J-S34034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ISAIAH S. VALENTI

                            Appellant                 No. 397 MDA 2015


                 Appeal from the PCRA Order January 15, 2015
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0001075-2008


BEFORE: PANELLA, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                             FILED JULY 06, 2016

        Appellant Isaiah S. Valenti appeals from the order entered in the York

County Court of Common Pleas, which dismissed his petition filed for relief

pursuant to the Post Conviction Relief Act (“PCRA”).1 After careful review,

we affirm and grant counsel’s petition to withdraw.

        The PCRA court set forth the relevant facts and procedural history of

this appeal as follows:

          On October 17, 2008, a jury found Appellant guilty of one
          count of possession of cocaine with intent to distribute,
          one count of possession of marijuana, four counts of
          accident involving damage to attended vehicle/property,
          one count of fleeing and eluding an officer, and six counts
          of recklessly endangering another person. N.T. Trial,
          October 17, 2012, at 344-5. On December 3, 2008,

____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
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          Appellant was sentenced to 11 to 27 years of
          incarceration. N.T. Sentence, December 3, 2008, at 7-8.

          On that same day, Appellant filed a pro se notice of appeal
          (docketed at 2168 MDA 2008), which was dismissed
          because Appellant was represented by counsel. A
          subsequent notice of appeal was filed on March 18, 2009
          (docketed at 494 MDA 2009), and on May 5, 2009, [the
          trial court] filed [its] 1925(a) Opinion. In an Opinion filed
          March 30, 2010, The Pennsylvania Superior Court affirmed
          the judgment of sentence.…

          On April 20, 2010, Appellant filed a PCRA petition, which
          was denied after a hearing on July 19, 2010. Appellant
          filed a subsequent PCRA petition, and after a hearing held
          on December 22, 2010, [the] decision was reserved.
          Appellant filed an amended petition on January 31, 2011.
          On November 29, 2011, Appellant’s petition was granted
          and his appellate rights reinstated. The [c]ourt’s orders of
          November 2[9], 2011 and October 22, 2012,[2] only
          reinstated Appellant’s right to file an appeal from the order
          of July 19, 2010, denying Appellant’s first PCRA petition.
          The Superior Court concluded in its September 23, 2013
          Opinion (docketed at 1883 MDA 2012) that this [c]ourt
          improperly granted Appellant nunc pro tunc relief
          regarding his appeal from the denial of his first PCRA
          petition because Appellant had abandoned that appeal. The
          Superior Court affirmed the July 19, 2010 PCRA order and
          remanded the matter back to the PCRA court for a hearing
          on Appellant’s unresolved claims.

          A PCRA hearing addressing Appellant’s two unresolved
          claims was held on January 9, 2015 and his petition for
          relief was subsequently denied. At the conclusion of the
          hearing, Appellant’s counsel was permitted ten days to
          review the record and file a motion for reconsideration in
          regards to the statement concerning the planting of
          evidence. A motion for reconsideration was filed on
____________________________________________


2
 Appellant failed to file a timely appeal after the court reinstated his rights
nunc pro tunc, so the court re-instated his right to appeal nunc pro tunc on
October 22, 2012.



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          January 16, 2015 and denied without the need for a
          hearing or additional testimony on January 29, 2015 since
          the Superior Court had previously addressed the
          sentencing argument in its prior opinion and there was
          already previous testimony on the record from Attorney
          Moore. The two issues addressed at the hearing concerned
          Paragraphs 3(d) and 3(e) of Appellant’s amended PCRA
          petition filed on January 31, 2011.

PCRA Court Pa.R.A.P. 1925(a) Opinion, filed September 24, 2015, at 2-3.

       On February 26, 2015, Appellant filed a notice of appeal.3 On March 2,

2015, the PCRA court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and he timely

complied on March 23, 2015.           The PCRA court issued a Pa.R.A.P. 1925(a)

opinion on September 24, 2015.

