J-S17028-16


COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
       Appellee

                     v.

DANIEL SCOTT MUZZY,

       Appellant                                     No. 1215 WDA 2015


                  Appeal from the PCRA Order July 21, 2015
               In the Court of Common Pleas of Warren County
             Criminal Division at No(s): CP-62-CR-0000043-2013



BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED SEPTEMBER 15, 2016

       Appellant, Daniel Scott Muzzy, appeals from the order denying his first

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546. For the reasons that follow, we affirm.

       By information filed February 13, 2013, Appellant was charged with

rape of a child, statutory sexual assault, involuntary deviate sexual

intercourse (“IDSI”) with a child, aggravated indecent assault, indecent

assault, and corruption of a minor. The affidavit of probable cause, filed by

Warren County Police Officer Jeffrey P. Osborne, indicates that the nine-

year-old female victim’s father contacted police on December 3, 2012, and

reported that his daughter revealed that Appellant had sexually assaulted

her. The affidavit states that Appellant:


*
    Former Justice specially assigned to the Superior Court.
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       had gone into [the victim’s] room[1] on 4–5 occasions during the
       late night hours. [Appellant] during the last time he came into
       her room had pulled her panties and pajamas down, taking them
       both down by pulling one of the legs of her pajamas off.
       [Appellant] was licking and kissing her “down there” and that
       [Appellant] had hurt her vaginal area buy [sic] penetrating her
       when he was down there.

Affidavit of Probable Cause, 1/31/13, at 1.

       On April 12, 2013, Appellant pled guilty pursuant to a negotiated plea

to IDSI at count three “with the Commonwealth agreeing not to seek the

mandatory     minimum     sentence   of   ten   years;   and   further,   that   the

Commonwealth will stand mute at the time of sentencing.”              N.T. (Guilty

Plea), 4/12/13, at 3. In addition, the Commonwealth sought nolle prosequi,

which the trial court entered, of all remaining charges.              The Sexual

Offenders Assessment Board (“SOAB”) determined on July 30, 2013, that

Appellant met the criteria to be designated a Sexually Violent Predator

(“SVP”). Following an SVP hearing, the trial court designated Appellant an

SVP on October 8, 2013.         Also on that date, the trial court sentenced

Appellant to a term of incarceration of ten to twenty years for IDSI, to run

consecutively to an unrelated sentence Appellant was serving at that time.

On October 17, 2013, Appellant filed a motion to reconsider his sentence,

which the trial court denied on November 19, 2013. Appellant did not file an

appeal.




1
    The record does not reveal Appellant’s relationship to the victim’s family.

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     On November 12, 2014, Appellant filed a timely pro se PCRA petition.

The PCRA court appointed counsel, who filed an amended petition on April

29, 2015.   The PCRA court conducted an evidentiary hearing on July 16,

2015, and thereafter denied Appellant’s PCRA petition on July 21, 2015.

Appellant filed a timely notice of appeal. Both Appellant and the PCRA court

complied with Pa.R.A.P. 1925.

     Appellant’s counsel, who is different than plea counsel, filed an

application to withdraw and thereafter filed a document purporting to be a

Turner/Finley2 “no merit letter.” We determined that counsel’s purported

Turner/Finley filing was more akin to a brief pursuant to Anders v.

California, 386 U.S. 738 (1967). Commonwealth v. Muzzy, __ A.3d __,

___, 2016 PA Super 77, at *1 n.3 (Pa. Super. 2016) (filed March 31, 2016).

However, because an Anders brief provides greater protection to a

defendant, we accepted it in lieu of a Turner/Finley “no-merit” letter.

Muzzy, 2016 PA Super 77 at *1 n.3 (citing Commonwealth v. Reed, 107

A.3d 137, 139 n.5 (Pa. Super. 2014)).

     In reviewing counsel’s compliance with the procedural requirements

for withdrawing as counsel, however, we concluded that counsel’s letter to

Appellant incorrectly worded the description of his rights in lieu of

representation, which resulted in the provision of inaccurate information to

Appellant. Muzzy, 2016 PA Super 77 at *2 (“Counsel’s letter to Appellant

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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render[ed] her attempt to withdraw as counsel defective under relevant case

law prescribing the proper procedure for withdrawal in a collateral appeal.”).

As a result of counsel’s misstatement, we concluded that the petition to

withdraw was deficient, and we denied it. Rather, we remanded this case

and instructed counsel “either to file an advocate’s brief or to refile her ‘no-

merit’ letter under Turner/Finley.” Muzzy, 2016 PA Super 77 at *3. If she

chose the latter, we directed that counsel’s letter to Appellant shall provide,

inter alia, accurate notice of Appellant’s immediate right to proceed pro se or

with private counsel. Id.

      Curiously, in response to our directive, counsel has now filed both an

advocate’s brief3 and a petition to withdraw as counsel. This suggests that

counsel fails to comprehend the difference between a merits brief and a “no-

merit” letter pursuant to Turner/Finley.       Compare Commonwealth v.

