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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :      IN THE SUPERIOR COURT OF
                                        :            PENNSYLVANIA
                   v.                   :
                                        :
GARY MONROE STEWART,                    :         No. 1141 EDA 2018
                                        :
                        Appellant       :


                 Appeal from the PCRA Order, March 14, 2018,
               in the Court of Common Pleas of Delaware County
                Criminal Division at No. CP-23-CR-0000603-2016


BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED MARCH 15, 2019

     Gary Monroe Stewart appeals from the March 14, 2018 order entered in

the Court of Common Pleas of Delaware County that denied his petition filed

pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546

(“PCRA”). PCRA counsel has also filed an application to withdraw. We affirm.

     The PCRA court set forth the following:

           A criminal complaint was filed on January 14, 2016,
           by Officer Crescent Parker, Lansdowne Police
           Department, charging [appellant] with, inter alia,
           driving under the influence – highest rate of
           alcohol,[Endnote 1] and false identification to law
           enforcement authorities.[Endnote 2]

                   [Endnote 1] 75 Pa.C.S.[A.] § 3802(c).

                   [Endnote 2] 18 Pa.C.S.[A.] § 4914.

           A preliminary hearing was held on January 28, 2016,
           at which, inter alia, the Commonwealth was
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          permitted to amend the original allegation of driving
          under the influence – highest rate of alcohol to driving
          under the influence – general impairment,[Endnote 4]
          as well as to include the additional charge of driving
          while operating privilege is suspended (driving under
          the influence related).[Endnote 5]       Following the
          prosecution’s presentation of evidence, the presiding
          magisterial district judge held [appellant] for trial
          court proceedings as to all charged offenses, including
          those allowed per its amendment applications.

                [Endnote 4] 75 Pa.C.S.[A.] § 3802(a)(1).

                [Endnote 5] 75 Pa.C.S.[A.] § 1543(b).

          [Appellant] on February 24, 2016, was formally
          arraigned and the Office of the Delaware County
          District Attorney then lodged against him a criminal
          information averring, inter alia: Count 1 – Driving
          Under the Influence – General Impairment (Third
          Offense); Count 2 – False Identification to Law
          Enforcement Authorities; and Count 5 – Driving While
          Operating Privilege is Suspended – Driving Under the
          Influence Related.

          On March 29, 2016, [appellant] entered a counseled,
          negotiated plea of guilty before this court as to:
          Count 1 – Driving Under the Influence – General
          Impairment (Tier Three (3) – Third Offense), a first
          degree misdemeanor; Count 2 – False Identification
          to Law Enforcement Authorities; and Count 5 –
          Driving While Operating Privilege is Suspended –
          Driving Under the Influence Related. With his lawyer
          then waiving such an investigation,[Endnote 12]
          [appellant] was sentenced immediately subsequent
          and wholly consistent with the attorneys’ plea
          agreement to the following: Count 1 (Driving Under
          the Influence (Tier Three (3) – Third Offense), a
          misdemeanor of the first degree) – A twelve (12) to
          sixty (60) month incarceration term to be served at a
          state correctional institution; Count 2 (False
          Identification to Law Enforcement Authorities) – A
          period of three (3) to twelve (12) months[’]
          imprisonment to be served concurrent to [C]ount 1


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           (driving under the influence); and Count 5 (Driving
           While Operating Privilege is Suspended – Driving
           Under the Influence Related) – A sixty (60) day
           incarceration term to be served consecutive to the
           concurrent sentences of [C]ount 1 (driving under the
           influence) and [C]ount 2 (false identification to law
           enforcement). Appellant was afforded the agreed on
           and applicable time served credit and was deemed for
           recidivism risk reduction incentive[Endnote 19]
           consideration ineligible, absent objection.

                 [Endnote 12] See generally Pa.R.Crim.P.
                 702(A).

                 [Endnote 19] 61 Pa.C.S.[A.] [§] 4501
                 et seq.

           Flowing from [appellant’s] at bar guilty plea, the
           negotiations of counsel also encompassed a
           Gagnon II[1] hearing and resultant disposition under
           the docket, Commonwealth v. Stewart, No. 7717-
           14 – Delaware County. Hence, just after the
           above-captioned matter’s (No. 603-16) conclusion
           with sentencing imposition, such a Gagnon II
           proceeding (No. 7717-14) was held.

           Upon the stipulation of counsel, appropriate notice as
           to this Gagnon II hearing’s date, time, location, and
           purpose was established as [were] [appellant’s]
           violations of both past imposed probation and
           previously     granted  parole    per   the    criminal
           information’s [C]ounts 1 – driving under the influence,
           a misdemeanor of the first degree, and 8 – possession
           of a controlled substance[Endnote 21] with an agreed
           violation    sentencing   recommendation       in   the
           aggregate of one (1) to three (3) years[’]

1 Gagnon v. Scarpelli, 411 U.S. 778 (1973); see also Commonwealth v.
Ferguson, 761 A.2d 613 (Pa.Super. 2000) (explaining that when parolee or
probationer is detained pending revocation hearing, due process requires
determination at pre-revocation hearing (Gagnon I hearing) of probable
cause to believe violation was committed, and upon finding of probable cause,
a second, more comprehensive hearing (Gagnon II hearing) follows before
the trial court makes final revocation decision).


