J-S43035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

VINCENT L. ROBINSON

                            Appellant                  No. 1754 MDA 2015


                Appeal from the PCRA Order September 8, 2015
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0004890-2013
                                          CP-22-CR-0004903-2013


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                               FILED JULY 14, 2016

       Appellant Vincent L. Robinson appeals from the order of the Dauphin

County Court of Common Pleas denying his petition filed pursuant to the

Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.        Appellant’s counsel

has filed a petition to withdraw and a brief pursuant to Anders1 and

McClendon2 (“Turner/Finley brief”).3           We affirm the order of the PCRA

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1
  Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967).
2
    Commonwealth v. McClendon, 435 A.2d 1185 (Pa.1981).
3
  Because this is an appeal of an order denying a PCRA petition, counsel
should have filed a Turner/Finley no-merit letter or brief.         See
Commonwealth v. Turner, 544 A.2d 927 (Pa.1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super.1988) (en banc ). However, because an
Anders brief provides greater protection to an appellant, this Court will
(Footnote Continued Next Page)
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court denying relief based on allegations of ineffectiveness for failing to file a

direct appeal and for causing Appellant to enter an involuntary and

unknowing plea.          However, we remand to the PCRA court and grant

Appellant leave to amend his PCRA petition to include a claim that his

sentence was unconstitutional because the trial court imposed a mandatory

minimum sentence in violation of Alleyne v. United States, –––U.S. ––––,

133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).           We deny counsel’s petition to

withdraw.

        On March 17, 2014, at docket number CP-22-CR-0004890-2013

(“4890”), Appellant pled guilty to possession with intent to deliver a

controlled substance (“PWID”),4 criminal use of communication facility,5 and

unlawful possession of drug paraphernalia.6       At docket number CP-22-CR-

0004903-2013 (“4903”), Appellant pled guilty to two counts of delivery of a

controlled substance, one count of PWID, three counts of criminal use of a




                       _______________________
(Footnote Continued)

accept the Anders brief in lieu of a Turner/Finley letter or brief. See
Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa.Super.2011) (citing
Commonwealth      v.   Fusselman,     866    A.2d   1109,    1111    n.3
(Pa.Super.2004)).
4
    35 P.S. § 780-113(a)(30).
5
    18 Pa.C.S. § 7512(a).
6
    35 P.S. § 780-113(a)(32).




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communication facility, and three counts of unlawful possession of drug

paraphernalia.

      On May 1, 2014, the trial court sentenced Appellant. At docket 4890,

the trial court sentenced Appellant to two to four years’ incarceration for

PWID, a consecutive five-year term of probation for criminal use of

communication facility and a concurrent one–year term of probation for

unlawful possession of drug paraphernalia. At docket 4903, the trial court

sentenced Appellant to the following, all imposed concurrently to the

sentence imposed at docket 4890: one to two years’ incarceration for each

delivery of a controlled substance and PWID conviction, one to two years’

incarceration for each criminal use of a communication facility conviction,

and one year of probation for each possession of drug paraphernalia

conviction.

      The two-to-four year term of imprisonment imposed at docket 4890

for PWID may have been pursuant to the mandatory minimum sentence

provision contained in 18 Pa.C.S. § 6317 (drug-free school zones).     See

Pennsylvania Commission of Sentencing Guideline Sentence Form, Docket

4890, count 1 (stating there is mandatory minimum of 24 months pursuant

to 18 Pa.C.S. § 6317); N.T. of Sentencing Hearing, 5/1/2014, at 3 (defense

counsel stated “given the fact that there’s a mandatory in this case, we’re

simply requesting that the Court have mercy on Mr. Robinson and just give

him a two-to-four year state sentence”); N.T. of PCRA Hearing, 8/25/2015,




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at 7 (Appellant testified there was a mandatory two-year minimum due to a

school zone).7

       Appellant did not file post-sentence motions or a direct appeal.     On

April 8, 2015, Appellant filed a timely pro se PCRA petition.8 On April 15,

2015, the PCRA court appointed counsel, who filed an amended PCRA

petition on June 1, 2015.         On August 25, 2015, the PCRA court held an

evidentiary hearing. On September 8, 2015, the PCRA court dismissed the

petition. On October 7, 2015, Appellant filed a timely notice of appeal. Both

Appellant and the trial court complied with Pennsylvania Rule of Appellate

Procedure 1925.

       On January 27, 2016, Appellant’s counsel filed a Turner/Finley brief

and a petition to withdraw as counsel.

       Before we may address the merits of Appellant’s claim, “we must

determine if counsel has satisfied the requirements to be permitted to

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7
  The sentencing sheet does not indicate whether the trial court imposed a
mandatory minimum sentence. Further, there is no mention of a minimum
sentence at the guilty plea hearing.
8
  The trial court sentenced Appellant on May 1, 2014. Appellant’s conviction
became final 30 days later, when his time to file a direct appeal to this Court
expired. Pa.R.A.P. 903(a) (“notice of appeal required by Rule 902 (manner
of taking appeal) shall be filed within 30 days after the entry of the order
from which the appeal is taken”). Because May 31, 2014 fell on a Sunday,
Appellant had until June 1, 2015 to file a timely PCRA petition. 1 Pa.C.S. §
1908 (When last day of time period “fall[s] on Saturday or Sunday, . . . such
day shall be omitted from the computation”). Therefore, his petition, filed
April 8, 2015, is timely.



