J-S19029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JAMEY RAY HARTLESS,

                            Appellant                 No. 1578 MDA 2016


             Appeal from the PCRA Order Entered August 30, 2016
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0005125-2014



BEFORE: GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                            FILED MAY 22, 2017

        Appellant, Jamey Ray Hartless, appeals from the post-conviction

court’s August 30, 2016 order denying his first petition filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.           Counsel has

petitioned to withdraw pursuant to Turner/Finley.1 After careful review, we

affirm the court’s order and grant counsel’s petition to withdraw.

        On December 2, 2013, Appellant, while under the influence of cocaine,

alcohol, and lorazepam, lost control of his 1988 Chevrolet Camaro and

crashed it into a tree, resulting in the death of passenger Timothy Hartless,

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  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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Appellant’s brother. Just a few minutes before that accident, Appellant hit a

stationary car on the side of the road, nearly injuring three persons standing

around that disabled vehicle.     Subsequently, Appellant was charged with

seventeen criminal offenses, including third degree murder, homicide by

vehicle, numerous driving under the influence of alcohol or controlled

substance (DUI) offenses, reckless endangerment (3 counts), and several

other motor vehicle code infractions related to both accidents. Immediately

prior to trial, Appellant entered an open guilty plea to all charges except for

third degree murder, which the Commonwealth had agreed to withdraw in

exchange for his plea.    On September 2, 2015, the trial court sentenced

Appellant to an aggregate term of 8½-17 years’ incarceration, the bulk of

which came from a 5-10 year sentence for DUI-related homicide by vehicle.

Appellant did not file a post-sentence motion or a direct appeal.

      On April 13, 2016, Appellant filed a pro se PCRA petition.      By order

dated April 26, 2016, the PCRA court appointed counsel, Christopher Moore,

Esq., to represent Appellant. Attorney Moore did not file an amended PCRA

petition on Appellant’s behalf.    However, on August 30, 2016, a PCRA

hearing was held to consider Appellant’s claims, and he and his trial/plea

counsel, Joshua Neiderhiser, Esq., testified.   On September 29, 2016, the

PCRA court issued an order and opinion denying the petition. PCRA Court

Order and Opinion, 9/29/16, at 1-4 (hereinafter PCO).

      Appellant filed a timely notice of appeal and a timely, court-ordered

Pa.R.A.P. 1925(b) statement. In lieu of a Rule 1925(a) opinion, the PCRA

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court filed notice that it would rely exclusively on the reasoning set forth in

its September 29, 2016 order and opinion.       Subsequently, on January 3,

2017, Attorney Moore filed a Turner/Finley no-merit letter and a separate

petition to withdraw, wherein he asserted that Appellant’s appeal lacks any

meritorious issues for our review.

      We must begin by addressing counsel’s Turner/Finley letter and

accompanying petition to withdraw as counsel. Pursuant to Turner/Finley,

an “[i]ndependent review of the record by competent counsel is required

before withdrawal [on collateral appeal] is permitted.” Commonwealth v.

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

      As described by our Supreme Court, the requirements PCRA counsel

must adhere to when requesting to withdraw include the following:

      1) A “no-merit” letter by PC[R]A counsel detailing the nature and

      extent of his review;

      2) The “no-merit” letter by PC[R]A counsel listing each issue the

      petitioner wished to have reviewed;

      3) The PC[R]A counsel’s “explanation”, in the “no-merit” letter,

      of why the petitioner’s issues were meritless[.]

Id. (citation omitted). “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.” Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super.

2007) (citation omitted).


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       [W]here counsel submits a petition and no-merit letter that do
       satisfy the technical demands of Turner/Finley, . . . this Court[]
       must then conduct its own review of the merits of the case. If
       the [C]ourt agrees with counsel that the claims are without
       merit, the [C]ourt will permit counsel to withdraw and deny
       relief. By contrast, if the claims appear to have merit, the
       [C]ourt will deny counsel’s request and grant relief, or at least
       instruct counsel to file an advocate’s brief.

Id. (citation omitted).

       Instantly, we conclude that Attorney Moore has complied with the

requirements of Turner/Finley. Specifically, in his Turner/Finley no-merit

letter he details the nature and extent of his review, he addresses the claims

Appellant raised in his PCRA petition and Rule 1925(b) statement, and he

determines that the issues lack merit. See Turner/Finley letter, at 1-4

(unnumbered pages).         Attorney Moore provides a discussion of Appellant’s

claims, explaining why they are without merit. Additionally, counsel served

Appellant with a copy of the petition to withdraw and Turner/Finley no-

merit letter, advising Appellant that he had the right to precede pro se or

with privately retained counsel.2
____________________________________________


2
  In Attorney Moore’s no-merit letter, he may have left the impression that
Appellant’s right to seek private counsel or proceed pro se was contingent
upon this Court’s granting of Attorney Moore’s petition to withdraw.
However, having identified this potential error, this Court issued an order on
January 6, 2017, informing Appellant that he had a right to respond, pro se
or through privately retained counsel, to counsel’s no-merit letter and
petition to withdraw. Accordingly, in the specific circumstances of this case,
we find the Turner/Finley requirements have been satisfied. However, we
advise Attorney Moore that, in the future, his Turner/Finley letters should
clearly advise his client that the right to proceed pro se or with privately
retained counsel in the Turner/Finley context is not contingent on the
granting of his petition to withdraw.



