J-S05018-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LLOYD J. VALCAREL                          :
                                               :
                       Appellant               :   No. 1102 MDA 2018


              Appeal from the PCRA Order entered June 1, 2018,
                 in the Court of Common Pleas of York County,
             Criminal Division at No(s): CP-67-CR-0001772-2011.

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

MEMORANDUM BY KUNSELMAN, J.:                              FILED JUNE 30, 2020

        Lloyd J. Valcarel appeals from the order denying his petition for relief

filed pursuant to the Post Conviction Relief Act (“PCRA”).1        Additionally,

Valcarel’s court-appointed PCRA counsel has filed a petition to withdraw from

representation, as well as a “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) (hereinafter “the Turner/Finley no-merit

letter”). We grant counsel’s petition and affirm the PCRA court’s order.

        The relevant factual and procedural history underlying this appeal can

be summarized as follows. On the evening of February 12, 2011, as police

responded to a report of a robbery, they observed a car matching the


____________________________________________


1   See 42 Pa.C.S.A. §§ 9541-9546.
J-S05018-20


description of the assailants’ vehicle.        When police attempted to initiate a

traffic stop, the driver of the vehicle attempted to elude police and a chase

ensued. The vehicle eventually crashed, and police arrested the occupants,

one of whom was Valcarel. Police thereafter charged Valcarel with robbery,

conspiracy to commit robbery, and related offenses.

       Valcarel retained counsel, Lori Yost, Esquire, to represent him in the

action. In 2012, as part of a negotiated plea agreement, Valcarel pleaded

nolo contendere to robbery and conspiracy to commit robbery in exchange for

an aggregate prison term of four to ten years.            The trial court accepted

Valcarel’s plea, and sentenced him in accordance with the plea agreement.

Valcarel did not file a post-sentence motion or a direct appeal.

       In 2013, Valcarel filed a timely pro se PCRA petition. The PCRA court

took no action on that petition.2 In 2017, Valcarel filed a second pro se PCRA

petition asserting plea counsel’s ineffectiveness. The PCRA court appointed

Valcarel counsel, who filed an amended petition asserting more specific claims

of plea counsel’s ineffectiveness. The PCRA court conducted an evidentiary

hearing on the ineffectiveness claims. On June 1, 2018, the PCRA court denied

Valcarel’s petition. On July 3, 2018, Valcarel filed a timely notice of appeal.3

____________________________________________


2 The record is unclear as to why the PCRA court took no action on Valcarel’s
initial petition.

3Although the PCRA court’s order denying PCRA relief was filed on June 1,
2018, it was not served on Valcarel until June 4, 2018. See Pa.R.A.P.



                                           -2-
J-S05018-20


Both Valcarel and the PCRA court complied with Pa.R.A.P. 1925. This Court

then issued a briefing schedule. Valcarel’s PCRA appellate counsel failed to

file a brief. We then remanded this matter to the PCRA court to determine

whether PCRA appellate counsel had abandoned Valcarel. On remand, the

PCRA court granted Valcarel’s motion for change of counsel, and appointed

Charles Hobbs, Esquire, as replacement PCRA appellate counsel.                Attorney

Hobbs determined that Valcarel’s ineffectiveness claims lacked merit, and

accordingly    filed   a   petition   to   withdraw   from   representation    and   a

Turner/Finley no-merit letter.

       In the Turner/Finley no-merit letter, Attorney Hobbs raises the

following issues for our review:

       I.     Trial counsel was not ineffective for failing to call Dayna
              Pruitt as a witness.

       II.    Trial counsel was not ineffective for failing to file a requested
              appeal.

       III.   [Valcarel’s] no-contest plea was not unlawfully induced.

Turner/Finley No-Merit Letter, at 13, 16, 17 (unnecessary capitalization

omitted).

       Prior to addressing Valcarel’s claims on appeal, we must address

Attorney Hobb’s petition to withdraw as counsel. Pursuant to Turner/Finley,


____________________________________________


108(a)(1), (d)(1) (appeal period only begins to run on the date the clerk
“mails or delivers copies of the order to the parties”). Thus, Valcarel’s appeal
is timely, as it was filed within thirty days of the date that the clerk mailed
Valcarel a copy of the PCRA court’s order.

