J-S69034-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                             Appellee

                        v.

PAUL SEAN JONES

                             Appellant                      No. 564 EDA 2014


                Appeal from the PCRA Order entered January 29, 2014
                   In the Court of Common Pleas of Lehigh County
                  Criminal Division at No: CP-39-CR-0000885-2010


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and STABILE, J.

MEMORANDUM BY STABILE, J.:                           FILED DECEMBER 08, 2014

         Paul Sean Jones, who is serving 20 to 40 years in prison for murder,

appeals from an order dismissing his petition under the Post Conviction

Relief    Act    (PCRA).1      Jones’s    court-appointed   attorney   has   filed   a

Turner/Finley2 no-merit letter and petitioned to withdraw as counsel. We

find the PCRA petition to be meritless; therefore, we affirm and grant the

petition to withdraw.

         On June 11, 1998, Jones and Andy Lovell Reese, then members of the

Nine Trey Gangster Bloods, murdered Maurice Williams in a revenge killing.


____________________________________________


1
    42 Pa.C.S.A. §§ 9541-46.
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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Jones pistol-whipped and held another person at bay while Reese fired the

fatal gunshot.     In 2009, an investigating grand jury issued a presentment

recommending charges against Reese and Jones, and each was charged with

criminal homicide and conspiracy.              While a petit jury was waiting to be

sworn to start the trial, Jones and Reese pled guilty to third-degree murder.3

Reese’s plea agreement capped his minimum sentence at 10 years.               Even

though Jones was not the shooter, his minimum sentence was capped at 20

years because of his extensive criminal history.            Jones’s agreement also

made his sentence concurrent to a 15-year federal sentence Jones was then

serving.4 Jones waived his right to a presentence investigation report (PSI).

According to the terms of the plea agreements, the court immediately

sentenced Reese to 10 to 20 years in prison, and Jones to 20 to 40 years in

prison. The court later denied Jones’s post-sentence motion.

        Jones filed a timely, pro se PCRA petition, and the PCRA court

appointed counsel. PCRA counsel filed a Turner/Finley no-merit letter, and

the PCRA court granted counsel’s petition to withdraw as counsel and

notified Jones of its intention to dismiss his PCRA petition without a hearing.

____________________________________________


3
    18 Pa.C.S.A. § 2502(c).
4
 See United States v. Jones, 526 F. App’x 186 (3d Cir. 2013). Jones pled
guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g), and
was sentenced to a mandatory 15 years under the Armed Career Criminal
Act, id § 924(e). Jones, 526 F. App’x at 187. Jones had the same plea
counsel in both of his cases.



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After reviewing Jones’s pro se response, the PCRA court scheduled a hearing

and ordered PCRA counsel to be present at the hearing. PCRA counsel filed

an amended PCRA petition, and the PCRA court vacated its order granting

PCRA counsel’s petition to withdraw. The amended PCRA petition raises two

claims of ineffective assistance of plea counsel: (1) inducing Jones to plead

guilty by promising that he would receive a minimum sentence of no more

than ten years (like Reese); and (2) waiving Jones’s right to a PSI. After a

second hearing at which Jones’s plea counsel testified, the PCRA court

denied relief. This appeal followed.

      Before we consider the merits, we must address whether counsel has

complied with the requirements to withdraw from representation under

Turner/Finley.    See Commonwealth v. Doty, 48 A.3d 451, 454 (Pa.

Super. 2012).     To withdraw under Turner/Finley in this Court, PCRA

counsel must (1) petition this Court for leave to withdraw after certifying

that a zealous review of the record indicates the appeal is meritless; (2) file

a no-merit letter listing the issues the PCRA petitioner raised and why they

are meritless; and (3) give the petitioner a copy of the no-merit letter and

advise the petitioner of the right to obtain new counsel or proceed pro se.

Doty, 48 A.3d at 454 (quoting Commonwealth v. Wrecks, 931 A.2d 717,

721 (Pa. Super. 2007)).

      We find that counsel has complied with Turner/Finley. Counsel has

petitioned for leave to withdraw, filed a no-merit letter that explains why




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Jones’s claims are meritless, and informed Jones of his right to hire a new

lawyer or file a pro se response.5

        We now conduct an independent review of the record to determine

whether Jones’s claims are indeed meritless. Doty, 48 A.3d at 454. On an

appeal from the denial of PCRA relief, we apply a mixed standard of review.

See Commonwealth v. Medina, 92 A.3d 1210, 1214 (Pa. Super. 2014)

(en banc). “The PCRA court’s credibility determinations, when supported by

the record, are binding on this Court.”          Id. (quotation omitted).      We,

however, review the PCRA court’s legal conclusions de novo.           Id.   Finally,

the scope of review encompasses “the findings of the PCRA court and the

evidence of record, viewed in the light most favorable to the prevailing party

at the PCRA court level.” Id.

