J-A15015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JONATHAN ALVAREZ                           :
                                               :
                       Appellant               :   No. 53 MDA 2018

                 Appeal from the PCRA Order December 5, 2017
                In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0000433-2015


BEFORE: PANELLA, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.                           FILED FEBRUARY 11, 2019

       Jonathan Alvarez appeals from the order entered in the Luzerne County

Court of Common Pleas dismissing his petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Further, Matthew

P. Kelly, Esquire, has filed an application to withdraw from representation and

a Turner/Finley1 “no-merit” letter. We affirm and grant Attorney Kelly leave

to withdraw.

       The relevant facts and procedural history are as follows. In October of

2014, Alvarez was charged with fleeing or attempting to elude a police officer,

accidents involving damage to attended vehicles or property, two counts of

driving while under the influence of alcohol or controlled substance (“DUI”),

____________________________________________


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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driving while operating privilege is suspended or revoked (“DUS”), and several

summary traffic offenses.2 These charges alleged that Alvarez, under the

influence of marijuana, fled from the police at a high rate of speed, crashed

his girlfriend’s vehicle into a residence, and was later apprehended walking

near the scene of the crash.

       Despite the Commonwealth’s offer of a plea deal, Alvarez proceeded to

a jury trial. At trial, Alvarez denied driving his girlfriend’s vehicle on the night

of the crash. Instead, Alvarez’s trial strategy was to claim he was at home

asleep and that his friend, Jayo, had been the one to flee police and crash his

girlfriend’s vehicle. Despite initial indications she would not appear at trial,

Alvarez’s girlfriend testified that he confessed to driving her car and causing

the accident. Alvarez was convicted on all but one DUI count, and the court

sentenced him to an aggregate term of 45 to 84 months’ imprisonment.3

Alvarez did not file a direct appeal.



____________________________________________


2 See 75 Pa.C.S.A. §§ 3733(a), 3743(a), 3802(d)(2) and 1543(b)(1.1)(i),
respectively. Alvarez’s summary charges included; (1) driving without lights
to avoid identification or arrest, 75 Pa.C.S.A. § 3734; (2) reckless driving, 75
Pa.C.S.A. § 3736(a): (3) traffic-control signals, 75 Pa.C.S.A. § 3112(a)(3)(i);
(4) duties at stop signs, 75 Pa.C.S.A. § 3323(b); and (5) driving on one-way
roadway, 75 Pa.C.S.A. § 3308(b).

3Specifically, the trial court sentenced Alvarez to consecutive terms of 36 to
72 months’ imprisonment for fleeing, 6 to 12 months’ imprisonment for
accidents involving damage, and 90 days for DUS. The trial court also imposed
a concurrent term of 24 to 48 months’ imprisonment for Alvarez’s DUI
conviction.


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      Instead, Alvarez filed a timely pro se PCRA petition. Through his petition,

Alvarez alleged trial counsel’s ineffectiveness for failing to file a direct appeal,

failing to file a motion to suppress the results of the blood test utilized at trial,

failing to challenge the blood test at trial, and for failing to properly advise

Alvarez regarding the Commonwealth’s plea offer. The PCRA court appointed

PCRA counsel, and this matter proceeded to an evidentiary hearing. Following

the denial of Alvarez’s petition and the filing of his notice of appeal, the trial

court appointed Attorney Kelly to replace initial PCRA counsel.

      In lieu of an advocate’s brief, Attorney Kelly has filed a Turner/Finley

no-merit letter and application to withdraw as counsel. Thus, we must assess

counsel’s assertion that the issues Alvarez wishes to raise have no merit

pursuant to the following standards.

      The Turner/Finley decisions provide the manner for post[-]
      conviction counsel to withdraw from representation. The holdings
      of those cases mandate an independent review of the record by
      competent counsel before a PCRA court or [an] appellate court
      can authorize an attorney’s withdrawal. The necessary
      independent review requires counsel to file a “no-merit” letter
      detailing the nature and extent of his [or her] review and list each
      issue the petitioner wishes to have examined, explaining why
      those issues are meritless. The PCRA court, or an appellate court
      if the no-merit letter is filed before it, see Turner, supra, then
      must conduct its own independent evaluation of the record and
      agree with counsel that the petition is without merit[.]

      [T]his Court [has] imposed additional requirements on counsel
      that closely track the procedure for withdrawing on direct appeal.
      . . . [C]ounsel is required to contemporaneously serve upon his
      [or her] client his [or her] no merit letter and application to
      withdraw along with a statement that if the court granted
      counsel’s withdraw request, the client may proceed pro se or with
      a privately retained attorney[.]

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Commonwealth v. Reed, 107 A.3d 137, 140 (Pa. Super. 2014) (citation

omitted) (some brackets in original). Attorney Kelly has served Alvarez with a

copy of his no-merit letter, and the letter informs Alvarez of his right to retain

private counsel or proceed pro se, and that he did not need to wait for this

Court to rule on counsel’s petition to act. Alvarez has not filed a response. We

therefore turn to the merits of the issues Alvarez wishes to raise on appeal.

