J-S34033-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KEVIN JAMES NEELY

                            Appellant                No. 1631 MDA 2014


             Appeal from the PCRA Order entered August 12, 2014
               In the Court of Common Pleas of Dauphin County
               Criminal Division at No: CP-22-CR-0001329-2010


BEFORE: BOWES, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                             FILED JULY 20, 2015

        Kevin James Neely appeals pro se from an order dismissing his PCRA1

petition as meritless. We affirm.

        A jury convicted Appellant of attempted murder and other crimes for

beating, pistol-whipping, and shooting a Harrisburg nightclub bouncer on

December 18, 2009.           Because of the serious nature of the crimes and

Appellant’s extensive criminal history, the trial court sentenced Appellant to

25 to 50 years in prison. On direct appeal, this Court affirmed in part and

vacated in part the judgment of sentence.2 Commonwealth v. Neely, 55


____________________________________________


1
    Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46.
2
  We vacated in part to correct a sentencing error that did not affect
Appellant’s aggregate sentence.
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A.3d 130 (Pa. Super. 2012) (unpublished memorandum). Appellant filed a

timely PCRA petition, and the PCRA court appointed counsel. PCRA counsel

concluded that no meritorious issues existed and moved to withdraw under

Turner/Finley.3 Because of an oversight, PCRA counsel did not attach his

no-merit letter, but later corrected the error by filing the no-merit letter of

record. Thereafter, the PCRA court issued a notice of intention to dismiss

without a hearing Appellant’s PCRA petition under Pa.R.Crim.P. 907 (Rule

907 notice). After Appellant responded, the PCRA court issued a final order

dismissing the petition, from which Appellant appeals.

       Appellant raises five claims of error, which we reproduce verbatim:

       1. Whether the Dauphin County Court Erred in denying the
          petitioner’s PCRA petition without a hearing, and granting
          Counsel Bryan E. DePowell’s Motion to Withdraw without filing
          the Statutorily Required Motion in support of the “No Merit”
          Finley/Turner letter/request to Withdraw.

       2. Whether Counsel Bryan E. DePowell, provided ineffective
          assistance of counsel to this petitioner, and denied this
          petitioner’s United States Constitutional Rights under the
          Sixth (6) and Fourteenth (14) Amendments: Effective
          Assistance of Counsel; Due Process; and Equal Protection.
          Also Pa. State Constitution Art 1 § 9.

       3. Whether Counsel Bryan E. DePowell, was ineffective for failing
          to follow mandatory appellate rules, pursuant to: ANDERS v
          California,Supra; COMM. v. FINLEY,Supra; COMM. v.
          TURNER,supra; and EVITTS V. LUCEY,Supra.


____________________________________________


3
  Commonwealth 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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       4. Whether the Dauphin County Court abused its discretion, for
          failing to consider this petitioner’s Motion to Withdraw
          Counsel ‘INTER ALIA’ Ineffective Assistance of Counsel, and
          Appointing New Counsel on behalf of this petitioner Pursuant
          to Pa. R. of Crim. Proc., Rule 122(c)(2); Also, creating a
          substantial Conflict of Interest between petitioner and
          Counsel.

       5. Whether this petitioner is entitled to an Evidentiary Hearing
          and the Appointment of New Counsel, due to the Dauphin
          County Court’s abuse of discretion/error, and Counsel’s
          ineffective representation.

Appellant’s Brief at 3.4

       On appeal from an order dismissing without a hearing a PCRA petition,

our standard and scope of review are as follows:

       We review an order dismissing a petition under the PCRA in the
       light most favorable to the prevailing party at the PCRA level.
       This review is limited to the findings of the PCRA court and the
       evidence of record. We will not disturb a PCRA court’s ruling if it
       is supported by evidence of record and is free of legal error.
       This Court may affirm a PCRA court’s decision on any grounds if
       the record supports it. Further, we grant great deference to the
       factual findings of the PCRA court and will not disturb those
       findings unless they have no support in the record. However, we
       afford no such deference to its legal conclusions. Where the
       petitioner raises questions of law, our standard of review is de
       novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (internal

citations omitted).


____________________________________________


4
  Appellant asserts that the PCRA court answered in the negative all of his
questions in its Pa.R.A.P. 1925(a) opinion, but the PCRA court did not issue
a Rule 1925 opinion. Instead, the PCRA court issued its opinion concomitant
with the Rule 907 notice.



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       In his first issue, Appellant contends the PCRA court erred in granting

PCRA counsel’s motion to withdraw.             Appellant raises two specific errors:

PCRA counsel failed to file his no-merit letter at the same time as his motion

to withdraw, and PCRA counsel failed to satisfy the requirements of Anders

and McClendon.5

       Preliminarily, though Appellant couches his argument in terms of

ineffective assistance of counsel, a claim that a PCRA court erroneously

allowed counsel to withdraw under Turner/Finley is not an ineffectiveness

claim. Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super. 2012).

We will address Appellant’s ineffectiveness claim separately.

       Withdrawal under Turner/Finley in the PCRA court contemplates the

following steps, as developed by our courts in a series of cases:

       (1)    PCRA counsel must file a no-merit letter that details the
              nature and extent of counsel’s review of the record; lists
              the PCRA petitioner’s issues; and explains why those
              issues are meritless.