                                           -3-
J-S05018-20


independent review of the record by competent counsel is required before

withdrawal on collateral appeal is permitted. See Commonwealth v. Pitts,

981 A.2d 875, 876 n.1 (Pa. 2009). In Pitts, our Supreme Court explained

that such independent review requires proof of:

      1. A “no-merit” letter by PC[R]A counsel detailing the nature and
         extent of his review;

      2. The “no-merit” letter by PC[R]A counsel listing each issue the
         petitioner wished to have reviewed;

      3. The PC[R]A counsel’s “explanation,” in the “no-merit” letter, of
         why the petitioner’s issues were meritless;

      4. The PC[R]A court conducting its own independent review of the
         record; and

      5. The PC[R]A court agreeing with counsel that the petition was
         meritless.

Id. (citation and brackets omitted).       Further, PCRA counsel seeking to

withdraw from representation in this Court must contemporaneously forward

to the petitioner a copy of the petition to withdraw that includes (1) a copy of

both the “no-merit” letter, and (2) a statement advising the PCRA petitioner

that, upon the filing of counsel’s petition to withdraw, the petitioner has the

immediate right to proceed pro se, or with the assistance of privately retained

counsel.   Commonwealth v. Muzzy, 141 A.3d 509, 511-12 (Pa. Super.

2016).

      Here, in the Turner/Finley “no merit” letter, Attorney Hobbs described

the extent of his review, identified the issues that Valcarel sought to raise,

and explained why the issues lacked merit.        In addition, Attorney Hobbs


                                     -4-
J-S05018-20


provided Valcarel with a notice of his intention to seek permission to withdraw

from representation, a copy of the Turner/Finley “no merit” letter, and

advised Valcarel of his rights in lieu of representation.4 Thus, we conclude

that Attorney Hobbs has substantially complied with the requirements

necessary to withdraw as counsel.              See Commonwealth v. Karanicolas,

836 A.2d 940, 947 (Pa. Super. 2003) (holding that substantial compliance

with requirements to withdraw as counsel will satisfy the Turner/Finley

criteria). We now independently review Valcarel’s claims to ascertain whether

they entitle him to relief.

       In reviewing the denial of a PCRA Petition, we examine whether the

PCRA court’s determination “is supported by the record and free of legal

error.” Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007) (citations

omitted).

       Additionally, when a petitioner alleges trial counsel’s ineffectiveness in

a PCRA petition, he must prove by a preponderance of the evidence that his

conviction or sentence resulted from ineffective assistance of counsel “which,



____________________________________________


4 Attorney Hobbs’ initial correspondence to Valcarel incorrectly advised him
that he had to await a ruling from this Court on the petition to withdraw before
he could proceed pro se or retain private counsel to represent him. See
Letter, undated, at 1. As noted above, Attorney Hobbs was required to advise
Valcarel that he had the immediate right to exercise these options. See
Muzzy, 141 A.3d at 511-12. Accordingly, we ordered Attorney Hobbs to send
Valcarel a revised letter correctly informing him of his rights. Attorney Hobbs
complied with the order. Valcarel, however, elected not to pursue either of
these options, and did not file a response to the no-merit letter.

                                           -5-
J-S05018-20


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).      The petitioner must

demonstrate:

      (1) that the underlying claim has arguable merit; (2) that no
      reasonable basis existed for counsel’s actions or failure to act; and
      (3) that the petitioner suffered prejudice as a result of counsel’s
      error. To prove that counsel's chosen strategy lacked a reasonable
      basis, a petitioner must prove that an alternative not chosen
      offered a potential for success substantially greater than the
      course actually pursued.      Regarding the prejudice prong, a
      petitioner must demonstrate that there is a reasonable probability
      that the outcome of the proceedings would have been different
      but for counsel’s action or inaction. Counsel is presumed to be
      effective; accordingly, to succeed on a claim of ineffectiveness[,]
      the petitioner must advance sufficient evidence to overcome this
      presumption.

Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (internal

citations and quotation marks omitted). A failure to satisfy any prong of the

test for ineffectiveness will require rejection of the claim. Commonwealth

v. Martin, 5 A.3d 177, 183 (Pa. 2010).

