J-S39034-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    Appellee             :
                                         :
                    v.                   :
                                         :
JUAN CASITO MUNOZ,                       :
                                         :
                     Appellant           :    No. 1659 MDA 2015

                Appeal from the PCRA Order August 27, 2015
             in the Court of Common Pleas of Lancaster County,
            Criminal Division, at No(s): CP-36-CR-0004356-2013
                          CP-36-CR-0004613-2012

BEFORE:     STABILE, PLATT,* and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                     FILED JUNE 02, 2016

      Juan Casito Munoz (Appellant) appeals from an order which denied his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546.      In addition, Appellant’s counsel seeks to withdraw his

representation of Appellant 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 affirm the order and grant counsel’s application

to withdraw.

      The PCRA Court summarized the factual and procedural history of this

case as follows.

            On November 28, 2012, the District Attorney of Lancaster
      County filed an information docketed to No. 4613 of 2012
      charging [Appellant] with one count of possession with intent to
      deliver cocaine, one count of possession of a controlled
      substance and the summary offenses of driving with a

*Retired Senior Judges assigned to the Superior Court.
J-S39034-16


     suspended license and no rear lights. These charges resulted
     from a traffic stop of [Appellant’s] vehicle by Pennsylvania State
     Police on July 9, 2012, in Lancaster City. The passenger in
     [Appellant’s] vehicle, the subject of an active arrest warrant,
     was taken into custody and found to be in possession of 84 small
     plastic baggies. [Appellant] consented to the search of his
     vehicle and was found to be in possession of a bag of cocaine
     and a bag of cutting agent.

           On October 10, 2013, [the Commonwealth] filed a second
     information docketed to No. 4356 of 2013 charging [Appellant]
     with possession with intent to deliver cocaine, persons not to
     possess firearms, receiving stolen property, and possession of
     drug paraphernalia. These charges were the result of the search
     of [Appellant’s] residence in Lancaster City on September 5,
     2013, pursuant to a search warrant. Police recovered 30 grams
     of cocaine, a stolen Smith and Wesson .40 caliber handgun, 3
     boxes of clear sandwich bags, scissors, plastic cards with cocaine
     residue, a digital scale, two bottles of cutting agent and
     approximately $3,222.

           On January 17, 2014, [Appellant,] represented by
     [privately-retained counsel, Hobie Crystle, Esquire], appeared
     before the court and entered a straight or open plea of guilty to
     the offenses charged on both dockets. After a written and oral
     colloquy, the court accepted [Appellant’s] guilty pleas and
     deferred sentencing pending a pre-sentence investigation. On
     May 29, 2014, [Appellant] was sentenced to an aggregate term
     of 7½ to 15 years [of] incarceration.

          [Appellant] did not file a post[-]sentence motion or direct
     appeal.

            On or about January 16, 2015, [Appellant] filed a pro se
     [PCRA petition]. Counsel was appointed to represent him, and
     on April 13, 2015, an amended petition was filed. On April 22,
     2015, a second amended petition was filed. On July 6, 2015, a
     third amended petition was filed.

          On August 27, 2015,         a hearing was held on the third
     amended petition.       The     sole issue at the hearing was
     [Appellant’s] allegation that    his attorney failed to file a direct
     appeal after being requested    to do so.



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                                       ***

        After considering the testimony presented and the arguments of
        counsel, the [PCRA court] dismissed the third amended petition
        on the ground that [Appellant] had failed to present credible
        evidence to establish that he requested his attorney to file an
        appeal on his behalf.

PCRA Court Opinion, 11/20/2015, at 1-5 (footnotes and unnecessary

capitalization omitted).