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withdraw from further representation.” Commonwealth v. Freeland, 106

A.3d 768, 774 (Pa.Super.2014). Competent PCRA counsel must conduct an

independent review of the record before we can authorize counsel’s

withdrawal. Id. The independent review

         requires counsel to file a ‘no-merit’ letter detailing the
         nature and extent of his review and list[ing] 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, then must conduct
         its own independent evaluation of the record and agree
         with counsel that the petition is without merit.

Id. (internal citation omitted).

      PCRA counsel must also serve a copy of counsel’s petition to withdraw

as counsel and the ‘no-merit’ brief on petitioner and write a letter advising

the petitioner that he or she has the right to proceed pro se or with the

assistance of privately retained counsel. Commonwealth v. Widgins, 29

A.3d 816, 818 (Pa.Super.2011) (quoting Commonwealth v. Friend, 896

A.2d 607 (Pa.Super.2006), abrogated in part by Commonwealth v. Pitts,

981 A.2d 875, 876 (Pa.2009)).

      PCRA appellate counsel filed a Turner/Finley brief. Counsel reviewed

the record and the applicable law and detailed the issues Appellant wished to

have examined. Counsel also mailed a copy of the no-merit brief and a copy

of his petition to withdraw as counsel to Appellant. Petition to Withdraw as

Counsel at Exh. A, Letter from Jennifer E. Tobias, Esquire to Vincent

Robinson dated January 26, 2016.     Although the Turner/Finley brief does

not explain why the issues lacked merit, the letter counsel wrote to

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Appellant explains why the issues are meritless.           Id.    The letter further

informed Appellant of his right to proceed pro se or with privately-retained

counsel to raise any points he deemed worthy of consideration. Counsel has

substantially complied with the technical requirements of Turner/Finley.

      Appellant did not submit a pro se appellate brief or a brief by private

counsel.    Therefore, we will address the merits of the claims raised in the

Turner/Finley brief:

           1. Whether the Appellant’s guilty plea was unlawfully
           induced as a result of ineffectiveness of counsel?

           2. Whether trial counsel was ineffective for failing to file a
           modification of sentence and/or appeal on the Appellant’s
           behalf?

Turner/Finley Brief at 5.

      Our standard of review from the denial of post-conviction relief “is

limited to examining whether the PCRA court’s determination is supported by

the   evidence    of   record   and   whether    it   is   free   of   legal   error.”

Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super.2011) (citing

Commonwealth v. Morales, 701 A.2d 516, 520 (Pa.1997)).

      Appellant’s first issue claims his trial counsel was ineffective at the

guilty plea hearing because Appellant believed he would receive a two-to-

four year term of imprisonment and was unaware that an additional term of

probation could be imposed. Turner/Finley Brief at 9-12.

      For ineffective assistance of counsel claims, the petitioner must

establish: “(1) his underlying claim is of arguable merit; (2) counsel had no



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reasonable basis for his action or inaction; and (3) the petitioner suffered

actual    prejudice    as   a   result.”      Spotz,   84   A.3d   at   311    (quoting

Commonwealth v. Ali, 10 A.3d 282, 291 (Pa.2010)).                   To establish the

prejudice prong where an appellant has entered a guilty plea, “the appellant

must demonstrate ‘it is reasonably probable that, but for counsel’s errors, he

would     not   have    pleaded     guilty    and   would   have   gone       to   trial.’”

Commonwealth v. Timchak, 69 A.3d 765, 770 (Pa.Super.2013) (quoting

Commonwealth v. Rathfon, 899 A.2d 365, 370 (Pa.Super.2006)).

“[C]ounsel is presumed to be effective and the burden of demonstrating

ineffectiveness rests on appellant.”           Ousley, 21 A.3d at 1244 (quoting

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super.2010)).                        “The

failure to prove any one of the three [ineffectiveness] prongs results in the

failure of petitioner’s claim.” Id. (quoting Rivera, 10 A.3d at 1279).

        “[T]he law does not require that [the defendant] be pleased with the

outcome of his decision to enter a plea of guilty: All that is required is that

[his] decision to plead guilty be knowingly, voluntarily, and intelligently

made.”     Commonwealth v. Willis, 68 A.3d 997, 1001 (Pa.Super.2013)

(quoting Commonwealth v. Anderson, 995 A.2d 1184, 1192 (Pa.Super.

2010) (alterations in original)).          A guilty plea colloquy must “affirmatively

demonstrate the defendant understood what the plea connoted and its

consequences.” Id. at 1002 (quoting Commonwealth v. Lewis, 708 A.2d

497, 501 (Pa.Super.1998)). After a defendant enters a guilty plea, “it is

presumed that he was aware of what he was doing, and the burden of

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proving involuntariness is upon him.”            Id. (quoting Commonwealth v.

