J-S14036-17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                  Appellee                  :
                                            :
                     v.                     :
                                            :
LEON L. IVERSON,                            :
                                            :
                  Appellant                 :     No. 671 MDA 2016

                 Appeal from the PCRA Order March 29, 2016
              in the Court of Common Pleas of Lebanon County,
            Criminal Division, at No(s): CP-38-CR-0001012-2012,
             CP-38-CR-0001016-2012, CP-38-CR-0001018-2012

BEFORE:     GANTMAN, P.J., SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                   FILED JANUARY 11, 2018

      Leon L. Iverson (Appellant) appeals from the March 29, 2016 order

dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546.      Also before us is a petition to withdraw filed by

Appellant’s counsel and 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).      We grant counsel’s petition to withdraw

and affirm the order of the PCRA court.

      A prior panel of this Court summarized the facts of Appellant’s case as

follows.

            On April 14, 2012, [Appellant] sold marijuana to Sergeant
      Brett Hopkins (“Sergeant Hopkins”), a member of the Lebanon
      County Drug Task Force who was working undercover, for ten
      dollars. Following the transaction, [Appellant] provided Sergeant
      Hopkins with a phone number in the event that Sergeant Hopkins

*Retired Senior Judge assigned to the Superior Court.
J-S14036-17


      wanted more drugs. Sergeant Hopkins told [Appellant] that he
      was looking for crack cocaine, after which [Appellant] instructed
      Sergeant Hopkins to call him. Sergeant Hopkins called [Appellant]
      and set up a meeting at which [Appellant] provided him with an
      item in exchange for fifty dollars.      The item’s size, color,
      appearance, and packaging were consistent with crack cocaine.
      The item was subsequently tested and determined to be
      benzocaine, a non-controlled substance.

            On April 17, 2012, Sergeant Hopkins called [Appellant] and
      arranged to purchase marijuana. Upon meeting [Appellant],
      Sergeant Hopkins purchased two bags of marijuana in exchange
      for twenty dollars. [Appellant] was subsequently arrested.

Commonwealth v. Iverson, 100 A.3d 313 (Pa. Super. 2014) (unpublished

memorandum) (citations omitted).       Following a jury trial, Appellant was

convicted of two counts of possession with intent to deliver a controlled

substance, one count of possession with intent to deliver a non-controlled

substance, and two counts of criminal use of a communication facility. On

January 24, 2013, he was sentenced to an aggregate term of four to ten years

of incarceration. On March 19, 2014, this Court affirmed Appellant’s judgment

of sentence. Id. Appellant did not file a petition for allowance of appeal with

our Supreme Court.

      On March 25, 2015, Appellant timely filed a pro se PCRA petition, which

is the subject of this appeal.     An attorney was appointed to represent

Appellant, and soon thereafter, an amended petition was filed. On March 21,

2016, a hearing was held, after which the PCRA court issued an order

dismissing Appellant’s petition.   Counsel timely filed a notice of appeal on




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Appellant’s behalf. On May 18, 2016, Appellant’s counsel complied with the

PCRA court’s order to file a concise statement pursuant to Pa.R.A.P. 1925.1

      Appellant’s counsel raises several issues within his Turner/Finley letter

that Appellant wants this Court to review.2       Turner/Finley Letter at 3-9.

However, before we may address the potential merit of Appellant’s claims, we

must determine if counsel has complied with the technical requirements of

Turner and Finley.

             … Turner/Finley counsel must review the case zealously.
      Turner/Finley counsel must then submit a “no-merit” letter to
      the trial court, or brief on appeal to this Court, detailing the nature
      and extent of counsel’s diligent review of the case, listing the
      issues which the 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


1Simultaneously, PCRA counsel filed with the PCRA court a motion to withdraw
as counsel and a no-merit letter. The PCRA court granted counsel’s petition.
Appellant pro se filed an appellate brief in this Court. Upon our initial review
of the above-captioned matter, we determined that the PCRA court erred by
permitting counsel to withdraw while Appellant’s appeal was pending in this
Court. See Commonwealth v. Iverson, 671 MDA 2016 (Pa. Super. filed
May 16, 2017) (unpublished memorandum). Thus, we remanded this case
and directed counsel to file either an advocate’s brief or comply with the
mandates of Turner/Finley. Id. A second remand was necessary after
counsel’s Turner/Finley letter and motion to withdraw revealed several
deficiencies. We again directed counsel to supplement the materials filed to
this Court. Counsel has complied and thus, this case is now ripe for
disposition.

