J-S49008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JAMES BRADFORD JONES JR.

                            Appellant                No. 795 MDA 2015


              Appeal from the PCRA Order Entered March 20, 2015
               In the Court of Common Pleas of Lancaster County
                           Criminal Division at No(s):
                            CP-36-CR-0003564-2012
                            CP-36-CR-0003576-2012
                            CP-36-CR-0003799-2012
                            CP-36-CR-0004055-2012
                            CP-36-CR-0004589-2012
                            CP-36-CR-0005886-2012


BEFORE: BENDER, P.J.E., ALLEN, J., and OLSON, J.

MEMORANDUM BY BENDER, P.J.E.:                      FILED AUGUST 17, 2015

        Appellant, James Bradford Jones Jr., appeals from the post-conviction

court’s March 20, 2015 order denying his petition for relief filed pursuant to

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant

raises three ineffective assistance of counsel (IAC) claims.     Additionally,

Appellant’s counsel, Christopher P. Lyden, Esq., has filed a petition to

withdraw from representing Appellant, along with an Anders1 brief. While a


____________________________________________


1
    Anders v. California, 386 U.S. 738 (1967).
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Turner-Finley2 ‘no-merit’ letter is the appropriate filing when counsel seeks

to withdraw on appeal from the denial of PCRA relief, we may accept

Attorney Lyden’s       Anders brief in         lieu of a no-merit letter.   See

Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011)

(“Because an Anders brief provides greater protection to a defendant, this

Court may accept an Anders brief in lieu of a Turner-Finley letter.”)

(citation omitted).     After careful review, we affirm the PCRA court’s order

denying Appellant’s petition and we grant Attorney Lyden’s petition to

withdraw.

       The PCRA court summarized the facts and procedural history of this

case, as follows:

             [Appellant], James B. Jones Jr., was charged through
       multiple informations with eleven counts of burglary, one count
       of attempted burglary, and a number of related misdemeanor
       thefts. The charges stem from a series of residential burglaries
       committed by [Appellant] in the spring of 2012. During that
       period[, Appellant] entered a number of area homes in search of
       money, jewelry, and other valuables to pawn and convert to
       cash. On May 21, 2012, [Appellant] was spotted exiting a home
       in Rapho Township, Manheim, Pennsylvania. As he fled the
       home[,] surrounding neighbors took photos of [Appellant]’s
       license plate and turned them over to authorities. Soon after,
       [Appellant] was tracked down and brought in for questioning
       where he confessed to the May 21st burglary, along with a
       number of unsolved break-ins in the region. Once taken into
       custody[, Appellant]’s cases were consolidated and Attorney
       David L. Blanck of the Lancaster Public Defender’s Officer was
       appointed as [c]ounsel. Mr. Blanck first met with [Appellant]
____________________________________________


2
  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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     prior to his preliminary hearing in August [of] 2012. Subsequent
     to that[,] Attorney Blanck visited [Appellant] in prison multiple
     times from April of 2013 leading up to his guilty plea in October
     of 2013. During those visits[,] Attorney Blanck and [Appellant]
     reviewed the case file; discussed potential trial strategies;
     considered plea offers presented by the Commonwealth[;] and
     examined the viable options for [Appellant] in resolving his case.

           After considering all the options provided by [t]rial
     [c]ounsel, [Appellant] made the decision to enter a “straight” or
     open plea on October 21, 2013. In all[, Appellant] pled guilty to
     11 counts of burglary and one count of attempted burglary with
     the remaining misdemeanors to be [nolle] prossed at
     sentencing.

            A pre-sentence investigation was ordered after which
     [Appellant] was sentenced to a period of incarceration [of] not
     less than 20 years, nor more than 40 years with an order to pay
     restitution in the amount of $98,810.55.         A Motion for
     Reconsideration of Sentence was denied in March of 2014.
     Following the denial[, Appellant] filed the instant petition for
     Post-Conviction relief. Counsel was appointed and a hearing was
     held on October 22, 2014.

          Subsequent to the hearing[,] both parties filed
     memorand[a] of law with this [c]ourt.         [Appellant]’s
     memorandum put[] forth three claims upon which relief [was]
     requested:

           1. Trial  [c]ounsel    failed   to   communicate     with
              [Appellant] leading up to his guilty plea.

           2. Trial [c]ounsel failed to provide adequate time for
              [Appellant] to evaluate the Commonwealth’s
              discovery.

           3. Trial [c]ounsel failed to request a restitution hearing
              despite [Appellant]’s desire that such a motion be
              filed.

           [Appellant] argue[d] that by failing to provide these
     services[, t]rial [c]ounsel rendered ineffective assistance causing
     [him] to enter an unknowing and involuntary plea.




