J-S71026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MIGUEL DIAZ RUSSI                          :
                                               :
                        Appellant              :   No. 1177 EDA 2018

                 Appeal from the PCRA Order March 30, 2018
     In the Court of Common Pleas of Chester County Criminal Division at
                       No(s): CP-15-CR-0003479-2012,
                           CP-15-CR-0003768-2012


BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY DUBOW, J.:                                 FILED APRIL 30, 2019

       Appellant, Miguel Diaz Russi, appeals from the Order entered March 30,

2018, which denied and dismissed his Petition for collateral relief filed under

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. In addition,

Appellant’s appointed counsel, Stuart R. Crichton, Esq., has filed an

Application to Withdraw as Counsel and an accompanying Turner/Finley “no-

merit” letter.1      We grant counsel’s Application and affirm the PCRA court’s

Order.

       We need not recite the underlying facts in detail to address this appeal.

In October 2013, following his arrest for participating in a string of robberies,
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1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Appellant entered a “hybrid” Guilty Plea to four counts each of Robbery and

Conspiracy.2,   3   Trial Ct. Pa.R.A.P. 1925(a) Opinion, 1/19/15, at 3.   After

accepting his Plea, the trial court sentenced Appellant to an aggregate term

of twenty-five to fifty years of incarceration. Id. at 6-7. On appeal, Appellant

challenged discretionary aspects of his Sentence, but this Court affirmed the

Judgment of Sentence, discerning no abuse of the trial court’s discretion.

Commonwealth v. Russi, No. 3587 EDA 2015, unpublished memorandum

at 2-4 (Pa. Super. filed September 20, 2016). Appellant did not pursue further

appellate relief.

        In September 2017, Appellant filed a Petition for collateral relief,

asserting that Plea Counsel, Peter Jurs, Esq., had improperly induced his Plea.

Appellant’s Petition, 9/19/17, at 3. The Commonwealth filed a court-ordered

response. Commonwealth’s Answer, 11/3/17.

        In March 2018, the PCRA court conducted an evidentiary hearing.

Appellant testified that counsel convinced him to plead guilty by leaving him

“with the impression [Appellant] was going to get ten to twenty, not twenty-

five to fifty” years in prison. N.T. PCRA Hearing, 3/19/18, at 14. Appellant

denied that he would have pleaded guilty had he known in advance of his

potential sentence. According to Appellant, “I didn’t want to take no deal of
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2   18 Pa.C.S. §§ 3701(a)(1) and 903(c), respectively.

3 The Commonwealth agreed to consider Appellant’s crimes as second-strike
offenses instead of third. Trial Ct. Pa.R.A.P. 1925(a) Opinion, 1/19/15, at 4.
Thus, Appellant’s Plea was neither “open,” nor “negotiated” in terms of a
specific sentence.

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twenty-five years. If you’re going to make it twenty-five years, I’m prepared

to fight.” Id. at 12.

      Appellant also asserted that Plea Counsel pressured him to plead guilty

“by pushing over and over and over[.]” Id. at 18. Nevertheless, Appellant

also acknowledged that: (1) there was no negotiated sentence; (2) no one

had promised him less than twenty-five years or threatened him; and (3)

subject to the court’s discretion, Appellant faced a maximum sentence of 140

years. Id. at 16-17, 18, 21.

      Plea Counsel also testified at the hearing. Counsel denied that he told

Appellant he could expect a ten-year sentence.        Id. at 29-30.    Rather,

according to Plea Counsel, Appellant was facing third-strike offenses, each one

carrying a mandatory twenty-five year sentence. Id. at 25-26. However,

counsel explained, in exchange for Appellant’s plea, the Commonwealth

agreed to treat them as second-strike offenses, which mandated a ten-year

minimum sentence.       Id. at 26-27.   Thus, according to Plea Counsel, he

presented Appellant with a choice: (1) proceed to trial and, if convicted on a

single count, face a mandatory twenty-five year minimum sentence, or (2)

plead guilty and expect a minimum ten-year sentence on each count. Id. at

27-29 (further clarifying that the sentencing judge had discretion to impose

sentences concurrently or consecutively). Plea Counsel acknowledged that he

expressed his opinion to Appellant—that considering his options, Appellant

should plead guilty—but denied that he had threatened or pressured

Appellant. Id.

