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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                    v.                     :
                                           :
GARY LEE HALL                              :
          APPELLANT                        :
                                           :
                                           :     No. 118 MDA 2016

                Appeal from the PCRA Order December 22, 2015
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0003408-2013

BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                         FILED DECEMBER 02, 2016

        Appellant, Gary Lee Hall, appeals from the December 22, 2015 Order,

entered in the Luzerne County Court of Common Pleas, denying his first

Petition pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§

9541-9546. Additionally, Appellant’s appointed counsel, Matthew P. Kelly,

Esquire, has filed a Petition to Withdraw as Counsel and an accompanying

“no merit” letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.

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

banc), and their progeny. We affirm the Order of the PCRA court and grant

counsel’s Petition to Withdraw as Counsel.




*
    Retired Senior Judge assigned to the Superior Court.
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     The relevant facts and procedural history are as follows. On April 4,

2014, Appellant, while represented by Nandukumar Palissery, Esquire,

entered a guilty plea to one count of Indecent Assault Complainant Less than

13 Years of Age. 18 Pa.C.S. § 3126(a)(7).

     On September 10, 2014, the court permitted Attorney Palissery to

withdraw as counsel. The court ordered Appellant to apply to the Luzerne

County Public Defender’s Officer for new counsel. By September 17, 2014,

James Barr, Esquire, of the Luzerne County Public Defender’s Office

represented Appellant.

     On October 24, 2014, the court sentenced Appellant to a term of 18 to

36 months’ incarceration, followed by four years’ probation.    Following an

assessment by the Sexual Offender Assessment Board, the court determined

that Appellant is a Sexually Violent Predator. The Court ordered Appellant to

register as a sex offender for his lifetime pursuant to the Sex Offender

Registration and Notification Act (“SORNA”), 42 Pa.C.S. § 9799, et seq. At

the time of sentencing, James Barr, Esquire, represented Appellant.

     Appellant did not file a direct appeal from his Judgment of Sentence.

On March 23, 2015, Appellant filed a timely pro se PCRA Petition in which he

alleged that: (1) his plea counsel was ineffective because he threatened to

withdraw as counsel if Appellant did not enter into a plea agreement or

provide additional funds to represent him at trial; (2) his plea counsel was

ineffective because he did not advise Appellant that he could obtain new



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counsel or seek to have counsel appointed; (3) his sentencing counsel was

ineffective for failing to advise Appellant that he had the right to withdraw

his guilty plea; (4) his sentencing counsel was ineffective because Appellant

told him his plea counsel had threatened him into pleading guilty but did not

advise Appellant of his options; and (5) his sentencing counsel was

ineffective for failing to file a direct appeal at Appellant’s request.

      On June 15, 2015, the PCRA court appointed Jeffrey A. Yellen, Esquire,

to represent Appellant.      Attorney Yellen did not file an amended PCRA

Petition. Following an evidentiary hearing, on December 23, 2015, the PCRA

court denied Appellant’s PCRA Petition. This timely appeal followed.

      On January 20, 2016, the PCRA court appointed Matthew Kelly,

Esquire, to represent Appellant on appeal. Appellant complied with the trial

court’s Order pursuant to Pa.R.A.P. 1925.

      On July 13, 2016, Attorney Kelly filed in this Court a Petition to

Withdraw as Counsel along with a Turner/Finley “no merit” letter. Attorney

Kelly concluded that there were no non-frivolous issues to be raised on

appeal after addressing each of the issues raised by Appellant in his Rule

1925(b) statement. Appellant did not respond to Attorney Kelly’s Petition to

Withdraw as Counsel.

      Before we consider Appellant’s arguments, we must review Attorney

Kelly’s   request   to    withdraw    from    representation.        Pursuant   to

Turner/Finley, independent review of the record by competent counsel is



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required     before     withdrawal     on   collateral     appeal    is    permitted.

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 wished to

have reviewed; and (3) providing an explanation of why the petitioner’s

issues were 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).

      Our review of the record discloses that Attorney Kelly has complied

with each of the above requirements.            In addition, Attorney Kelly sent

Appellant copies of the Turner/Finley no-merit letter and his Petition to

Withdraw, and advised him of his rights in lieu of representation in the event

that the court granted Attorney Kelly permission to withdraw.                    See

Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011). Since

Attorney Kelly has complied with the Turner/Finley requirements, we will

proceed with our independent review of the record and the merits of

Appellant’s claims.

      In the Turner/Finley letter, Attorney Kelly indicated Appellant wished

to raise the following two issues on appeal:



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         1. Whether the trial court erred in failing to allow
         [Appellant] to withdraw his guilty plea which was coerced
         by his trial counsel and subsequent Public Defender, thus
         resulting in an involuntary plea.

         2. Whether trial counsel was ineffective in failing to file an
         appeal to the [J]udgment of [S]entence issued on October
         24, 2014.

Appellant’s Brief at 1.

      This Court’s “standard of review for an order denying post-conviction

relief is limited to whether the trial court's determination is supported by

evidence of record and whether it is free of legal error.” Commonwealth v.

Allen, 732 A.2d 582, 586 (Pa. 1999). Further, “[t]he PCRA court’s findings

“will not be disturbed unless there is no support for the findings in the

certified record.” Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa.

Super. 2008).

