuted by the record.       In affirming Appellant’s judgment of

sentence, we acknowledged that because the Commonwealth did not object

to Appellant’s procedural omission, Appellant’s discretionary aspects claim

was properly preserved for review. McKissick, unpublished memorandum

at 6.

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      Finally, Appellant’s eighth claim that the trial court did not have

jurisdiction over her criminal proceedings is specious.   Although Appellant

cites to provisions of the United States Bankruptcy Code, she has failed to

develop a coherent argument in support of this claim. Thus, we need not

consider it further. Tielsch, supra.

      In sum, for the foregoing reasons, we affirm the PCRA court’s order

denying Appellant post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/2015




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