J-S77034-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  Appellee              :
                                        :
          v.                            :
                                        :
KEVIN SOETH,                            :
                                        :
                  Appellant             :
                                        :    No. 3937 EDA 2017

                  Appeal from the PCRA Order November 3, 2017
                in the Court of Common Pleas of Delaware County
               Criminal Division at No(s): CP-23-CR-0004140-2015

BEFORE:        OTT, J., DUBOW, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                  FILED JANUARY 30, 2019

     Kevin Soeth (Appellant) appeals from the order entered November 3,

2017, dismissing his petition filed under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. Counsel has filed a petition to withdraw

and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).1 Upon review,



1
 In this Court, counsel filed an Anders brief seeking to withdraw as counsel
on appeal.

     A Turner/Finley no-merit letter, however, is the appropriate
     filing. See Commonwealth v. Turner, [544 A.2d 927 (Pa.
     1988)]; Commonwealth v. Finley, [550 A.2d 213 (Pa. Super.
     1988)] (en banc). Because an Anders brief provides greater
     protection to a defendant, this Court may accept an Anders
     brief in lieu of a Turner/Finley letter. Commonwealth v.
     Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004).

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


* Retired Senior Judge assigned to the Superior Court.
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we grant counsel’s petition to withdraw and affirm the order of the PCRA

court.

         On January 19, 2016, Appellant entered a negotiated guilty plea to one

count of terroristic threats. That same day, Appellant entered a negotiated

guilty plea at a separate docket number, CP-23-CR-0003945-2015 (docket

number 3945-2015), to one count of fleeing or attempting to elude an

officer.    On February 2, 2016, Appellant was sentenced to nine to 23

months’ incarceration followed by three years’ probation, to run concurrently

with his sentence at docket number 3945-2015.2 Appellant did not appeal

his judgment of sentence.

         On July 25, 2016, Appellant pro se filed a PCRA petition at the

aforesaid     docket   numbers,   alleging   his   guilty    pleas    were   entered

involuntarily due to ineffective assistance of counsel.              The PCRA court

appointed counsel, who submitted a Turner/Finley “no merit” letter.              On

September 1, 2017, the PCRA court issued a notice of its intent to dismiss

Appellant’s petition pursuant to Pa.R.Crim.P. 907.          Appellant did not file a

response and on November 3, 2017, the PCRA court dismissed Appellant’s

petition but did not grant counsel’s request to withdraw. On December 1,

2017, Appellant, through counsel, filed two identical notices of appeal, one

at each of the aforementioned docket numbers. Likewise, on December 22,




2
    Appellant received an identical sentence at docket number 3945-2015.
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2017, counsel filed two identical notices of intent to file an Anders brief

pursuant to Pa.R.A.P. 1925(c)(4).3,4

     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.

           … 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
     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

3
 In light of counsel’s statement of intent to file an Anders brief, the PCRA
court opted not to enter “any opinion on the merits.” PCRA Court Opinion,
8/17/2018, at 3.
4
 The appeal at docket number 3945-2015 was docketed with this Court at
3934 EDA 2017 and on December 6, 2018, this Court issued an unpublished
memorandum affirming the order denying PCRA relief. See Commonwealth
v. Soeth, 2018 WL 6381168 (Pa. Super. December 6, 2018) (unpublished
memorandum).
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      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. We now turn to the substantive issue

contained in counsel’s brief.        In his brief, counsel states the following

question for this Court’s review: “Was [plea] counsel ineffective in that

[Appellant] did not receive good time credit in reference to the concurrent

sentences of nine [to 23] months that he received at” docket numbers 3945-

2015 and 4140-2015.           Anders Brief at 4 (unnecessary capitalization

omitted).      Specifically, in his PCRA petition and brief on appeal, Appellant

avers that but for counsel’s “faulty” advice concerning time credit, he would

not have entered his plea. PCRA Petition, 7/25/2016, at ¶ 13; Anders Brief

at 8. Because Appellant challenges the actions of plea counsel, we observe

the following.

      “Allegations that counsel misadvised a criminal defendant in the plea

process are properly determined under the ineffectiveness of counsel

subsection of the PCRA [42 Pa.C.S. § 9543(a)(2)(ii),] not the [sub]section

specifically    governing   guilty   pleas    [42   Pa.C.S.   §   9543(a)(2)(iii)].”

Commonwealth v. Lynch, 820 A.2d 728, 730 n.2 (Pa. Super. 2003).


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         It is well-established that counsel is presumed to have
         provided effective representation unless the PCRA
         petitioner pleads and proves all of the following: (1) the
         underlying legal claim is of arguable merit; (2) counsel’s
         action or inaction lacked any objectively reasonable basis
         designed to effectuate his client’s interest; and (3)
         prejudice, to the effect that there was a reasonable
         probability of a different outcome if not for counsel’s error.

