J-S61004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    STEVEN C. KOVACS A/K/A
    STEVEN C. MCCOY

                             Appellant               No. 1073 EDA 2017


                  Appeal from the PCRA Order March 13, 2017
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0006299-2014,
                            CP-09-CR-0007583-2014


BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED JANUARY 03, 2018

        Steven Kovacs (a/k/a Steven McCoy) appeals from the order, entered

in the Court of Common Pleas of Bucks County, denying his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”).1 Kovacs’ PCRA counsel

has also filed a petition to withdraw pursuant to Commonwealth v. Turner,

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

Super. 1988). After careful review, we affirm and grant counsel’s petition to

withdraw.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541-9546.
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        On March 24, 2014, Kovacs was charged with manufacture, delivery, or

possession with intent to manufacture or deliver;2 criminal attempt;3 and

criminal conspiracy.4 On that date, officers from the Morrisville Police

Department responded to Kovacs’ residence to investigate allegations of

methamphetamine production and to conduct a well-being check on another

resident. While there, the police discovered paraphernalia associated with the

manufacture of methamphetamine. The Pennsylvania State Police Clandestine

Methamphetamine Laboratory Response Team processed the scene and found

a    bottle   containing    400     grams      of   fluid   that   tested   positive   for

methamphetamine. During the investigation, the police also recovered

packages of pseudoephedrine that Kovacs and another resident had

purchased the same day from different pharmacies. Because pseudoephedrine

is an ingredient in the preparation of methamphetamine, Kovacs was among

those individuals arrested in relation to the production of methamphetamine.

        In a separate criminal information filed on September 8, 2014, Kovacs

was charged with simple assault,5 reckless endangerment of another person



____________________________________________


2   35 P.S. § 780-113(a)(30).

3   18 Pa.C.S. § 901(a).

4   18 Pa.C.S. § 903.

5   18 Pa.C.S. § 2701(a)(1).



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(“REAP”),6 harassment,7 reckless driving,8 and careless driving.9           On

September 7, 2014, Kovacs violated a standing no-contact order and visited

the residence of Shelley Gonzales, ostensibly to recover personal property.10

While there, Kovacs became enraged over text messages he discovered on

Gonzales’ phone. A physical altercation ensued, during which Kovacs struck

Gonzales with a syringe. Gonzales’ mother arrived in a car and tried to flee

with Gonzales, but Kovacs leapt on the vehicle to impede Gonzales’ escape.

After falling off the car, Kovacs then entered his own vehicle and pursued

Gonzales and her mother onto the highway. Kovacs was arrested that day.

        On April 13, 2015 Kovacs pled nolo contendere to simple assault, guilty

to two counts each of REAP and harassment, guilty to one count each of

reckless driving and careless driving, and guilty to manufacture of

methamphetamine and the related inchoate offenses.11 The plea resulted in

a sentence of three to ten years’ incarceration for manufacture of

methamphetamine and a total of 14 years’ probation, consecutive to


____________________________________________


6   18 Pa.C.S. § 2705.

7   18 Pa.C.S. § 2709(a)(1)&(2).

8   18 Pa.C.S. § 3736(a).

9   18 Pa.C.S. § 3714(a).

10   Kovacs was previously arrested on August 8, 2014 for assaulting Gonzales.

11 At the same hearing, Kovacs also pled guilty to tampering with public
records, but Kovacs did not appeal this plea.

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incarceration, for all other offenses.

      During the guilty plea hearing, Kovacs refused to answer questions

about his satisfaction with trial counsel, and he similarly declined to answer

related questions on the written colloquy form. When questioned by the trial

judge, Kovacs made clear that he took issue with some aspects of trial

counsel’s representation, but he nonetheless acknowledged that he was

making the plea voluntarily and intelligently. N.T. Guilty Plea, 4/13/15, at 12-

15. Kovacs further agreed on the record that the plea was in his best interests

due to the significant downward departure in his sentence from the applicable

sentencing guidelines. Id.

      Kovacs later stated that he pled guilty while intending to withdraw the

plea, seek new counsel, and proceed to trial. N.T. PCRA Hearing, 2/7/17, at

48-50. However, Kovacs did not withdraw his plea, nor did he file a timely

direct appeal. Thus, his judgment of sentence became final on May 13, 2015.

Kovacs filed a timely pro se PCRA petition on February 17, 2016. The court

appointed present PCRA counsel, and Kovacs amended his petition twice, on

May 18, 2016, and October 11, 2016. The PCRA court held a hearing on the

merits on February 7, 2017, and dismissed Kovacs’ petition on March 13,

2017. Kovacs filed this appeal on March 27, 2017. On July 10, 2017, Kovacs’

PCRA counsel filed a Turner/Finley no-merit letter and a request to withdraw

from representation.




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      We first consider whether counsel has complied with the technical

requirements necessary to withdraw under Turner/Finley.

      Counsel petitioning to withdraw from PCRA representation must
      proceed [under Turner/Finley and] must review the case
      zealously. Turner/Finley counsel must then submit a “no-merit”
      letter to the [PCRA] court, or [a] brief on appeal to this Court,
      detailing the nature and extent of counsel’s diligent review of the
      case, listing the issues [that] 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. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (quoting

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007)).

