J-S79018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 JAMIN C. WILLIAMS                         :
                                           :
                    Appellant              :   No. 1020 MDA 2018

              Appeal from the PCRA Order Entered May 18, 2018
     In the Court of Common Pleas of Franklin County Criminal Division at
                       No(s): CP-28-CR-0000660-2016


BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                                FILED JUNE 19, 2019

      Appellant, Jamin C. Williams, appeals from the order entered on May

18, 2018, dismissing his petition filed pursuant to the Post Conviction Relief

Act (PCRA), 45 Pa.C.S.A. §§ 9541-9546. On appeal, Appellant’s counsel filed

a petition to withdraw as counsel, and accompanying no-merit brief, pursuant

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

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

review,   because   we   conclude   that   counsel    fulfilled   the    procedural

requirements of Turner/Finley and that this appeal is without merit, we grant

counsel’s petition to withdraw and affirm the order dismissing Appellant’s

PCRA petition.

      The PCRA court summarized the facts and procedural history of this case

as follows:
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       On December 9, 2016, [Appellant] entered a nolo contendere plea
       to one count each of criminal attempt – disarming law
       enforcement; fleeing and eluding [police]; and driving under
       suspension – DUI related.[1] On that same date, [the trial c]ourt
       accepted the sentence[ing] terms proposed by the plea
       agreement and imposed a sentence of [nine] to 36 months’
       incarceration on the count of criminal attempt – disarming law
       enforcement; a consecutive [nine] to 36 months’ incarceration for
       fleeing and eluding [police]; and a concurrent sentence of 60 days’
       incarceration for driving under suspension – DUI related.
       [Appellant] did not file post-sentence motions or a direct appeal.

       On March 23, 2017, [Appellant] filed a pro se [PCRA petition]. The
       PCRA [p]etition alleged that trial counsel was ineffective for (a)
       failing to seek proper medical evidence to contradict the
       court-ordered mental health evaluation, (b) failing to work in
       [Appellant’s] best interest or to an acceptable standard, and (c)
       coercing [Appellant] into waiving his preliminary hearing and
       entering into a plea agreement based on the threat of additional
       charges. By [o]rder dated March 27, 2017, Attorney Kristin
       Nicklas was appointed to represent [Appellant] in furtherance of
       his PCRA claims.

       On July 27, 2017, Attorney Nicklas filed a motion to withdraw as
       counsel and a “no merit” letter pursuant to [Turner/Finley].
       Upon consideration of Attorney Nicklas’ correspondence and [its]
       independent review of the record and the law, [the PCRA c]ourt
       entered an [o]rder on September 15, 2017, finding that
       [Appellant’s] PCRA [p]etition lacked merit [after addressing each
       of the claims raised in the PCRA petition]. [The PCRA court]
       further advised [Appellant] of [its] intention to dismiss his PCRA
       [p]etition without a hearing pursuant to Pa.R.Crim.P. 907(1).
       Attorney Nicklas was granted leave to withdraw as counsel.
       [Thereafter, the PCRA court granted Appellant two requested
       extensions to file a pro se response to the impending dismissal of
       his PCRA.]
____________________________________________


1 18 Pa.C.S.A. § 901/18 Pa.C.S.A. § 5104.1(a)(1), 75 Pa.C.S.A. § 3733, and
75 Pa.C.S.A. § 1542(b)(1), respectively. The charges arose from an incident
on April 16, 2016, wherein Appellant engaged in a high-speed police chase
while driving under a suspended license. When police employed tactics to
stop his vehicle, Appellant crashed, tried to flee on foot across an interstate
highway, and grabbed an officer’s taser. N.T., 12/9/2016, at 6-7.

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     On December 11, 2017, [Appellant] filed a pro se “[m]otion for
     [PCRA] [r]elief” [that the trial court deemed an amended PCRA
     petition.] [In that filing, Appellant] alleged for the first time that
     he had asked trial counsel to file [a direct appeal and requested
     reinstatement of his direct appeal rights.] [Appellant] included a
     [pro se] [m]emorandum of [l]aw in which he alleged that trial
     counsel was ineffective for failing to seek “proper medical
     records,” failing to notify him of his mental health rights, and
     failing “to have a complete and competent evaluation.”           [The
     PCRA court] entered an [o]rder on December 18, 2017, advising
     [Appellant] it would no longer entertain claims of ineffective
     assistance [of counsel] with respect to his mental health records
     and evaluation process as these claims were disposed of by prior
     [o]rder [entered on September 15, 2017]. [The PCRA court] did,
     however, schedule an evidentiary hearing and appoint[ed]
     Attorney Michael Palermo to assist [Appellant] in pursuing his
     claim of ineffective assistance of counsel for failing to file an
     appeal.

