J-S40026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

KELVIN MARQUIS HARRIS

                         Appellant                    No. 3216 EDA 2015


               Appeal from the PCRA Order October 9, 2015
              In the Court of Common Pleas of Lehigh County
            Criminal Division at No(s): CP-39-CR-0003452-2014


BEFORE: BOWES, J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.:                                FILED JULY 08, 2016

      Appellant, Kelvin Marquis Harris, appeals from the October 9, 2015

order denying his first petition for relief filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Contemporaneously with this

appeal, counsel has requested leave to withdraw in accordance with

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v.

Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and their progeny. After

careful review, we affirm and grant counsel’s petition to withdraw.

      The PCRA court summarized the facts and procedural history following

Appellant’s evidentiary hearing on his PCRA petition as follows.

                  On July 13, 2015, [Appellant] entered a guilty
            plea to Robbery and Criminal Conspiracy to Commit
            Robbery. There was an agreed upon disposition in
            the case in which [Appellant] would be sentenced to
            a term of state imprisonment of not less than
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          fourteen (14) years nor more than forty (40) years.
          In exchange for this guilty plea, the Commonwealth
          agreed not to pursue the other counts of the
          Information, which included a charge of Criminal
          Homicide.    On the same date, th[e trial c]ourt
          complied with the plea agreement and sentenced
          [Appellant] to the agreed upon aggregate sentence
          as stated above. Presently before th[e PCRA c]ourt
          is [Appellant]’s Motion for Post Conviction Collateral
          Relief that was filed on July 28, 2015, and amended
          on September 3, 2015.         An evidentiary hearing
          relative to Defendant’s motion was conducted before
          th[e PCRA c]ourt on October 8. 2015.

                 Sean Poll, Esquire, was appointed as a conflicts
          attorney to represent [Appellant] in the above-
          captioned matter. Attorney Poll negotiated with the
          Commonwealth and ultimately facilitated the terms
          of the guilty plea to which [Appellant] agreed. Th[e
          trial c]ourt conducted an extensive verbal colloquy
          with [Appellant] at the time of his guilty plea. The
          Commonwealth put the agreement on the record, in
          which it was agreed that the minimum sentence
          would be fourteen (14) years and the maximum
          sentence would be set at forty (40) years. The [trial
          c]ourt even reiterated this agreement to [Appellant],
          and he indicated that he understood the agreement.
          In addition, [Appellant] stated that he understood
          the rights that he had and the rights that he was
          relinquishing by entering into the guilty plea. He
          further indicated that no threats or promises were
          made to him to induce him to enter the plea, and
          that his guilty plea was voluntary.            Finally,
          [Appellant] indicated on the record that he did not
          have any questions of the [trial c]ourt and that he
          understood the terms and effects of the guilty plea.

                Dissatisfied with the sentence (although, based
          on the facts, not an unexpected sentence),
          [Appellant] requested that Attorney Poll file a Post
          Sentence Motion to challenge the sentence imposed.
          Attorney Poll refused to comply with said request,
          because in his professional opinion, the request was
          absolutely frivolous. Indeed, [Appellant] received

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              exactly what he had knowingly, intelligently, and
              voluntarily bargained for. Then, on July 28, 2015,
              [Appellant] filed his motion for post conviction
              collateral relief, which was amended on September
              3, 2015.

PCRA Court Opinion, 10/9/15, at 1-3 (citations omitted). As noted, following

the hearing held on October 8, 2015, the PCRA entered an order on October

9, 2015, denying Appellant’s petition. On October 27, 2015, Appellant filed

a timely notice of appeal.1

       On appeal, counsel states the following issue on Appellant’s behalf.

                    The trial court erred in finding that trial counsel
              provided effective assistance for the following
              reasons: trial counsel was ineffective by failing to
              file a requested motion for reconsideration of
              sentence since the sentence is excessive considering
              [Appellant]’s record and the circumstances.

Turner/Finley Letter Brief at 4.

       Prior to considering Appellant’s issue, we must review PCRA counsel’s

request to withdraw from representation.              Our Supreme Court has

articulated the requirements PCRA counsel must adhere to when requesting

to withdraw, which include the following.