Bedell, 954 A.2d 1209, 1212 (Pa.Super.2008)). “The reviewing Court will

evaluate the adequacy of the plea colloquy and the voluntariness of the

resulting plea by examining the totality of the circumstances surrounding the

entry of that plea.” Id. (citing Commonwealth v. Muhammad, 794 A.2d

378 (Pa.Super.2002)).

       The PCRA court found that Appellant testified at the evidentiary

hearing that he understood that by entering an open guilty plea, the judge

was not bound by an agreed upon sentence. Order of Court, 9/8/2015, at 3.

Further, Appellant’s counsel testified that it was her practice to review

colloquies with a defendant and she never made promises to defendants that

she represented.      Id.    The PCRA court found Appellant failed to show his

trial counsel was ineffective. Id. at 1.9

       The PCRA court’s findings were supported by the record and free of

legal error. We agree with counsel that Appellant’s claim lacked merit.

       Appellant next argues his trial counsel failed to file a motion for

modification of sentence or a notice of appeal. Turner/Finley Brief at 12-

13.




____________________________________________


9
  In addition, Appellant signed a written colloquy indicating he could be
sentenced to a maximum of 65 years’ incarceration and stated he received
no promises in exchange for his guilty plea. Guilty Plea Colloquy.



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       If an appellant establishes that he asked his counsel to file a direct

appeal and that counsel ignored this request, counsel is per se ineffective

and the appellant is entitled to relief granting him the right to file a direct

appeal nunc pro tunc. See, e.g., Commonwealth v. Markowitz, 32 A.3d

706, 714 (Pa.Super.2011). To establish per se ineffectiveness, the appellant

must establish he asked counsel to file a direct appeal. Id.

       The PCRA court found that counsel testified that if she had received

any call from Appellant or his family indicating that he wished to appeal, she

would have visited Appellant to determine the next step. She stated her file

contained no letters or phone messages from Appellant or his family. Order

of Court, 9/8/2015, at 3.          Further counsel did not recall receiving any

communications regarding an appeal. Id.                   The PCRA court dismissed

Appellant’s    claim,    finding   Appellant     failed   to   establish   counsel   was

ineffective. Id. at 1, 3. This determination is supported by the record and

free from legal error.10

       Because counsel filed a Turner/Finley brief, we must now conduct an

independent review of the record to determine whether there are any

meritorious issues.      We find that there is an issue of arguable merit that

must be addressed. The trial court may have sentenced Appellant pursuant


____________________________________________


10
   Appellant did not argue, and the trial court did not address, whether
counsel was ineffective for failing to consult with Appellant regarding an
appeal.



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to the mandatory minimum sentence provision contained in 18 Pa.C.S. §

6317.     See Pennsylvania Commission of Sentencing Guideline Sentence

Form, Docket 4890, count 1 (stating there is mandatory minimum of 24

months pursuant to 18 Pa.C.S. § 6317); N.T., 5/1/2014, at 3 (defense

counsel stated “given the fact that there’s a mandatory in this case, we’re

simply requesting that the Court have mercy on Mr. Robinson and just give

him a two-to-four year state sentence”); N.T. of PCRA Hearing, 8/25/2015,

at 7 (Appellant testified there was a mandatory two-year minimum due to a

school zone).      Section 6317 has been found unconstitutional pursuant to

Alleyne v. United States, –––U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314

(2013).11 Commonwealth v. Hopkins, 117 A.3d 247, 262 (Pa.2015). In

Alleyne, the Supreme Court of the United States found “[f]acts that

increase the mandatory minimum sentence are . . . elements and must be

submitted to the jury and found beyond a reasonable doubt.” Alleyne, ---

U.S. ---, 133 S.Ct. at 2158.               In Hopkins, the Supreme Court of

Pennsylvania found that Alleyne applied to cases pending for direct review

at the time the Alleyne decision was issued. Alleyne was decided on June

17, 2013, and Appellant was not sentenced until May 14, 2014. Accordingly,

if the trial court applied the mandatory minimum sentence provision, it
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11
    Whether the trial court applied a mandatory minimum sentence in
violation of Alleyne is a challenge to the legality of the sentence, which
cannot be waived and can be raised sua sponte by this Court.
Commonwealth v. Wolfe, 106 A.3d 800 (Pa.Super.2014).



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would have been error and Appellant should receive a re-sentencing hearing.

See Commonwealth v. Ruiz, 131 A.3d 54, 59-61 (Pa.Super.2015) (finding

Appellant entitled to re-sentencing where his judgment of sentence became

final after the Supreme Court issued its decision in Alleyne where he filed a

timely PCRA petition).

      PCRA order denying relief based on allegations of ineffectiveness for

failing to file a direct appeal and for causing Appellant to enter an

involuntary and unknowing plea affirmed.       Case remanded to the PCRA

court. Appellant granted leave to amend his PCRA petition to include a claim

that the imposition of a mandatory minimum sentence was unconstitutional.

Petition to withdraw denied. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2016




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