     The evidentiary hearing was held on April 26, 2018 via video
     conferenc[e].
                        *         *           *

     After the evidentiary hearing, [the PCRA c]ourt concluded
     [Appellant] was entitled to no relief and issued an [o]rder [and
     accompanying opinion] denying [Appellant’s original and
     amended] PCRA [p]etition[s] on May 18, 2018.




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PCRA Court Opinion, 8/28/2018, at 1-5 (original footnotes omitted).            This

timely appeal resulted.2       Counsel for Appellant presents one issue3 in the

Turner/Finley brief:

        Whether the PCRA court committed an abuse of discretion by
        denying relief on Appellant’s claim that trial counsel was
        ineffective for failing to file a requested direct appeal on his
        behalf?

See Turner/Finley Brief at 4-5.

        Prior to addressing the merits of the issue raised in the Turner/Finley

brief, we must determine whether counsel met the procedural requirements

necessary to withdraw. Counsel seeking to withdraw in PCRA proceedings

        must review the case zealously. Turner/Finley counsel must then
        submit a “no-merit” letter to the [PCRA] court, or brief on appeal
        to this Court, detailing the nature and extent of counsel's diligent
____________________________________________


2  Appellant filed a timely, counseled notice of appeal. Thereafter, Appellant
requested a change in appointed counsel and the PCRA court eventually
appointed Attorney Kristopher Accardi to represent Appellant on appeal.
Attorney Accardi timely complied with the PCRA court’s subsequent direction
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). The PCRA court issued an opinion pursuant to Pa.R.A.P.
1925(a) on August 28, 2018. On appeal, Attorney Accardi initially filed a
motion to withdraw as counsel, and accompanying brief pursuant to Anders
v. California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). On January 7, 2019, Appellant filed a pro se application
for the appointment of new counsel with this Court. On February 4, 2019, this
Court filed a memorandum denying counsel’s motion to withdraw and
remanded the case with instructions for counsel to obtain the notes of
testimony from the PCRA evidentiary hearing held on April 26, 2018. We also
directed counsel for Appellant to then file either an advocate’s brief or a
no-merit letter pursuant to Turner/ Finley. Attorney Accardi has complied.
In response, on May 14, 2019, Appellant filed a second pro se application for
the appointment of substitute counsel, wherein he also raises three issues he
asked Attorney Accardi to pursue.

3   We have paraphrased the issue presented for clarity and ease of discussion.

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         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.

         Where counsel submits a petition and no-merit letter that satisfy
         the technical demands of Turner/Finley, the court — [the PCRA]
         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. Muzzy, 141 A.3d 509, 510–511 (Pa. Super. 2016)

(citations and original brackets omitted). Here, counsel fulfilled all of the

procedural requirements necessary for withdrawing as PCRA counsel. Thus,

we turn to analyze the merits of the sole claim raised in the Turner/Finley

brief.

         As we have stated:

         [t]his 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 evidence of record and is free of legal error.
         In evaluating a PCRA court's decision, our scope of review is
         limited to the findings of the PCRA court and the evidence of
         record, viewed in the light most favorable to the prevailing party
         at the [PCRA hearing] level. We may affirm a PCRA court's
         decision on any grounds if it is supported by the record.

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

omitted).      “The PCRA court's credibility determinations, when supported by

the record, are binding; however, [appellate courts apply] a de novo standard




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of review to the PCRA court's legal conclusions.”          Commonwealth v.

Montalvo, 205 A.3d 274, 286 (Pa. 2019).

     To be eligible for relief under the PCRA, the petitioner must plead and

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

resulted from “one or more” of the seven, specifically enumerated

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily

enumerated circumstances is the “[i]neffective assistance of counsel which, in

the circumstances of the particular case, so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).

     This Court has previously determined:

     The law presumes counsel has rendered effective assistance. The
     burden of demonstrating ineffectiveness rests on [a petitioner].
     To satisfy this burden, [a petitioner] 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
     proceeding would have been different. Failure to satisfy any prong
     of the test will result in rejection of the [petitioner’s] ineffective
     assistance of counsel claim.