        Appellant timely filed a notice of appeal. Both Appellant and the PCRA

court complied with Pa.R.A.P. 1925. Thereafter, PCRA counsel sought from

this Court leave to withdraw his representation of Appellant pursuant to

Turner and Finley.         On February 29, 2016, Appellant filed pro se a

response to counsel’s petition to withdraw.1

        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.2

              … 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

1
    The Commonwealth has elected not to file a brief in this case.
2
  We are cognizant that counsel has submitted a brief on appeal more akin
to a brief in compliance with Anders v. California, 386 U.S. 738 (1967),
the method by which direct appeal counsel seeks to withdraw from
representation. As counsel is representing Appellant in the context of the
PCRA, the procedural requirements set forth in Turner/Finley govern
withdrawal by counsel. However, this Court has held that an Anders brief
which complies substantially with the requirements of Turner/Finley is
sufficient to allow withdrawal. Commonwealth v. Daniels, 947 A.2d 795,
798 (Pa. Super. 2008).


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      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
      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 issue contained in counsel’s brief.

      Appellant presents the issue of “[w]hether the [PCRA] court erred

when it denied post-conviction relief on Appellant’s claim that trial counsel




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was ineffective in failing to file a direct appeal at the request of his client?”

Turner/Finley Brief at 2.

      “[T]his Court’s standard of review regarding a PCRA court’s order is

whether the determination of the PCRA court is supported by the evidence of

record and is free of legal error.” Commonwealth v. Carter, 21 A.3d 680,

682 (Pa. Super. 2011) (citation omitted). This Court grants great deference

to the findings of the PCRA court, and we will not disturb those findings

merely    because     the   record   could   support    a   contrary    holding.

Commonwealth v. Touw, 781 A.2d 1250, 1252 (Pa. Super. 2001).

      Additionally,

            [o]ur standard of review when faced with a claim of
      ineffective assistance of counsel is well settled. First, we note
      that counsel is presumed to be effective and the burden of
      demonstrating ineffectiveness rests on appellant.

                                        ***

            A petitioner must show (1) that the underlying claim has
      merit; (2) counsel had no reasonable strategic basis for his or
      her action or inaction; and (3) but for the errors or omissions of
      counsel, there is a reasonable probability that the outcome of
      the proceedings would have been different. The failure to prove
      any one of the three prongs results in the failure of petitioner’s
      claim.

             Our Supreme Court has held that counsel’s unexplained
      failure to file a requested direct appeal constitutes ineffective
      assistance per se, such that the petitioner is entitled to
      reinstatement of direct appeal rights nunc pro tunc without
      establishing prejudice. Commonwealth v. Lantzy, 558 Pa. 214,
      226–27, 736 A.2d 564, 572 (1999). However, before a court will
      find ineffectiveness of counsel for failing to file a direct appeal,
      the petitioner must prove that he requested a direct appeal and



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     the counsel disregarded the request. Commonwealth v. Bath,
     907 A.2d 619 (Pa. Super. 2006).

Commonwealth v. Ousley, 21 A.3d 1238, 1244-45 (Pa. Super. 2011)

(some citations omitted).

     The PCRA court reached the following conclusions.

           [Appellant’s] claim that he asked his attorney to file an
     appeal rests entirely on his own self-serving testimony.
     [Appellant’s] appeal rights were explained to him by the [trial
     court] at the time of sentencing and [Appellant] stated he
     understood these rights. The following day, [Attorney Crystle]
     went to the prison to discuss the case. Whether [Appellant]
     simply refused the visit, or prison authorities deemed it refused
     because [Appellant] was not dressed on time, does not alter the
     fact that his attorney was there to see him. On June 2, 2014,
     [Attorney Crystle] wrote to [Appellant] and told him twice of the
     time frame for filing a post[-]sentence motion and a notice of
     appeal.    [Appellant] testified that he spoke to [Attorney
     Crystle’s] secretary regarding his request for an appeal, a
     conversation overheard by family members, and that his wife
     also contacted [Attorney Crystle’s] office. There is nothing in the
     record to indicate [Appellant’s] wife and family members were
     not favorably disposed toward him, yet he failed to secure their
     testimony to corroborate his version of these events.

           Having evaluated all of the pertinent factors, [the PCRA
     court] concluded that [Appellant’s] testimony was not credible.
     While [Attorney Crystle] could not recall any message or
     communications from [Appellant] or his wife after sentencing,
     this does not make [Appellant’s] testimony any more credible.

PCRA Court Opinion, 11/20/2015, at 8-9 (citations omitted).

