J-S09006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

PAUL MICHAEL MATTHEWS

                            Appellant               No. 1102 MDA 2015


                  Appeal from the PCRA Order May 29, 2015
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0002452-2013


BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                           FILED MARCH 11, 2016

        Appellant, Paul Michael Matthews, appeals from the order entered May

29, 2015, in the Court of Common Pleas of York County, which denied his

Post Conviction Relief Act1 petition. Additionally, Matthews’s court-appointed

counsel, John M. Hamme, Esquire, has filed an application to withdraw as

counsel. After careful review, we affirm the trial court’s order and grant

Attorney Hamme’s application to withdraw as counsel.

        Following a November 8, 2013 bench trial, the trial court found

Matthews guilty of robbery, simple assault, and retail theft. 2 On January 8,

2014, the court sentenced Matthews to a term of ten to twenty years

imprisonment. On appeal, this Court affirmed the judgment of sentence. See
____________________________________________


1
    42 Pa.C.S.A. § 9541, et seq.
2
    18 Pa.C.S.A. §§ 3701(a)(1); 2701(a)(3); and 3929(a)(1), respectively..
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Commonwealth v. Matthews, 116 A.3d 679 (Pa. Super., filed Dec. 4,

2014) (unpublished memorandum).

     Matthews filed a timely pro se PCRA petition. The PCRA court

subsequently appointed PCRA counsel and held a hearing on the petition.

Following the hearing, the PCRA court granted Matthews’ petition in part and

modified   the   original   sentence   imposed   to   eight   to   twenty   years’

imprisonment. The PCRA court denied the remaining claims. This timely

appeal followed.

     We will first address counsel’s motion to withdraw. Pennsylvania law

requires counsel seeking to withdraw from representing a petitioner under

the PCRA to file a ‘no-merit’ letter pursuant to Commonwealth v. Turner,

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

(1988) (en banc). See Commonwealth v. Karanicolas, 836 A.2d 940, 947

(Pa. Super. 2003).

     Counsel petitioning to withdraw from PCRA representation must
     proceed ... under [Turner and Finley and] ... must review the
     case zealously. Turner/Finley counsel must then submit a “no-
     merit” letter to the trial 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.

                                       ***



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       [W]here counsel submits a petition and no-merit letter that ...
       satisfy the technical demands of Turner/Finley, the court—trial
       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) (citation

omitted).

       Here,     counsel    has     complied     with   the   foregoing   procedural

requirements.3 Accordingly, we will proceed to examine whether any of the

issues counsel raises on appeal are of merit.

       I.      Whether the court erred in denying Appellant’s PCRA
               petition when the Commonwealth violated the agreement
               made with Appellant at his preliminary hearing?

       II.     Whether the PCRA court erred in denying Appellant’s PCRA
               petition when Appellant did not knowingly or voluntarily
               waive his right to a jury trial in favor of a stipulated bench
               trial?

Appellant’s Brief at 4 (unnecessary capitalization omitted).

       “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). “[Our] scope of

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3
  We note that although counsel incorrectly submitted his Turner/Finley
letter as a brief pursuant to the requirements of Anders v. California, 386
U.S. 738 (1967), the procedure to withdraw from a direct appeal imposes
stricter requirements than those imposed in a Turner/Finley withdrawal.
See Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super.
2004).



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review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the

PCRA court level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa.

2012) (citation omitted).

       In order to be eligible for PCRA relief, a petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2).

These issues must be neither previously litigated nor waived. See 42

Pa.C.S.A. § 9543(a)(3).

       The issues Matthews raises in his PCRA petition could have been raised

on direct appeal. Section 9544(b) of the PCRA states that, “[f]or purposes of

this subchapter, an issue is waived if the petitioner could have raised it but

failed to do so before trial, at trial, during unitary review, on appeal or in a

prior state postconviction proceeding.” 42 Pa.C.S.A. § 9544(b). Matthews

could have raised his current allegations—that the Commonwealth violated

the preliminary hearing agreement and that his waiver of a jury trial was

involuntary—at trial or on direct appeal. He did not. Therefore, we are

constrained to find that these issues are waived.4 See id.
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4
   Notably, Matthews does not attribute his allegations of error to the
ineffective assistance of trial counsel, nor does the record support such an
assertion. Although the PCRA court’s Rule 1925(a) opinion examined these
claims as allegations of ineffective assistance of counsel, Matthews did not
raise these issues in that light in his PCRA petition filed March 2, 2015. It is
well settled that the “[f]ailure to state … a ground [for relief] in the [PCRA]
(Footnote Continued Next Page)


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      We have conducted an independent review of the record and found no

other issues of merit. Based on the foregoing, we agree with counsel’s

conclusion that Matthews’ appeal lacks merit. Accordingly, we affirm the

order of the PCRA court dismissing in part Matthews’s petition for post-

conviction relief and grant counsel’s application to withdraw.

      Order affirmed. Petition to withdraw as counsel is granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/2016




                       _______________________
(Footnote Continued)

petition shall preclude the defendant from raising that ground in any
proceeding for post-conviction collateral relief.” Pa.R.Crim.P. 902(B).



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