J-S54039-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellee

                    v.

CLINT TROY WEIDMAN

                         Appellant                     No. 360 MDA 2014


               Appeal from the Order Entered January 3, 2014
              In the Court of Common Pleas of Lebanon County
              Criminal Division at No: CP-38-CR-0000647-2010


BEFORE: LAZARUS, MUNDY, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                        FILED NOVEMBER 13, 2014

     Appellant, Clint Troy Weidman, appeals from the trial court’s January

2, 2014 order dismissing his petition filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.

     A jury convicted Appellant of corrupt organizations, retail theft,

conspiracy,   and   theft   by   deception   in   connection   with   Appellant’s

participation in a theft ring that repeatedly stole merchandise from a Wal-

Mart in Lebanon County. On April 27, 2011 the trial court imposed six to

fourteen years of incarceration and ordered Appellant to make restitution to

Wal-Mart.     The trial court denied Appellant’s post-sentence motions on

August 16, 2011, and Appellant filed a timely notice of appeal on September

14, 2011. This Court affirmed the judgment of sentence on April 9, 2012.
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The Pennsylvania Supreme Court denied allowance of appeal on September

11, 2012.

      On December 18, 2012, Appellant filed a timely pro se PCRA petition,

his first.     Appointed counsel filed an amended petition on April 1, 2013

alleging ineffective assistance of counsel.      The PCRA court conducted a

hearing on July 31, 2013 at which Appellant, Appellant’s trial attorneys, and

Appellant’s mother testified. Subsequently, on October 9, 2013, appointed

PCRA counsel elected to proceed pursuant to Commonweatlh v. Turner,

544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super.   1988)      (en   banc).   Appellant   did   not   respond   to   counsel’s

Turner/Finley letter.       On October 18, 2013, the PCRA court entered an

order permitting counsel to withdraw. Appellant took no further action prior

to the PCRA court’s January 2, 2014 order dismissing Appellant’s petition.

He filed a timely pro se notice of appeal on February 3, 2014.

      Appellant raises two issues for our review.

      A. Did the PCRA court err in granting PCRA counsel leave to
         withdraw where:

             1. Counsel’s Turner/Finley letter contradicted counsel’s own
                work:

             2. And, Appellant was entitled to a counseled appeal to
                pursue claims of merit?

      B. Did the PCRA court err in not finding that Appellant’s trial
         counsel was ineffective?

Appellant’s Brief at 4.



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       On appeal, we will reverse only if the PCRA court’s decision lacks

support in the record or resulted from a legal error.        Commonwealth v.

Haun, 984 A.2d 557, 558 (Pa. 2009). Appellant first argues the trial court

erred in granting PCRA counsel’s petition to withdraw. In Commonwealth

v. Pitts, 981 A.2d 875 (Pa. 2009), our Supreme Court held that a PCRA

petitioner must assert any deficiency in counsel’s Turner/Finley letter in

response to counsel’s no merit letter or in response to the trial court’s notice

of intent to dismiss. Id. at 879 n.3. Failure to do so results in waiver of

that issue. Id. Here, Appellant did not challenge the adequacy of counsel’s

Turner/Finley letter prior to filing his appeal.     Indeed, Appellant took no

action in response to counsel’s no merit letter and petition to withdraw, and

further took no action between the PCRA court’s October 18, 2013 order

permitting counsel to withdraw and its January 3, 2014 order dismissing

Appellant’s petition. Pursuant to Pitts, Appellant has failed to preserve that

issue for review.

       Likewise, Appellant argues in support of his first assertion of error that

PCRA counsel’s stewardship was ineffective.1 Once again, Appellant failed to

preserve this issue based on his inaction prior to appeal:


____________________________________________


1
   In Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super. 2012),
appeal denied, 64 A.3d 631 (2013), we observed that an assertion of a
defective Turner/Finley letter and an assertion of PCRA counsel’s
ineffectiveness are distinct issues.



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              [Petitioner’s] failure, prior to his PCRA appeal, to argue
       PCRA counsel’s ineffectiveness [. . .] results in waiver of the
       issue of PCRA counsel's ineffectiveness. [Petitioner’s] attempt to
       obtain review, on collateral appeal, of an issue not raised in the
       proceedings below amounts to a serial PCRA petition on PCRA
       appeal. Although [petitioner] asserts his PCRA appeal was the
       first opportunity he had to challenge PCRA counsel’s stewardship
       because he was no longer represented by PCRA counsel, he
       could have challenged PCRA counsel’s stewardship after
       receiving counsel’s withdrawal letter and the notice of the PCRA
       court’s intent to dismiss his petition pursuant to Pa.R.Crim.P.
       907, yet he failed to do so.