      Alvarez raises four challenges to trial counsel’s stewardship. We address

each under the following standard of review. “[O]ur standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). “The PCRA court’s

credibility determinations, when supported by the record, are binding on this

Court; however, we apply a de novo standard of review to the PCRA court’s

legal conclusions.” Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015)

(citation omitted).

      We presume counsel’s effectiveness, and a PCRA petitioner bears the

burden of proving otherwise. See Commonwealth v. Brown, 161 A.3d 960,

965 (Pa. Super. 2017). To establish ineffectiveness of counsel, a PCRA

petitioner must plead and prove: his underlying legal claim has arguable

merit; counsel’s actions lacked any reasonable basis; and counsel’s actions

prejudiced the petitioner. See Commonwealth v. Spotz, 18 A.3d 244, 260

(Pa. 2011). Failure to satisfy any prong of the ineffectiveness test requires

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dismissal of the claim. See Commonwealth v. O’Bidos, 849 A.2d 243, 249

(Pa. Super. 2004). ). To establish counsel’s ineffectiveness, a petitioner must

demonstrate, by a preponderance of the evidence, that counsel’s performance

so undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.” Commonwealth v. Johnson, 868

A.2d 1278, 1281 (Pa. Super. 2005) (citation omitted).

      “Arguable merit exists when the factual statements are accurate and

could establish cause for relief. Whether the facts rise to the level of arguable

merit is a legal determination.” Commonwealth v. Barnett, 121 A.3d 534,

540 (Pa. Super. 2015) (citations and internal quotation marks omitted). “With

regard to the [reasonable basis] prong, we will conclude that counsel’s chosen

strategy lacked a reasonable basis only if Appellant proves that an alternative

not chosen offered a potential for success substantially greater than the course

actually pursued.” Spotz, 18 A.3d at 260 (citation and internal quotation

marks omitted). Further, “[p]rejudice is established if there is a reasonable

probability that, but for counsel’s errors, the result of the proceedings would

have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Commonwealth v. Stewart, 84 A.3d

701, 707 (Pa. Super. 2013) (en banc) (citations and internal quotation marks

omitted).

      Alvarez first claims Charles G. Ross, Esq., who served as trial counsel,

rendered ineffective assistance when he failed to file Alvarez’s requested


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appeal. “Generally, if counsel ignores a defendant’s request to file a direct

appeal, the defendant is entitled to have his appellate rights restored.”

Commonwealth v. Spencer, 892 A.2d 840, 842 (Pa. Super. 2006) (citing

Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999)). This is because

“where there is an unjustified failure to file a requested direct appeal, the

conduct of counsel falls beneath the range of competence demanded of

attorneys in criminal cases” and such failing constitutes prejudice per se.

Lantzy, 736 A.2d at 572 (footnote omitted). However, “relief is only

appropriate where the petitioner pleads and proves that a timely appeal was

in fact requested and that counsel ignored that request.” Spencer, 892 A.2d

at 842 (citation omitted).

         Here, Alvarez pled his claim in his PCRA petition and attempted to prove

this claim by testifying that he requested Attorney Ross to file a direct appeal

on his behalf. See N.T., PCRA Hearing, 11/7/17, at 5. However, Attorney Ross

adamantly denied this assertion. See id., at 27. In ruling against Alvarez, the

PCRA court accepted Attorney Ross‘s recollection as credible and accurate –

and squarely rejected Alvarez’s version of events. See PCRA Opinion, 3/2/18,

at 4 (unpaginated). The record support this credibility determination. Thus,

we are bound by the court’s finding that Alvarez did not request a direct

appeal. See Mason, 130 A.3d at 617. Alvarez’s first claim of ineffectiveness

fails.




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      Next, Alvarez raises two claims of ineffectiveness in relation to the

Commonwealth’s introduction of his blood test results. At trial, the

Commonwealth presented evidence that Alvarez had marijuana in his blood

stream shortly after the car accident. Alvarez argues trial counsel was

ineffective for failing to either file a motion to suppress the blood test and/or

cross-examine the Commonwealth’s expert about the significance of the blood

test results.

      During the PCRA hearing, both Alvarez and Attorney Ross indicated that

their only strategy for trial was to argue that Alvarez had not been driving the

vehicle that fled police and crashed into a residence. See N.T., PCRA Hearing,

11/7/17, at 11, 24. Attorney Ross confirmed that Alvarez was in complete

agreement with this strategy because no one other than Alvarez’s girlfriend

was able to identify Alvarez as the driver of the vehicle. See id., at 24-25.