     Our Supreme Court has held that where there is an unjustified
     failure to file a requested direct appeal, the conduct of counsel
     falls beneath the range of competence demanded of attorneys in
     criminal cases and denies the accused the assistance of counsel
     guaranteed by the Sixth Amendment to the United States
     Constitution and Article I, Section 9 of the Pennsylvania
     Constitution, as well as the right to direct appeal under Article V,
     Section 9, thus constituting prejudice and per se ineffectiveness
     for PCRA purposes.


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      Before a court will find ineffectiveness of trial counsel for failing to
      file a direct appeal, [a petitioner] must prove that he requested
      an appeal and that counsel disregarded this request. In such a
      circumstance, a [petitioner] is automatically entitled to
      reinstatement of his appellate rights.

Commonwealth v. McGarry, 172 A.3d 60, 70–71 (Pa. Super. 2017)

(internal citations and quotations omitted) (emphasis in original).

      In this case, the PCRA court held an evidentiary hearing on April 26,

2018, wherein Appellant and trial counsel, Casey Bogner, Esquire testified.

The PCRA court summarized the PCRA hearing testimony as follows:

      At the [PCRA] hearing, [the PCRA court] heard testimony from
      Acting Chief Public Defender Casey Bogner who represented
      [Appellant] at the time he entered his nolo contendere plea and
      was sentenced. Attorney Bogner testified that [Appellant] did not
      have a competency issue and [] understood what was happening.

      Attorney Bogner stated on the record at the time of the plea and
      the sentence that she had advised [Appellant] of his
      post-sentence and appellate rights. Attorney Bogner further
      testified that she always discusses post-sentence and appellate
      rights with her client off the record. She acknowledged that one
      of the questions in the written plea colloquy advises the client of
      post-sentence and appellate rights; thus, she goes into further
      detail with her clients when reviewing that question on the
      colloquy.     Attorney Bogner specifically recalled reviewing
      post-sentence and appellate rights with [Appellant].

      With respect to [Appellant’s] alleged request that [Attorney
      Bogner] file a direct appeal, Attorney Bogner testified that
      [Appellant] did not advise her that he wanted to appeal. She did
      not receive correspondence from [Appellant] at any time after his
      sentence was imposed asking her to file an appeal to the Superior
      Court. While [Appellant] twice sent correspondence to Attorney
      Bogner, [Appellant] never requested that she file either a
      post-sentence motion or a direct appeal; rather, [Appellant] wrote
      to Attorney Bogner inquiring about credit time and state parole
      proceedings.



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        The [PCRA] court also heard testimony from [Appellant].
        [Appellant] asserted that he notified Attorney Bogner that he
        wanted to appeal by a letter sent on December 16[, 2016]. He
        further testified that, although he did not attach a copy of the
        letter to his Amended [PCRA] petition, he had a copy at the state
        correctional institution.

        [Appellant] understood that he entered a [nolo contendere] plea.
        He testified that he did not understand that he has a limited right
        to appeal as a result of the [nolo contendere] plea. [Appellant]
        alleged that he did not recall Attorney Bogner reviewing his
        post-sentence rights with him.

PCRA Court Opinion, 8/28/2018, at 4-5.

        Following the evidentiary hearing, the PCRA court concluded:

        After an evidentiary hearing, [the PCRA court] concluded that
        [Appellant] did not meet his burden of showing that he requested
        a direct appeal. Attorney Bogner credibly testified that she
        reviewed [Appellant’s] rights with [him] at the time of his plea and
        sentencing. She averred that [Appellant] did not request that she
        file an appeal on the date of sentencing or anytime after. While
        [Appellant] testified that he sent Attorney Bogner a letter
        requesting that she file an appeal on his behalf, [Appellant]
        presented no evidence at the evidentiary hearing to support this
        bare assertion. As a result, [the trial court] could not find that
        Attorney Bogner heard but ignored or rejected a request that she
        file an appeal on [Appellant’s] behalf.

Id. at 8 (quotations and citations omitted).

        Upon review, we are bound by the PCRA court’s determination that

Attorney Bogner testified credibly, as that decision is fully supported by the

record.    Here, Attorney Bogner testified that Appellant did not ask her to

appeal immediately following the imposition of his sentence. N.T., 4/26/2018,

at 9.     Thereafter, Appellant contacted Attorney Bogner twice by written

correspondence, when she could still file a timely notice of direct appeal, but

Appellant never requested an appeal. Id. at 9-11. Instead, Appellant asked

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trial counsel questions pertaining to credit for time-served and parole. Id.