Id. at 880 n.4.

       After Pitts, our Courts have continued to struggle with the proper

means of addressing PCRA counsel’s alleged ineffectiveness. Nonetheless, a

recent en banc panel of this Court explained that the principles expressed in

footnotes three       and four     of   Pitts remain the   binding law   of this

Commonwealth.         Commonwealth v. Henkel, 90 A.3d 16, 25-30 (Pa.

Super. 2014) (en banc).2 We are cognizant that Appellant raised his issues

concerning PCRA counsel in his Pa.R.A.P. 1925(b) statement of errors. As a

result, the PCRA court had the opportunity to address them. The same was
____________________________________________


2
  The Henkel Court granted en banc review to address “a perceived conflict
among authorities as to whether this Court may entertain claims of PCRA
counsel ineffectiveness raised for the first time on appeal.” Id. at 19. The
Henkel Court analyzed our Supreme Court’s treatment of the issue in Pitts
and subsequent cases. See id at 20 (citing Commonwealth v. Jette, 23
A.3d. 1032, 1044 n.14 (Pa. 2011); Commonwealth v. Hill, 16 A.3d 484,
497 n.17 (Pa. 2011); Commonwealth v. Colavita, 993 A.2d 874, 894 n.12
(Pa. 2010); Commonwealth v. Ligons, 971 A.2d 1125 (Pa.
2009)(plurality). We observed that these cases “all clarify that claims of
PCRA counsel’s ineffectiveness may not be raised for the first time on
appeal.” Id.



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true in Henkel, but this Court nevertheless found the petitioner’s claims

unreviewable.      Id. at 19, 30.    In light of Pitts and Henkel, we cannot

review Appellant’s first assertion of error.

        Next, we consider Appellant’s assertion of ineffective assistance of trial

counsel, an issue he raised in his amended PCRA petition and preserved in

his Pa.R.A.P. 1925(b) statement. In his pro se brief, Appellant argues plea

counsel was ineffective for failing to explain to Appellant the terms of a plea

agreement proposed by the Commonwealth. Specifically, Appellant asserts

the Commonwealth offered to recommend a 14-month minimum sentence

and restitution.     Appellant claims counsel failed to inform him of the

restitution provision and that he waived his preliminary hearing without

knowledge of all terms of the proposed plea agreement.

        To establish ineffective assistance of counsel, per § 9543(a)(2)(ii) of

the PCRA, the petitioner must plead and prove by a preponderance of the

evidence that the underlying issue is of arguable merit, that counsel had no

reasonable strategic basis for the act or omission, and that counsel’s error

was prejudicial to the petitioner. Commonwealth v. Sepulveda, 55 A.3d

1108, 1117 (Pa. 2012). Counsel is presumed effective, and the petitioner’s

failure to establish any one of the three elements is fatal to the claim. Id. at

1117-18.

        Here, Appellant’s assertion of counsel’s ineffectiveness lacks arguable

merit    because    the   record    indicates   that   he   was   aware   of   the


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Commonwealth’s proposed plea agreement.                   Appellant’s plea counsel

testified at the PCRA hearing that the Commonwealth’s plea offers were

explained to Appellant.       N.T. PCRA Hearing, 7/31/13, at 8, 26-27, 29-32.

Counsel testified that Appellant rejected the Commonwealth’s final plea offer

and chose to go to trial instead.              Id. at 30-31, 53.   Additionally, the

Commonwealth revoked one of its plea offers after it discovered Appellant

was sending threatening communications to potential trial witnesses. Id. at

28-29.

       The PCRA court found counsel’s testimony credible and rejected

Appellant’s argument for lack of evidentiary support. PCRA Court Opinion,

1/3/14, at E.3 Since the record supports the PCRA court’s decision, we will

not disturb it on appeal. See Commonwealth v. Spotz, 84 A.3d 294, 319

(Pa. 2014) (noting that reviewing courts should defer to the PCRA court’s

credibility findings where those findings are supported by the record).

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/13/2014
____________________________________________


3
   The PCRA court did not paginate its opinion, but organized into sections in
alphabetical order.



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