J-S18021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JASON CORTEZ MCKINNON,

                        Appellant                  No. 1419 EDA 2014


            Appeal from the PCRA Order entered April 4, 2014,
              in the Court of Common Pleas of Lehigh County,
           Criminal Division, at No(s): CP-39-CR-0001212-2011


BEFORE: BENDER, P.J.E., ALLEN, and MUNDY, JJ.

MEMORANDUM BY ALLEN, J.:                           FILED MARCH 23, 2015

     Jason Cortez McKinnon (“Appellant”) appeals from the order denying

his petition for post-conviction relief filed pursuant to the Post Conviction

Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. PCRA counsel has also filed

a petition to withdraw. We affirm.

     The PCRA court summarized the pertinent facts as follows:

            On February 3, 2011, at approximately 8 p.m., a black
        Mercedes M-320 SUV entered the parking lot of the TD
        Bank, located at 1828 Tilghman Street, Allentown, Lehigh
        County, Pennsylvania. Upon entering the lot, the vehicle
        circled the bank and parked. Three men wearing hoodie-
        type sweatshirts, full ski masks, gloves, and dark clothing
        exited the SUV and entered the bank. One defendant,
        later identified as [Appellant], displayed an UZI-style
        firearm, while another actor, later identified as Robert
        Taylor, displayed a revolver.     A third individual, later
        identified as Brandon Carter, stayed at the rear of the
        bank.     Mr. Taylor and [Appellant] entered the bank
        through the front.       Upon entering, Mr. Taylor and
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       [Appellant] ordered all of the employees to proceed to the
       rear of the bank.

          While in the rear of the bank, they ordered a teller to
       help them access a safe, but the teller was unable to do
       so. While in the rear of the bank, near where much of the
       money was kept, Mr. Taylor and [Appellant] ransacked the
       area and were able to obtain $14,855.00 from the bank.
       The three co-defendants left on foot, leaving the SUV
       parked in the parking lot.

          Bank employees pushed the panic button at 8:11 p.m.
       and Allentown Police responded shortly thereafter.       A
       review of the surveillance video showed the registration of
       the SUV.      Police officers checked the registration and
       determined that it was registered to Tyesha Dorsey.
       Allentown Police obtained a search warrant for the SUV
       and inside the car they found numerous bullets, latex
       gloves, zip ties and an identification card belonging to
       [Appellant].       Further investigation determined that
       [Appellant] and Tyesha Dorsey were involved in a
       relationship.

          Allentown Police was able to obtain (via court order)
       [Appellant’s] cellular telephone records and cellular tower
       location. Investigators were able to determine that an
       hour prior to the robbery, [Appellant] made a call from his
       cellular phone while in the Allentown area. The records
       also determined that [Appellant] was involved in numerous
       conversations with his cousin, co-defendant Brandon
       Carter.

          On February 24th, 2011, Allentown Police obtained a
       search warrant for Brandon Carter’s residence at 526
       North Nineteenth Street, Allentown, Lehigh County,
       Pennsylvania. Inside, police found a black shoulder bag
       which matched the description given by a bank employee.
       Inside the bag the police found an UZI style Cobray PM-11
       9mm gun with an obliterated serial number and a revolver.
       They also found $361.00, $10.00 of which was marked
       money taken from the bank. Mr. Carter was taken into
       custody trying to leave out of the back door. Mr. Carter
       was taken to police headquarters and interviewed, after
       being given his Miranda warnings. At that time, he gave
       a full statement detailing the bank robbery and the people


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        involved.   He indicated that [Appellant] had, in fact,
        planned the robbery, [and] that Mr. Taylor was also
        present at the robbery. He was presented with a photo
        line-up and positively identified [Appellant] and Robert
        Taylor as being the two others involved in the bank
        robbery.

           Shortly thereafter, Robert Taylor was taken into custody
        in another jurisdiction and returned to the Allentown area.
        After being given his Miranda warnings by Allentown
        Police, he gave a full statement indicating his involvement.
        Further, he indicated that Mr. Carter and [Appellant] were
        also involved in the robbery.