Although Appellant claimed he wrote a letter to counsel requesting a direct

appeal, he did not produce it. Id. at 13-14.        Based on all of the foregoing,

we find no merit to the issue presented in the Turner/Finley no-merit brief.

      Next, we turn to Appellant’s two pro se applications for the appointment

of new PCRA counsel currently pending before this Court. While Appellant

requests the appointment of new PCRA counsel in both pro se applications, he

also asserts, for the first time on appeal, three additional ineffective assistance

of counsel issues.      See Pro Se Motion for Change of Appointed Counsel,

1/7/2019, at 5-6, ¶13; see also Pro Se Renewed Motion for Change of New

Appointed Counsel, 5/14/2019, at 8-9. We first examine Appellant’s three

new issues and treat them as part of a pro se response to PCRA counsel’s

petition to withdraw.

      Initially we note that Appellant contends that PCRA counsel was

ineffective for failing to raise the issue that trial counsel failed to file a timely

direct appeal.   See Pro Se Renewed Motion for Change of New Appointed

Counsel, 5/14/2019, at 9. However, that issue was, in fact, presented herein

and we have already determined that there is no merit to it.

      Appellant next claims that trial counsel was ineffective for failing to file

a motion to suppress video footage from the crime scene.              Id. at 8.    A

petitioner averring ineffective assistance of counsel based on the failure to file

a motion to suppress must prove that the underlying suppression claim has

merit. See Commonwealth v. Jones, 942 A.2d 903, 909 (Pa. Super. 2008).

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Without such proof, a petitioner fails to meet his burden of showing that his

ineffectiveness claim is of arguable merit. Id. Here, Appellant baldly contends

that video footage of the crimes was inadmissible, without any analysis.

Appellant has not met his burden of proof.      Moreover, it is well-settled “that

a defendant who pleads nolo contendere waives all defects and defenses

except those concerning the jurisdiction of the court, legality of sentence, and

validity of plea.” Commonwealth v. Kraft, 739 A.2d 1063, 1064 (Pa. Super.

1999). Here, Appellant is not contesting the validity of his plea.      Finally, we

note that in his written plea colloquy, Appellant acknowledged that by pleading

nolo contendere, he gave up his right to file pretrial motions. Written Plea

Colloquy, 12/9/2016, at 3, ¶ 6(b). For all of the foregoing reasons, there is

no merit to Appellant’s claim that trial counsel was ineffective for failing to file

a pretrial motion for suppression.

      Further, Appellant claims that counsel was ineffective for failing to

investigate, interview, and subpoena unnamed witnesses. See Pro Se

Renewed Motion for Change of New Appointed Counsel, 5/14/2019, at 8. In

order to demonstrate counsel's ineffectiveness for failure to call a witness, a

petitioner must prove that “the witness existed, the witness was ready and

willing to testify, and the absence of the witness' testimony prejudiced

petitioner and denied him a fair trial.” Commonwealth v. Stahley, 201 A.3d

200, 211 (Pa. Super. 2018) (citation omitted). Appellant has not offered any

proof that specific witnesses existed and were ready to testify. As such, this

claim fails.

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      Thus, in sum, having found that PCRA counsel complied with the

procedural requirements for withdrawing as counsel and the collateral issues

Appellant wished to pursue lacked merit, we grant counsel’s petition to

withdraw and affirm the order denying Appellant PCRA relief.

      Finally, we address Appellant’s requests for the appointment of new

PCRA counsel. If counsel is permitted to withdraw pursuant to Turner/Finley,

the PCRA petitioner may then proceed pro se, through privately retained

counsel or not at all; however, the petitioner is not entitled to the appointment

of new counsel. See Commonwealth v. Dukeman, 605 A.2d 418, 420 (Pa.

Super. 1992), citing Commonwealth v. Maple, 559 A.2d 953, 956 (Pa.

Super. 1989) (“[W]hen counsel has been appointed to represent a petitioner

in post-conviction proceedings as a matter of right under the rules of criminal

procedure 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.”). As such, Appellant is not entitled to the appointment of new counsel

and we deny his applications for relief.

      Petition to withdraw as counsel granted. Motion for Change of Appointed

Counsel and Renewed Motion for Change of New Appointed Counsel denied.

Order affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/19/2019




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