J-S28019-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
     Appellee

                  v.

TODD V. CALHOUN,

     Appellant                                    No. 1205 MDA 2014


               Appeal from the PCRA Order June 20, 2014
              In the Court of Common Pleas of York County
           Criminal Division at No(s): CP-67-CR-0006309-2009


BEFORE: BOWES, ALLEN and LAZARUS, JJ.

CONCURRING MEMORANDUM BY BOWES, J.:                 FILED JUNE 05, 2015

     I concur in the result reached by the majority but disagree with the

type of review that it conducted when allowing counsel to withdraw.      Our

Supreme Court outlined the steps that counsel and the court must take

when PCRA counsel seeks to withdraw pursuant to Commonwealth v.

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

A.2d 213 (Pa.Super. 1988) (en banc):

          1) A “no-merit” letter by PCRA counsel detailing the nature
     and extent of his review;

           2) The “no-merit” letter by PCRA counsel listing each issue
     the petitioner wished to have reviewed;

            3) The PCRA counsel's “explanation”, in the “no-merit”
     letter, of why the petitioner's issues were meritless;
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          4) The PCRA court conducting its own independent
     review of the record; and

          5) The PCRA court agreeing with counsel that the petition
     was meritless.

Commonwealth v. Pitts, 603 1, 3, 981 A.2d 875, 876 n.1 (Pa. 2009)

(emphasis added; quoting Finley, supra at 215).

     In Pitts, the procedural posture was that PCRA counsel withdrew

before the PCRA court. When counsel’s withdrawal occurs, as in the present

case, before this Court, we necessarily stand in the shoes of the PCRA court.

Accordingly, as enunciated in Pitts, we must conduct our own independent

review of the record and agree with counsel that PCRA relief is unavailable.

My conclusion in this regard is further cemented by our recent decision in

Commonwealth v. Freeland, 106 A.3d 768 (Pa.Super. 2014).

     In Freeland, the defendant was denied PCRA relief and appealed.

PCRA counsel then sought to withdraw from representation before this Court

under Turner/Finley.     We first outlined counsel’s obligations and then

turned to the requirements placed on the court when faced with withdrawal

in the PCRA context.      We expressly stated: “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. (emphasis added; citation

omitted).   We permitted counsel to withdraw therein but only after
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indicating: “On independent review, we find no other claims of merit.” Id.

at 780. We thus did not confine our review to the issues raised by counsel,

as does that majority herein. Rather, we conducted an independent review

of the record.

      As the majority fails to indicate that it conducted a review of the

record, I have conducted that review and found no other meritorious claims.

I did find another issue outlined in the amended PCRA petition. Specifically,

in that document, Appellant averred that his trial counsel was ineffective for

advising him to reject a plea offer. Appellant outlined in that petition that

this advice was premised upon trial counsel’s belief that a pending motion to

dismiss under Rule 600 would be granted. Appellant testified to this effect

at the PCRA hearing. He reported that he was offered a plea deal in July

2010 of time served plus one year probation. N.T. PCRA Hearing, 6/20/14,

at 19.   Appellant claimed that he declined that offer since, “I was led to

believe that I would win rule 600 due to my constitutional right was violated;

so I was made aware not to take the deal.” Id.         Appellant’s motion to

dismiss was subsequently denied, and we affirmed on direct appeal.

      Trial counsel testified at the PCRA hearing and confirmed that the plea

offer was made.    Counsel contradicted Appellant’s testimony that counsel

advised Appellant to reject the offer. Instead, counsel said that he conveyed

the plea offer to Appellant, but Appellant himself refused to plead guilty.
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Counsel continued, “The reason he did not want to take the deal was

because he was on state parole. That was the reason he did not want to

take it.”   Id. at 39-40.   Counsel specifically denied offering Appellant any

advice on the matter and testified, “It was his decision.” Id. at 40.

      Counsel’s memory of events is confirmed by Appellant’s testimony at

sentencing. While exercising his right to allocution, Appellant said that he

had rejected a plea offer to time served.       Appellant told the court, “Your

Honor, on July 12th I was offered a plea agreement of time served. I did not

do the plea agreement due to the fact wholeheartedly I feel I was not part of

a crime.” N.T. Sentencing, 11/24/10, at 18. Appellant’s reason for rejecting

the offer, as outlined at sentencing, differs from counsel’s recollection of why

Appellant refused to plead guilty.         Nevertheless, Appellant admitted at

sentencing that it was his decision not to plead guilty. Hence, I believe that

this other contention raised in the PCRA petition lacks merit as the record

establishes that it was Appellant’s choice to reject the plea offer and that

counsel did not advise him to reject it.

      I recognize that this claim was not raised in the Pa.R.A.P. 1925(b)

statement and is not preserved.      Nevertheless, PCRA counsel, in order to

withdraw, has a responsibility to analyze all issues the petitioner seeks to

have reviewed. This question was presented in the amended PCRA petition

and pursued by Appellant at the PCRA hearing. Hence, it is appropriate to
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address it.   Given that the contention is meritless, counsel’s failure to

present it in this appeal, in any event, should not be considered an

impediment    to   the   grant   of   withdrawal.   See   Commonwealth      v.

Liebensperger, 904 A.2d 40 (Pa.Super. 2006) (counsel permitted to

withdraw due to fact PCRA petition was untimely, even though counsel’s no-

merit brief was defective since it did not raise issues that the PCRA petition

wanted to pursue and did not properly establish why issues lacked merit).

      Additionally, my review of the record confirms that there are no other

issues in the PCRA petition and no non-waivable issues. Hence, I concur in

the result.
