J-S35006-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JAMES ALSTON                             :
                                          :
                    Appellant             :   No. 3364 EDA 2018

          Appeal from the PCRA Order Entered November 19, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0002060-2015


BEFORE:    OLSON, J., STABILE, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.:                          FILED OCTOBER 23, 2019

      Appellant, James Alston, appeals from the November 19, 2018 order

denying his petition filed pursuant to the Post-Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546. In this appeal from the denial of PCRA relief,

Appellant’s court-appointed counsel filed an application to withdraw as counsel

and a no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927

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

(en banc). As we conclude that counsel fulfilled the procedural requirements

of Turner/Finley, and this appeal is without merit, we grant counsel’s

petition to withdraw as counsel and affirm the PCRA court’s order denying

Appellant’s PCRA petition.




____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      The facts, as established at Appellant’s guilty plea hearing, are as

follows:

      On November 16, 2014, the victim, Alfonso Gonzalez, went to [a
      home along Jasper Street in the City and County of Philadelphia
      where Appellant’s son, James J. Alston, Jr., resided]. The victim
      owed [Appellant’s] son money.         When the victim [arrived],
      [Appellant] answered the door, pulled the victim [inside] and
      started to beat him by punching him all over his body. [Appellant]
      went through the victim’s pockets, removed his wallet, and
      threatened him by saying, “I’ll kill for my children.” [Appellant]
      then left that location and came back with a firearm. During the
      time [Appellant] was gone, [his co-defendant], [Appellant’s] son,
      continued to beat the victim. After [Appellant] returned, he put
      the gun in the victim’s face and again tried to demand money. At
      one point, [Appellant] showed the victim that there were bullets
      in the firearm. The victim was beaten with a bat. He was tazed
      [sic] all over his body. When [Appellant returned,] three [sic]
      other individuals who go by the names of Country, Cuz, Fats, and
      Muslim, had come over to the residence and they also participated
      in the beating.

N.T. Plea Hearing, 11/14/16, at 14-15, and 19.

      On November 14, 2016, the trial court accepted Appellant’s open guilty

plea to aggravated assault - attempting or causing serious bodily injury (18

Pa.C.S.A. § 2702(a)(1)) and carrying a firearm on the public streets of

Philadelphia (18 Pa.C.S.A. § 6108). After receiving a presentence report and

mental health evaluation, the trial court, on March 2, 2017, imposed an

aggregate sentence of two and one-half to five years’ imprisonment followed

by ten years’ probation. Appellant filed a motion for reconsideration of his

sentence on March 13, 2017, which was denied by operation of law on July

11, 2017. Appellant never filed a direct appeal.



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       Appellant filed a pro se PCRA petition on July 10, 2017.1 Appellant’s

petition alleged that trial counsel was ineffective in assuring Appellant that he

would be given credit for time served for the period he spent on house arrest,

failing   to   adequately     investigate      Appellant’s   case,   failing   to   seek

reconsideration of Appellant’s sentence and to file a notice of appeal despite

requests to do so, failing to object to the trial court’s deviation from the

sentencing guidelines, and failing to subject the Commonwealth’s case to

meaningful adversarial testing. Appellant’s PCRA Petition, 7/10/17, at 3. On

October 17, 2017, PCRA counsel filed a Turner/Finley letter asking to

withdraw since Appellant’s claims lacked merit. The PCRA court conducted a

hearing on November 19, 2018 and, thereafter, dismissed Appellant’s petition.

This timely appeal followed.

       On appeal, Appellant’s court-appointed counsel again petitioned to

withdraw pursuant to Turner/Finley.              Therefore, prior to addressing the

merits of the issues raised in counsel’s Turner/Finley letter, we must




____________________________________________


1Appellant’s pro se PCRA petition predated the denial (by operation of law) of
his motion for reconsideration of sentence. As such, the petition was filed
before Appellant’s judgment of sentence became final. Nevertheless, we
perceive no error in the PCRA court entertaining the petition since Appellant
never pursued a direct appeal. Compare Commonwealth v. Leslie, 757
A.2d 984 (Pa. Super. 2000) (PCRA court should have dismissed petition
without prejudice as premature given pendency of direct appeal).




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determine whether counsel met the procedural requirements necessary to

withdraw.


      Counsel seeking to withdraw in PCRA proceedings:

        must review the case zealously. Turner/Finley counsel
        must then submit a “no-merit” letter to the PCRA court, or
        brief on appeal to this Court, detailing the nature and extent
        of counsel’s diligent review of the case, listing the issues
        which petitioner wants to have reviewed, explaining why and
        how those issues lack merit, and requesting permission to
        withdraw.

        Counsel must also send to the 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.

        Where counsel submits a petition and no-merit letter that
        satisfy the technical demands of Turner/Finley, the court —
        PCRA court or this Court — must then conduct its own review
        of the merits of the case. If the court agrees with counsel
        that the claims are without merit, the court will permit
        counsel to withdraw and deny relief.