2
  Because Appellant’s prior pro se brief was filed while he was still represented
by counsel, we consider this brief to be a legal nullity, and therefore, we only
consider the issues raised in counsel’s Turner/Finley letter and Appellant’s
subsequent pro se response.

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      withdraw; and (3) a statement advising petitioner of the right to
      proceed pro se or by new counsel.

            If counsel fails to satisfy the foregoing technical
      prerequisites of Turner/Finley, the court will not reach the merits
      of the underlying claims but, rather, will merely deny counsel’s
      request to withdraw. Upon doing so, the court will then take
      appropriate steps, such as directing counsel to file a proper
      Turner/Finley request or an advocate’s brief.

             However, where counsel submits a petition and no-merit
      letter that do 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. By contrast, if the claims appear to
      have merit, the court will deny counsel’s request and grant relief,
      or at least instruct counsel to file an advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (citations

omitted).

      We are satisfied that counsel has complied with the technical

requirements of Turner and Finley.          Therefore, we will consider the

substantive issues contained in counsel’s letter.

      “Our standard of review of a [PCRA] court order granting or denying

relief under the PCRA calls upon us to determine ‘whether the determination

of the PCRA court is supported by the evidence of record and is free of legal

error.’” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013)

(quoting Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)).

      Appellant challenges the effectiveness of his trial and appellate counsel.

Accordingly, we bear in mind the following. “It is well-established that counsel



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is presumed effective, and the defendant bears the burden of proving

ineffectiveness.” Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).

To overcome this presumption, Appellant must show each of the following:

“(1) the underlying substantive claim has arguable merit; (2) counsel whose

effectiveness is being challenged did not have a reasonable basis for his or

her actions or failure to act; and (3) the petitioner suffered prejudice as a

result of counsel’s deficient performance.” Id. Appellant’s claim will be denied

if he fails to meet any one of these three prongs. Id.

      With respect to trial counsel, Appellant claims counsel was ineffective

for: (1) refusing to file a petition for writ of habeas corpus authored by

Appellant at Appellant’s preliminary hearing; (2) refusing to file a writ of

habeas corpus after Appellant’s pro se writ was rejected due to counsel’s

continued representation of Appellant; (3) refusing to withdraw as counsel

despite Appellant’s requests; and (4) failing to preserve properly issues on

direct appeal. Turner/Finley Letter, 10/2/2017, at 4-9.

      We address Appellant’s first two ineffective-assistance-of-counsel claims

together. Regarding counsel’s refusal to submit a petition for writ of habeas

corpus at Appellant’s preliminary hearing, as correctly cited by PCRA counsel,

a preliminary hearing is not the proper venue to submit a petition for writ of

habeas corpus. See Pa.R.Crim.P. 108 (“A petition for writ of habeas corpus

challenging the legality of the petitioner’s detention or confinement in a

criminal matter shall be filed with the clerk of courts of the judicial district in


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which the order directing the petitioner’s detention or confinement was

entered.”).

      With respect to Appellant’s continued requests that a petition for writ of

habeas corpus be filed, PCRA counsel avers that “Appellant’s perceived

grounds for a petition for writ of habeas corpus were based on the fact that

Appellant’s trial counsel continued Appellant’s preliminary hearing without

consulting with Appellant, as well as the fact that his complaints were

unsigned[.]” Turner/Finley Letter, 10/2/2017, at 4.

      At Appellant’s PCRA hearing, trial counsel Brian Deiderick, Esquire,

testified as to why he refused to file Appellant’s “nonsensical” petition. N.T.,

3/21/2016, at 37. Specifically, Attorney Deiderick stated that the petition

      had no merit under the rules and basically it was not something
      which was worthy of wasting the [c]ourt’s time with. In meeting
      with [Appellant], I attempted to explain the situation to him. He
      refused to listen. He wanted to have things done his way and
      essentially under the rules of professional conduct, the legal
      stewardship of the case is my responsibility. The writs or his
      petition for habeas [corpus] had no merit, no bearing on the case,
      and therefore, I did not file them.

