J. S45020/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                    v.                     :
                                           :
SHAQUILLE RIVERA,                          :
                                           :
                         Appellant         :     No. 1586 WDA 2015

               Appeal from the PCRA Order September 14, 2015
               In the Court of Common Pleas of Cambria County
              Criminal Division at No(s): CP-11-CR-0002310-2014
                            CP-11-CR-0002311-2014

BEFORE: OLSON, J., DUBOW, J. AND PLATT, J.*

MEMORANDUM BY DUBOW, J.:                         FILED SEPTEMBER 7, 2016

        Appellant, Shaquille Rivera, appeals from the Order entered in the

Cambria County Court of Common Pleas dismissing his first Petition filed

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.

Additionally, Appellant’s appointed counsel, Gregory J. Neugebauer, Esquire,

has filed a Petition to Withdraw and an accompanying no-merit letter

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

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

After careful review, we grant Attorney Neugebauer’s Petition to Withdraw

and affirm.




*
    Retired Senior Judge Assigned to the Superior Court.
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        On February 5, 2015, Appellant entered open guilty pleas to one count

of Possession of a Controlled Substance With Intent to Deliver (“PWID”) and

one count of Persons Not to Possess Firearms.1        The same day, the trial

court imposed a term of 6 to 12 months’ incarceration for the PWID

conviction, and a consecutive term of 3 to 6 years’ incarceration for the

Persons Not to Possess Firearms conviction. Appellant did not file a direct

appeal.    His Judgment of Sentence, therefore, did not become final until

March 9, 2015.2 See 42 Pa.C.S. § 9545(b)(3).

        On February 20, 2015, Appellant filed the instant pro se PCRA Petition,

averring that his plea counsel had been ineffective and that his sentence is

excessive and illegal.     On March 25, 2015, the PCRA court dismissed

Appellant’s PCRA Petition and indicated that it intended to treat the filing as

a Post-Sentence Motion.       However, on May 15, 2015, the PCRA court

appointed Attorney Neugebauer as counsel and subsequently vacated its

March 25, 2015 Order, thus treating the filing as a timely PCRA Petition.3



1
    35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 6105, respectively.
2
    March 7, 2015, was a Saturday. See 1 Pa.C.S. § 1908.
3
   Although Appellant’s pro se PCRA Petition was filed prematurely, the trial
court nonetheless treated it as timely filed and denied it on the merits. In
light of the unique procedural posture of this case, the fact that the
Commonwealth did not object and has not sought to quash the Petition or
this appeal, and in recognition of the fact that the window for filing a timely
PCRA Petition has closed, in the interest of judicial economy and
fundamental fairness, we will not quash this appeal as untimely.



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        The PCRA court held a hearing and on September 15, 2015, dismissed

Appellant’s Petition, concluding that the underlying claims lacked merit

based on Appellant’s statements at the PCRA hearing and the colloquies at

Appellant’s plea offer hearing and sentencing.     Appellant filed a Notice of

Appeal on October 6, 2015.      Both Appellant and the PCRA court complied

with Pa.R.A.P. 1925.

        Appellant’s sole issue raised in his Rule 1925(b) Statement was stated

as follows: “The PCRA [c]ourt erred when it found that [t]rial [c]ounsel was

not ineffective for failing to properly advise [Appellant] that he could receive

consecutive sentences.”      Appellant’s Pa.R.A.P. 1925(b) Statement, filed

10/23/15.

        On January 19, 2016, Attorney Neugebauer filed a Turner/Finley no-

merit letter in the form of an Appellant’s Brief, noting Appellant’s desire to

challenge the effective assistance of plea counsel.         Counsel, however,

concluded that there were no non-frivolous issues to be raised on appeal.

On January 20, 2016, Attorney Neugebauer filed with this Court a Petition to

Withdraw.4

        Appellant responded to Attorney Neugebauer’s Petition to Withdraw in

a letter filed with this Court on March 16, 2016. In his response, Appellant

averred that his plea counsel was ineffective “for not following up with the

plea.” Appellant’s Letter, 3/2/16, at 1. Appellant averred that (1) he never

4
    Attorney Neugebauer also filed a Motion to Withdraw on July 13, 2016.



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refused a plea offer of 2 to 5 years’ incarceration; (2) he only “requested

time for consideration” of the offer; (3) his plea counsel never followed up

with him about the offer; and (4) the next time he came to court the offer

was no longer available.         Id.    Appellant believes plea counsel’s inaction

constituted ineffectiveness. Id.