      The first ineffectiveness claim raised in the Turner/Finley no-merit

letter asserts trial counsel’s failure to investigate and call Dayna Pruitt as a

witness to support an alibi defense for Valcarel. When raising a claim that

counsel failed to call a potential witness, the PCRA petitioner satisfies the

performance and prejudice requirements of the ineffectiveness test by

establishing that:

      (1) the witness existed; (2) the witness was available to testify
      for the defense; (3) counsel knew of, or should have known of,

                                      -6-
J-S05018-20


       the existence of the witness; (4) the witness was willing to testify
       for the defense; and (5) the absence of the testimony of the
       witness was so prejudicial as to have denied the defendant a fair
       trial.

Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa. 2009) Trial counsel’s

failure to call a particular witness does not constitute ineffective assistance

without some showing that the absent witness’ testimony would have been

beneficial or helpful in establishing the asserted defense. See id.

       In the instant case, the PCRA court conducted an evidentiary hearing at

which Ms. Pruitt testified that she and Valcarel were living together on the

date of the robbery. According to Ms. Pruitt, she and Valcarel spent the day

and evening together. That night, however, Valcarel received a telephone call

and stated that he needed to leave, but would be back soon. See N.T. PCRA

Hearing, 5/29/18, at 6-7. Ms. Pruitt testified that Valcarel left their home

between 10:00 p.m. and 11:00 p.m. Id. at 7-8. She did not know whether

Valcarel returned that night because she was tired and went to sleep. Id. at

9.5

       Valcarel’s trial counsel, Attorney Yost, also testified at the evidentiary

hearing.    According to Attorney Yost, she did not believe that Ms. Pruitt’s

testimony would have been helpful to Valcarel’s case because the timeframe

that Valcarel was with Ms. Pruitt was earlier in the day, and did not line up


____________________________________________


5 According to the affidavit of probable cause supporting the criminal
complaint, the robbery occurred at midnight. See Affidavit of Probable Cause,
2/13/11, at 3.

                                           -7-
J-S05018-20


with the time of the robbery. Id. at 12, 18-19. Attorney Yost also indicated

that Ms. Pruitt’s testimony would not have been helpful because Valcarel was

observed on surveillance video without Ms. Pruitt immediately after the

robbery. Id. at 12.

      Finally, Valcarel took the stand and testified that Ms. Pruitt was not with

him on the night the robbery was committed, and that she stayed home when

Valcarel left their residence. Id. at 35.

      Based on this evidence, the PCRA court concluded that Attorney Yost

was not ineffective for failing to present Ms. Pruitt as an alibi witness in

Valcarel’s case. The PCRA court found that Ms. Pruitt’s testimony would not

have been helpful, and would likely have been detrimental to Valcarel’s case

since it would have provided opportunity for him to commit the crime rather

than an alibi.    Id. at 41.     As the record supports the PCRA court’s

determination, we affirm its denial of PCRA relief on Valcarel’s first

ineffectiveness claim.

      The second ineffectiveness claim raised in the Turner/Finley no-merit

letter concerns trial counsel’s failure to file a direct appeal of Valcarel’s

sentence. Our Supreme Court has held that counsel’s unexplained failure to

file a requested direct appeal constitutes ineffective assistance per se, such

that the petitioner is entitled to the reinstatement of direct appeal rights nunc

pro tunc without establishing prejudice.      See Commonwealth v. Lantzy,

736 A.2d 564, 572 (Pa. 1999).               However, before a court will find


                                      -8-
J-S05018-20


ineffectiveness of counsel for failing to file a direct appeal, the petitioner must

prove that he requested a direct appeal and that counsel disregarded the

request. See Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa. Super.

2011).

      At the evidentiary hearing, Valcarel testified that he sent a letter to

Attorney Yost asking her to file a direct appeal. N.T. PCRA Hearing, 5/29/18,

at 36. He claimed that his PCRA counsel, Attorney Hobbs, had a copy of that

letter. Id. at 31. At the conclusion of the hearing, Attorney Hobbs asked the

PCRA court to keep the evidentiary record open so that he could locate the

letter and supplement the record. Id. at 39.

      Attorney Yost testified that she had no recollection of Valcarel asking

her to file a direct appeal, and that there was nothing in her file demonstrating

that Valcarel ever made such a request. Id. at 13, 14, 19. She indicated that

Valcarel was appraised of his appellate rights, and had Valcarel asked her to

file an appeal, she would have done so. Id.

