J-S19021-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA

EVAN CASTELLANOS,

Appellant. : No. 1806 EDA 2018

Appeal from the PCRA Order Entered, June 1, 2018,
in the Court of Common Pleas of Northampton County,
Criminal Division at No(s): CP-48-CR-0001114-2015.

BEFORE: LAZARUS, J., KUNSELMAN, J., and STRASSBURGER*%, J.
MEMORANDUM BY KUNSELMAN, J.: FILED JUNE 24, 2019

Evan Castellanos appeals from the order denying his first petition for
relief pursuant to the Post Conviction Relief Act (‘PCRA”). 42 Pa.C.S.A. §§
9541-9546. Castellanos’ counsel has filed a motion to withdraw. We affirm
the order denying Castellanos’ PCRA petition and grant counsel’s motion.

In disposing of Castellanos’ direct appeal, we quoted the trial court

summary of the pertinent facts and procedural history as follows:

[O]n January 22, 2016, at a pretrial conference prior to
the February Criminal Trial list, [Castellanos] entered a
negotiated guilty plea to one count of criminal attempt to
commit homicide, graded as a first-degree felony. The
guilty plea included a sentence bargain of 16 to 35 years’
imprisonment. At the time of the negotiated plea, this Court
inquired as to the applicable sentencing guideline ranges.
Guilty Plea Counsel informed the Court that, using the
[basic] sentencing matrix [with an offense gravity score
(OGS) of 14 and a prior record score (PRS) of 1] the
standard guideline was 84 months to the statutory limit -

 

* Retired Senior Judge assigned to the Superior Court.
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[480] months. [Castellanos pled guilty to attempt to
commit homicide resulting in serious bodily injury.
Accordingly, the statutory maximum is forty years. 18
Pa.C.S.A. § 1102(c).] However, the [Commonwealth] noted
that the deadly weapon used matrix was applicable. Under
the deadly weapon used matrix, with the same OGS and
PRS, the guidelines increased to 102 months to the
statutory limit. Therefore, the sentence bargain of 16 years
(192 months) to 35 years (420 months) was within the
standard range.

The Court went through a detailed guilty plea colloquy
with [Castellanos] prior to accepting the plea as free and
voluntary. We also accepted the written guilty plea colloquy
which was purported to have been [filled] out and signed by
[Castellanos].

The [Commonwealth] summarized the fact pattern -
[Castellanos] drove to the victim’s residence in Bethlehem
and invited the victim to come outside to meet with him
while [Castellanos] sat in the passenger seat of the car.
When the victim came out of the house and approached the
automobile, [Castellanos] extended his arm out of the
window and shot the victim in the chest with a .357 revolver.
[Castellanos] fled the scene and was on the run until he was
apprehended in Florida and extradited to Northampton
County. After [Castellanos] heard the recitation by the
Commonwealth and acknowledged that it was an accurate
statement as to his crime, the Court asked several follow-
up questions including a general inquiry as to the motive for
the shooting of the victim who allegedly had been
[Castellanos’] friend. [Castellanos] volunteered that he
shot the victim because “[the victim] had raped a girl named
Jordan”.

The Court also informed [Castellanos] that his guilty plea
was expected to be a final resolution in this matter.

[Castellanos] answered all the Court’s questions raised
during the guilty plea proceeding. Clearly, his responses
indicated that his plea was free and voluntary and that no
one had forced or coerced him to plead guilty. When the
Court indicated that it was prepared to impose the sentence
bargain contemporaneously with the guilty plea, guilty plea
counsel asked if the Court would delay sentencing in order

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to give [Castellanos’] family time to come to Northampton
County to participate at sentencing. That request was
granted. We set sentencing for March 4, 2016.

Commonwealth v. Castellanos, 168 A.3d 368 (Pa. Super. 2017) (citation
and footnote omitted), unpublished memorandum at 1-3.

On February 25, 2016, Castellanos filed a pro se motion to withdraw his
guilty plea. Within this motion, he asserted several claims, including the fact
that he was innocent, and that he did not understand and was unaware of the
basic sentencing matrix. On February 29, 2016, the Commonwealth filed a
response. The trial court denied Castellanos’ pro se motion at the time of
sentencing, and then imposed the negotiated sentence.

Castellanos filed a timely appeal to this Court in which he claimed that
the trial court erred and abused its discretion in denying his presentence
motion to withdraw his guilty plea because he had asserted his innocence. We
agreed with the trial court’s conclusion that Castellanos failed to establish a

a“

“plausible basis for his claim of innocence,” and affirmed his judgment of
sentence on March 30, 2017. See Castellanos, unpublished memorandum
at 7 (citing Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015)).
Our Supreme Court denied Castellanos’ petition for allowance of appeal on
August 2, 2017. Commonwealth v. Castellanos, 169 A.3d 1083 (Pa. 2017).

Castellanos filed a timely pro se PCRA petition on February 13, 2016.
The PCRA court appointed counsel, and the PCRA court held an evidentiary
hearing on May 7, 2018. Both Castellanos and his plea counsel testified. The

sole issue raised by Castellanos at the hearing was his claim that plea counsel

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was ineffective for inducing him to enter a guilty plea despite his desire to
proceed to trial and raise the defense of duress.

