J-S34019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

MARK G. REYNOLDS,

                            Appellant               No. 824 MDA 2015


                   Appeal from the PCRA Order April 10, 2015
                In the Court of Common Pleas of Luzerne County
    Criminal Division at Nos: CP-40-CR-0000335-2013; CP-40-CR-0000856-
                                     2013


BEFORE: PANELLA, STABILE, and JENKINS, JJ.

MEMORANDUM BY STABILE, J.:                     FILED NOVEMBER 15, 2016

       Appellant, Mark G. Reynolds, appeals from the April 10, 2015 order of

the Court of Common Pleas of Luzerne County (“PCRA court”), denying relief

under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46.

Appellate counsel has filed an Anders1 brief and a petition to withdraw

pursuant to Turner/Finley.2 Upon review, we affirm and grant the petition

to withdraw.




____________________________________________


1
  Counsel filed two briefs pursuant to Anders v. California, 386 U.S. 738
(1967).
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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     This Court previously addressed the factual situation in its 2014

memorandum.

          Briefly, on November 18, 2013, Appellant pled guilty to
          theft by deception (18 Pa.C.S.A. § 3922(a)(3)) at docket
          number 335 and to two counts of terroristic threats with
          intent to terrorize (18 Pa.C.S.A. § 2706(a)(1)) and
          resisting arrest (18 Pa.C.S.A. § 5104) at docket number
          856.    On January 3, 2014, the trial court sentenced
          Appellant to thirteen to thirty months’ incarceration in a
          state correctional institution for his convictions for theft by
          deception, and the two counts of terroristic threats. The
          trial court also sentenced Appellant to nine to eighteen
          months’ imprisonment for the resisting arrest conviction.
          The court ordered the sentences to run concurrently.

                 On January 13, 2014, Appellant filed a motion to
          modify his sentence, requesting that he be permitted to
          serve his sentence at the Luzerne County Correctional
          Facility (county facility). The trial court denied the motion
          on January 16, 2014. Appellant appealed to this Court.

                 Following Appellant’s filing of a Pa.R.A.P. 1925(b)
          statement of errors complained of on appeal, in which he
          argued that the trial court abused its discretion in refusing
          to allow him to serve his sentence at the county facility,
          the trial court issued a Pa.R.A.P. 1925(a) opinion on April
          17, 2014. In its Rule 1925(a) opinion, the trial court
          concluded that Appellant’s challenge to the discretionary
          aspects of the sentence imposed was meritless.
          Specifically, the trial court concluded that Appellant failed
          to raise a substantial question.

                 On July 10, 2014, Appellant’s counsel filed a motion
          to withdraw as counsel and filed an Anders brief, wherein
          counsel raises a single issue for our review: “Whether the
          [t]rial [c]ourt abused its discretion in sentencing
          [Appellant].”




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Commonwealth           v.   Reynolds,          No.   477   MDA   2014,   unpublished

memorandum, at 1-2 (Pa. Super filed Dec. 8, 2014).               This Court affirmed

the judgment of sentence and granted counsel’s petition to withdraw.

       The trial court summarized the subsequent factual and procedural

history as follows.

              [Appellant] filed a pro se [PCRA p]etition. On December
              18, 2014 Jeffrey Yellen, Esquire was appointed as counsel
              and was directed to determine the necessity for the filing
              of any supplement to [Appellant’s] pro se [m]otion.3 No
              supplemental petition or brief was filed by counsel. On
              March 31, 2015, [the PCRA court] granted a [m]otion from
              Attorney Jeffrey Yellen to “[a]ppoint [n]ew [c]ounsel.”
              [The PCRA court] subsequently entered an [o]rder
              appointing Allyson Kacmarski, Esquire as [c]ounsel
              for[Appellant].

                    On April 10, 2015, a hearing was held on
              [Appellant’s PCRA petition], when upon conclusion of the
              testimony presented and arguments of counsel, [the PCRA
              court] denied his requested relief on the record.
              [Appellant] was advised of his appellate rights prior to the
              conclusion of the hearing.

                     [Appellant] filed a timely, pro se, [n]otice of [a]ppeal
              directly to the Superior Court of Pennsylvania on May 5,
              2015. [Appellant’s] pro se appeal was docketed at 824
              MDA 2015. Subsequently, [Appellant’s] [c]ourt appointed
              [c]ounsel field a timely [n]otice of [a]ppeal on May 11,
              2015 which was docketed at 859 of 2015. [FN1] Attorney
              Kacmarski also filed a “[p]etition to [w]ithdraw as
              [c]ounsel”     and       her    [m]otion      was      granted.
              Contemporaneously, in an [o]rder dated May 14, 2015,
              [the PCRA court] appointed Mary Deady, Esquire to
____________________________________________


3
  Upon review of the record it is unclear why counsel was appointed prior to
the filing of Appellant’s pro se PCRA petition.