Id.

      Furthermore, the PCRA court determined that Appellant was not

prejudiced by counsel’s request for a continuance, nor was there any merit to

Appellant’s argument that he should be released from incarceration due to

faulty complaints. PCRA Court Order, 3/29/2016, at 2-3. A review of the

record confirms the PCRA court’s findings.



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      First, while Attorney Deiderick did admit that a continuance was

requested without Appellant’s permission, Attorney Deiderick testified that the

continuance request form permits “continuances [to] be sought at the request

of the defendant or due to the unavailability of the counsel.           [Attorney

Deiderick] was unavailable, therefore, the continuance was sought.”          N.T.,

3/21/2016, at 38. Attorney Deiderick explained that he nonetheless informed

Appellant that he requested a continuance because he “had a preplanned

vacation so [he] was not available and as a result, the matters were

continued.” Id. Counsel contends that because of his unavailability, there

was a 28-day continuance. Id. at 39.

      Although the PCRA court did not address this issue as it directly

pertained to Appellant’s request for habeas corpus relief, the court did find

that Appellant

      produced no evidence that he suffered any prejudice at all as a
      result of this 28-day continuance. Moreover, the unavailability of
      counsel has always been recognized as a proper ground to grant
      a continuance. Nothing about Attorney Deiderick’s request to
      continue the [p]reliminary [h]earing offends our sense of justice,
      nor does it afford [Appellant] any grounds for PCRA relief.

PCRA Court Order, 3/29/2016, at 3. Indeed, at the PCRA hearing, Appellant

stated that he “felt prejudiced against” and that he “felt like [his] rights [were]

violated[,]” but provided no further explanation on how he or his case were

actually prejudiced by counsel’s continuance.          N.T., 3/21/2016, at 13.

Furthermore, Appellant did not explain how counsel’s requested continuance



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would have afforded him habeas corpus relief if such a petition had been filed.

Because Appellant has failed to meet his burden in proving that he was

prejudiced by counsel’s failure to file his requested petition on this basis, we

agree with counsel that this claim lacks merit.      See Commonwealth v.

Fears, 86 A.3d 795 at 804 (Pa. 2014) (noting that, if an ineffective assistance

claim falls short under any element, the court need not consider other

elements).

      With respect to Appellant’s second reason for seeking habeas corpus

relief, both the PCRA court and PCRA counsel dispute Appellant’s contention

that the complaints filed in Appellant’s case were unsigned. PCRA counsel

noted that while it appears as though Appellant was given courtesy copies of

the complaints before they were signed,

      [w]ithin Appellant’s discovery packet are copies of the complaints
      in all three actions against him. All three complaints bear the
      signature of the affiants along with a date of April 17, 2012.
      Further, the complaints bear the signature of the issuing
      authority, magisterial district court number, date of April 17,
      2012, and the seal of the magisterial district court.

Turner/Finley Letter, 10/2/2017, at 3 (unnecessary capitalization omitted).

See also PCRA Court Order, 3/29/2016, at 1 (unnumbered) (“Very shortly

after charges were filed against [Appellant], he appeared before a Magisterial

District Judge.   At the time, he was given a courtesy copy of the criminal

complaint that had not been signed.        Even though the original criminal

complaint was properly signed, [Appellant] developed a belief that charges



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should be dismissed because his copy of the complaint had not been signed.”)

(unnecessary capitalization omitted).     Furthermore, at the PCRA hearing,

Attorney Deiderick testified that the trial court showed Appellant signed copies

of the criminal complaints during pretrial proceedings. N.T. 3/21/2016, at 50.

      Our review confirms the foregoing.      Specifically, the certified record

received by this Court contains, inter alia, signed criminal complaints for all

three of the above-referenced docket numbers. See Criminal Complaint- Case

1016-12, 4/17/2012, at 3; Criminal Complaint- Case 1012-12, 4/17/2012, at

3; Criminal Complaint- Case 1018-12, 4/17/2012, at 3. Accordingly, because

the grounds upon which Appellant sought habeas corpus relief are meritless,

counsel could not have been deemed ineffective for his failure to file a petition