       On December 9, 2015, Appellant’s counsel filed a petition to withdraw

along with 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).            Counsel incorrectly advised Appellant that

“should the court grant the Petition to withdraw as counsel,” he had the right

to proceed pro se or with the assistance of privately-retained counsel of his

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3
  Appellant purported to appeal the January 29, 2015 order, which denied
his petition for reconsideration. However, the appeal properly lies from the
underlying order of January 15, 2015, which denied his PCRA petition. See
Pa.R.Crim.P. 910; Pa.R.A.P. 108(a); Commonwealth v. Moir, 766 A.2d
1253 (Pa.Super.2000). On April 28, 2015, this Court ordered Appellant to
show cause within 10 days why the appeal should not be quashed as
untimely. On May 8, 2015, Appellant filed a response. On May 14, 2015,
this Court discharged the show-cause order and deferred the timeliness
issue to this merits panel. We address this issue infra.



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choice. See Turner/Finley Letter at 12. On December 21, 2015, in light of

counsel’s incorrect advice, this Court ordered Appellant to file a response to

the petition. On January 15, 2016, Appellant filed a response to counsel’s

petition to withdraw, in which he requested this Court strike the petition to

withdraw and no-merit letter but did not raise any additional issues for our

review.

      Counsel identified the following issues in his Turner/Finley letter as

the only issues not previously addressed by this Court:

          [W]hy did [trial counsel] not request the [c]ourt to make a
          ruling on his objection to the statement made by [the
          assistant district attorney (“ADA”)?]

          [W]hy did [trial counsel] not raise and argue that during
          Appellant’s   sentencing   the    court   referenced   an
          objectionable statement made by the [ADA]?

Counsel’s No Merit Letter, December 9, 2015 (“No Merit Letter”) at 7

(pagination supplied by this Court).

      Before we determine the merits of Appellant’s claims, we must

determine whether this appeal was timely filed, because the timeliness of an

appeal implicates this Court’s jurisdiction.       See Commonwealth v.

Crawford, 17 A.3d 1279, 1281 (Pa.Super.2011). To preserve the right to

appeal a final order of the PCRA court, a notice of appeal must be filed within

thirty days after the date of entry of the order granting or denying relief.

See Pa.R.Crim.P. 910; Pa.R.A.P. 903(a).




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      Here, the PCRA court denied Appellant’s PCRA petition on January 9,

2015, and Appellant’s notice of appeal, filed on February 26, 2015, is facially

untimely. In his response to this Court’s order to show cause why this Court

should not dismiss his appeal as untimely filed, Appellant asserts that there

was a breakdown in the PCRA court’s process, specifically that the PCRA

court advised Appellant he could file for reconsideration and request that

additional testimony be taken.

      At the conclusion of the hearing on January 9, 2015, the PCRA court

stated:

          [F]or today’s purposes, given our discussions surrounding
          the trial, the second PCRA petition and amendment to that
          PCRA petition, unless anybody else sees the necessity for
          testimony, I think we have enough on the record that we
          really don’t need to have testimony in the matter. […] I
          believe my rulings are that the record supports dismissal
          of the PCRA petition…

          [Appellant’s counsel,] you can have ten days to obviously
          review the record.       And if you file a motion for
          reconsideration within the next ten days, I’ll take a look at
          it and decide whether or not you would be entitled to a
          hearing on that…

N.T. January 9, 2015, at 15, 16. In an order docketed on January 15, 2015,

the PCRA court recited the above passage, verbatim.           Appellant filed a

motion for reconsideration within the next ten days, and the PCRA court

ultimately denied the motion on January 29, 2015.

      Although Appellant should have filed a notice of appeal within 30 days

of the January 15, 2015 order, the PCRA court advised him to file a motion


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for   reconsideration,     thus   purporting     to   extend   its   determination   of

Appellant’s PCRA petition and consequently Appellant’s appeal period. 4 We

view the PCRA court’s advice to Appellant as incorrect and a breakdown of

the court’s operation. See Commonwealth v. Leatherby, 116 A.3d 73, 79

(Pa.Super.2015) (“[An appellant] should not be precluded from appellate

review based on what was, in effect, an administrative breakdown on the

part of the trial court.”). See also Commonwealth v. Parlante, 823 A.2d

927, 929 (Pa.Super.2003) (“the trial court’s misstatement of appeal

period…operated as a breakdown in the court’s operation”).                  Thus, we

decline to quash this appeal as untimely.

       Next, we must determine whether PCRA counsel has complied with the

technical requirements of Turner/Finley.

