J-S48035-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                        Appellee               :
                                               :
                v.                             :
                                               :
    NIJAH B. CARPENTER                         :
                                               :
                       Appellant               :      No. 301 EDA 2017


                Appeal from the PCRA Order December 13, 2016
              in the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0004539-2010


BEFORE:      DUBOW, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                             FILED OCTOBER 12, 2018

       Appellant, Nijah B. Carpenter, appeals from the order dismissing his first

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. Counsel for Appellant has filed a motion to withdraw from

representation and an Anders brief.1 We grant counsel’s petition to withdraw,

and affirm the order of the PCRA court.

       We derive the following facts and procedural history from a March 2,

2016 memorandum issued by a panel of this Court and our independent
____________________________________________


1 Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
instead of a Turner/Finley no-merit letter, which is the appropriate filing in
the PCRA context. See Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc). However, “[b]ecause an Anders brief provides greater protection to a
defendant, this Court may accept an Anders brief in lieu of a Turner/Finley
letter.” Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super.
2011) (citation omitted).

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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review of the record. On November 18, 2010, a jury found Appellant guilty of

possession with intent to deliver a controlled substance. The conviction stems

from Appellant’s selling of crack cocaine while police officers were conducting

surveillance and observed the transactions. On May 13, 2011, the trial court

sentenced Appellant to a term of not less than two and one-half nor more than

ten years’ incarceration, followed by five years of probation. Appellant did not

file a post-sentence motion or a direct appeal.

      On October 13, 2011, Appellant filed a timely pro se PCRA petition.

Appointed counsel filed an amended petition on July 8, 2013. The PCRA court

dismissed the petition on March 17, 2015, and Appellant appealed that

decision to this Court. On March 2, 2016, a panel of this Court vacated the

PCRA court’s order in part, and remanded the case for an evidentiary hearing

to address Appellant’s claim that sentencing counsel was ineffective for failing

to file a requested direct appeal. (See Commonwealth v. Carpenter, 2016

WL 832149, at *3 (Pa. Super. filed Mar. 2, 2016) (unpublished memorandum),

appeal denied, 141 A.3d 478 (Pa. 2016)). Our Supreme Court denied further

review.

      The PCRA court held a hearing on the matter on December 13, 2016, at

which Appellant and the privately retained attorney who represented him at

sentencing testified.   At the conclusion of the hearing, the court denied




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Appellant’s PCRA petition. Appellant timely appealed.2 Counsel filed a motion

to withdraw from representation and an Anders brief on January 22, 2018.

              Counsel petitioning to withdraw from PCRA representation
       must proceed . . . under Turner, supra and Finley, supra 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.

              Where 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. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citation

omitted).

       Upon our review of counsel’s motion to withdraw and the appellate brief

submitted on Appellant’s behalf, we conclude that counsel has substantially

complied with the procedural requirements of Turner and Finley. Therefore,




____________________________________________


2 On February 23, 2017, in response to the PCRA court’s order to file a concise
statement of errors complained of on appeal, counsel filed a statement of
intent to file an Anders brief. See Pa.R.A.P. 1925(c)(4). The PCRA court did
not file an opinion. See Pa.R.A.P. 1925(a).


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we must proceed with our independent review of this case. See Walters,

supra at 591.

      The Anders brief argues that the PCRA court’s decision to credit the

testimony of sentencing counsel relating to the direct appeal, instead of

Appellant’s testimony, lacks support in the record. (See Anders Brief, at 11-

12). We disagree.
            Our standard of review of the denial of a PCRA petition is
      limited to examining whether the record evidence supports the
      court’s determination and whether the court’s decision is free of
      legal error. This Court grants great deference to the findings of
      the PCRA court if the record contains any support for those
      findings.    If the record supports a post-conviction court’s
      credibility determination, it is binding on the appellate court. A
      PCRA court’s legal conclusions, however, are reviewed de novo.

Commonwealth v. Moriarty, 180 A.3d 1279, 1284 (Pa. Super. 2018)

(citations omitted).

      It is a “well-settled principle that [w]e will not disturb the findings of the

PCRA court if they are supported by the record, even where the record could

also support a contrary holding[.]” Commonwealth v. Keaton, 82 A.3d 419,

426 (Pa. 2013) (citation and internal quotation mark omitted).

      Here, at the PCRA hearing, the court heard from both sentencing counsel

and Appellant regarding whether he requested a direct appeal.            Appellant

averred that, in open court at sentencing, he “slammed [his] hands on the

desk and said ‘I want my appeal ASAP.’” (N.T. PCRA Hearing, 12/13/16, at

7; see id. at 11-13). Appellant further testified that counsel agreed to file an

appeal, and that Appellant and various family members and friends made



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phone calls to counsel’s office and sent him letters to follow up. (See id. at

7-10, 14-15). However, on cross-examination, Appellant conceded that the

notes of testimony from the sentencing hearing do not reflect his purported

outburst, and that he did not bring the letters allegedly sent to counsel to the

PCRA hearing. (See id. at 13-15).

      Counsel explained that Appellant retained him only for representation

at sentencing, to assist in avoiding imposition of a mandatory minimum five-

year sentence.    (See id. at 23-24).      Counsel successfully did this, and

“[Appellant] was very satisfied . . . with the sentence.” (Id. at 26; see id. at

24). Counsel testified that he had no reason to think Appellant would want to

appeal, and that he would have asked the sentencing judge to appoint an

attorney if Appellant was dissatisfied with the sentence. (See id. at 25-26).

      In rendering its decision, the PCRA court noted as significant that the

notes of testimony from the sentencing hearing support counsel’s version of

events, rather than Appellant’s. (See id. at 33-34). Specifically, after the

court imposed Appellant’s sentence, it expressly advised him that if he wished

to appeal, he “ha[d] to request to the [c]ourt to have a court-appointed lawyer

to do that for you.”     (N.T. Sentencing, 5/13/11, at 29).     After Appellant

averred that he understood this, sentencing counsel reinforced that if he

wanted to appeal, Appellant “ha[d] to ask the [c]ourt to appoint an

attorney[.]”   (Id.).   Appellant again stated that he understood his rights

pertaining to an appeal. (See id. at 29-30).




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      Upon review, we conclude that the record fully supports the PCRA court’s

credibility determinations regarding Appellant’s satisfaction with his sentence

and his failure to request a direct appeal. Thus, we are bound by them, and

will not disturb its finding that Appellant is not entitled to PCRA relief. See

Keaton, supra at 426; Moriarty, supra at 1284. Accordingly, we affirm the

order of the PCRA court.

      Petition to withdraw granted. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/12/18




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