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          imprisonment to be served wholly concurrent with the
          at[-]bar sentence, save one (1) day time served
          credit. This court found [appellant] in violation of past
          directed probation and previously allowed parole,
          revoked each, and sentenced [appellant] completely
          consistent with the Gagnon aspect of the overall
          dispositional agreement to an aggregate one (1) to
          three (3) year imprisonment term to be served fully
          concurrent to the at[-]bar sentence (No. 603-16).

                [Endnote 21] 35 [P.S.] § 780-113(a)(16).

          [Appellant] in the above-captioned matter (No. 603-
          16) filed neither post–sentence motions, including any
          application seeking to withdraw his negotiated guilty
          plea, nor from the resultant sentencing judgment a
          direct appeal to the Superior Court.       [Appellant]
          similarly regarding the Gagnon case, No. 7717-14,
          lodged no post-sentence pleadings and/or an appeal.

          [Appellant]    filed  on    March    15,   2017,    a
          self-represented [PCRA] Motion. This PCRA pleading
          being his first collateral lodging [appellant] was
          entitled to counsel’s assistance. Via an order dated
          March 21, 2017, and consistent with such a request of
          [appellant], Scott D. Galloway, Esquire was for
          purposes of this PCRA action designated to represent
          [appellant].

          On June 12, 2017, [appellant’s] appointed attorney
          lodged an Amended [PCRA] Petition.

          With the filing of the amended PCRA petition by
          [appellant’s] collateral lawyer, this court directed the
          prosecution to lodge an answer to that counseled
          pleading.

          The Commonwealth on February 14, 2018, filed its
          answer through which the prosecution sought this
          PCRA action’s dismissal, absent a hearing.

          On February 20, 2018, this court entered a Notice of
          Intent to Dismiss Pursuant to Pa.R.Crim.P. 907.



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             Through an order of March 14, 2018,[Endnote 22] this
             court dismissed [appellant’s] self-represented Motion
             for [PCRA relief] and his counseled, Amended [PCRA]
             Petition.

                     [Endnote 22] The [PCRA] court’s past
                     entered dismissal notice was forwarded
                     directly to [Attorney Galloway] by regular
                     and electronic mail on February 20, 2018,
                     as well as to [appellant] via both prepaid
                     regular and certified mail.         Neither
                     [appellant] nor his PCRA attorney lodged
                     a response to this court’s dismissal notice.

             [Appellant] on April 9, 2018, timely lodged by his
             lawyer an appeal notice from this court’s dismissal of
             his collateral pleadings.

             The court in an order of that same date (April 9, 2018)
             instructed [appellant] via his PCRA attorney to file
             of-record a concise statement of [errors] complained
             of on appeal [pursuant to Pa.R.A.P. 1925(b)].

             [Appellant’s]    counsel   on    May   2,   2018,   timely
             [complied].

PCRA court opinion, 10/5/18 at 1-6 (record citations, statutory citations, case

law citations, and endnotes 3, 6-11, 13-18, and 20 omitted).

      The record reflects that on November 28, 2018, Attorney Galloway filed

with this court an application to withdraw and a brief pursuant to Anders v.

California, 386 U.S. 738, (1967). Counsel petitioning to withdraw from PCRA

representation must proceed not under Anders but under Commonwealth

v. Turner, 544 A.2d 927 (Pa. 1988) (en banc), and Commonwealth v.

Finley, 550 A.2d 213 (Pa.Super. 1988). See Commonwealth v. Wrecks,

931   A.2d    717,     721-722    (Pa.Super.    2007)    (citations   omitted).   “A



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Turner/Finley no merit letter is the appropriate filing. However, because an

Anders brief provides greater protection to the defendant, we 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).            Therefore, we

proceed to address whether Attorney Galloway’s Anders brief satisfies the

requirements of Turner/Finley.

      Pursuant to Turner/Finley, before withdrawal on collateral appeal is

permitted, an independent review of the record by competent counsel is

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

Counsel must then submit a no-merit letter that (1) details the nature and

extent of his or her review; (2) lists each issue the petitioner wishes to have

reviewed; and (3) explains why the petitioner’s issues lack merit. Id. The

court then conducts its own independent review of the record to determine

whether the petition indeed lacks merit.      Id.   Counsel must also send

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.” Wrecks, 931 A.2d at 721.

      Our review of the record demonstrates that Attorney Galloway has

complied    with   each   of   the   above    requirements.       Additionally,

Attorney Galloway sent appellant copies of the Turner/Finley no-merit letter

and his application to withdraw and advised appellant of his right to retain




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new counsel or proceed pro se. See Commonwealth v. Widgins, 29 A.3d

816, 818 (Pa.Super. 2011). Appellant did not file a response.