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       Following the hearing, the PCRA court denied Appellant’s Petition. The

court specifically credited Plea Counsel’s testimony. PCRA Ct. Order, 3/30/18,

at 1 n.2. Further, the PCRA court noted that Plea Counsel’s advocacy had

secured an agreement from the Commonwealth to consider Appellant’s crimes

as   second-strike     offenses     for   sentencing    purposes,      “thereby   saving

[Appellant] a substantial amount of prison time.” Id. Finally, following its

review of the testimony and Appellant’s oral and written Colloquies, the court

concluded     that   Appellant    suffered     no   prejudice   from    Plea   Counsel’s

representation and had tendered a knowing, voluntary, and intelligent Plea

“free from any unlawful or improper inducement[.]” Id.

       Although represented by counsel, Appellant pro se timely appealed.

Thereafter, Attorney Crichton filed a Statement indicating his intent to file a

Turner/Finley “no-merit” letter. See Pa.R.A.P. 1925(c)(4).4

       In this Court, Attorney Crichton filed a Turner/Finley Letter in the form

of a brief, raising the following issue:

       1. Whether the [c]ourt erred in denying and dismissing the
          Appellant’s PCRA Petition[.]

____________________________________________


4 Appellant is not entitled to hybrid representation. Commonwealth v. Jette,
23 A.3d 1032, 1036 (Pa. 2011). “When a counseled defendant files a pro se
document, it is noted on the docket and forwarded to counsel pursuant to
Pa.R.Crim.P. 576(A)(4), but no further action is to be taken.”
Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super. 2016). On the
other hand, a notice of appeal is distinguishable from other filings, as it
protects a constitutional right. Id. at 624 (citing Commonwealth v. Ellis,
626 A.2d 1137, 1138-41 (Pa. 1993); 210 Pa. Code § 65.24). Accordingly,
“this Court is required to docket a pro se notice of appeal despite [an
a]ppellant being represented by counsel[.]” Id.

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Turner/Finley Letter at 3. In addition, counsel has filed an Application to

Withdraw as Counsel.

      Before we consider Appellant’s issue, we must review counsel’s request

to withdraw. Pursuant to Turner/Finley, independent review of the record

by competent counsel is necessary before the Court shall permit withdrawal

on collateral appeal. 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

wishes to have raised on review; and (3) explaining why the petitioner’s issues

are 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 Crichton has complied

with each of the above requirements.       Referencing his familiarity with the

matter and conscientious examination of the record, the standard of review

on appeal, and quoting from the PCRA court’s March 30, 2018 Order, in which

the court credited testimony from Plea Counsel, Attorney Crichton concluded

that “an appeal would be wholly frivolous.” Appellant’s Br. at 5. In addition,

Attorney Crichton sent Appellant copies of the Turner/Finley “no merit” letter

and his Application to Withdraw, and he advised Appellant of his rights in lieu

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of representation. See Application to Withdraw as Counsel, 9/17/18, Exh. 2

(Letter, dated 9/11/18). Because Attorney Crichton has complied with the

Turner/Finley requirements, we will proceed with our independent review of

the record and merit of Appellant’s claim.

      We review an order denying a petition for collateral relief to determine

whether the PCRA court’s decision is supported by the evidence of record and

free of legal error.   Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa.

Super. 2016) (citing Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014)). “This Court grants great deference to the findings of the PCRA court

if the record contains any support for those findings.” Commonwealth v.

Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010) (citation omitted).

“Further, the PCRA court's credibility determinations are binding on this Court,

where there is record support for those determinations.” Id.

      Appellant contends that Plea Counsel was ineffective.           We presume

counsel is effective. Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009).

To overcome this presumption, a petitioner must establish that: (1) the

underlying claim has arguable merit; (2) counsel lacked a reasonable basis for

his   act   or   omission;   and   (3)   petitioner   suffered   actual    prejudice.

Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015).                    In order to

establish prejudice, a petitioner must demonstrate “that there is a reasonable

probability that, but for counsel's error or omission, the result of the

proceeding would have been different.”         Commonwealth v. Koehler, 36

A.3d 121, 132 (Pa. 2012). A claim will be denied if the petitioner fails to meet

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any one of these prongs.           See Jarosz, 152 A.3d at 350 (citing

Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009)). In particular,

it is well settled that “[c]ounsel cannot be deemed ineffective for failing to

pursue a meritless claim.” Commonwealth v. Loner, 836 A.2d 125, 132

(Pa. Super. 2003) (en banc).

      Appellant’s claim of ineffectiveness involves two assertions. According

to Appellant, Plea Counsel (1) convinced him that the court would impose a

ten-year sentence and (2) “pressured” him to plead guilty. Turner/Finley

Letter at 6.

      “[A]llegations of ineffectiveness in connection with the entry of a guilty

plea will serve as a basis for relief only if the ineffectiveness caused the

defendant to enter an involuntary or unknowing plea.” Commonwealth v.

Willis, 68 A.3d 997, 1001-02 (Pa. Super. 2013) (citation omitted). “Where

the defendant enters his plea on the advice of counsel, the voluntariness of

the plea depends on whether counsel's advice was within the range of

competence demanded of attorneys in criminal cases.”           Id. at 1002.    A

defendant need not be pleased with the outcome of his decision to plead guilty.

Anderson, supra at 1192 (citations omitted). “All that is required is that

[his] decision to plead guilty be knowingly, voluntarily and intelligently made.”

Id.

      Here, the PCRA court credited Plea Counsel’s testimony, specifically

rejecting Appellant’s assertion that counsel had promised him a specific

sentence. PCRA Ct. Order at 1 n.2. The record supports this finding, see N.T.

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PCRA Hearing at 29-30, and we defer to the PCRA court’s credibility

determination. Anderson, supra at 1189. Thus, Appellant’s first assertion—

that Plea Counsel convinced him that he would receive a ten-year sentence—

is without merit.

       The PCRA court did not specifically address Appellant’s characterization

of Plea Counsel’s advice as untoward “pressure.”5 Rather, the court evaluated

the overall competence of counsel’s representation.       Referencing counsel’s

success in securing an agreement from the Commonwealth to treat Appellant’s

crimes as second-strike offenses and noting further that counsel’s advocacy

resulted in certain of Appellant’s sentences to be imposed concurrently, the

court concluded that counsel’s advice to Appellant “had a reasonable basis

[that] was not only designed to effectuate [Appellant’s] interests, but indeed

did advance [Appellant’s] interests with respect to sentencing, . . . saving

[Appellant] a substantial amount of prison time[.]” PCRA Ct. Order at 1 n.2.

       We agree. It is counsel’s responsibility not only to advocate on behalf

of a client, but also to offer the benefit of his or her experience and expertise.

Quite contrary to Appellant’s assertion, the record reveals that Plea Counsel

set forth the trial court’s sentencing options in detail, explaining to Appellant
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5 Nevertheless, we note that Appellant’s testimony undermines this assertion,
as he has repeatedly acknowledged that no one forced him to plead guilty.
See N.T. PCRA Hearing at 18; see also N.T. Sentencing, 10/29/13, at 34. It
is well settled that “[a] person who elects to plead guilty is bound by the
statements he makes in open court while under oath and he may not later
assert grounds for withdrawing the plea which contradict the statements he
made at his plea colloquy.” Commonwealth v. Pollard, 832 A.2d 517, 523
(Pa. Super. 2003). Thus, Appellant’s assertion is without merit.

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the risks associated with proceeding to trial compared with the relative

benefits of pleading guilty. N.T. PCRA Hearing at 25-30. This advice was

“within the range of competence demanded of attorneys in criminal cases.”

Anderson, supra at 1192.

      Appellant’s assertions are without merit or evidentiary support. While

he may not be pleased with the sentence that he ultimately received, our

independent review of the record confirms that Plea Counsel represented

Appellant effectively and that Appellant entered his plea knowingly, voluntarily

and intelligently. Anderson, supra at 1192. For these reasons, we conclude

that the PCRA court’s decision is supported by the evidence of record and free

of legal error.   Jarosz, supra at 350.      Accordingly, we grant counsel’s

Application to Withdraw as Counsel and affirm the PCRA court’s Order.

      Application to Withdraw as Counsel granted; Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/19




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