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      We proceed, therefore, to conduct an independent merits review of

Appellant’s claim(s). In his response to the no-merit letter, Appellant raises

a single issue which he believes to be meritorious despite Attorney Moore’s

suggestion to the contrary in the no-merit letter.      Specifically, Appellant

argues that his guilty plea colloquy “was not voluntary[,] but a mere

parroting of [trial] counsel’s attestments[,]” as “plea counsel … told …

Appellant how and what to answer on various questions in the colloquy.”

Appellant’s Response to Counsel’s No-Merit Letter, 2/8/17, at ¶¶ 4-5

(unnumbered pages).

      In the no-merit letter, Attorney Moore addressed a slight variation of

this issue: Appellant’s claim that his plea was involuntary because he lied

during the guilty plea colloquy, by substituting trial counsel’s answers for his

own. Attorney Moore advised Appellant that this claim was not meritorious

because the PCRA court “found your testimony not to be credible….”

Turner/Finley No-Merit Letter, 12/27/16, at 3.

      At the PCRA hearing, Appellant testified that he did not “remember a

whole lot [about the guilty plea hearing] because it just happened so fast

and I wasn’t in my right state of mind.” N.T., 8/30/16, at 6-7. He could not

remember whether trial counsel or the court advised him of the minimum

and maximum sentences he could receive for his offenses.           Id. at 7-8.

However, he claimed that trial counsel told him on the day of the plea that

he was pleading to a term of 5-10 years’ incarceration. Id. at 8-9. He could

not recall if the trial court judge asked him any questions.        Id. at 13.

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Appellant repeatedly claimed he had difficulty with comprehension and

memory. Id. at 11-12.

     Then, during re-cross examination, the following exchange occurred:

     Q. You just stated that you didn't understand what [trial
     counsel] was saying, correct?

     A. Right.

     Q. So during your plea when you told the judge that you didn't
     need any more time to talk to him and you said no, were you
     lying to the Court?

     A. No. I was not in my right frame of mind. I didn't know what
     I was saying at the time.

     Q. So when you told -- when the judge asked did you fill out this
     guilty plea form today and you said, yes, I did, now when the
     judge asked did you have any questions about anything that was
     asked of you on that form and you replied no --

     A. There again, I was out of my mind and I didn't know exactly
     what was going on at the time. You had to be in my shoes to
     figure that out, to realize what really went on in my head.

     Q. So I’m confused, Mr. Hartless. If you didn’t understand what
     was going on and that's what you're telling us, why did you go
     through with the guilty plea?

     A. I don't know why I did[], because I was being scared with a
     20 to 40. I know that.

     Q. That was a 20 to 40 on the third degree murder charge,
     correct?

     A. Right.

     Q. And you weren’t pleading to that [that day]?

     A. I wasn’t – like I said, I wasn’t in my right frame of mind and
     my thinking wasn’t right.

     Q. But you didn’t tell anybody that you weren’t thinking right?




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     A. No, because I was just out of my mind. I just was so lost that
     I didn’t know what to do. I didn’t know which way to turn. I
     was really hurt about, you know, putting my family through this,
     my father especially.

     Q. I understand that, but again –

     A. And I wasn’t in my right mind.

     Q. Sir, Sir.

     A. Yes, ma’am.

     Q. You weren’t in your right mind. You didn’t tell the Court that,
     though?

     A. No, I didn’t.

     Q. You didn’t tell your attorney that, did you?

     A. I didn’t think to say anything.

Id. at 17-19.

     Trial counsel testified that during the pretrial and plea process,

Appellant “was very easy to get along with, attentive, asked questions,

seemed to understand everything.” Id. at 21. He discussed with Appellant

the permissible ranges of sentences for each offense he was facing. Id. at

22. Trial counsel also said he “sat down with [Appellant] and … went over

each question [in the written guilty plea colloquy] point by point.          His

answers were I believe written by him, but I had read each question to him,

[and] answered any questions he had.” Id. at 30. Trial counsel specifically

denied that he told Appellant that he would only be facing a 5-10 year

sentence if he pled guilty.     Id. at 23.   Instead, he told Appellant that his

“goal was to try to get everything to run concurrently so that he would only

end up with five to ten.” Id.


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      The PCRA Court determined:

            Without going over the testimony in great detail, suffice to
      say that to the extent that [Appellant]’s testimony contradicts
      that of trial counsel, we resolve the issue of credibility against
      [Appellant] given his apparent inability to remember what
      happened about the time of his trial, his plea[,] and his
      sentence.

PCO at 3.

      We agree with Attorney Moore that Appellant’s claim is meritless.

Simply put, the PCRA court did not find Appellant’s testimony at the PCRA

hearing to be credible.     The court also found credible trial counsel’s

testimony that Appellant had not merely parroted trial counsel’s advice, but

that the two had discussed Appellant’s case at length, and that counsel had

repeatedly and accurately responded to Appellant’s inquiries about all

relevant issues.

      Moreover, our review of the record fails to uncover any other

potentially meritorious issues which Appellant could raise in this appeal.

Accordingly, we grant Attorney Moore’s application to withdraw, and affirm

the PCRA court’s order denying Appellant’s petition.

      Order affirmed. Application to withdraw as counsel granted.

      President Judge Emeritus Stevens joins this memorandum.

      President Judge Gantman concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/22/2017




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