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Trial Court Opinion (T.C.O.), 3/20/2015, at 1-3 (citations and footnotes

omitted).

       By order dated March 20, 2015, the PCRA court denied Appellant’s

PCRA petition and filed an opinion supporting the denial.       Attorney Lyden

was subsequently appointed and filed a timely notice of appeal to this Court.

The PCRA court did not issue an order requiring the production of a Pa.R.A.P.

1925(b) statement, but provided its own Rule 1925(a) opinion on May 4,

2015, incorporating by reference the opinion supporting the denial of

Appellant’s petition.

       Before we consider the merits of Appellant’s issues, we must first

consider Attorney Lyden’s petition to withdraw as counsel. In Turner, our

Supreme Court “set forth the appropriate procedures for the withdrawal of

court-appointed counsel in collateral attacks on criminal convictions[.]”

Turner, 544 A.2d at 927.                The traditional requirements for proper

withdrawal of PCRA counsel, originally set forth in Finley, were updated by

this Court in Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2006),

abrogated by Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009),3 which

provides:



____________________________________________


3
  In Pitts, our Supreme Court abrogated Friend “[t]o the extent Friend
stands for the proposition that an appellate court may sua sponte review the
sufficiency of a no-merit letter when the defendant has not raised such
issue.” Pitts, 981 A.2d at 879. In this case, Attorney Lyden filed his
(Footnote Continued Next Page)


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          1) As part of an application to withdraw as counsel, PCRA
             counsel must attach to the application a “no-merit”
             letter[;]

          2) PCRA counsel must, in the “no-merit” letter, list each claim
             the petitioner wishes to have reviewed, and detail the
             nature and extent of counsel's review of the merits of each
             of those claims[;]

          3) PCRA counsel must set forth in the “no-merit” letter an
             explanation of why the petitioner's issues are meritless[;]

          4) PCRA counsel must contemporaneously forward to the
             petitioner a copy of the application to withdraw, which
             must include[:]

             i. a copy of both the “no-merit” letter, and[;]

            ii. a statement advising the PCRA petitioner that, in the
                event the trial court grants the application of counsel
                to withdraw, the petitioner has the right to proceed
                pro se, or with the assistance of privately retained
                counsel;

          5) the court must conduct its own independent review of the
             record in [ ] light of the PCRA petition and the issues set
             forth therein, as well as of the contents of the petition of
             PCRA counsel to withdraw; and

          6) the court must agree with counsel that the petition is
             meritless.

Friend, 896 A.2d at 615 (footnote omitted).

      We have received Attorney Lyden’s petition to withdraw and Anders

brief, which we will treat as his no-merit letter. Therefore, the first prong of

the above test is met. Second, we must determine if Attorney Lyden sets

forth Appellant’s claims and describes the nature and extent of his review

                       _______________________
(Footnote Continued)

petition to withdraw and no-merit letter with this Court and, thus, our
Supreme Court’s holding in Pitts is inapplicable.



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J-S49008-15



thereof. Third, we must determine if the brief includes an explanation as to

why each issue is meritless.

        In the Anders brief, Attorney Lyden sets forth Appellant’s claims and

sufficiently evidences the nature and extent of his review. Additionally, on

pages     8   through   10   of   the   brief,   Attorney   Lyden   discusses   the

ineffectiveness claims Appellant wishes to raise, and explains why those

claims are without merit.      Accordingly, we find that Attorney Lyden meets

the second and third prongs of the revised Finley test as set forth in

Friend.

        Fourth, we find that Attorney Lyden has forwarded to Appellant a copy

of his petition to withdraw and attendant brief.        Attorney Lyden has also

advised Appellant that he has the right to proceed with this appeal pro se or

to hire new counsel. Accordingly, we find that Attorney Lyden has complied

with the fourth prong of the revised test set forth in Friend.

        Next, this Court must conduct its own independent review of the

record in light of the issues presented in Appellant’s PCRA petition.

According to counsel, Appellant wishes to raise three issues for our review.

        1. Did the PCRA court err by failing to find that plea counsel
           provided ineffective assistance by failing to communicate with
           Appellant prior to Appellant[‘s] entering his plea of guilty?

        2. Did the PCRA court err by failing to find that plea counsel
           provided ineffective assistance by failing to allow Appellant an
           opportunity to review discovery documents prior to
           Appellant[‘s] entering his plea of guilty?

        3. Did the PCRA court err by failing to find that plea counsel
           provided ineffective assistance by failing to petition the lower

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J-S49008-15


         court for a restitution hearing after Appellant entered his plea
         of guilty?

Anders Brief at 4.