     We agree with PCRA counsel that Appellant’s issue is without merit

because the “basis for the denial was that the [PCRA court] found []

Appellant’s testimony not credible.” Turner/Finley Brief at 3. Furthermore,




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PCRA counsel points out that “it does not appear that [Appellant] ever

actually requested his attorney to appeal.” Id. at 4.

      Both the conclusions of the PCRA court and counsel are supported by

the record. Appellant acknowledged that Attorney Crystle did go to the jail

to see Appellant the day after sentencing, but stated that prison officials

“didn’t permit [Appellant] to go see [Attorney Crystle]” because Appellant

was not “dressed on time to go see Attorney Crystle and [Appellant] didn’t

come out of [his] cell on time[.]” Id. at 8.      Thus, Appellant claims that

prison officials told Attorney Crystle that Appellant refused to see him.

Appellant then testified that he received a letter from Attorney Crystle, dated

June 2, 2014, telling him that if he wished to file an appeal, he should retain

a public defender to do so. According to Appellant, he took no further steps

to pursue an appeal after he received the letter because he “didn’t have no

paperwork.” Id. at 10. However, he also testified that he had his wife call

Attorney Crystle. Id. at 12.

      Attorney Crystle testified that he went to visit Appellant in jail because

he recognized that Appellant was “very upset” with his sentence. Id. at 21.

Attorney Crystle stated that had Appellant informed him of his wish to file a

direct appeal, he would have filed a notice of appeal and notified the public

defender, which is his common practice. Id. at 28.




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      Based on the foregoing, we agree with counsel that the issue Appellant

raises in this appeal is meritless.3    The record supports the PCRA court’s

finding that Appellant did not request that Attorney Crystle file a direct

3
   In his pro se response to counsel’s Turner/Finley brief, Appellant
expresses, inter alia, his displeasure with PCRA counsel’s representation.
Appellant’s Response at 1. “Claims of PCRA counsel’s ineffectiveness may
not be raised for the first time on appeal.” Commonwealth v. Henkel, 90
A.3d 16, 20 (Pa. Super. 2014) (en banc). Instead, such claims must be
raised either immediately before the PCRA court or in a serial petition. Id.
Accordingly, we find Appellant’s new ineffectiveness claim non-cognizable.

      Additionally, Appellant claims that “[o]n October 13, 2015, the
Pennsylvania Supreme Court issue[d] a NOTICE TO APPOINTED COUNSEL
regarding counsel abandoned the client (EXHIBIT “A”), and I request that
this Honorable Superior Court to transfer this entire matter to be referred to
the Pennsylvania Supreme Court for disposition.” Pro Se Response,
2/29/2016 (verbatim). Exhibit A reads verbatim as follows:

                                 NOTICE
                                   TO
                           APPOINTED COUNCEL

      The Supreme Court is receiving petitions from criminal
      defendants alleging that appointed counsel failed to pursue
      available avenues of appellate review. Effective immediately, in
      reviewing such petitions the Court will advise the attorney of the
      allegation and request a response. If the Court concluded that
      councel abandoned the client in violation of the rules and case
      law, the matter will automatically be referred to the Disciplinary
      Board of the Supreme Court for consideration. See Pa.R.Crim.P
      122(c)(3) and 904(E) and comments thereto.

                                       PROTHONOTARY
                              SUPREME COURT OF PENNSYLVANIA

There is no docket number associated with this exhibit, and it is impossible
to confirm its authenticity. However, we note that “councel” is twice spelled
incorrectly, a mistake which certainly points to its inauthenticity.
Accordingly, Appellant’s request for transfer of this case to the Supreme
Court is denied.


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appeal, therefore counsel could not be ineffective for failing to do so. See

Commonwealth v. Santiago, 855 A.2d 682, 695 (Pa. 2004) (“We will not

disturb the credibility determination of the PCRA court.”).

      Accordingly, the PCRA court did not abuse its discretion in denying

Appellant’s petition. Therefore, we grant counsel’s petition to withdraw, and

affirm the PCRA court’s August 27, 2015 order.

      Order affirmed. Petition to withdraw as counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/2/2016




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