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             represent [Appellant] in the instant appeal. That same
             day, [the PCRA court] issued an [o]rder directing Attorney
             Deady to file a 1925(b) [s]tatement of [ma]tters
             [c]omplained of on [a]ppeal within 21 days. [FN2]
             Appellate counsel filed a [s]tatement of [m]atters
             [c]omplained of on [a]ppeal on June 25, 2015.          The
             Commonwealth      filed  a   response   to    [Appellant’s]
             [s]tatement of [m]atters [c]omplained of on [a]ppeal on
             July 8, 2015.

             [FN1.    The [a]ppeal docketed at 859 MDA 2015 was
             [d]ismissed by an [o]rder of the Superior Court dated July
             10, 2015 pursuant to Pa.R.A.P. 3517. An [o]rder of the
             Superior court dated July 15, 2015 gave effect to
             [Appellant’s] pro se [a]ppeal docketed at 824 [MDA] 2015,
             commenting      that   [Appellant]  filed  a   [d]ocketing
             [s]tatement. The Superior court’s comment continued to
             direct Attorney Kacmarski to enter her appearance in 824
             MDA 2015. The Superior Court Docket indicates that
             Attorney Deady entered her appearance in the instant
             appeal docketed at 824 [MDA] 2015 on July 27, 2015.]

             [FN2.   On June 10, 2015, [the PCRA court] granted
             [c]ounsel’s [m]otion for an extension of time to file
             [Appellant’s] 1925(b) statement and [the PCRA court]
             [o]rdered that same be submitted no later than June 25,
             2015.]

PCRA Court Opinion, 9/4/2015, 1-2.

        Appellant’s counsel filed, in this Court, a petition to withdraw as

counsel and an Anders brief, wherein counsel raises two issues for review:

  I.      Whether [Appellant’s] guilty plea was knowing, voluntarily and

          intelligently entered?

  II.     Whether PCRA counsel was ineffective in failing to either obtain or

          utilize a psychiatric evaluation that was approved by the [PCRA]

          court?

Anders Brief, 8/22/16, at 3.

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       Before we may consider these issues, we must address whether

Appellate counsel has met the requirements of Turner/Finely. In order to

withdraw under Turner/Finley in this Court:

    (1)   PCRA counsel must file a no-merit letter that details the nature and

          extent of counsel’s review of the record; lists the appellate issues;

          and explains why the issues are meritless.

    (2)   PCRA counsel must file an application to withdraw; serve the PCRA

          petitioner with the application and the no-merit letter; and advise

          the petitioner that if the Court grants the motion to withdraw, the

          petitioner can proceed pro se or hire his own lawyer.

    (3)   This Court must independently review the record and agree that the

          appeal is meritless.

See Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super. 2011)

(citing Commownealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009);

Turner, 544 A.2d at 928; Finley, 550 A.2d at 215).

       This   Court     finds   that    Appellate   counsel   has   complied   with

Turner/Finely. Appellate counsel has petitioned for leave to withdraw and

filed a second Anders brief,4 which we accept in lieu of a Turner/Finley no-
____________________________________________


4
  Appellant’s counsel first filed an Anders brief on March 28, 2016. This
Court found that the first Anders brief was deficient because it did not
address all issues raised by Appellant in his Rule 1925(b) statement. On this
Court ordered Appellate counsel to comply with all the requirements of
Turner/Finley within thirty days if counsel desired to pursue his petition to
withdraw. Counsel complied on August 22, 2016.



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merit letter.5 Furthermore, Appellant counsel has informed Appellant of his

right to hire a new lawyer or file a pro se response.

       Next, this Court must determine whether the appeal is indeed

meritless.
              [A]n appellate court reviews the PCRA court’s finding of
              fact to determine whether they are supported by the
              record, and reviews its conclusions of law to determine
              whether they are free from legal error. 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.

              To establish trial counsel’s ineffectiveness, a petitioner
              must demonstrate: (1) the underlying claim has arguable
              merit; (2) counsel had no reasonable basis for the course
              of action or inaction chosen; and (3) counsel’s action or
              inaction prejudiced the petitioner.

              Furthermore, [a] PCRA petitioner will be granted relief only
              when he proves, by a preponderance of the evidence, that
              his conviction or sentence resulted from the ineffective
              assistance of counsel which, 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. Counsel is presumed effective,
              and to rebut that presumption, the PCRA petitioner must
              demonstrate that counsel’s performance was deficient and
              that such deficiency prejudiced him.

Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa. Super. 2014)

(internal quotations and citations omitted).



____________________________________________


5
  Anders v. California, 386 U.S. 738 (1967), set forth the requirements to
withdraw on direct appeal, which are more stringent than the Turner/Finley
requirements that apply on collateral appeal. See Widgins, 29 A.3d at 817
n.2. “Because an Anders brief provides greater protection to a defendant,
this Court may accept an Anders brief in lieu of a Turner/Finley letter.”
Id.