At the close of testimony, the PCRA court directed the parties to file
briefs in support of their respective positions. Instead of a brief, however, on
May 14, 2018, PCRA counsel filed a “no-merit” letter and motion to withdraw
pursuant to the dictates of Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc). Given this filing, the Commonwealth did not file a brief. By order
entered June 1, 2018, the PCRA court denied Castellanos’ petition. The PCRA
court also permitted PCRA counsel to withdraw. Castellanos filed a pro se
appeal, and the PCRA court appointed counsel.! Both Castellanos and the

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

In lieu of an advocate’s brief, Castellanos’ counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967). Compliance with
Anders applies to counsel who seeks to withdraw from representation on
direct appeal. Anders imposes stricter requirements than those imposed
when counsel seeks to withdraw during the post-conviction process pursuant
to the dictates of Turner/Finley. See Commonwealth v. Widgins, 29 A.3d
816, 817 n.2 (Pa. Super. 2011). Thus, we will assess counsel’s assertion that
the issue Castellanos wishes to raise has no merit under a Turner/Finley

analysis.

 

1 The PCRA court appointed counsel because it was unsure if Castellanos was
still entitled to counsel to assist him on appeal once prior counsel was
permitted to withdraw pursuant to Turner/Finley, supra.

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This Court has summarized:

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]Jounsel 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 withdrawal
request, the client may proceed pro se or with a privately
retained attorney|[. ]

Commonwealth v. Reed, 107 A.3d 137, 140 (Pa. Super. 2014) (citation
omitted). Counsel has complied with the mandates of Turner and Finley, as
summarized in Reed, supra. Thus, we must determine whether we agree
with counsel’s assessment of Castellanos’ claim.
Castellanos wished to raise the following issue on appeal:

Was trial counsel ineffective for failing to investigate the

application of the Sentencing Guidelines Deadly Weapon

Enhancement matrix that rendered the guilty plea not

knowing, voluntary and intelligent and his silence and
inaction amounts to manifest injustice?
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Castellanos’ Brief at 12.2
Our scope and standard of review is well settled:
In PCRA appeals, our scope of review is limited to the findings
of the PCRA court and the evidence on the record of the PCRA
court's hearing, viewed in the light most favorable to the
prevailing party. Because most PCRA appeals involve
questions of fact and law, we employ a mixed standard of
review. We defer to the PCRA court's factual findings and
credibility determinations supported by the record. In

contrast, we review the PCRA court's legal conclusions de
novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)
(internal citations and quotations omitted).

Before addressing the merit of Castellanos’ claim, we must determine if
he properly preserved it for review. After reviewing the record, we agree with
both Castellanos’ counsel and the Commonwealth that Castellanos neither
raised this claim in his PCRA petition nor as a basis for post-conviction relief
at the PCRA hearing. Thus, Castellanos is inappropriately raising the claim for
the first time on appeal. See Commonwealth v. Edmiston, 851 A.2d 883,
889 (Pa. 2004) (explaining a claim that is not raised in PCRA petition is waived
on appeal); see also Pa.R.A.P. 302(a).

Even had Castellanos properly preserved his ineffectiveness claim, the
record refutes it. To obtain relief under the PCRA premised on a claim that
counsel was ineffective, a petitioner must establish, by a preponderance of

the evidence, that counsel's ineffectiveness so undermined the _ truth-

 

2 Castellanos has filed a pro se brief in which he argues this same issue.

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determining process that no reliable adjudication of guilt or innocence could
have taken place. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa.
2009). “Generally, counsel’s performance is presumed to be constitutionally
adequate, and counsel will only be deemed ineffective upon a sufficient
showing by the petitioner.” Id. This requires the petitioner to demonstrate
that: (1) the underlying claim is of arguable merit; (2) counsel had no
reasonable strategic basis for his or her action or inaction; and (3) petitioner
was prejudiced by counsel's act or omission. Id, at 533.

Our review of the record readily reveals that trial counsel was aware of
the applicability of the deadly weapon used enhancement at the time
Castellanos entered his guilty plea. See N.T., 1/22/16, at 15-16; see also
Commonwealth v. Hackenberger, 836 A.2d 2, 4 (Pa. 2003) (holding that
deadly weapon enhancement must be applied if trial court finds a deadly
weapon was used during the perpetration of the crime). Moreover, any
dispute “was of no merit, as the sentence bargain required a 192 month
minimum sentence, easily within both matrixes.” PCRA Court Opinion,
7/10/18, at 3.

In sum, we agree with PCRA counsel’s assessment of Castellanos’ claim.
In addition, our independent review of the record reveals no other meritorious
issue. Reed, supra. We therefore grant counsel’s motion to withdraw, and
affirm the PCRA court’s order denying post-conviction relief.

Motion granted. Order affirmed.

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Judgment Entered.

 

Joseph D. Seletyn, Es¢
Prothonotary

Date: 6/24/19