Santiago, 978 A.2d 349, 359–360 (Pa. 2009) (“[A] merits brief . . . implies

that an issue is worthy of review and has some chance of succeeding”), with

Turner, 544 A.2d at 928 (clarifying that when counsel seeks to withdraw in

a collateral matter, counsel must present a “no-merit” letter detailing nature

and extent of review along with counsel’s explanation of why raised issues


3
   Counsel has averred that she is filing an advocate’s brief “at the strong
urging of the Superior Court.” Appellant’s Brief at 5. This is patently
inaccurate.   Our prior decision filed on March 31, 2016, included no
suggestion advocating one position or another. Muzzy, 2016 PA Super 77
at *3. Our sole purpose was to correct the misinformation counsel had
provided to her client and to clarify counsel’s misstatement for the bar of the
Court.

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are meritless). Further, while counsel corrected the inartful language in her

letter to Appellant, she averred therein that she was filing an “advocate’s

brief per the decision under Anders v. California.” Petition, 4/13/16. Such

statement evidences a failure to comprehend the holdings of Turner/Finley

and Anders and their disparate applicabilities.

      Because our review of counsel’s brief in support of Appellant’s appeal

reveals that she has filed a merits brief, despite the moniker she assigns it,

and notwithstanding counsel’s statement in the accompanying petition to

withdraw that the issues identified in Appellant’s PCRA petition “have no

merit,” we will treat the case accordingly.       Therefore, we deny counsel’s

petition to withdraw as counsel because, in all other respects, counsel now

proceeds with her representation of Appellant as if she did not file a petition

to withdraw.4

      Counsel raises the following issue for our review:

         A. Whether trial counsel was ineffective for failing to explain
            the Appellant’s rights and the ramifications of a plea of
            guilty along with whether counsel was ineffective for
            promising [that] the Appellant would receive a certain
            sentence?

Appellant’s Brief at 2 (full capitalization omitted).

      The PCRA clearly encompasses claims that arise where a guilty plea is

unlawfully induced.     See 42 Pa.C.S. § 9543(a)(2)(iii) (stating relief is

available under the PCRA where “the conviction or sentence resulted” from

4
   We note that Appellant has not indicated a willingness to proceed pro se
or with other counsel.

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“[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”).   Thus, the identified issue is cognizable under the PCRA.

Commonwealth v. Oliver, 128 A.3d 1275, 1280 (Pa. Super. 2015).

     When reviewing the propriety of an order denying PCRA relief, this

Court is limited to determining whether the evidence of record supports the

conclusions of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012).            We

grant great deference to the PCRA court’s findings that are supported in the

record and will not disturb them unless they have no support in the certified

record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014).

     Appellant’s issue asserts a claim of ineffective assistance of plea

counsel. To plead and prove ineffective assistance of counsel, a petitioner

must establish: (1) that the underlying issue has arguable merit; (2)

counsel’s actions lacked an objective reasonable basis; and (3) actual

prejudice resulted from counsel’s act or failure to act. Commonwealth v.

Stewart, 84 A.3d 701, 706 (Pa. Super. 2013) (en banc).           A claim of

ineffectiveness will be denied if the petitioner’s evidence fails to meet any

one of these prongs.    Commonwealth v. Martin, 5 A.3d 177, 183 (Pa.

2010).   Counsel is presumed to have rendered effective assistance of

counsel. Commonwealth v. Montalvo, 114 A.3d 401, 410 (Pa. 2015). We

have explained that trial counsel cannot be deemed ineffective for failing to



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pursue a meritless claim.   Commonwealth v. Loner, 836 A.2d 125, 132

(Pa. Super. 2003) (en banc).

      The essence of Appellant’s ineffectiveness claim as stated in his pro se

PCRA petition is that plea counsel failed to accurately apprise Appellant of

his prior record score and erroneously advised him that any sentence of

incarceration imposed in the case would run concurrently to the sentence he

was then serving. Pro se PCRA Petition, 11/12/14, at 4.5 In his pro se and

amended petitions and in his brief to this Court, Appellant avers that plea

counsel’s failure to explain the ramifications of pleading guilty, as evidenced

by Appellant’s questions to the court during the plea colloquy, proved that

counsel provided ineffective assistance. Pro se PCRA Petition, 11/12/14, at

4; Amended PCRA Petition, 4/29/15, at ¶ 3; Appellant’s Brief at 8.         The

PCRA hearing focused on both contentions.       Appellant maintains that his

detrimental reliance on information provided by counsel rendered his guilty

plea unknowing and involuntary. Amended PCRA Petition, 4/29/15, at ¶ 7;

Appellant’s Brief at 10. Our review of the complete record and of the notes

of testimony from the PCRA hearing, in particular, dispels such conclusions

and indeed, confirms the contrary.




5
   Appellant also alleged that the public defender’s office failed to retain an
independent sex offender evaluator. Pro se PCRA Petition, 11/12/14, at 4;
Amended PCRA petition, 4/29/15, at ¶ 8. Testimony at the PCRA hearing
established otherwise, however, and Appellant withdrew the allegation. N.T.
(PCRA), 7/16/15, at 47.