      The PCRA court may deny an ineffectiveness claim if the
      petitioner’s evidence fails to meet a single one of these prongs.
      Moreover, a PCRA petitioner bears the burden of demonstrating
      counsel’s ineffectiveness.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)

(internal citations omitted).

            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. 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.

      Thus, to establish prejudice, the defendant must show that there
      is a reasonable probability that, but for counsel’s errors, he
      would not have pleaded guilty and would have insisted on going
      to trial. The reasonable probability test is not a stringent one; it
      merely refers to a probability sufficient to undermine confidence
      in the outcome.

Commonwealth v. Barndt, 74 A.3d 185, 192-93 (Pa. Super. 2013)

(citations and quotation marks omitted).

      As noted supra, Appellant’s appeal at docket number 3945-2015,

which is identical in form and substance to the appeal in this case, was

affirmed by a panel of this Court in December 2018.        See Soeth, supra.



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Therein, this Court determined that Appellant’s ineffective assistance of

counsel issue was without merit for the following reasons.

           Here, [Appellant] was incarcerated between April 28, 2015
     and May 28, 2015. The 30-day credit attributable to that period
     of incarceration was applied to a Montgomery County case in
     which he entered a guilty plea on September 2, 2015. See N.T.
     Guilty Plea, 1/19/16, at 5. On the record at [Appellant’s] guilty
     plea hearing, counsel for the Commonwealth stated the
     following:

           MR. DOHERTY: Okay, that being said, [at docket
           number 3945-2015, Appellant] will be entering a
           negotiated plea of guilty to Information Count # 1,
           fleeing or [eluding], it’s a felony of the third degree
           with a recommended sentence of 9 to 23 months,
           followed by three years consecutive probation, there
           is also a mandatory $500 fine. [Appellant’s] time
           served is not to include the period of one month that
           the [Appellant] pled guilty on a Montgomery County
           case on September 2nd, 2015, that was – and he was
           given credit for one month from April the 28th, 2015
           to May 28th, 2015, so just so that is not going to
           be double counted towards his credit on this
           case or any other case.[5]

     Later in the hearing, the trial court colloquied [Appellant] as
     follows:

           THE COURT: Do you have any questions now of your
           attorney or this Court?




5
  At Appellant’s sentencing hearing, the Commonwealth echoed these same
terms with respect to time credit applied to the docket number at issue in
this appeal: “And on [docket number 4140-2015], negotiated plea of guilty
to information count #1, terroristic threats, a misdemeanor of the first
degree, 9 to 23 months with three years consecutive probation, again, the
time served of April 28th to May 28th of 2015 not to count towards his time
served.” N.T., 2/2/2016, at 4 (unnecessary capitalization omitted).

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          [APPELLANT]: Yeah, what was the – I didn't hear
          what he said with [docket number 4140-2015] what
          was that deal again?

          MR. DOHERTY: It’s the same sentence.

          [APPELLANT]: Okay.

          THE COURT: Both are the same, both are the same
          concurrent. Both sentences are the same and they
          run concurrently, so they run at the same time.

          [APPELLANT]: It’s just not going to count for that
          one month?

          THE COURT: Just that one month is not going to
          count because you’ve already gotten credit for it
          from Montgomery County.

          [APPELLANT]: All right.

          THE COURT: Right.

          [APPELLANT]: Is there good time on the both of the
          cases?

          THE COURT: That’s up to the prison to determine
          good time and you will, if you deserve good time,
          they'll give it to you, but I don't determine good
          time.

     Based on the foregoing excerpts from the guilty plea hearing, it
     is clear that [Appellant] was aware at the time he entered his
     plea that he would not receive the 30-day credit for time served
     on this case and that the correctional institution would determine
     whether he was entitled to receive good time. “[A] defendant is
     bound by the statements he makes during his plea colloquy, and
     may not assert grounds for withdrawing the plea that contradict
     statements made when he pled.” Commonwealth v. Kelly, 5
     A.3d 370, 382 n.11 (Pa. Super. 2010). [Appellant’s] claim that
     counsel misled him regarding time credit is belied by the record
     in this matter. Rather, the record demonstrates that [Appellant]
     entered a knowing, intelligent, and voluntary guilty plea.
     Accordingly, his ineffectiveness claim must fail.

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Soeth, 2018 WL at *3 (emphasis added; unnecessary capitalization,

footnote and some citations omitted).

      Upon our independent review, we agree with the learned panel of this

Court that Appellant’s sole claim on appeal is belied by the record. Prior to

accepting Appellant’s plea, the trial court engaged in a discussion, cited

supra, that directly discussed credit for time served and credit for good time.

Based on the foregoing, Appellant cannot now claim that he was unaware or

misinformed about these particular points of his sentence when entering his

plea. Accordingly, we affirm the order of the PCRA court denying his PCRA

petition and grant counsel’s petition to withdraw.

      Order affirmed. Petition to withdraw granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/30/19




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