      Before we consider Appellant’s arguments, we must review Attorney

Neugebauer’s request to withdraw from representation.                      Pursuant to

Turner/Finley, independent review of the record by competent counsel is

required     before     withdrawal      on    collateral    appeal    is    permitted.

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

then required to submit a “no merit” letter (1) detailing the nature and

extent of his or her review; (2) listing each issue the petitioner wished to

have reviewed; and (3) providing an explanation of why the petitioner’s

issues were meritless.     Id.    The court then conducts its own independent

review of the record to determine if the Petition is meritless. Id. 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.”

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

omitted).

      Our review of the record discloses that Attorney Neugebauer has

complied with each of the above requirements.                 In addition, Attorney



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Neugebauer sent Appellant copies of the Turner/Finley no-merit letter and

his Petition to Withdraw, and advised him of his rights in lieu of

representation in the event that the court granted Attorney Neugebauer

permission to withdraw.   See Commonwealth v. Widgins, 29 A.3d 816,

818 (Pa. Super. 2011). Since Attorney Neugebauer has complied with the

Turner/Finley requirements, we now proceed with our independent review

of the record and the merits of Appellant’s ineffective assistance of plea

counsel claim as it was raised in the 1925(b) Statement.

     We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its Order is otherwise

free of legal error.   Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014).   The law presumes counsel has rendered effective assistance.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).            The

burden of demonstrating ineffectiveness rests on Appellant. Id.

     To satisfy this burden, Appellant must plead and prove by a

preponderance of the evidence that: “(1) his underlying claim is of arguable

merit; (2) the particular course of conduct pursued by counsel did not have

some reasonable basis designed to effectuate his interests; and (3) but for

counsel’s ineffectiveness, there is a reasonable probability that the outcome

of the challenged proceedings would have been different.” Commonwealth

v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the




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test will result in rejection of the appellant’s ineffective assistance of counsel

claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).

      Appellant’s underlying claim of plea counsel’s ineffectiveness lacks

merit. As the PCRA court opined:

           In this case, the defendant rejected the original plea offer
      by the District Attorney of 30 to 60 months. At the plea offer
      proceeding, the Court stated:

         And what I have said is that if a plea agreement is offered
         and not accepted, when we come back for your jury
         selection we’re not going, there is no more negotiation and
         the court will not be bound by any plea agreement and any
         offer by the District Attorney is not going to bind the court.
         (N.T., 1/26/2015, p. 3-4).

           The plea agreement Mr. Rivera eventually signed stated
      “Except as expressly provided otherwise herein. there is no other
      agreement as to sentence or any other matter.” The Court
      began the guilty plea /sentencing hearing as follows:

         “... [Trial counsel] Mr. Gleason has outlined the fact that
         each of those cases can carry a ten year jail term and the
         controlled substance charge can carry up to $100,000 in
         fines, the weapons charge up to $25,000 in fines. The
         guidelines that apply here, on the delivery charge can
         carry up to three to 14 on the low end. You know what
         that is? They suggest to me a sentence, I have to give
         you a good reason to go above or below. Not to possess a
         firearm, you would face three to four years, 36 to 48
         months.       You understand those are the suggested
         sentencing ranges ?” The defendant answered, “Yes, sir.”
         (N.T., 2/5/15, pgs. 2-3).

            At PCRA hearing, the defendant conceded that he was
      aware of the possibility that he could receive a concurrent
      sentence or a consecutive sentence. (N.T. 9/14/15, p. 14). We
      concluded that the defendant was aware, at the time of his guilty
      plea colloquy, that the sentences on the two unrelated criminal
      convictions could be consecutive. Moreover, the defendant by
      his bare assertion failed to prove by a preponderance of


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      evidence that trial counsel neglected to inform him of the
      possibility of consecutive sentences.

PCRA Court Opinion, filed 11/13/15, at 2.

      We conclude the record supports the PCRA court’s determination.

With respect to the issues Appellant raised in his March 2, 2016 Letter, they

were not raised in Appellant’s Pa.R.A.P. 1925(b) Statement and are,

therefore, waived. See Pa.R.A.P. 1925; Commonwealth v. Hill, 16 A.3d

484, 494 (Pa. 2011) (holding that any issues not raised in a court-ordered

1925(b) statement will be deemed waived).

      The record supports the PCRA court’s findings and its Order is

otherwise free of legal error. Accordingly, we affirm.

      Order affirmed. Petition to Withdraw granted.


      Judge Olson Concurs in Result.

      Judge Platt Concurs in Result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/7/2016




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