              1) A “no-merit” letter by PC[R]A counsel detailing
              the nature and extent of his review;


____________________________________________


1
   Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925. We note, on November 4, 2015, the trial court
filed a short Rule 1925(a) opinion adopting its October 9, 2015 opinion
denying Appellant’s PCRA petition.



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            2) The “no-merit” letter by PC[R]A counsel listing
            each issue the petitioner wished to have reviewed;

            3) The PC[R]A counsel’s “explanation”, in the “no-
            merit” letter, of why the petitioner’s issues were
            meritless[.]

Commonwealth v. Pitts, 981 A.2d 875, 876 (Pa. 2009), quoting Finley,

supra at 215. “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) (citation omitted).

                  [W]here 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.

Id. (citation omitted).

      Instantly, PCRA counsel has complied with the technical requirements

of Turner/Finley.     Specifically, PCRA counsel’s Turner/Finley brief and

petition to withdraw detail the nature and extent of PCRA counsel’s review,

and explain and conclude that Appellant’s ineffective assistance of counsel

issue lacks merit. Additionally, PCRA counsel served Appellant with a copy

of the petition to withdraw and Turner/Finley brief, advising Appellant that



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if PCRA counsel was permitted to withdraw, Appellant had the right to

proceed pro se or with privately retained counsel.        Appellant has not filed

any response.       We proceed, therefore, to conduct an independent merits

review of Appellant’s issue.

      We begin by noting our well-settled standard of review. “In reviewing

the   denial   of   PCRA    relief,   we   examine   whether   the   PCRA   court’s

determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation

marks and citation omitted). “The scope of review is limited to the findings

of the PCRA court and the evidence of record, viewed in the light most

favorable to the prevailing party at the trial level.”         Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).           “It is well-settled

that a PCRA court’s credibility determinations are binding upon an appellate

court so long as they are supported by the record.”            Commonwealth v.

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

      In his PCRA petition, Appellant alleges ineffective assistance of trial

counsel for failing to file a motion for reconsideration of sentence upon

Appellant’s request.       Appellant’s Amended PCRA Petition, 9/3/15, at 1.

When reviewing a claim of ineffectiveness, we apply the following test, first




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articulated by our Supreme Court in Commonwealth v. Pierce, 527 A.2d

973 (Pa. 1987).

           [C]ourts presume that counsel was effective, and
           place upon the appellant the burden of proving
           otherwise. Counsel cannot be found ineffective for
           failure to assert a baseless claim.

                  To succeed on a claim that counsel was
           ineffective, Appellant must demonstrate that: (1)
           the claim is of arguable merit; (2) counsel had no
           reasonable strategic basis for his or her action or
           inaction; and (3) counsel’s ineffectiveness prejudiced
           him.
                                     …

                [T]o demonstrate prejudice, appellant must
           show there is a reasonable probability that, but for
           counsel’s error, the outcome of the proceeding would
           have been different.

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013)

(citations and internal quotation marks omitted).   “Failure to establish any

prong of the test will defeat an ineffectiveness claim.” Commonwealth v.

Birdsong, 24 A.3d 319, 329 (Pa. 2011).

     Instantly, Appellant solely claims that his plea counsel was ineffective

for failing to file a motion to reconsider his negotiated sentence. However,

as the Commonwealth correctly notes in its brief, “[w]here a defendant

pleads guilty pursuant to a plea agreement specifying particular penalties,

the defendant may not seek a discretionary appeal related to those agreed

upon penalties.”   Commonwealth v. Brown, 982 A.2d 1017, 1019 (Pa.




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Super. 2009). Therefore, Appellant’s claim has no merit, and counsel cannot

be ineffective for failing to raise a meritless claim. See Michaud, supra.

     Based on the foregoing, we conclude the PCRA court did not err in

denying Appellant’s PCRA petition.    See Fears, supra.      Accordingly, we

affirm the PCRA court’s October 9, 2015 order and grant counsel’s petition to

withdraw.

     Order affirmed. Petition to withdraw as counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/8/2016




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