      Appellant alleges that his plea and sentencing counsel provided

ineffective assistance by coercing him into entering a guilty plea and not

filing a direct appeal from his Judgment of Sentence. In order to establish

eligibility for PCRA relief, a petitioner must prove by a preponderance of the

evidence that the conviction resulted from “[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. § 9543(a)(2)(ii).




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       In analyzing claims of ineffective assistance of counsel, we presume

that trial counsel was effective unless the PCRA petitioner proves otherwise.

Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa. 1999).

       In order to succeed on a claim of ineffective assistance of counsel,

Appellant must demonstrate (1) that the underlying claim is of arguable

merit; (2) that counsel’s performance lacked a reasonable basis; and (3)

that   the   ineffectiveness   of   counsel   caused   the   appellant   prejudice.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Appellant bears

the burden of proving each of these elements, and his “failure to satisfy any

prong of the ineffectiveness test requires rejection of the claim of

ineffectiveness.”    Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.

2009).

       Appellant first claims that his plea counsel coerced him into entering a

guilty plea and his sentencing counsel, although aware of the alleged

coercion, failed to advise Appellant to withdraw his guilty plea. The record

belies this claim.

       At Appellant’s PCRA Hearing, Appellant testified that, at his plea

hearing, he and the plea judge engaged in a lengthy guilty plea colloquy.

N.T. PCRA Hr’g, 10/9/15, at 17. Appellant agreed that he had reviewed his

plea agreement and had indicated to the court that he was satisfied with the

services provided by Attorney Palissery. Id. Appellant further testified that

he had informed the plea judge that it was his decision to plead guilty and



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that he had not been forced or coerced into entering the plea agreement.

Id. at 17-18.    Appellant testified that he did not inform sentencing counsel

Attorney Barr that Appellant thought he had been coerced into pleading

guilty or that he wanted to withdraw his guilty plea. Id. at 19-20.

      Appellant also testified at the PCRA Hearing that he testified at his

Sentencing Hearing that he entered his guilty plea knowingly and voluntarily.

Id. at 21; see also N.T. Sentencing H’rg, 10/24/14, at 8-9.           He further

testified that, at the time of sentencing, he told the court he understood that

he could withdraw his plea and go to trial, but that he did not wish to do

that. N.T. PCRA H’rg at 22; see also N.T. Sentencing H’rg at 9. Rather, he

testified at his sentencing hearing that, “I’m guilty, ma’am.” N.T. PCRA H’rg

at 22; see also N.T. Sentencing H’rg at 9. Moreover, Appellant affirmed at

his sentencing hearing that he was satisfied with the services provided by his

counsel. Id. at 10.

      Attorney Barr also testified at Appellant’s PCRA hearing. Attorney Barr

testified that he represented Appellant following Appellant’s request to be

appointed a public defender.     Id. at 24.   He testified that he took notes

during his meeting with Appellant on October 8, 2014, and that his notes

reflected that “defendant admits guilt. Defendant just doesn’t want the SVP

designation.”   Id. at 27.     Attorney Barr testified that Appellant never

indicated to him that Appellant felt coerced into entering a guilty plea or that

he felt he had no choice but to plead guilty because he could not afford to



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pay Attorney Palissery any more money. Id. at 27-28. He testified that he

would have discussed with Appellant the possibility of withdrawing his guilty

plea, and that Appellant never requested to withdraw his guilty plea during

his sentencing hearing.       Id. at 28.     He confirmed that, in fact, Appellant

admitted his guilt at his sentencing hearing. Id. at 29.

          In light of the foregoing, the record supports the PCRA court’s

conclusion that Appellant knowingly and voluntarily entered his guilty plea.

His claim, thus, lacks merit and Appellant is not entitled to relief on this

issue.

         Appellant next claims that Attorney Barr was ineffective in failing to file

a direct appeal on Appellant’s behalf. Appellant’s Brief at 7.

         Appellant testified at his PCRA hearing that the sentencing judge

informed him of his appeal rights.          N.T. PCRA H’rg at 10.         Appellant also

testified that he did not verbally tell Attorney Barr that he wanted to appeal

his Judgment of Sentence.         Id.     Appellant testified that he instead sent

Attorney Barr a letter after his sentencing informing counsel that he wanted

to appeal his sentence, but that he did not recall when exactly he sent it and

he did not keep a copy. Id. at 11-12.

         Attorney Barr testified that, while he did not specifically recall

discussing     Appellant’s   appeal     rights   with   Appellant,   he    recalled   the

sentencing judge informing Appellant of his rights, and that Appellant did not

indicate to him that he wished to appeal any part of his sentence. Id. at 29-



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30.    He also testified that he never received any correspondence from

Appellant in which he indicated that he wished to appeal. Id.

      Our review of the record indicates that the PCRA court did not err in

denying Appellant relief on this issue. It is undisputed that Appellant did not

verbally ask Attorney Barr to file an appeal from his Judgment of Sentence

following his sentencing hearing and Appellant’s unsubstantiated claim that

he sent a written request for Attorney Barr to do so is unpersuasive.

Accordingly, this issue lacks merit, and we affirm the denial of PCRA relief

and grant counsel’s Petition to Withdraw.

      Order     affirmed.   Petition   to    Withdraw   granted.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/2/2016




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