Commonwealth v. Muzzy, 141 A.3d 509, 510–511 (Pa. Super. 2016)

(internal quotations, citations, and corrections omitted). In this case, counsel

fulfilled the procedural requirements for withdrawing as PCRA counsel and

Appellant has not responded to counsel’s efforts to withdraw. Therefore, we

must determine whether the claims raised in the petition lack merit. Upon

review, we conclude that the claims advanced in Appellant’s petition lack

merit. Therefore, we agree with counsel that, pursuant to Turner/Finley,

any claim on appeal is “without merit.”




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     “This Court's standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.”    Commonwealth v.

Rizvi, 166 A.3d 344, 347 (Pa. Super. 2017).      The PCRA court’s credibility

determinations are entitled to great deference and “we are bound by the PCRA

court's credibility determinations where there is record support for those

determinations.”   Commonwealth v. Santiago, 855 A.2d 682, 694 (Pa.

2004).

     In order to succeed on an ineffective assistance of counsel claim,
     the petitioner must show: (1) that the claim is of arguable merit;
     (2) that counsel had no reasonable strategic basis for his or her
     action or inaction; and [](3) that, but for the errors and omissions
     of counsel, there is a reasonable probability that the outcome of
     the proceedings would have been different. In the context of a
     guilty plea, an appellant must show that plea counsel's
     ineffectiveness induced him to plea. If the appellant makes
     such a showing, we deem his plea involuntarily made and will
     permit its withdrawal.


Commonwealth v. Johnson, 875 A.2d 328, 331 (Pa. Super. 2005) (citations

omitted) (emphasis added).    “Where the defendant enters his plea on the

advice of counsel, the voluntariness of the plea depends on whether counsel's

advice was within the range of competence demanded of attorneys in criminal

cases.” Commonwealth v. Timchak, 69 A. 3d 765, 769 (Pa. Super. 2013).

     Appellant’s petition raised four issues, which we address in turn. In his

first issue, Appellant claims that plea counsel wrongly assured him that he

would receive credit for time served against his minimum sentence



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(approximately one year, seven months, and 21 days) for the period he spent

on home confinement.         At the November 19, 2018 PCRA hearing, counsel

denied telling Appellant that he would receive credit for home detention.

Appellant testified that he did not discuss the issue of time credit until after

the court imposed sentence.           Although the PCRA court did not expressly

address this issue in its opinion, we infer from its dismissal of Appellant’s

petition that the court determined that Appellant’s plea was not induced by

counsel’s actions since he decided to plead guilty without any assurances

regarding credit for time served. Because Appellant cannot make the showing

required to establish his entitlement to relief, we conclude that there is no

merit to this claim.

       In his second issue, Appellant claimed that his counsel failed to

investigate his case and was inadequately prepared for trial.2      At his plea

hearing, however, Appellant agreed to the Commonwealth’s recitation of the

facts and admitted that he assaulted the victim and possessed a firearm on

the public streets of Philadelphia. Appellant offers no factual support for a

claim of innocence and no evidence to buttress his contentions regarding

counsel’s alleged inadequate investigation and preparation for proceedings

before the trial court. Accordingly, this claim merits no relief.


____________________________________________


2 Appellant’s petition also leveled a claim that counsel failed to subject the
Commonwealth’s case to meaningful adversarial testing. We have merged
this claim into our discussion of the adequacy of counsel’s investigatory and
preparatory efforts.

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         In his third issue, Appellant claims that trial counsel improperly failed to

seek reconsideration of his sentence and, furthermore, failed to file a direct

appeal, despite Appellant’s requests that counsel do so. Contrary to the first

aspect of Appellant’s claim, the record confirms that counsel filed a motion to

reconsider Appellant’s sentence on March 13, 2017 and that the motion was

denied by operation of law on July 11, 2017. As for Appellant’s direct appeal

claim, the record shows that Appellant and counsel offered divergent

testimony at the November 19, 2018 PCRA hearing. Appellant testified that

he asked counsel to file a direct appeal and counsel denied any such request.

To establish his entitlement to relief, Appellant needed to prove that he

requested an appeal and that counsel disregarded the request without

justification. See Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999).

We infer from the PCRA court’s denial of relief that it credited the testimony

of counsel and rejected that offered by Appellant. Because the PCRA court

found that no appeal was requested, no relief is due on this claim. Moreover,

we see no evidence in the record that triggered counsel’s independent duty to

consult with Appellant about the benefits and drawbacks of filing an appeal.

See Roe v. Flores-Ortega, 528 U.S. 470 (2000). As such, this claim also

fails.

         Finally, Appellant claims that counsel was ineffective in failing to object

to the sentencing court’s deviation from the sentencing guidelines.               In

developing this claim, Appellant’s pro se petition refers only to the guidelines

applicable to his firearms offense and overlooks the applicable guidelines for

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the offense of aggravated assault.        The record reflects that Appellant’s

minimum sentence of two and one-half years was below the standard

guideline range for aggravated assault.        As such, there is no merit to

Appellant’s claim that counsel was ineffective in failing to object to the court’s

application of the sentencing guidelines.

      We agree with PCRA counsel that Appellant’s petition is devoid of

meritorious claims. Moreover, after conducting our own review, we find there

are no meritorious claims. As such, we affirm the dismissal of the petition and

grant counsel’s application to withdraw.

      Order affirmed. Application to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/23/19




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