J-S39003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JOSE FRANCISCO SOSA-REYES

                            Appellant                  No. 1746 MDA 2015


            Appeal from the PCRA Order entered September 8, 2015
                 In the Court of Common Pleas of York County
               Criminal Division at No: CP-67-CR-0006652-2010


BEFORE: STABILE, PLATT,* and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                        FILED SEPTEMBER 08, 2016

        Appellant, Jose Francisco Sosa-Reyes, appeals from the September 8,

2015 order entered in the Court of Common Pleas of York County, denying

his petition for collateral relief pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546.             In addition, counsel has filed a

Turner-Finley “no-merit” letter1 and a petition seeking to withdraw.

Following review, we grant counsel’s petition and affirm the order of the

PCRA court.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
J-S39003-16


      On December 22, 2011, Appellant entered an open guilty plea to third-

degree murder.     18 Pa.C.S.A. § 2502(c).    On February 3, 2012, he was

sentenced to 20 to 40 years in a state correctional institution. Trial counsel

filed a motion for reconsideration of sentence and a petition to withdraw.

Concurrently, Appellant filed a pro se motion to withdraw his guilty plea.

Following a hearing, the trial court denied the motions for reconsideration of

sentence and withdrawal of the guilty plea while granting counsel’s petition

to withdraw.

      A timely direct appeal was filed to this Court in which Appellant

claimed the trial court abused its discretion by denying the motion to

withdraw his guilty plea.   Appellant also contended that his sentence was

excessive and failed to reflect that he was not the principal actor, that he

lacked a criminal record, and that he was remorseful. This Court affirmed

Appellant’s judgment of sentence on December 20, 2012, relying largely on

the reasoning of the trial court. Commonwealth v. Sosa-Reyes, 64 A.3d

29 (Pa. Super. 2012) (unpublished memorandum).

      On May 5, 2013, Appellant filed his first PCRA petition followed by an

amended petition on October 2, 2013. On June 25, 2014, PCRA counsel was

appointed.     A hearing was held on January 27, 2015, during which both

Appellant and plea counsel testified.




                                        -2-
J-S39003-16


       By order entered September 8, 2015, the PCRA court denied

Appellant’s petition.     This timely appeal followed.   Both Appellant and the

PCRA court complied with Pa.R.A.P. 1925.

       On January 4, 2016, Appellant’s PCRA counsel filed an application to

withdraw as counsel along with a “no-merit” letter, in which he repeats the

sole assertion of error raised in Appellant’s Rule 1925(b) statement, i.e.,

whether the PCRA court abused its discretion in denying Appellant’s PCRA

petition and requested relief. Counsel’s No-Merit Letter, 1/4/05, at 1.2

       Before we may consider whether the PCRA court abused its discretion

by denying Appellant’s PCRA petition and requested relief, we must address

whether PCRA counsel has met the requirements of Turner/Finley.             For

PCRA counsel to withdraw under Turner/Finley in this Court:

       (1)    PCRA counsel must file a no-merit letter that details the
              nature and extent of counsel’s review of the record; lists
              the appellate issues; and explains why those issues are
              meritless.

       (2)    PCRA counsel must file an application to withdraw; serve
              the PCRA petitioner with the application and the no-merit
              letter; and advise the petitioner that if the Court grants

____________________________________________


2
  We note that counsel incorrectly indicated in his no-merit letter that
“should” this Court grant counsel’s petition to withdraw, Appellant would
have the right to proceed pro se or with assistance of privately-retained
counsel. In light of counsel’s error, this Court issued an order on January 7,
2016, advising Appellant that he could file a response to the petition within
30 days of the order. On February 17, 2016, Appellant requested an
extension for filing a response. By order of February 19, 2016, we granted
Appellant’s request and set March 7, 2016 as the deadline for filing a
response. Appellant did not file a response despite the extension granted.



                                           -3-
J-S39003-16


                the motion to withdraw, the petitioner can proceed pro se
                or hire his own lawyer.

        (3)     This Court must independently review the record and
                agree that the appeal is meritless.

See Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super. 2011)

(citing or quoting Turner, Finley, Commonwealth v. Pitts, 981 A.2d 875

(Pa. 2009), and Commonwealth v. Friend, 896 A.2d 607 (Pa. Super.

