J-S11019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

SIROUND MARTIN

                            Appellant                  No. 181 EDA 2015


                 Appeal from the PCRA Order December 8, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0011134-2009


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                            FILED FEBRUARY 18, 2016

        Siround Martin appeals from the order entered December 8, 2014, in

the Philadelphia County Court of Common Pleas, dismissing his first petition

for collateral relief filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.

§§ 9541-9546.       Martin seeks relief from the judgment of sentence of an

aggregate term of three and one-half to nine years’ imprisonment imposed

following the revocation of his probation on charges of retail theft and simple

assault.1    Concomitant with this appeal, counsel has filed a petition to

withdraw and an Anders2 brief. The sole issue on appeal challenges prior
____________________________________________


1
    See 18 Pa.C.S. §§ 3929(a)(1), and 2701(a), respectively.
2
  Anders v. California, 386 U.S. 738 (1967). As will be discussed infra,
counsel should have filed 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), rather than an Anders brief.
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counsel’s failure to file a direct appeal from Martin’s probation revocation

sentence. For the reasons below, we affim.

       The pertinent facts and procedural history are as follows. On April 8,

2010, Martin entered a negotiated guilty plea to retail theft and simple

assault in connection with his theft of items from an Auto Zone store in July

of 2009.    In exchange for the plea, the Commonwealth recommended an

aggregated, mitigated range sentence of 11 and one-half to 23 months’

imprisonment, followed by four years’ probation.3 The trial court accepted

Martin’s plea and imposed the recommended sentence.

       In September of 2011, after Martin was paroled and serving probation

on the present case, he entered a guilty plea in Delaware County to charges

of theft and receiving stolen property.          Consequently, his probation and

parole at issue were revoked following a revocation hearing on February 3,

2012. On April 25, 2012, the trial court imposed an aggregate sentence of

three and one-half to nine years’ imprisonment.4 No direct appeal was filed.




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3
  Specifically, Martin was sentenced to 11 and one-half to 23 months’
incarceration, followed by two years’ probation for retail theft, and a
consecutive two years’ probation for simple assault.
4
 The revocation sentence consisted of a term of two and one-half to seven
years’ incarceration for retail theft and a consecutive term of one to two
years’ incarceration for simple assault.




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       On August 9, 2012, Martin filed a pro se PCRA petition asserting the

trial court did not give him proper credit for time served.            Counsel was

appointed, and filed an amended petition on November 29, 2013, contending

revocation counsel was ineffective for failing to file post-sentence motions

and a direct appeal as requested by Martin.              An evidentiary hearing was

conducted on November 21, 2014, at which both Martin and revocation

counsel testified. Thereafter, on December 8, 2014, the PCRA court entered

an order dismissing Martin’s petition. This timely appeal followed.5

       Prior to addressing the merits of this appeal, we must first consider

whether counsel has fulfilled the procedural requirements for withdrawal.

“Where counsel seeks to withdraw on appeal from the denial of PCRA relief,

a    Turner/Finley         ‘no-merit      letter’   is   the   appropriate   filing.”

Commonwealth v. Reed, 107 A.3d 137, 139 n.5 (Pa. Super. 2014).

Pursuant to Turner/Finley and their progeny:

       Counsel petitioning to withdraw from PCRA representation must
       … review the case zealously. Turner/Finley counsel must then
       submit a “no-merit” letter to the trial court, or brief on appeal to
       this Court, detailing 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. 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

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5
  The PCRA court did not direct Martin to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).




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       advising petitioner of the right to proceed pro se or by new
       counsel.

                                              ***

       [W]here counsel submits a petition and no-merit letter that …
       satisfy the technical demands of Turner/Finley, the court —
       trial 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. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation

omitted).

       Here,      counsel   has      complied     with    the   procedural      aspects   of

Turner/Finley. Although he improperly filed an Anders brief, as opposed

to a “no merit” letter, this Court may accept such a filing “‘[b]ecause an

Anders brief provides greater protection to a defendant.’”6 Reed, supra,

107 A.3d at 139 n.5 (quotation omitted).                 Furthermore, counsel provided

Martin with a copy of the brief and the petition to withdraw, and advised him

of his right to proceed pro se or with private counsel.                      See Motion to

Withdraw, 8/18/2015, Exhibit A.               Martin has not responded to counsel’s

petition.   Therefore, we proceed to a consideration of whether the PCRA

court erred in dismissing the petition. See Doty, supra.

       When reviewing an order dismissing a PCRA petition, we must

determine whether the PCRA court’s findings of fact are supported by the

record,     and    whether     its    legal     conclusions     are   free     from   error.
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6
  Nevertheless, despite the misnomer, the Anders brief filed by counsel
reads more like a “no merit” letter. See Anders Brief at 10-11.



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Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “Great deference

is granted to the findings of the PCRA court, and these findings will not be

disturbed   unless   they   have   no   support   in   the    certified   record.”

