J-S38042-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

EDWARD JOSEPH MEDELO

                             Appellant                No. 3335 EDA 2016


                Appeal from the PCRA Order September 30, 2016
        in the Court of Common Pleas of Lehigh County Criminal Division
                                   at No(s):
                           CP-39-CR-0003579-2012
                           CP-39-CR-0005310-2012
                           CP-39-CR-0005314-2012

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

MEMORANDUM BY FITZGERALD, J.:                       FILED AUGUST 21, 2017

        Appellant Edward Joseph Medelo appeals from an order denying his

petition for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. We affirm.

        The PCRA court accurately summarized the factual and procedural

history of this case as follows:

              Between May 8, 2012, and June 11, 2012, [Appellant]
           and a confederate burglarized or attempted to burglarize
           various convenience stores and/or gas stations throughout
           Lehigh and Northampton Counties. The modus operandi
           for this burglary spree was the use of a rock or brick to
           break windows in order to gain entry into these
           businesses.    Once inside, the burglars stole primarily
           cartons of Newport and/or Marlboro cigarettes. The spree
           ended on June 11, 2012, when they attempted to enter a

*
    Former Justice specially assigned to the Superior Court.
J-S38042-17


       store named the Binny Mart by smashing a front window.
       A passerby observed two males wearing hooded
       sweatshirts running from the store and called 9-1-1. The
       vehicle that the suspects used to depart the scene was
       stopped a short time later, and [Appellant]’s involvement
       in all of these burglaries was uncovered.

          [Appellant] entered open nolo contendere pleas to
       twelve (12) counts of Burglary,[fn1] two (2) counts of
       Attempted Burglary,[fn2] and one (1) count of Criminal
       Conspiracy to Commit Burglary.[fn3] Following [Appellant]’s
       plea, a presentence report was requested, which disclosed
       thirteen (13) prior convictions, including seven (7) prior
       burglary convictions. It appears that in those burglaries,
       “rocks were used to smash doors or windows to enter the
       building and cigarettes were taken.”      The report also
       disclosed that [Appellant], who has never held verifiable
       employment, has a history of using heroin. He indicated at
       the guilty plea and sentencing that his heroin addiction
       was the driving force behind his crimes.


          [fn1]
                  18 Pa.C.S. § 3502(a).
          [fn2]
                  18 Pa.C.S. §[§] 3502(a), 901(a).
          [fn3]
                  18 Pa.C.S. §[§] 3502(a), 903(a).


          Prior to sentencing, trial counsel, David Ritter, Esquire,
       was permitted to withdraw from his representation of
       [Appellant], and new counsel, Charles Banta, Esquire, was
       appointed on August 5, 2013. On September 19, 2013,
       Attorney Banta filed a petition to withdraw [A]ppellant’s
       nolo contendere pleas. However, on October 28, 2013, the
       date of sentencing, that petition was withdrawn and
       [Appellant] was sentenced. Following a full sentencing
       proceeding, a total sentence of not less than fourteen (14)
       years nor more than twenty-eight (28) years in a state
       correctional institution was imposed. [Appellant] was also
       made eligible for the Recidivism Risk Reduction Incentive
       Programs (hereinafter RRRI).




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            On March 25, 2014, a “Petition for Post-Conviction
        Relief” was filed on behalf of [Appellant]. [Appellant]
        alleged that Attorney Banta was ineffective for failing to
        file a requested appeal to the Superior Court. Robert
        Long, Esquire, was appointed to represent [Appellant] and
        an “Amended Post Conviction Petition” was filed on July 3,
        2014. In that petition, Attorney Long included claims of
        ineffectiveness due to the failure of Charles Banta, Esquire,
        counsel at sentencing, to file a requested appeal, as well
        as errors in the plea process which should permit
        [A]ppellant to again withdraw his pleas.

            A hearing on the Amended PCRA petition was held on
        September 22, 2014. Once again, [Appellant] decided not
        to pursue his request to withdraw his pleas. However, he
        was granted relief by permitting him to file a Notice of
        Appeal Nunc Pro Tunc within thirty (30) days. Counsel did
        so on October 3, 2014. Thereafter, the Superior Court
        affirmed the judgment of sentence on April 14, 2015.
        [Commonwealth v. Medelo, 2896 EDA 2014 (Pa. Super.
        filed Apr. 14, 2015].

            [Appellant] filed this . . . pro se PCRA petition on
        January 15, 2016.         Counsel was appointed and an
        Amended PCRA petition was filed on April 18, 2016. It is
        alleged, as previously stated, that the Commonwealth’s
        global offer of a minimum sentence of seven years was not
        communicated to [Appellant] by trial counsel.      At the
        hearing held on September 7, 2016, the parties stipulated
        to the use of the testimony from the previous PCRA
        hearing held on September 22, 2014, for the resolution of
        the current claim. Following the hearing, the PCRA Court
        issued an opinion [and order] dismissing [Appellant]’s
        PCRA petition.

PCRA Ct. Op., 11/21/16, at 2-4.