       (2)    PCRA counsel must file a motion to withdraw; serve the
              PCRA petitioner with the motion and the no-merit letter;
              and advise the petitioner that if the court grants the
              motion to withdraw, the petitioner can proceed pro se or
              hire his own lawyer.

       (3)    The PCRA court must conduct its own independent review
              of the record and agree that the petition is meritless.

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5
  Anders v. California, 386 U.S. 738 (1968), and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981), modified in part by,
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).



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See Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super. 2011)

(citing or quoting Turner, Finley, Commonwealth v. Pitts, 981 A.2d 875

(Pa. 2009), and Commonwealth v. Friend, 896 A.2d 607 (Pa. Super.

2008), overruled in part by, Pitts).

      We    find   that   PCRA   counsel     substantially   complied   with   the

Turner/Finley procedure.         As noted above, PCRA counsel moved to

withdraw on December 17, 2013, without attaching the required no-merit

letter.   PCRA counsel later corrected this oversight on January 17, 2014.

The PCRA court granted the motion to withdraw and issued its Rule 907

notice on June 3, 2014—months later.            In fact, the record shows that

Appellant filed a response to PCRA counsel’s no-merit letter, as well as a

response to the Rule 907 notice.         Thus, PCRA counsel’s oversight was

immaterial, and did not prejudice Appellant.

      We also reject Appellant’s contention that PCRA counsel failed to follow

the requirements of Anders and McClendon.              Those cases address the

procedure for appointed counsel to withdraw on direct appeal—not in a PCRA

proceeding. See Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa.

Super. 2003) (“Briefs filed pursuant to Anders and [McClendon] are

procedurally appropriate on direct appeal; they are inappropriate on appeals

involving PCRA petitions.”). Appellant also cites Evitts v. Lucey, 469 U.S.

387 (1985) (holding a criminal defendant is entitled to effective assistance of

counsel on a first direct appeal of right), which is inapplicable.




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       Appellant does not challenge the PCRA court’s independent conclusion

that his PCRA petition was meritless. In any event, our review of the record

confirms that the PCRA court adequately reviewed the record and did not err

in finding the petition meritless. Therefore, Appellant is not entitled to relief

on his first argument.

       In his second argument, Appellant contends that PCRA counsel

rendered ineffective assistance of counsel under the Sixth and Fourteenth

Amendments.6         This argument is without merit. There is no federal

constitutional      right     to    court-appointed   post-conviction   counsel.

Commonwealth v. Holmes, 79 A.3d 562, 580 (Pa. 2013); see also

Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (declining to hold that

post-conviction petitioners have a right to counsel when mounting collateral

attacks on their convictions).

       To the extent Appellant challenges PCRA counsel’s effectiveness under

his rules-based right to counsel, see Pa.R.Crim.P. 904(C), we reject his

argument. We already have held that the PCRA court did not err in allowing

PCRA counsel to withdraw under Turner/Finley. On appeal, Appellant fails

to mention, let alone discuss, any ineffective assistance of trial counsel,

constitutional errors, or any other cognizable PCRA claims.             See 42
____________________________________________


6
  Appellant repeatedly raised PCRA counsel’s ineffectiveness before the PCRA
court. Cf. Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)
(en banc) (holding PCRA petitioners may not challenge the effectiveness for
the first time on appeal).



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Pa.C.S.A. §§ 9542, 9543(a)(2). In providing its Rule 907 notice, the PCRA

court determined that any cognizable PCRA claims were meritless—a finding

Appellant fails to challenge.   See supra.     Thus, PCRA counsel cannot be

deemed ineffective, because any underlying issues are meritless.          See

Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (“[C]ounsel

cannot be deemed ineffective for failing to raise a meritless claim.”).

       In his third argument, Appellant combines and repeats his first two

arguments. We already have explained why those claims do not entitle him

to relief.

       In his fourth argument, Appellant contends the PCRA court erred in

denying his motion to remove PCRA counsel and appoint new counsel. This

argument, too, is meritless.    The PCRA court denied as moot Appellant’s

motion to remove PCRA counsel, because it granted PCRA counsel’s motion

to withdraw.    Moreover, a petitioner whose counsel is granted leave to

withdraw under Turner/Finley is no longer entitled to appointed counsel:

       [W]hen counsel has been appointed to represent a petitioner in
       post-conviction proceedings as a matter of right under the
       [R]ules of [C]riminal [P]rocedure and when that right has been
       fully vindicated by counsel being permitted to withdraw under
       the procedure authorized in Turner, new counsel shall not be
       appointed and the petitioner, or appellant, must thereafter look
       to his or her own resources for whatever further proceedings
       there might be.

Commonwealth v. Maple, 559 A.2d 953, 956 (Pa. Super. 1989) (footnote

omitted) (emphasis added).




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      Finally, Appellant contends the PCRA court erred in denying a hearing

on his claims. To be entitled to a hearing, a PCRA petitioner must raise an

issue of fact that would entitled him to relief.       Commonwealth v.

Simpson, 66 A.3d 253, 260-61 (Pa. 2013).            Here, the PCRA court

conducted an independent review under Turner/Finley, and concluded that

Appellant’s PCRA petition was meritless. On appeal, Appellant does not set

forth a cogent basis to conclude that the PCRA court erred. Therefore, he is

not entitled to relief.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2015




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