J-S34032-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DENNIS EUGENE LANE

                            Appellant                No. 1720 MDA 2014


               Appeal from the PCRA Order entered June 4, 2014
          In the Court of Common Pleas for the 39th Judicial District,
                              Fulton County Branch
               Criminal Division at No: CP-29-CR-0000001-2011


BEFORE: BOWES, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                             FILED JULY 10, 2015

       Appellant, Dennis Eugene Lane, appeals from an order denying relief

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46.

PCRA counsel has filed a no-merit brief and petitioned to withdraw under

Turner/Finley.1 We affirm and grant the petition to withdraw.

       On July 12, 2011, Appellant entered a negotiated guilty plea to rape

and other sex crimes and crimes of child abuse. Appellant, who was in his

sixties, had engaged in sexual intercourse and other sex acts with a child

under the age of 16 over a three-year period.           See N.T. Guilty Plea,

7/12/11, at 12-17. On March 22, 2012, the trial court determined Appellant
____________________________________________


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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to be a sexually violent predator and imposed the agreed-upon sentence of

11 to 22 years in prison. Appellant did not appeal.

       On March 23, 2012, Appellant filed a pro se, timely first PCRA petition.

The PCRA court appointed counsel.              In an amended petition, Appellant

contended that guilty plea counsel was ineffective for failing to file a direct

appeal. The PCRA court denied relief after an evidentiary hearing, and this

appeal followed.2

       On appeal, PCRA counsel directs this Court’s attention to one issue of

possible merit: whether Appellant’s guilty plea counsel rendered ineffective

assistance by failing to file a direct appeal.       Before we may consider this

issue, we must address whether PCRA counsel has met the requirements of

Turner/Finley. For PCRA counsel to withdraw under Turner/Finley in this

Court:

       (1)    PCRA counsel must file a no-merit letter that details the
              nature and extent of counsel’s review of the record; lists
              the appellate issues; and explains why those issues are
              meritless.

       (2)    PCRA counsel must file an application to withdraw; serve
              the PCRA petitioner with the application and the no-merit
              letter; and advise the petitioner that if the Court grants
              the motion to withdraw, the petitioner can proceed pro se
              or hire his own lawyer.

       (3)    This Court must independently review the record and
              agree that the appeal is meritless.
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2
  The PCRA court appointed current PCRA counsel after this Court ordered
the removal of former PCRA counsel, who abandoned Appellant.



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See Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super. 2011)

(citing or quoting Turner, Finley, Commonwealth v. Pitts, 981 A.2d 875

(Pa. 2009), and Commonwealth v. Friend, 896 A.2d 607 (Pa. Super.

2008), overruled in part by, Pitts).

       We find that PCRA counsel has complied with Turner/Finley.            PCRA

counsel has petitioned for leave to withdraw and filed an Anders brief,

which we accept in lieu of a Turner/Finley no-merit letter.3 Finally, PCRA

counsel informed Appellant of his right to hire a new lawyer or file a pro se

response. Appellant has filed a pro se response, which we will consider in

due course.

       We now turn to this appeal to determine whether it is indeed

meritless. “On appeal from the denial of PCRA relief, our standard of review

requires us to determine whether the ruling of the PCRA court is supported

by the record and free of legal error.” Widgins, 29 A.3d at 819.

       We first address the issue raised in PCRA counsel’s Anders brief. A

PCRA petitioner is entitled to relief by showing that his conviction is a result

of   ineffective   assistance    of   counsel.   42   Pa.C.S.A.   § 9543(a)(2)(ii).


____________________________________________


3
  Anders v. California, 386 U.S. 738 (1967), sets forth the requirements to
withdraw on direct appeal, which are more stringent than the Turner/Finley
requirements that apply on collateral appeal. See Widgins, 29 A.3d at 817
n.2. “Because an Anders brief provides greater protection to a defendant,
this Court may accept an Anders brief in lieu of a Turner/Finley letter.”
Id.



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Generally, ineffective assistance of counsel entails proof that (1) the

underlying claim is of arguable merit; (2) counsel had no reasonable basis

for his or her chosen course of action; and (3) resulting prejudice.        See

Widgins, 29 A.3d at 819. The failure to file a requested direct appeal (or

petition for allowance of appeal) is ineffectiveness per se, meaning that

proof of prejudice is not required. Commonwealth v. Haun, 32 A.3d 697,

700 (Pa. 2011) (quoting Commonwealth v. Lantzy, 736 A.2d 564, 570-71

(Pa. 1999)).