2008), abrogated by Pitts).

        We find that PCRA counsel has complied with Turner/Finley.            PCRA

counsel has petitioned for leave to withdraw and filed a Turner/Finley no-

merit letter. Finally, PCRA counsel informed Appellant of his right to hire a

new lawyer or file a pro se response.3

        We now turn to this appeal to determine whether it is indeed

meritless. As this Court has explained:

        We review an order dismissing a petition under the PCRA in the
        light most favorable to the prevailing party at the PCRA level.
        This review is limited to the findings of the PCRA court and the
        evidence of record. We will not disturb a PCRA court’s ruling if it
        is supported by evidence of record and is free of legal error.
        This Court may affirm a PCRA court’s decision on any grounds if
        the record supports it. Further, we grant great deference to the
        factual findings of the PCRA court and will not disturb those
        findings unless they have no support in the record. However, we
        afford no such deference to its legal conclusions. Where the
        petitioner raises questions of law, our standard of review is de
        novo and our scope of review plenary.



____________________________________________


3
    See n. 2.



                                           -4-
J-S39003-16


Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

     With regard to Appellant’s PCRA hearing, the PCRA court explained

that despite asserting multiple claims in his PCRA petition, Appellant

proceeded on the sole claim of plea counsel’s ineffectiveness for indicating

Appellant would be deported as soon as he entered a plea and would never

serve his sentence, thereby inducing Appellant to accept the plea. Further,

Appellant claimed he was told he was facing a maximum sentence of

fourteen, rather than forty, years. PCRA Court 1925(a) Opinion, 9/8/15, at

2.

     After summarizing the factual and procedural background of the case,

as well as the testimony from guilty plea, sentencing, and PCRA hearings,

id. at 2-6, the PCRA court quoted Commonwealth v. Cox, 983 A.2d 666,

678 (Pa. 2009), and its three-pronged test for ineffectiveness of counsel,

i.e., that the underlying claim has arguable merit, that counsel’s actions

lacked any reasonable merit, and that counsel’s actions resulted in prejudice

to the petitioner. Id. at 6-7. The PCRA court then explained:

     [Appellant’s] petition fails the very first prong of the test outlined
     above for ineffectiveness of counsel. There can be no arguable
     merit to [Appellant’s] assertions regarding penalty where, as
     indicated in our retelling of the facts, [Appellant] was not
     misinformed by counsel, or this [c]ourt, of the maximum penalty
     he faced.     Even if, arguendo, our memory fails and both
     Commonwealth and defense counsel had been inept in failing to
     correct our misstatement of the maximum, [Appellant] was
     informed on multiple other occasions and through his written
     colloquy that forty years was the potential maximum.

                                     -5-
J-S39003-16


      Additionally, at sentencing, [Appellant] was offered a chance to
      withdraw his plea and declined to do so. [Appellant] would have
      had to willfully ignore the multiple contradictions as to the
      potential incarceration penalty.    Moreover, ignorance is not
      indicated because [Appellant] presented no evidence from the
      various translators that he had been confused and had requested
      clarification from [plea counsel]. Rather [plea counsel] testified
      that [Appellant] never communicated confusion.

      In regards to the specific claim presented at the PCRA hearing
      that [plea counsel] told [Appellant] he would be deported and
      would not serve a full sentence, there is no arguable merit. As
      discussed earlier . . ., it is inconceivable to this [c]ourt that [plea
      counsel] would have made such declarations to [Appellant]
      where [plea counsel] had indicated to the [c]ourt that he could
      not speak to how immigration authorities would handle
      [Appellant’s] case following sentencing. Finding no arguable
      merit in [Appellant’s] complaints, we decline to proceed to the
      second and third prongs of the test as it would be a fruitless
      exercise where all three prongs must be met.

Id. at 7-8.

      We find that the PCRA court’s factual findings are supported by the

record.   Therefore, we shall not disturb them.      Further, we find the PCRA

court’s legal conclusions are supported by the evidence of record and are

free of legal error.    Therefore, we affirm the PCRA court’s dismissal of

Appellant’s petition.

      Petition to withdraw granted. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/8/2016


                                       -6-