on Appellant’s behalf. See Commonwealth v. Rega, 933 A.2d 997, 1019

(Pa. 2007) (“Trial counsel will not be deemed ineffective for failing to pursue

a meritless claim.”).3



3 Furthermore, to the extent Appellant argues that the PCRA court erred in
failing to grant Appellant relief in the form of dismissing all charges against
him because the complaints were not signed, we find that based on the
foregoing, not only does this issue lack merit, but Appellant’s claim challenging
the validity of the charging documents was previously raised “in his [concise
statement filed in his direct appeal] and the trial court addressed th[is] issue
in its opinion dated April 18, 2013.” Turner/Finley Letter, 10/2/2017, at 4.
See also Concise Statement, 4/16/2013; Trial Court Opinion, 4/18/2013. As
such, Appellant’s claim is “both waived and not cognizable under the PCRA
because it could have been raised on direct appeal.” Commonwealth v.
Spotz, 18 A.3d 244, 270 (Pa. 2011). Appellant’s decision to abandon this
issue after it was raised in his concise statement and addressed by the trial
court forecloses Appellant from seeking relief at this juncture.


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        Next, Appellant avers that his trial counsel was ineffective because,

despite Appellant’s multiple requests, Attorney Deiderick refused to withdraw

from representation. Turner/Finley Letter, 10/2/2017, at 6. PCRA counsel

concisely set forth the following in support of why Appellant’s claim lacks

merit.

        According to the transcripts of the proceedings leading up to
        Appellant’s trial, Appellant made it crystal clear that he was not
        happy with the representation of trial counsel. At a hearing on
        September 20, 2012, Appellant requested the trial court to
        appoint new counsel to replace trial counsel. The trial court denied
        Appellant’s request. At that hearing, trial counsel indicated to the
        trial court that he would be filing a petition to withdraw his
        representation. Trial court responded by saying “It’s not going to
        be granted.” The trial court clearly stated that it would not be
        appointing new counsel to represent Appellant.

               Appellant then filed a pro se motion seeking removal of trial
        counsel and appointment of new counsel. A hearing was held on
        November 28, 2012[,] where the trial court reiterated Appellant’s
        right to counsel[,] and reiterated that it would not be appointing
        a new attorney to replace trial counsel.

              On November 30, 2012, a [Grazier4 h]earing was held. At
        the conclusion of said hearing, the court permitted Appellant to
        proceed pro se and appointed trial counsel as stand-by counsel.

              Throughout the pendency of Appellant’s cases, he had
        ample opportunity to share with the trial court his reasoning for
        his displeasure with trial counsel. The trial court also stated
        multiple times and in no uncertain terms that trial counsel would
        not be excused from Appellant’s cases and that it would not be
        appointing a new attorney to represent Appellant. For trial
        counsel to then be considered ineffective for failure to withdraw
        his representation is beyond comprehension. While trial counsel
        did not file a formal motion for withdrawal, he declared his intent


4
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).


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      to do so on the record in open court and was told it would be
      denied. Therefore[,] it would have been futile for trial counsel to
      file such a motion. Ultimately Appellant was granted relief in part
      by the trial court removing trial counsel and appointing him as
      stand-by counsel. Furthermore, in the middle of his trial Appellant
      indicated to the court that he no longer wished to proceed pro se
      and wanted an attorney, albeit not trial counsel, to represent him
      for the remainder of the trial. Confronted with the choice of
      continuing pro se or represented by trial counsel, Appellant
      ultimately chose to proceed with trial counsel. The trial court re-
      appointed trial counsel as Appellant’s attorney.

Id. at 6-8 (footnotes omitted). The record confirms PCRA counsel’s summary

of the events that transpired throughout Appellant’s case concerning his

displeasure with counsel. Although he did not file a formal motion, counsel

informed the trial court that he intended to file a request to withdraw.

However, Attorney Deiderick was told in no uncertain terms that such a motion

would be denied. As such, not only does this issue lack arguable merit, based

upon the foregoing, we conclude that Attorney Deiderick’s actions were

reasonable under the circumstances.         Based on the trial court’s directives,

filing a motion to withdraw would have been futile.         Thus, we agree with

counsel that this claim is without merit.

      Appellant also argues that trial counsel was ineffective for failing to

preserve properly his sufficiency-of-the-evidence claim on direct appeal.