Attorney Ross indicated that he believed it was unlikely that Alvarez’s

girlfriend would testify. See id., at 30. Once she did, Attorney Ross decided

not to abandon the strategy of denying Alvarez drove the vehicle because he

believed changing strategy mid-trial would prove fatal to the case. See id., at

25. Further, because they both agreed on this strategy, Attorney Ross denied

Alvarez ever asked him to file a suppression motion or do anything to

challenge the DUI. See id., at 24. Attorney Ross indicated that filing a

suppression motion or challenging the blood test at trial would have been

contrary to their long-held strategy. See id., at 27.


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      After reviewing this testimony from the evidentiary hearing, the PCRA

court rejected Alvarez’s ineffective assistance claims in relation to the blood

test because it found that the strategy employed by trial counsel was

reasonable. Specifically, the PCRA court noted that

      the defense pursued by [Alvarez] was that he wasn’t the operator
      of the vehicle. There was no reason for trial counsel to challenge
      the DUI if [Alvarez wasn’t driving]. Even though [Alvarez] never
      told trial counsel he smoked marijuana after driving, that defense
      to the DUI charge would also be unreasonable based upon the
      defense strategy. …

      [Further, t]rial counsel testified that he did not believe
      suppression of the blood test results was warranted. If [Alvarez]
      wasn’t operating the vehicle, the results of the blood test would
      be of no consequence… Trial counsel had a reasonable basis for
      failing to pursue suppression of the blood test results.

PCRA Court Opinion, 3/2/18, at 6 (unpaginated). After reviewing the record,

we conclude the PCRA court’s findings are well supported by the record.

Alvarez agreed to a trial strategy that did not require challenging the

admissibility of the blood test. Therefore, Alvarez has failed to prove the

second prong of his ineffectiveness analysis, and his second and third claims

on appeal, fail.

      Finally,     Alvarez   challenges   trial   counsel’s   advice   regarding   the

Commonwealth’s plea offer. Alvarez claims Attorney Ross’s miscalculation of

his prior record score, and therefore possible sentence, coupled with his

assertion that Alvarez could “beat the case,” led Alvarez to erroneously reject

the Commonwealth’s offer of 9 – 23 months imprisonment. See N.T., PCRA

Hearing, 11/7/17, at 8-10.

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      In order for a petitioner to establish that counsel’s ineffectiveness

caused the petitioner to reject a guilty plea, the petitioner must show that,

but for the ineffective assistance of counsel, (1) there is a reasonable

probability that the petitioner would have accepted the plea; (2) the

prosecution would not have withdrawn the plea offer; (3) the court would have

accepted its terms; and (4) that the conviction or sentence under the terms

of the offer would have been less severe that the conviction and sentence that

was actually imposed. See Commonwealth v. Steckley, 128 A.3d 826, 832

(Pa. Super. 2015).

      At the PCRA hearing, Alvarez testified that Attorney Ross failed to advise

him of his possible sentences if he opted for trial. See N.T., PCRA Hearing,

11/7/17, at 9. The only information Alvarez claimed he received from Attorney

Ross concerning his potential sentence was that the court could only give him

“twenty something to whatever,” based on Alvarez’s prior record score of 4.

See id. Additionally, Alvarez claimed Attorney Ross assured him they could

“beat the case,” and therefore should go to trial. See id.

      Attorney Ross confirmed he initially operated under the mistaken belief

that Alvarez had a lower prior record score. See id., at 23. However, while his

mistaken belief led him to inform Alvarez that his standard range sentences

would be lower than they actually were, Attorney Ross testified that he

thoroughly discussed all of the maximum sentences possible with Alvarez prior

to proceeding to trial and believed Alvarez understood these maximums. See


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id., at 23. Further, despite Alvarez’s claim, Attorney Ross denied convincing

Alvarez that he should take the case to trial and instead testified that he

repeatedly recommended that Alvarez take the Commonwealth’s plea offer.

See id., at 18-22. However, this advice was rebuked by Alvarez every time.

See id.

      Here, the PCRA court concluded Alvarez failed to establish that there

was a reasonable probability that he would have accepted the plea offer if

counsel had properly advised him of his possible sentences based on his prior

record score. In reaching this conclusion, the PCRA credited Attorney Ross’s

testimony that he repeatedly advised Alvarez to take the plea deal, but that

Alvarez refused. Once again, the record supports this credibility finding and

we are bound by it. See Mason, 130 A.3d at 617. As the PCRA court

determined the facts upon which Alvarez’s claim rests are untrue –that Alvarez

rejected the plea deal on the advice of counsel - Alvarez’s claim lacks arguable

merit. Alvarez’s final issue on appeal is meritless. Our independent review of

the certified record does not reveal any other meritorious issues. Accordingly,

we affirm the PCRA court’s order denying Alvarez’s petition and grant Attorney

Kelly’s application to withdraw as counsel.

      Order affirmed. Application to withdraw as counsel granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 02/11/2019




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