        For both of his claims, Jones contends plea counsel misadvised him

about the terms of his plea bargain. Allegations that counsel misadvised a

defendant in the plea process fall under the ineffective assistance of counsel

provision of the PCRA, 42 Pa.C.S.A. § 9543(a)(2)(ii). See Commonwealth

v. Lynch, 820 A.2d 728, 730 n.2 (Pa. Super. 2003). The PCRA also allows

relief for “[a] plea of guilty unlawfully induced where the circumstances

make it likely that the inducement caused the petitioner to plead guilty and

the petitioner is innocent.”       42 Pa.C.S.A. § 9543(a)(2)(iii).   However, the

____________________________________________


5
    Jones has not filed a response.



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plain language of that section requires the PCRA petitioner to allege

innocence. Lynch, 820 A.2d at 732; see also Commonwealth v. Barndt,

74 A.3d 185, 191 n.9 (Pa. Super. 2013). Here, Appellant does not contest

his guilt, but rather requests modification of his sentence to 10 – 20 years.

See N.T. PCRA Hearing, 1/24/14, at 5-7.                 Therefore, we will review

Appellant’s claim as one of ineffective assistance of counsel.

      Thus,   for   Jones   to   prevail,   he   must    plead   and   prove   by   a

preponderance of the evidence the three-part test for ineffective assistance

of counsel.   See Commonwealth v. Baumhammers, 92 A.3d 708, 719

(Pa. 2014) (citing 42 Pa.C.S.A. § 9543(a)(2)(ii)). Jones must show that (1)

the claims have arguable merit; (2) there was no reasonable basis for

counsel’s actions or inaction; and (3) counsel’s deficient performance

prejudiced him. Id. (citing Commonwealth v. Pierce, 527 A.2d 973, 975-

76 (Pa. 1987)). “Because all three ‘Pierce factors’ must be demonstrated,

the claim fails if any one of them is not proved.” Id.

      Jones first claims that plea counsel induced him to plead guilty with

the promise that his minimum sentence would be no more than ten years.

We agree with PCRA counsel’s assessment that this claim is meritless. The

PCRA court found that Jones admitted plea counsel never promised him

that his minimum sentence would be no more than ten years:

      With respect to his minimum sentence, [Appellant] admitted on
      the record during the PCRA hearing that [plea counsel] never
      promised him he would receive a ten to twenty year sentence.
      [Plea counsel] testified that he told [Appellant] he would argue
      for that sentence, but never gave [Appellant] any guarantees he

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      would receive it. Furthermore, the terms of [Appellant’s] plea
      agreement were explained very clearly on the record at the time
      he entered his guilty plea. [Appellant] pled guilty to [t]hird[-
      d]egree [m]urder with an agreement on concurrency, and he
      received a sentence of twenty to forty years concurrent with his
      federal sentence in compliance with his plea agreement.

PCRA Court Opinion, 1/29/14, at 7. The record supports the PCRA court’s

findings, meaning they bind this Court.     No factual basis supports Jones’s

first claim, meaning that it lacks arguable merit and therefore fails.

      Appellant’s claim regarding plea counsel’s decision to forgo a PSI is

also meritless. As the PCRA court found:

      With respect to the P.S.I., [plea counsel] testified credibly that
      he reviewed the general contents of a P.S.I. with [Appellant].
      He further testified that he felt there was no benefit to obtaining
      a P.S.I., as there was a possibility that [Appellant] had an
      additional criminal record of which neither [plea counsel] nor the
      Commonwealth was aware. [Plea counsel] was also uncertain as
      to whether [Appellant] was on probation at the time of the
      offense, so the preparation of a P.S.I. could in fact be damaging
      for sentencing purposes. Based on these factors, [plea counsel]
      advised [Appellant] to waive the preparation of a P.S.I. [Plea
      counsel] further confirmed that immediate sentencing was a
      component of [Appellant’s] plea agreement, which is also
      reflected in the [n]otes of [t]estimony from that day

Id. at 8 (citing N.T. Guilty Plea Hearing, 12/6/11, at 22). Plea counsel had a

reasonable basis—indeed, reasonable bases—for forgoing a PSI. If there is a

reasonable basis for counsel’s actions, an ineffectiveness claim fails.

      In sum, Jones’s PCRA petition is meritless, and Jones is not entitled to

post-conviction relief.   PCRA counsel has met the requirements under

Turner/Finley to withdraw as PCRA counsel.             Therefore, we affirm the

denial of relief and grant the petition to withdraw.



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     Order affirmed. Petition to withdraw as counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2014




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