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      Appellant’s primary defense counsel, John R. Parroccini, the Public

Defender of Warren County, and his assistant, Attorney Alan M. Conn, both

testified at the PCRA hearing, as did Appellant.     Appellant admitted that

initially, counsel’s identification of the applicable prior record score was

dependent on Appellant’s own description of his prior record, and he

neglected to reveal his felony adjudication when he was a juvenile because

he did not believe “it follow[ed] you through adulthood.”       N.T. (PCRA),

7/16/15, at 36, 59.   Attorney Conn explained that Appellant wrote to him

“repeatedly regarding his prior record score [asking] if that could be

changed.”   Id. at 24.   Attorney Parroccini testified that he explained the

charges Appellant was facing and the possible sentences in detail, beginning

at the preliminary hearing. Id. at 7. He advised Appellant that he could not

“promise or guarantee any sentence. That, that’s entirely up to the Judge.”

Id.   Attorney Parroccini negotiated the plea offer for Appellant, who was

facing “six felony charges, . . . at least two felony one charges, each

carrying mandatory minimum ten years.” Id. at 15, 16.6 Defense counsel

assured Appellant at the plea colloquy “that he could certainly withdraw his

plea or not plead guilty.” Id. at 9. In addition, at the plea colloquy, Public

6
   In the pro se PCRA petition and in his brief, Appellant references the
applicability of a mandatory minimum sentence. Pro se PCRA Petition,
11/12/14, at 4; Appellant’s Brief at 10. The record reflects that the
negotiated plea provided “that the Commonwealth agreed[] not to seek the
mandatory minimum sentence,” N.T. (Guilty Plea), 4/12/13, at 3, and in
fact, the court did not impose a mandatory sentence. Sentencing Order,
10/8/13; Court Commitment,          12/11/13, at 1; N.T. (Sentence
Reconsideration), 11/8/13, at 4; N.T. (PCRA), 7/16/15, at 10.

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Defender      Parroccini   referenced   multiple   “face-to-face   meetings”   with

Appellant and “at least six” items of correspondence “which go into great

detail about the Sentencing Guidelines, about the options available to

[Appellant], about the ramifications of or the consequences of entering a

plea.” Id. at 17. The trial court credited counsels’ testimony. PCRA Court

Opinion, 8/31/15, at 2.

      It is clear that the underlying issue lacks arguable merit.       The PCRA

court determined that the record did not support Appellant’s claims.           N.T.

(PCRA), 7/16/15, at 78. In addressing the issue, the PCRA court explained

as follows:

            The Court found that trial counsel properly explained all of
      Appellant’s rights to him.      Both attorneys from the Public
      Defender’s Office explained that they employed their standard
      procedure in explaining Appellant’s rights to him. During Plea
      Court, Appellant had numerous questions regarding his rights.
      Trial counsel explained that he fully answered Appellant’s
      questions but Appellant did not like the answers. Trial counsel
      explained Appellant’s rights to him in face-to-face meetings and
      in correspondence including six letters that went into great detail
      regarding Appellant’s rights. Appellant refused to accept the
      explanations provided by trial counsel without confirmation by
      either his own research or the Court’s explanations. After the
      Court answered Appellant’s questions, then Appellant stated that
      trial counsel’s explanations were satisfactory and that trial
      counsel was competent and effective. Furthermore, Appellant
      stated at the Post-Conviction Relief Act Hearing that he chose to
      only inform trial counsel about his adult prior record because his
      review of law books led him to believe that a juvenile record
      would not impact his prior record score as an adult. Appellant
      cannot claim that trial counsel failed to explain the consequences
      of pleading guilty when he misled counsel about his prior record.
      The record shows that trial counsel properly explained
      Appellant’s rights to him and that the Court also explained his
      rights. Therefore, Appellant’s first claim must fail because there


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      was no merit to the claim and the result would not have been
      different.

             The Court found that trial counsel did not promise what
      sentence the Court would impose. Trial counsel explained that it
      is standard practice to explain to a defendant that counsel
      cannot promise a specific sentence. Trial counsel also explained
      that he could request a concurrent sentence but it was up to the
      discretion of the Court.    Additionally, Appellant misled trial
      counsel about his prior record after trial counsel explicitly
      explained that trial counsel could only explain the permissible
      sentencing ranges if trial counsel knew Appellant’s complete
      prior record. During Plea Court, Appellant answered that nobody
      made any promise to him to plea[d] guilty. There was no
      evidence that trial counsel failed to explain that there was no
      promise regarding what sentence the Court would impose.

PCRA Court Opinion, 8/31/15, at 2–3 (internal citations to the record

omitted).

      We conclude that Appellant’s issue lacks arguable merit.   Therefore,

Appellant is not entitled to relief.

      Order affirmed. Petition for Leave to Withdraw as Counsel denied.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/15/2016




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