          Counsel petitioning to withdraw from PCRA representation
          must proceed under [Turner/Finley and] ... must review
          the case zealously. Turner/Finley counsel must then
          submit a “no merit” letter to the trial court, or brief on
____________________________________________


4
  However, a motion for reconsideration does not toll the 30-day appeal
period for a PCRA dismissal.

          “[A]lthough a party may petition the court for
          reconsideration, the simultaneous filing of a notice of
          appeal is necessary to preserve appellate rights in the
          event that either the trial court fails to grant the petition
          expressly within 30 days, or it denies the petition.
          Moreover, we have consistently held that an appeal from
          an order denying reconsideration is improper and
          untimely.”

Commonwealth v. Moir, 766 A.2d 1253.1254 (Pa.Super.2000).



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          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
          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—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) (citations

omitted).

       Here, PCRA counsel filed a petition to withdraw along with a

Turner/Finley “no merit” letter that detailed the nature and extent of

counsel’s review of the case, listed the issues Appellant wished to be

reviewed, and explained why each issue lacked merit. See No Merit Letter

at 1-7.     Counsel supplied a copy of the letter to Appellant along with his

petition to withdraw. Although counsel erroneously advised Appellant of his

right to proceed pro se or with privately retained counsel if this Court

granted his petition to withdraw, this Court remedied the error by directing

Appellant to file a response to counsel’s petition, and Appellant complied.

This    constitutes    substantial   compliance   with   the    mandates   of

Turner/Finley, and we will now address the merits of the claims raised.

       Our standard of review is well-settled.    “In reviewing the denial of

PCRA relief, we examine whether the PCRA court’s determination is

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supported by the record and free of legal error.” Commonwealth v. Fears,

86 A.3d 795, 803 (Pa.2014) (internal quotation marks and citation omitted).

“The 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 trial level.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.2014)

(citation omitted).    “It is well-settled that a PCRA court’s credibility

determinations are binding upon an appellate court so long as they are

supported by the record.”     Commonwealth v. Robinson, 82 A.3d 998,

1013 (Pa.2013) (citation omitted).     However, this Court reviews the PCRA

court’s legal conclusions de novo. Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa.Super.2014) (citation omitted).

      In both of his issues, Appellant argues that his trial counsel was

ineffective.    Although claims of ineffective assistance of counsel are

cognizable under the PCRA, Appellant waived his issues by failing to raise

them in his first PCRA petition.     See 42 Pa.C.S. § 9544(b) (“an issue is

waived if the petition could have raised it but failed to do so… in a prior state

post[-]conviction proceeding.”).

      Moreover, this is Appellant’s second petition filed for relief pursuant to

the PCRA. A heightened standard applies to a second or subsequent PCRA

petition   to   prevent    “serial   requests    for   post-conviction    relief.”

Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa.2011).               A second or

subsequent PCRA petition will not be entertained unless “the petitioner


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makes a strong prima facie showing that a miscarriage of justice may have

occurred.”        Commonwealth       v.   Medina,     92   A.3d    1210,   1215

(Pa.Super.2014) (en banc), appeal granted, 105 A.3d 658 (Pa.2014).

“Appellant makes a prima facie showing of entitlement to relief only if he

demonstrates either that the proceedings which resulted in his conviction

were so unfair that a miscarriage of justice occurred which no civilized

society could tolerate, or that he was innocent of the crimes for which he

was charged.” Id. (citation omitted).

      Appellant does not allege a miscarriage of justice in his second PCRA

petition. Appellant’s counsel reasoned in his No Merit Letter:

         At the January 9, 2015 hearing, you stated in part the
         following: “today I’m [here] to[,] you know what I mean,
         to take full responsibility for my actions like you said in the
         past.” It is unlikely that the Superior Court will interpret
         these statements as establishing your innocence.

No Merit Letter at 7-8.

      Counsel is correct that we do not interpret Appellant’s statements as

establishing his innocence, and our independent review of the record does

not reveal that a miscarriage of justice occurred which no civilized society

could tolerate.

      Having found Appellant waived his issues and failed to allege a

miscarriage of justice, and finding nothing in the record that would support a

contrary result, we affirm the order of the PCRA court denying Appellant’s

PCRA petition and grant PCRA counsel’s petition to withdraw.


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     Order affirmed. Petition to Withdraw as Counsel granted.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2016




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