      In its order denying relief, the PCRA court indicated that Valcarel did

supplement the record with a letter that he wrote to Attorney Yost. However,

the letter did not contain a request to file a direct appeal in the instant matter.

Rather, the letter (which was unsigned and undated) requested discovery in




                                       -9-
J-S05018-20


an unrelated drug case in which Attorney Yost was also representing Valcarel.6

PCRA Order, 6/1/18, at 1-2.           In the letter, Valcarel indicated that it was

approaching thirty days since he had entered his plea in the drug case, and

he requested the discovery material “ASAP” because he was about to withdraw

“my plea.”7 Id. The PCRA court ruled that the letter requesting discovery

and referencing the withdrawal of his plea in the drug case was insufficient to

demonstrate that Valcarel requested Attorney Yost to file a direct appeal in

his separate robbery case. Id. at 2.

       Based on our review, we conclude that the record supports the PCRA

court’s determination that Valcarel did not present sufficient evidence to

demonstrate that he instructed Attorney Yost to file a direct appeal in this

case. Accordingly, we affirm its denial of PCRA relief with respect to Valcarel’s

second ineffectiveness claim.

       The final issue raised in the Turner/Finley no-merit letter concerns the

voluntariness of Valcarel’s plea. A nolo contendere plea has the same effect

as a guilty plea for purposes of sentencing and is considered a conviction. See


____________________________________________


6The letter was accompanied by an envelope addressed to Attorney Yost
which was postmarked within thirty days of the date of Valcarel’s plea.

7  The withdraw of a guilty or nolo contendere plea is entirely distinct from the
filing of an appeal. An appeal must be filed within thirty days from the entry
of the judgment of sentence. See Pa.R.A.P. 903(a). The time period in which
to petition for the withdraw of a plea is ten days from the entry of the plea.
See Pa.R.Crim.P. 720 (A)(1), (B)(1)(a)(i). Thus, even if Valcarel intended to
withdraw his nolo contendere plea in the drug case, he was beyond the ten-
day limit.

                                          - 10 -
J-S05018-20


Commonwealth v. Lewis, 79 A.2d 1227 (Pa. Super. 2002). Upon entry of

a negotiated guilty plea, a defendant waives all claims and defenses other

than those sounding in the jurisdiction of the court, the validity of the plea,

and the legality of the sentence imposed. See Commonwealth v. Jabby,

200 A.3d 500, 505 (Pa. Super. 2018).

      Here, as Valcarel seeks the challenge the validity of his nolo contendere

plea, he bears the burden of demonstrating that his guilty plea was

involuntary, unknowing or unintelligent. See Commonwealth v. Stork, 737

A.2d 789, 790 (Pa. Super. 1999). Importantly, the defendant is bound by the

statements he makes during the guilty plea colloquy and cannot later assert

grounds for withdrawing the plea that contradict statements he made when

pleading guilty. See Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa.

Super. 2003). Nor may a defendant challenge his guilty plea by asserting that

he lied while under oath. Id.

      At the evidentiary hearing, Valcarel claimed that his plea was unlawfully

induced and he is innocent. In support of his claim, Valcarel testified that on

the day that he tendered the plea he was under the influence of Depakote, a

psychotropic medication, and did not understand what he was doing. Id. at

27-28. However, Valcarel additionally testified that he accepted the plea of

four to ten years incarceration because he was facing thirty to sixty years in

prison that he would “never get back.”       Id. at 28-29.   Additionally, when

questioned by the PCRA court, Valcarel agreed that, when he was asked by


                                    - 11 -
J-S05018-20


the trial court whether it was his choice to plead guilty, he answered “yes,”

and stated that no one had threatened or coerced him to enter the plea. Id.

at 32-33.

      Based on the record before us, we conclude that the PCRA court’s

determination that Valcarel voluntarily entered his nolo contendere plea is

amply supported by the record. Valcarel indicated to the trial court that his

plea was voluntary, intelligently, and knowingly entered, and he cannot now

claim otherwise. See Pollard, 832 A.2d at 523. Accordingly, we affirm the

PCRA court’s denial of PCRA relief on Valcarel’s third issue.

      Finally, as the record supports PCRA counsel’s determination that

Valcarel’s claims for PCRA relief lack merit, we grant Attorney Hobbs’ petition

to withdraw.

      Petition to withdraw granted. Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/30/2020




                                     - 12 -