      Kovacs’ PCRA counsel has complied with the technical requirements of

Turner and Finley. Counsel filed a detailed brief that includes a synopsis of

the facts, an accurate recitation of the governing legal authority, and a legal

analysis which explains counsel’s conclusion that Kovacs’ PCRA appeal is

meritless. Counsel submitted a copy of this brief to Kovacs and to this Court,

along with a letter explaining Kovacs’ further appellate rights.

      Because PCRA counsel complied with the technical requirements of

Turner/Finley, we now review the merits of the appeal. Although Kovacs did

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not file a pro se brief in light of his PCRA counsel’s intent to withdraw, we

review the merits of the issues identified in his underlying 1925(b) Concise

Statement of Matters Complained of on Appeal.        Kovacs raises two issues,

both of which allege ineffectiveness of trial counsel:

             1.    Counsel was ineffective under the Sixth and
             Fourteenth Amendments to the United States Constitution
             and Art. I, §9 of the Pennsylvania Constitution for not
             advising Defendant to proceed to trial and motions to
             suppress evidence and statements he made due to
             Commonwealth violations of the Fourth, Fifth, Sixth, and
             Fourteenth Amendments to the United States Constitution
             and Art. I, §§1 8 and 9.

             2.    Counsel was ineffective under the Sixth and
             Fourteenth Amendments to the United States Constitution
             and Art I, §9 of the Pennsylvania Constitution for not
             preserving the Defendant’s appellate rights not consulting
             with him regarding an appeal, and helping him prosecute an
             appeal.

See Concise Statement of Errors Complained of on Appeal, 3/27/17 (errors in

original).

      To be entitled to relief for ineffective assistance of counsel, a PCRA

petitioner must establish that: (1) the underlying claim has merit; (2) there

was no reasonable basis for counsel’s action or failure to act; and (3) but for

counsel’s course of conduct, there is a “reasonable probability the result of the

proceeding would have been different.”      Commonwealth v. Treiber, 121

A.3d 435, 444 (Pa. 2015). Counsel’s conduct is effective as long as it “had

some reasonable basis designed to effectuate his client’s interests.”

Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012). Failure to satisfy

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any of the three prongs is fatal to a claim of ineffective assistance of counsel.

Commonwealth v. Pond, 846 A.2d 669 (Pa. Super. 2004).                Counsel is

presumed to provide effective assistance, and it is solely the petitioner’s

burden to prove ineffectiveness. Commonwealth v. Ali, 10 A.3d 282, 291

(Pa. 2010).

      Kovacs first argues that trial counsel was ineffective for advising him to

plead guilty rather than proceed to trial. However, trial counsel’s advice to

plead guilty was reasonable, considering the severity of the potential sentence

and counsel’s belief in the weakness of the case.        See, e.g., N.T. PCRA

Hearing, 2/7/17, at 9-10, 31 (counsel stating that Kovacs “could have gotten

as much as ten to 25 on the charge of criminal conspiracy,” that Kovacs’

“exposure was high,” and that Kovacs “clearly could have lost the

manufacturing case.”).

      Although Kovacs alleges that his trial counsel was not prepared for trial,

this bald allegation is unsupported by the record. To the contrary, trial counsel

diligently investigated the facts and vigorously pursued available defenses.

N.T. PCRA Hearing, 2/7/17, at 9-10, 21-27, 29-31. Further, counsel filed an

omnibus pretrial motion to suppress physical evidence and statements in

anticipation of trial. Id. at 6-7. Likewise, counsel’s failure to introduce phone

records was reasonable under the circumstances, considering that Kovacs’ co-

conspirator was believed to be cooperating with the Commonwealth. Id. at

9-10, 31. Counsel’s advice to plead guilty, and counsel’s actions leading up


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to the plea, ultimately “had a reasonable basis designed to effectuate

[Kovacs’] interests.” Koehler, 36 A.3d at 132. Kovacs’ first claim fails to

prove ineffectiveness, and it warrants no relief.

      Kovacs next alleges that his trial counsel was inadequate for failing to

preserve his appellate rights. While failure to file a timely appeal is per se

prejudicial in some circumstances, see Commonwealth v. Lantzy, 736 A.2d

564 (Pa. 1999), a PCRA petitioner “must prove that he asked counsel to file

an appeal in order to be entitled to relief.” Commonwealth v. Maynard,

900 A.2d 395 (Pa. Super. 2006). Even where a defendant does not ask his

attorney to file a direct appeal, counsel may still be ineffective if counsel does

not consult with the client about his appellate rights.     Commonwealth v.

Markowitz, 32 A.3d 706 (Pa. Super. 2011) (citing Roe v. Flores-Ortega,

528 U.S. 470 (2000)). In this case, Kovacs acknowledges that trial counsel

informed him of his appellate rights, but Kovacs specifically declined to have

counsel file an appeal. See PCRA Hearing, 2/7/17, at 51-52, 58. Kovacs’ trial

counsel is not ineffective for failing to pursue an appeal that he was never

asked to pursue.      For this reason, Kovacs’ second claim of ineffectiveness

warrants no relief.

      Ultimately, we find no merit in Kovacs’ arguments.        Accordingly, we

grant PCRA counsel’s motion to withdraw, and we affirm the PCRA court’s

dismissal of Kovacs’ petition.

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/3/2018




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