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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MATTHEW JOSEPH BIRD                        :
                                               :
                       Appellant               :   No. 943 MDA 2018

               Appeal from the PCRA Order Entered May 1, 2018
       In the Court of Common Pleas of Northumberland County Criminal
                  Division at No(s): CP-49-CR-0000972-2013


BEFORE:      OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY McLAUGHLIN, J.:                  FILED: MAY 22, 2019

        Matthew Bird appeals from the order denying his Petition filed under the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Bird’s PCRA

counsel has filed a Petition to Withdraw and an Anders1 brief. We affirm the

order of the PCRA court and grant counsel’s request to withdraw.

        In September 2013, Bird was on state parole for a conviction for which

the trial court had originally sentenced him approximately 1 to 7 years’

imprisonment, when he was charged with six new drug-related offenses.

Melissa Norton, Esquire of the Public Defender’s office, represented Bird and

engaged in plea negotiations on his behalf with the Commonwealth. Prior to


____________________________________________


*    Retired Senior Judge assigned to the Superior Court.

1   See Anders v. California, 386 U.S. 738 (1967).
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the entry of a plea, Attorney Norton sent a letter to Bird, dated October 21,

2013, wherein she wrote:

      In response to your recent correspondence I will request that the
      district attorney consider recommending that your sentence on
      the above case run concurrent to the sentences you are now
      serving. However, please be aware that the Court of Common
      Pleas cannot, by law, run a sentence concurrent to a state
      revocation sentence. The dockets do not indicate that you are
      serving a revocation sentence, but the dockets are not always
      current and reliable sources of information. I am sure you know if
      you are currently serving a revocation sentence.

Attorney Norton’s Letter to Bird, 10/21/13 (emphasis in original); Tr. Ct. Op.,

5/1/18, at 2.

      Prior to a plea, the record reflects that Bird discussed his eligibility and

desire for the Recidivism Risk Reduction Incentive (“RRRI”) program and Boot

Camp. Guilty Plea Hearing, 11/4/13, at 2. Ultimately, Bird entered a guilty

plea agreement where he agreed to plead guilty to one count of possession

with intent to deliver a controlled substance, with the remaining counts to be

nolle prossed and with his sentence to fall within the bottom section of the

standard range of the Sentencing Guidelines. Id. Bird executed a written plea

colloquy, on October 25, 2013, and on November 4, 2013, he entered his

guilty plea before the trial court. During a January 13, 2014 sentencing

hearing, Attorney Norton indicated that Bird was seeking eligibility for the

RRRI program and for boot camp. Sentencing Hearing, 1/13/14 at 2. The trial

court also inquired about whether a concurrent sentence was part of Bird’s




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plea agreement and both the Commonwealth and Attorney Norton indicated

that it was not. Id.

       Ultimately, the trial court sentenced Bird to 15 to 60 months’

incarceration. Id. at 4. However, the court determined that Bird was eligible

for boot camp and the RRRI program, thereby reducing his minimum

incarceration term to slightly under a year. Id. The court attempted to make

Bird’s new sentence concurrent but to no avail because his former sentence

was a state revocation sentence Id.2

       Although he did not file a direct appeal, Bird filed a timely, pro se PCRA

petition in October 2014. We note with disapproval that Bird’s petition

languished for some time due to a lack of action by the Public Defender’s

office. Finally, PCRA counsel filed a motion for a hearing in June 2016, and

an initial hearing was held in October 2016. However, a full hearing was not

conducted until April 30, 2018,3 and the PCRA court finally denied Bird’s

petition on May 1, 2018.

       Bird filed the instant timely appeal and a Pa.R.A.P. 1925(b) statement.

However, in this Court, Bird’s PCRA counsel filed a Petition to Withdraw as

counsel as well as an Anders brief stating that Bird’s appeal is frivolous. We


____________________________________________


2 Pursuant to 61 Pa.C.S.A. 6138(a)(5.1), when a defendant’s state parole is
revoked as a result of a new conviction, the defendant must serve the balance
of his original term before serving a new sentence.

3At his PCRA hearing, Bird indicated that he is still serving parole in connection
with the instant case. PCRA hearing, 4/30/18, at 10.

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review the Petition to Withdraw prior to reaching the merits of Bird’s claims.

See Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007).

      Counsel requesting to withdraw from PCRA representation must file a

“no merit” brief that conforms to the requirements of Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d

213 (Pa.Super. 1988) (en banc). See Commonwealth v. Muzzy, 141 A.3d

509, 510-11 (Pa.Super. 2016). 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. Counsel must send the

petitioner a copy of the 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. at 511. If counsel fulfills these requirements, then this Court

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

permit counsel to withdraw. Id.