     Appellant filed a timely notice of appeal from the order dismissing his

amended second PCRA petition.        Both Appellant and the PCRA court

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




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      On January 25, 2017, PCRA counsel filed an application in this Court to

withdraw as counsel along with a “no merit” letter brief in accordance with

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

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

      Two preliminary matters require mention. First, in September 2014,

the PCRA court granted Appellant leave to file a direct appeal nunc pro tunc.

In April 2015, this Court affirmed Appellant’s judgment of sentence on direct

appeal.   Appellant filed his present PCRA petition in January 2016, within

one year after this Court affirmed his judgment of sentence on direct appeal.

Accordingly, we will treat Appellant’s present PCRA petition as a timely filed

first petition.   See Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa.

Super. 2014) (citations omitted) (“when a PCRA petitioner's direct appeal

rights are reinstated nunc pro tunc in his first PCRA petition, a subsequent

PCRA petition will be considered a first PCRA petition for timeliness

purposes”).

      Here, counsel filed a Turner/Finley “no-merit” letter on appeal and a

separate motion to withdraw as counsel. Counsel’s letter informed Appellant

of counsel’s intent to withdraw, discussed the issue Appellant wished to

raise, explained why the issue merits no relief, and indicated that counsel

enclosed a copy of the motion to withdraw. However, counsel improperly

indicated that Appellant could proceed pro se or with private counsel if this

Court granted counsel request to withdraw.         See Commonwealth v.



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J-S38042-17


Muzzy, 141 A.3d 509, 512 (Pa. Super. 2016). On February 17, 2017, this

Court ordered counsel to file in this Court copies of a letter addressed to

Appellant advising him of his immediate right to proceed pro se or with

privately retained counsel.    Counsel complied with this order and advised

Appellant “[a]t this time you may immediately proceed in the appeal pro se

or through private counsel. You do not have to wait until the Superior Court

rules on my Motion to Withdraw.”          Letter from Counsel to Appellant,

2/28/17.      Therefore, we conclude that counsel has substantially complied

with the Turner/Finley requirements, and we proceed to an independent

evaluation.    See Commonwealth v. Widgins, 29 A.3d 816, 819-20 (Pa.

Super. 2011) (court must conduct an independent review and agree with

counsel that issues raised were meritless).

      The sole issue raised in this appeal is

           [whether     trial]  counsel  was ineffective    for   not
           communicating the Commonwealth’s global offer of a
           minimum sentence of seven years to . . . Appellant prior to
           the expiration of said offer.

Turner/Finley letter, at 2.

      “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

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

Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).

           It is well-established that counsel is presumed effective,
           and to rebut that presumption, the PCRA petitioner must
           demonstrate that counsel's performance was deficient and


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J-S38042-17


         that such deficiency prejudiced him. Strickland v.
         Washington, [ ] 104 S. Ct. 2052, [ ] (1984). This Court
         has characterized the Strickland standard as tripartite, by
         dividing the performance element into two distinct parts.
         Commonwealth v. Pierce, [ ] 527 A.2d 973, 975 ([Pa.]
         1987). Thus, to prove counsel ineffective, [a]ppellant
         must demonstrate that: (1) the underlying legal issue has
         arguable merit; (2) counsel's actions lacked an objective
         reasonable basis; and (3) [a]ppellant was prejudiced by
         counsel's act or omission. Id. at 975.

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

      The PCRA court properly rejected Appellant’s claim of ineffectiveness,

because the record demonstrates that trial counsel notified Appellant of the

Commonwealth’s offer of a seven year sentence prior to the deadline for

accepting this offer. As noted above, the parties agreed to the admission of

all testimony from the PCRA hearing on September 22, 2014 in order to

resolve Appellant’s current claim. Trial counsel testified during this hearing

that the Commonwealth extended “numerous plea offers” to Appellant prior

to the scheduled date of trial, but “[e]ach time [Appellant] rejected the

offers.” N.T., 9/22/14, at 44-46. One offer was for Appellant’s aggregate

minimum sentence not to exceed seven years’ imprisonment.          Id. at 49.

The deadline given by the Commonwealth for accepting this offer was April

19, 2013.     Trial counsel reviewed the offer with Appellant prior to the

deadline, but Appellant rejected the offer.   Id. at 50-51.   Only when trial

was about to commence on May 14, 2013 did Appellant decide to enter an

open guilty plea, which resulted in a sentence of fourteen to twenty-eight

years’ imprisonment.


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J-S38042-17


      The PCRA court determined that trial counsel’s testimony “was both

credible and corroborated by the evidence.” PCRA Ct. Op. at 5. We agree

that the evidence supports the PCRA court’s determination that trial counsel

discussed the seven year offer with Appellant prior to the deadline for

accepting this offer, but that Appellant turned it down.   Further, we agree

with the PCRA court’s observation that Appellant cannot blame trial counsel

for his own stubborn refusal to accept this offer: “In light of the potential

sentence facing [Appellant, trial] counsel had every reason to try to bring

[Appellant] to a rational conclusion of the charges. However, to paraphrase

a well-known proverb, you can lead a horse to water, but you can’t make

him [dr]ink.” Id. at 7.

      For these reasons, the PCRA court properly denied Appellant’s PCRA

petition.

      Order affirmed. Motion to withdraw as counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/21/2017




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