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      Appellant’s first issue is that his guilty plea was not knowing,

voluntary, and intelligently made because 1) he received a sentence longer

than he expected because of the ineffective assistance of counsel, and 2) he

was under the influence of multiple psychotropic medications.

      A PCRA petitioner is entitled to relief if he pleads and proves that prior

counsel   rendered    ineffective   assistance   of   counsel.     42   Pa.C.S.A.

§ 9543(a)(2)(ii). “To prevail on an [ineffectiveness] claim, a PCRA petitioner

must plead and prove by a preponderance of the evidence that (1) the

underlying legal claim has arguable merit; (2) counsel had no reasonable

basis for acting or failing to act; and (3) the petitioner suffered resulting

prejudice.” Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa.

Super. 2015) (en banc). “Allegations of ineffectiveness in connection with

the entry of a guilty plea will serve as a basis for relief only if the

ineffectiveness caused the defendant to enter an involuntary or unknowing

plea.” Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002)

(citation omitted).   “Where the defendant enters his plea on the advice of

counsel, the voluntariness of the plea depends on whether counsel’s advice

was within the range of competence demanded of attorneys in criminal

cases.”    Id.   (citations omitted) (internal quotation         marks omitted).

Furthermore, a defendant “is bound by one’s statements made during a plea

colloquy, and may not successfully assert claims that contradict such

statements.”     Commonwealth v. Muhammad, 794 A.2d 378, 384 (Pa.

Super. 2002) (citation omitted).

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      In the matter sub judice, Appellant argues that trial counsel was

ineffective in failing to inform the Appellant of the sentence he would

receive.   Appellant’s trial counsel informed Appellant of the range and

maximum sentence he was facing when he plead. See N.T. PCRA Hearing,

4/10/15, at 66-69; see also N.T. Guilty Plea, 11/18/13, at 4. Appellant was

aware that he was serving back time on a parole violation at the time of his

plea. N.T. Guilty Plea, 11/18/13, at 7. Additionally, trial counsel informed

Appellant that it was an open plea and there were no guarantees he would

be sentenced to probation.        See N.T. PCRA Hearing, 4/10/15, at 66-69.

Furthermore, Appellant answered in the negative when asked whether

“[a]nybody [was] forcing or threatening you to plead guilty here today,” and

“[h]ave any promises been made to you in connection with your plea other

than what’s part of your plea agreement.” N.T. Guilty Plea, 11/18/13, at 7.

Because Appellant is unable to establish that the underlying claim has

merit, Appellant’s claim fails.

      Next, Appellant asserts that his plea was not knowing, voluntary, or

intelligently made because he was under the influence of psychotropic

medication. At his guilty plea hearing, the following exchange occurred.

            PCRA Court: “Are you under the influence of any drugs
            or alcohol today:

            Appellant: “No.”

            PCRA Court: “Are you suffering from any type of illness
            or impairment, or is there anything that might affect your
            ability to understand today’s proceedings?”
            Appellant: “No.”


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N.T. Guilty Plea, 11/18/13 at 4.     Additionally, Attorney Donovan testified

that Appellant’s answers during the plea colloquy were coherent. N.T. PCRA

Hearing, 4/10/15, at 68.      As discussed above, Appellant is bound by the

statements made in the plea colloquy and cannot subsequently contradict

those statements.    See Muhammad, 794 A.2d at 394.         Furthermore, the

PCRA court found, “having the benefit of observing the demeanor of

[Appellant] at the guilty plea hearing, sentencing hearing and the PCRA

hearing, it is our view that [Appellant’s] testimony that he was on

medications ‘or dreaming’ at the time of his pleas should be discounted.”

N.T. PCRA Hearing, 4/10/15, at 11-12.      As the record supports the PCRA

court’s credibility determination, the determinations are binding on this

Court. See Commonwealth v. Spotz,18 A.3d 244, 259 (Pa. 2011) (citing

Commonwealth v. Johnson, 966 A.2d 523, 532, 539 (Pa. 2009)).

Appellant’s claim fails.

      Appellant’s second issue raised on appeal regards PCRA counsel’s

ineffectiveness, specifically, Appellant asserts PCRA counsel was ineffective

for failing to obtain or use a psychiatric evaluation.   Claims of ineffective

assistance of PCRA counsel cannot be raised for the first time on appeal.

See Commonwealth v. Henkel, 90 A.3d, 16, 20 (Pa. Super. 2014); see

also Commonwealth v. Ford, 44 A.3d 1190, 1201 (Pa. Super. 2012);

Commonwealth v. Colavita, 993 A.2d 874, 893 n. 12 (Pa. 2010).

Therefore, this Court is unable to review Appellant’s claim of ineffective

assistance of PCRA counsel.

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     Order affirmed. Counsel’s petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/2016




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