      Here, the brief that PCRA counsel filed is styled as an Anders brief,

which is proper in a direct appeal, rather than a Turner/Finley brief.

However, because an Anders brief, which alleges that the issues are frivolous,

rather than meritless, affords greater protection to a defendant, we may

accept   an   Anders    brief   in   lieu   of   a   Turner/Finley   brief.   See

Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa.Super. 2011).

      The instant Anders brief details PCRA counsel’s review of the case,

describes the issues Bird desires to raise on appeal, and explains why counsel

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believes those issues are frivolous (which presupposes that the issues are

meritless); thus, it meets the Turner/Finley requirements. Furthermore,

PCRA counsel has filed a copy of a letter he sent to Bird wherein he explains

that he finds Bird’s issues lack merit but advised him that he could proceed

pro se, or “hire an attorney at your own expense,” to file a brief on his behalf.

Letter to Bird, dated January 16, 2019. PCRA counsel indicated that he

attached a copy of his Anders brief and Petition to Withdraw to the letter. Id.

As   counsel     has    met    the    preliminary,   procedural   requirements   of

Turner/Finley, we turn to whether our review indicates that Bird’s issues

have merit.

       In his Anders brief, PCRA counsel identifies two issues for appeal: (1)

“Whether counsel for [Bird] at the time of the entry of the plea was ineffective

in failing to advise him that his negotiated sentence could not be served

concurrently with his state revocation sentence? and (2) Whether the [PCRA]

court erred in determining that [Bird’s] plea was not unlawfully induced when

[Bird] entered a plea with the erroneous but good faith expectation that his

sentence would be served concurrently with his state parole sentence?”

Anders brief at 7.4

       We begin by noting that, our review of a denial of PCRA relief “is limited

to the findings of the PCRA court and the evidence of record, viewed in the

____________________________________________


4 At his PCRA hearing, Bird indicated that he was surprised to learn, upon his
incarceration, that he would have to serve “a two year back hit” in
connection with the revocation of his state parole. PCRA hearing at 10.

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light most favorable to the prevailing party at the PCRA court level.”

Commonwealth v. Medina, 92 A.3d 1210, 1214 (Pa.Super. 2014) (en

banc). We are bound by any credibility determinations made by the PCRA

court and supported by the record, but apply a de novo standard of review to

the PCRA court’s legal conclusions. Id. at 1214-15.

        Ineffective assistance is a cognizable claim under the PCRA. See 42

Pa.C.S.A. § 9543(a)(2)(ii). “Counsel is presumed effective, and [a petitioner]

has the burden of proving otherwise.” Commonwealth v. Brown, 161 A.3d

960, 965 (Pa.Super. 2017). To overcome this presumption, a petitioner must

plead and prove that: “(1) the underlying claim has arguable merit; (2)

counsel had no reasonable basis for his or her action or inaction; and (3) the

petitioner     suffered   prejudice   because    of   counsel’s    ineffectiveness.”

Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011). Failing to satisfy

even one of these factors requires this Court to reject the claim.

Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa. 2008).

        Where a defendant enters a guilty plea on advice of counsel, “the

voluntariness of the plea depends on whether counsel’s advice was within the

range     of   competence     demanded    of    attorneys   in    criminal   cases.”

Commonwealth v. Wah, 42 A.3d 335, 338-39 (Pa.Super. 2012). Further, a

defendant’s lack of understanding of the collateral consequences of a guilty

plea does not render such plea involuntary unless counsel provided false or

misleading advice. Commonwealth v. Brandt, 74 A.3d 185, 195-97

(Pa.Super. 2013).

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      In the case sub judice, the crux of both of Bird’s potential issues lies in

his contention that his trial counsel, Attorney Norton, improperly led him to

believe that the trial court could impose a sentence to be served concurrently

with the state parole he was then serving. However, as noted above, Attorney

Norton clearly informed Bird, in writing, that a state revocation sentence could

not be served concurrently with his new sentence. Thus, there is no arguable

merit to the claim that trial counsel was ineffective for failing to impart this

information to Bird. Therefore, Bird’s claim that his guilty plea was involuntary

due to the ineffective assistance of his trial counsel must fail. See Wah, 42

A.3d at 338-39; Brandt, 74 A.3d at 195-97.

      Likewise, Bird’s claim that he entered a plea only in anticipation of a

concurrent sentence is also belied by the record because the terms of his

written guilty plea colloquy did not contain any mention of a concurrent

sentence, nor did Bird’s trial counsel require as much during Bird’s sentencing

hearing. Thus, Bird’s second issue also does not merit relief.

      Further, our own review of the record has uncovered no other

meritorious issues for appeal. Accordingly, we affirm the order of the PCRA

court and grant PCRA counsel’s Petition to Withdraw.

      Order affirmed. Petition to Withdraw Granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/22/2019




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