      When we review the propriety of the PCRA court’s order, we are

limited to determining whether the court’s findings are supported by the

record   and   whether   the   order    in   question   is   free   of   legal   error.

Commonwealth v. Grant, 992 A.2d 152, 156 (Pa. Super. 2010) (citations

omitted). This Court will not disturb the PCRA court’s findings if there is any

support for the findings in the certified record. Id. at 156.

      In reviewing an allegation of ineffective assistance of counsel, a court

starts with the presumption that counsel was effective. Commonwealth v.

Pierce, 527 A.2d 973, 975 (Pa. 1987).            “To merit relief based on an

ineffectiveness claim under the PCRA, a petitioner must show that such

ineffectiveness ‘in the circumstances of the particular case, so undermined

the truth-determining process that no reliable adjudication of guilt or

innocence could have taken place.’” Commonwealth v. Collins, 957 A.2d

237, 244 (Pa. 2008) (quoting 42 Pa.C.S.A. § 9543(a)(2)(ii)). This standard

requires “a petitioner to prove that: (1) the underlying claim is of arguable

merit; (2) counsel’s performance lacked a reasonable basis; and (3) the

ineffectiveness of counsel caused the petitioner prejudice.” Id. The failure

“to satisfy any one of the three prongs of the test for ineffectiveness

requires rejection of the claim.” Id.

      Appellant initially contends that the PCRA court erred in failing to find

his plea counsel was ineffective for not communicating with him prior to

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entering his plea. Contrary to this assertion, our independent review of the

record reveals that, although decisions were left to Appellant, plea counsel

did not fail to communicate with him.

      The record reveals that the parties discussed potential trial strategies,

plea offers, and viable options; however, Appellant had trouble settling on a

course of action.   For instance, after plea counsel negotiated a guilty plea

offer, Appellant rejected it outright.      Plea counsel testified at the PCRA

hearing, recalling one conversation that “[Appellant] didn’t want a trial, he

didn’t want to take the offer and he didn’t want the open plea. And I was

like, James, I don’t have door number four.” N.T. PCRA, 10/22/2014, at 71.

Appellant further contradicts his own assertion that plea counsel failed to

communicate with him, in stating that, “[e]very time it was either take the

deal [or] take it to trial. It was – it was never any set thing of what [plea

counsel] thought I should do.” Id. Based on the foregoing, we agree with

Attorney Lyden and the PCRA court that Appellant’s claim lacks merit, as the

evidence establishes that Appellant and plea counsel communicated at

length prior to entering the guilty plea.

      Next, Appellant asserts that the PCRA court erred by failing to find plea

counsel ineffective in not affording him an opportunity to review discovery

documents prior to Appellant’s entering his guilty plea.     Testimony at the

PCRA evidentiary hearing directly contradicts this claim.

      As a policy, the Lancaster Public Defender’s Office gives prisoners

limited access to discovery. Id. at 73. Copies of discovery are not provided

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to clients while they are incarcerated because of difficultly with jailhouse

informants.    Id. at 73-74.        Rather, investigators will bring copies of

discovery to their clients to review upon request.         Id.   At several points

throughout his testimony, Appellant stated that he was given access to

discovery in this manner. Id. at 12-15, 46, 49. Plea counsel testified that

Appellant had finished review of discovery after four visits and explicitly

stated that he did not want to see it any more. Id. at 74. Based on this

record, we agree with Attorney Lyden and the PCRA court, that Appellant

was not denied the opportunity to review discovery.          Accordingly, we find

this claim is also without merit.

      Finally, Appellant asserts that the PCRA court erred by not finding plea

counsel ineffective for failing to petition the lower court for a restitution

hearing.   While Appellant’s first two claims of ineffectiveness failed to

establish a meritorious argument, this final claim fails to establish that he

was prejudiced. “To demonstrate prejudice, the petitioner must show that

there is a reasonable probability that, but for counsel’s error or omission, the

result of the proceeding would have been different.”         Commonwealth v.

Cam Ly, 980 A.2d 61, 73 (Pa. 2009).

      The PCRA court heard testimony from Appellant that, in addition to his

plea colloquy, he was given guilty plea slips to sign. N.T. PCRA, at 33. Each

slip referenced a consolidated docket, on which a specific charge and

restitution amount was printed. Id. at 35. In signing the slips, Appellant

established,   by   judicial   admission,   the   amount   of    restitution   owed.

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Consequently, Appellant was not prejudiced in not having a hearing to

determine facts already admitted. For that reason, we find the PCRA court’s

decision, dismissing his third ineffectiveness claim, to be without error.

      Having concluded that all of Appellant’s issues are without merit, we

grant Attorney Lyden’s petition to withdraw and deny Appellant relief.

      Order affirmed. Motion to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/17/2015




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