Turner/Finley Letter, 10/2/2017, at 9. As evidence of this ineffectiveness,

Appellant refers to this Court’s memorandum, affirming his judgment of

sentence on direct appeal because, inter alia, Appellant’s sufficiency claim was




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waived due to the lack of specificity in his concise statement.5 Id. at 9. See

also Iverson, 100 A.3d 313 (Noting Appellant’s concise statement “fails to

specify the elements of the particular crimes allegedly not proven by the

Commonwealth.      Accordingly, we must deem the claim waived.”) (citing

Counselled Concise Statement, 4/16/2013).

      At the PCRA hearing, Attorney Deiderick explained that following the

conclusion of Appellant’s trial and sentencing, despite counsel’s trying to

contact Appellant regarding his appeal, Appellant would not speak with him.

N.T., 3/21/2016, at 59. Based upon Attorney Deiderick’s interactions with

Appellant, he understood that Appellant did not want to have contact with him

because Appellant believed Attorney Deiderick was ineffective and Appellant

desired to proceed pro se.6 Id.

      In an effort to condense Appellant’s pro se filings, because Attorney

Deiderick could not reach Appellant, he opted to review Appellant’s filings, and

submitted a counselled concise statement “to preserve the record.” Id. at 46.


5
  Additionally, Appellant argues that appellate counsel was likewise ineffective
for failing to preserve his sufficiency claim. This claim is wholly without merit.
As noted by PCRA counsel, and confirmed by the record, appellate counsel
was not appointed to represent Appellant on appeal until after Appellant’s
concise statement was filed. Turner/Finley Letter, 10/2/2017, at 9; Order,
4/18/2013. As set forth in more detail infra, although appellate counsel did
include a sufficiency claim within her brief to this Court during Appellant’s
direct appeal, this Court’s determination that Appellant’s claim was waived
was due to the lack of specificity within the concise statement, not the
appellate brief authored by counsel.
6
 Indeed, the record reflects that after sentencing, Appellant pro se filed both
post-sentence motions and a concise statement.

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Attorney Deiderick testified that it was his expectation that Appellant would

discuss any amendments to his concise statement with his appellate counsel.

Id.

      Without addressing the arguable merit of this claim, we find Attorney

Deiderick’s actions reasonable, given the lack of communication between

Appellant and Attorney Deiderick. Furthermore, we reiterate that a petitioner

must show that, “but for the errors and omissions of counsel, there is a

reasonable probability that the outcome of the proceedings would have been

different.” Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999). In

this case, even though this Court found Appellant’s sufficiency claim waived,

the panel nonetheless addressed this issue in a footnote, citing to the strong

evidence presented at trial.

      Here, Sergeant Hopkins specifically identified [Appellant] as the
      person who possessed and delivered the marijuana and
      benzocaine. See N.T., 12/6/12, at 55–56, 59, 61, 68, 71; see
      also Commonwealth v. Jannett, 58 A.3d 818, 829 (Pa. Super.
      2012) (stating that “the trier of fact while passing upon the
      credibility of witnesses and the weight of the evidence produced,
      is free to believe all, part or none of the evidence”) (citation
      omitted).

Iverson, 100 A.3d 313 (unpublished memorandum); see also PCRA Court

Order, 3/29/2016, at 4-5 (“In this case an undercover police officer provided

testimony that [Appellant] delivered drugs and [a] counterfeit drug to him.

As the Superior Court noted in footnote 4 of its [d]ecision, the police officer’s

testimony alone was enough to satisfy the requirements regarding sufficiency



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of [the] evidence.”).     Accordingly, because even a properly preserved

sufficiency claim would have failed, Appellant cannot prove counsel’s actions

resulted in prejudice, and thus his claim is without merit.

      Lastly,   we   address   Appellant’s    pro   se   response   to   counsel’s

Turner/Finley letter, which is difficult to follow and incoherent at times. After

a thorough review of his response, we deduce the following claims Appellant

wishes this Court to review that were not raised in counsel’s Turner/Finley

letter: (1) ineffective assistance of PCRA counsel, and (2) ineffective

assistance of appellate counsel for failing to challenge the legality of

Appellant’s sentence. 7 Appellant’s Pro Se Response at 5-7.