      However:

      Where a defendant does not ask his attorney to file a direct
      appeal, counsel still may be held ineffective if he does not
      consult with his client about the client’s appellate rights. Such
      ineffectiveness, however, will only be found where a duty to
      consult arises either because there were issues of merit to raise
      on direct appeal or the defendant, in some manner, displayed
      signs of desiring an appeal.

Commonwealth v. Markowitz, 32 A.3d 706, 714 (Pa. Super. 2011). In

other words, counsel is ineffective per se if he or she fails to file a

requested appeal, whereas counsel is ineffective for failing to consult with

a defendant about appealing only if the defendant can show prejudice.

      In finding this issue meritless, the PCRA court first found that

Appellant failed to request plea counsel to file a direct appeal, invalidating

any claim of ineffectiveness per se.    PCRA Court Opinion, 6/5/14, at 4-5.

Regarding plea counsel’s duty to confer with Appellant, it stated:

      Here, there is no evidence to suggest that [plea counsel] did not
      consult with [Appellant] about his appellate rights. In fact, there
      is evidence to support the opposite conclusion. [Plea counsel]

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       testified that he remembered explaining to the [Appellant] his
       post-sentence appellate rights after he pled guilty. He also
       testified that he was “absolutely sure” the [Appellant]
       “understood what was going on.” Specifically, the Fulton County
       colloquy was much longer than [plea counsel] was accustomed
       to[,] and whenever he had a “colloquy that’s different than the
       one that we use in Cumberland County—I make some notes to
       discuss with my client to make sure that he understands what
       his standing was with the [c]ourt what his options would have
       been.” The transcript of the guilty plea proceedings confirms
       this testimony as [plea counsel] responded in the affirmative
       when asked by the [c]ourt if he had sufficient time to discuss the
       entry of the guilty pleas with the [Appellant]. Additionally, the
       sentencing transcript shows that [Appellant] was read his post-
       sentence and appellate rights and the timeliness associated with
       each on the record by the [c]ourt. Regarding an appeal, [plea
       counsel] testified that because [Appellant] had pled guilty[,] he
       explained to him that he only had a small number of rights on
       appeal in terms of issues he could raise after pleading guilty.[4]

Id. at 7 (citation of notes of testimony omitted).

       We are bound by the PCRA court’s credibility determinations and we

agree with its sound analysis.         Furthermore, PCRA counsel has thoroughly

explained why he believes this issue lacks merit.              Appellant’s claim is

meritless because he did not request plea counsel to file an appeal, and plea

counsel did not unreasonably fail to confer with Appellant regarding his

appellate rights.

       We now address Appellant’s pro se response to PCRA counsel’s

Anders brief and petition to withdraw.           Appellant raises ineffectiveness of
____________________________________________


4
 Because Appellant entered into a negotiated guilty plea, on appeal he could
challenge only the legality of his sentence, the jurisdiction of the trial court,
and the validity of the guilty plea. See Commonwealth v. Jones, 929
A.2d 205, 212 (Pa. 2007).



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PCRA counsel, ineffectiveness of plea counsel, and claims his sentence is

illegal. Appellant did not raise the first item before the PCRA court, which

means we cannot address it. See Commonwealth v. Henkel, 90 A.3d 16,

20 (Pa. Super. 2014) (en banc) (“[C]laims of PCRA counsel’s ineffectiveness

may not be raised for the first time on appeal.”).      Appellant presents the

second two items in conclusory fashion, without cogent analysis or

explanation.   We find those conclusory arguments unpersuasive.              See

Commonwealth v. Walter, 966 A.2d 560, 566 (Pa. 2009) (finding

arguments waived for “failure to develop them in any meaningful fashion

capable of review”). Rather, Appellant appears to be using his PCRA petition

as   an   attempt   to   reduce   his   bargained-for   sentence   because    of

dissatisfaction with its length. The PCRA does not provide a remedy for such

buyer’s remorse.

      PCRA counsel has complied with Turner/Finley.         We have reviewed

the record, and we are convinced that no meritorious appellate issues exist.

Accordingly, we affirm the denial of PCRA relief and grant the petition to

withdraw.




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     Order affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/2015




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