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation

omitted).   Moreover, “[t]he PCRA court’s credibility determinations, when

supported by the record, are binding on this Court.”         Commonwealth v.

Spotz, 18 A.3d 244, 259 (Pa. 2011).

      The sole issue identified in the Anders brief asserts revocation

counsel’s ineffectiveness for failing to file a direct appeal from the probation

violation sentence. “[T]o prove counsel ineffective, the petitioner must show

that: (1) his underlying claim is of arguable merit; (2) counsel had no

reasonable basis for his action or inaction; and (3) the petitioner suffered

actual prejudice as a result.” Spotz, supra, 84 A.3d at 311. The Supreme

Court has held “[w]here a defendant clearly asks for an appeal and counsel

fails to file one, a presumption of prejudice arises regardless of the merits of

the underlying issues.” Commonwealth v. Donaghy, 33 A.3d 12, 15 (Pa.

Super. 2011) (citation omitted), appeal denied, 40 A.3d 120 (Pa. 2012).

      At the PCRA hearing, Martin testified that, after he was sentenced for

his probation violation, and while he was still in the courtroom, he asked

counsel to file an appeal.     See N.T., 11/21/2014, at 5.          He claimed,

however, she remained silent: “She never indicated that she would.            She

never indicated that she didn’t do it for me. She was going to do it.” Id.




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Martin also stated he subsequently wrote “over 100 letters” to the public

defender’s office, each time requesting an appeal. Id. at 9.

       Conversely, revocation counsel testified that while she did not

independently recall Martin’s sentencing hearing, she reviewed his file, and it

did not contain any notation Martin wished to appeal the sentence. Id. at

12-13.    Further, she explained the letters in his file were sent after the

requisite 30-day timeframe for filing an appeal, and concerned credit for

time served. Id. at 13-14, 18. Additionally, counsel testified her practice

would have been to mark directly on the file if the defendant had requested

an appeal, but Martin’s file contained no such notation.7 Id. at 15.

       The PCRA court determined counsel’s testimony was more credible

than Martin’s testimony, based upon the following:

       (1) the demeanor and manner of how [counsel] and [Martin]
       testified during the PCRA evidentiary hearing, (2) the contents of
       a post-sentence letter from [Martin] to the PCRA court, which
       discussed only time credit rather than any alleged failure to
       appeal, (3) the sentencing hearing, during which [Martin] was
       properly advised of his appellate rights, and (4) [counsel’s]
       standard practice for processing requests by a defendant to file
       an appeal.



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7
   Revocation counsel stated she would never “just not respond” if a
defendant asked her to file an appeal. N.T., 11/21/2014, at 15. Moreover,
she explained that an appeal would have been handled by the Public
Defenders’ probation and parole department, so that “it wouldn’t have been
any trouble for [her] to go ahead and mark the file appropriately and simply
turn it in.” Id. at 16.



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PCRA Court Opinion, 3/31/2015, at 1. Because we find the court’s credibility

determination is supported by the record, Martin’s claim necessarily fails.

Spotz, supra, 18 A.3d at 259.

       As mandated by law, we have independently reviewed the record and

agree with counsel that the current appeal has no merit.8 See Doty, supra,

48 A.3d at 457. Therefore, we affirm the order dismissing Martin’s petition

for PCRA relief, and grant counsel’s petition to withdraw.

       Order affirmed. Application for leave to withdraw as counsel granted.




____________________________________________


8
  We note our review reveals no basis to conclude revocation counsel had
any reason to suspect Martin wanted to appeal his sentence, so as to invoke
her duty to consult further with him under Commonwealth v. Touw, 781
A.2d 1250, 1254 (Pa. Super. 2001) (holding counsel has constitutional duty
to consult with a defendant about an appeal “when there is reason to think
either (1) that a rational defendant would want to appeal (for example,
because there are nonfrivolous grounds for appeal), or (2) that this
particular defendant reasonably demonstrated to counsel that he was
interested in appealing.”). Although the sentence imposed was significant,
the revocation court provided ample reasons for its sentence at the
revocation sentencing hearing. See N.T. 4/24/2012, at 6-7 (noting (1)
Martin had “31 arrests, 19 convictions, [and] eight violations resulting in six
revocations[,]” (2) the court granted him early parole on the underlying
case, and (3) the facts of the underlying case would have supported a
robbery). See also Commonwealth v. McDermitt, 66 A.3d 810, 815 (Pa.
Super. 2013) (finding PCRA court was not required to conduct evidentiary
hearing to examine the nature of counsel’s consultation regarding appeal
with defendant; because defendant entered no contest plea, he could only
challenge the “jurisdiction of the trial court, the validity of the plea, and the
legality of the sentence” and there was “nothing of record that would
indicate to counsel that appellant might want to appeal because appellant
was the recipient of a generous plea bargain.”).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/18/2016




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