      With respect to his latter claim, Appellant provides no argument, case

law, or facts to support his contention that his sentence is illegal. Indeed,

Appellant’s claim amounts to a bald assertion that appellate counsel was




7 Additionally, Appellant’s response includes a lengthy recitation of facts
concerning an “on[going] investigation” involving the apparent misconduct of
a detective who was once part of the Lebanon County Drug Task Force.
Appellant’s Pro Se Response at 7-8. It is unclear what Appellant purports to
raise or how it directly affects his case, although we are cognizant that
Appellant’s charges stemmed from an undercover investigation conducted by
the drug task force. The best this Court can discern is that Appellant is
attempting to argue that based upon the aforementioned investigation, “the
evidence of the affidavit of probable cause [] was insufficient to sustain the
charges” upon which he was convicted. Because this claim could have been
raised on direct appeal, Appellant is foreclosed from raising it at this time.
See 42 Pa.C.S. § 9544(b) (“[A]n issue is waived if the petitioner could have
raised it but failed to do so before trial, at trial, during unitary review, on
appeal or in a prior state postconviction proceeding.”).


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ineffective because she “did not challenge the sentence’s legality or involve

the truth-determining process.” Appellant’s Pro Se Response at 5.

      Appellant received sentences for several convictions at three different

docket numbers. Specifically, Appellant was sentenced to: two to four years’

incarceration for possession with the intent to deliver a controlled substance

and one to two years’ incarceration for criminal use of a communication device

at CP-38-CR-0001012-2012; one to four years’ incarceration for possession

to deliver a non-controlled substance and one to two years’ incarceration for

criminal use of a communication device at CP-38-CR-0001016-2012; and one

to two years’ incarceration for possession with the intent to deliver a controlled

substance at CP-38-CR-0001018-2012.

      The foregoing sentences all fall below the statutory maximum.

Furthermore, while the record indicates a school zone enhancement was

applied in case 1012-2012, we have held that unlike mandatory minimums,

sentencing enhancements are not unconstitutional. See Commonwealth v.

Buterbaugh, 91 A.3d 1247, 1270 n.10 (Pa. Super. 2014) (“Alleyne [v.

United States, 570 U.S. 99, (2013)] and Apprendi [v. New Jersey, 530

U.S. 466 (2000)] dealt with factors that either increased the mandatory

minimum sentence or increased the prescribed sentencing range beyond the

statutory maximum, respectively. Our case does not involve either situation;

instead, we are dealing with a sentencing enhancement. If the enhancement

applies, the sentencing court is required to raise the standard guideline range;


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however, the court retains the discretion to sentence outside the guideline

range. Therefore, neither of the situations addressed in Alleyne and

Apprendi [is] implicated.”). Accordingly, this issue is without merit.

      Appellant’s remaining claim is that PCRA counsel provided ineffective

representation.     Appellant’s Pro Se Response at 5.     Appellant’s rambling

argument leaves this Court without sufficient understanding of what purported

errors were made by counsel throughout this PCRA process. The best we can

discern is that Appellant requested that certain issues be raised in the

amended PCRA petition and counsel failed to do so. In any event, Appellant’s

claims of PCRA counsel’s ineffectiveness are not properly before this Court.

See Commonwealth v. Ford, 44 A.3d 1190, 1200-01 (Pa. Super. 2012)

(noting that “a majority of the Supreme Court agrees that issues of PCRA

counsel effectiveness must be raised in a serial PCRA petition or in response

to a notice of dismissal before the PCRA court[,]” and holding that “claims of

PCRA counsel ineffectiveness cannot be raised for the first time after a notice

of   appeal   has    been   taken   from   the   underlying   PCRA   matter.”);

Commonwealth v. Jette, 23 A.3d 1032, 1044 n.14 (Pa. 2011) (“While

difficult, the filing of a subsequent timely PCRA petition is possible, and in

situations where an exception pursuant to § 9545(b)(1)(i-iii) can be

established a second petition filed beyond the one-year time bar may be

pursued.”).




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      Thus, in light of the foregoing, because we agree with Appellant’s

counsel that none of the issues raised in the amended petition has merit, and

because Appellant sets forth no claims in his pro se response which entitle him

to relief from this Court, we affirm the order dismissing Appellant’s PCRA

petition and grant counsel’ petition to withdraw.

      Order affirmed. Petition to withdraw granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/11/2018




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