      We now address the following issue raised by appellant to determine

whether we agree with Attorney Galloway that it lacks merit:

              Was trial counsel ineffective for allowing [appellant]
              to plead guilty to driving under the influence [“DUI”]
              and driving while suspended DUI-related when
              counsel knew or should have known that the United
              States Supreme Court granted certiorari in Birchfield
              [v.] North Dakota[,         U.S.     , 136 S.Ct. 2160
              (2016),] on December 11, 2015?

Anders brief at 4 (full capitalization omitted).

      In PCRA appeals, our scope of review “is limited to the findings of the

PCRA court and the evidence on the record of the PCRA court’s hearing, viewed

in the light most favorable to the prevailing party.” Commonwealth v. Sam,

952 A.2d 565, 573 (Pa. 2008) (internal quotation omitted). Because most

PCRA appeals involve questions of fact and law, we employ a mixed standard

of review.    Pitts, 981 A.2d at 878.     We defer to the PCRA court’s factual

findings     and   credibility   determinations    supported   by   the   record.

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc). In

contrast, we review the PCRA court’s legal conclusions de novo. Id.

      Here, appellant asserts ineffective assistance of guilty plea counsel.

              In evaluating claims of ineffective assistance of
              counsel, we presume that counsel is effective.
              Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d
              435, 441 (Pa. 1999). To overcome this presumption,
              Appellant must establish three factors. First, that the
              underlying claim has arguable merit.               See


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             Commonwealth v. Travaglia, 541 Pa. 108, 661
             A.2d 352, 356 (Pa. 1995). Second, that counsel had
             no reasonable basis for his action or inaction. Id. In
             determining whether counsel’s action was reasonable,
             we do not question whether there were other more
             logical courses of action which counsel could have
             pursued; rather, we must examine whether counsel’s
             decisions had any reasonable basis. See Rollins, 738
             A.2d at 441; Commonwealth v. (Charles) Pierce,
             515 Pa. 153, 527 A.2d 973, 975 (Pa. 1987). Finally,
             “Appellant must establish that he has been prejudiced
             by counsel’s ineffectiveness; in order to meet this
             burden, he must show that ‘but for the act or omission
             in question, the outcome of the proceedings would
             have been different.’” See Rollins, 738 A.2d at 441
             (quoting Travaglia, 661 A.2d at 357). A claim of
             ineffectiveness may be denied by a showing that the
             petitioner’s evidence fails to meet any of these
             prongs. Commonwealth v. (Michael) Pierce, 567
             Pa. 186, 786 A.2d 203, 221-22 (Pa. 2001);
             Commonwealth v. Basemore, 560 Pa. 258, 744
             A.2d 717, 738 n.23 (Pa. 2000); Commonwealth v.
             Albrecht, 554 Pa. 31, 720 A.2d 693, 701 (Pa. 1998)
             (“If it is clear that Appellant has not demonstrated
             that counsel’s act or omission adversely affected the
             outcome of the proceedings, the claim may be
             dismissed on that basis alone and the court need not
             first determine whether the first and second prongs
             have been met.”).

Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007).

      In the context of a plea, a claim of ineffectiveness may provide relief

only if the alleged ineffectiveness caused an involuntary or unknowing plea.

See Commonwealth v. Mendoza, 730 A.2d 503, 505 (Pa.Super. 1999).

“[A] defendant is bound by the statements which he makes during his plea

colloquy.”   Commonwealth v. Barnes, 687 A.2d 1163, 1167 (Pa. 1997)

(citations omitted).   As such, a defendant may not assert grounds for



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withdrawing the plea that contradict statements made when he entered the

plea. Id. (citation omitted).

         Here, appellant complains that plea counsel should not have permitted

him to plead guilty on March 29, 2016, because plea counsel knew or should

have known that the United States Supreme Court had granted certiorari in

Birchfield, supra, and that plea counsel should have anticipated that the

High Court’s June 23, 2016 decision could have positively impacted his case.

(Anders brief at 11-13.)

         It is well settled that counsel “cannot be deemed ineffective for failing

to predict developments or changes in the law.”             Commonwealth v.

Williams, 936 A.2d 12, 28 (Pa. 2007), quoting Commonwealth v. Gribble,

863 A.2d 445, 464 (Pa. 2004). Therefore, we agree with Attorney Galloway

that this claim lacks arguable merit.

         Having conducted an independent review of the record, this court is

satisfied that the issue raised in appellant’s petition is meritless and that there

are no other issues that support a grant of relief. Accordingly, the record

supports the PCRA court’s determination and that determination is free of legal

error.     We, therefore, grant Attorney Galloway’s petition to withdraw and

affirm the PCRA court’s order.

         Petition to withdraw granted. Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 3/15/19




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