PCRA Court Opinion, 9/11/14, at 5-7.

     Following Appellant’s arrest, the Commonwealth charged him with

robbery, theft by unlawful taking, receiving stolen property, terroristic

threats, and criminal conspiracy to commit robbery.     On March 27, 2012,

Appellant entered a negotiated guilty plea to one count of robbery and one

count of criminal conspiracy. On August 2, 2012, the trial court sentenced

Appellant to a term of five to ten years of imprisonment for his robbery

conviction, and a consecutive two to five years of imprisonment for his

criminal conspiracy conviction. Thus, the trial court sentenced Appellant to

an aggregate term of seven to fifteen years of incarceration.

     On August 9, 2012, Appellant filed a post-sentence motion, which

included a claim that he was sentenced to a longer sentence than that

received by this co-defendants, despite the similar facts and circumstances




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surrounding the bank robbery.1            According to Appellant, he should have

received a similar sentence and/or the sentences for the two counts to which

he pled guilty should have been concurrent. On August 10, 2012, the trial

court denied Appellant’s post-sentence motion.           Appellant did not file a

direct appeal.

       On May 16, 2013, Appellant filed a pro se PCRA petition, and the PCRA

court appointed the county public defender’s office to represent him.

Subsequently, the PCRA court permitted the assigned public defender to

withdraw because Appellant would not communicate with him.

       “On November 1, 2013, the [PCRA court] received a letter from

[Appellant.] In the letter, [Appellant] states he is not challenging his guilt in

the instant matter, ‘nor any challenges to the guilty plea itself.’      Rather,

[Appellant] was seeking to have the [trial court] reconsider its sentence to

make the two counts [to] which he plead guilty to run concurrently, rather

than consecutively.” PCRA Court Opinion, 9/11/14, at 4.




____________________________________________


1
  Robert Taylor pled guilty to criminal conspiracy to commit robbery, and the
trial court sentenced him to a term of five to ten years of imprisonment.
Brandon Carter pled guilty to the same crime and the trial court sentenced
him to a term of three to ten years of imprisonment.




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        On December 17, 2013, [PCRA counsel] entered his appearance for

Appellant. On April 4, 2014, a PCRA hearing was held.            At that time, the

PCRA court heard testimony from Appellant regarding his dissatisfaction with

the effectiveness of prior counsel.            At the conclusion of his testimony,

Appellant indicated that he was not denying his role in the bank robbery, but

was merely seeking a lesser sentence. Following oral argument by counsel,

the PCRA court denied and dismissed Appellant’s PCRA petition. This appeal

followed.2 Both Appellant and the PCRA court have complied with Pa.R.A.P.

1925.

        In lieu of an advocate’s brief, Appellant’s counsel has filed a “no-merit”

letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),

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

Our Supreme Court has explained:

             These cases establish the procedure for withdrawal of
          court-appointed counsel in collateral attacks on criminal
          convictions.   Independent review of the record by
          competent counsel is required before withdrawal is
          permitted. Such independent review requires proof of:

          1) A “no-merit” letter by PCRA counsel detailing the
             nature and extent of his [or her] review;

____________________________________________


2
  By order entered July 15, 2014, this Court permitted Appellant’s privately-
retained counsel to withdraw, and remanded the case for the PCRA court to
appoint counsel for Appellant if he was financially eligible. Pursuant to this
directive, the PCRA court appointed Appellant’s present counsel on July 23,
2014.




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        2) A “no-merit” letter by PCRA counsel listing each issue
           the petitioner wished to have reviewed;

        3) The PCRA counsel’s “explanation”, in the “no-merit”
           letter, of why the petitioner’s issues were meritless;

        4) The PCRA court conducting its own independent
           review of the record; and

        5) The PCRA court agreeing with counsel that the
           petition was meritless.

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

omitted).   Here, counsel has complied with the mandates of Turner and

Finley, as summarized in Pitts, supra.          We therefore must determine

whether we agree with counsel’s assessment of Appellant’s claims.

     This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported   by   the   evidence   of   record   and   is   free   of   legal   error.

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).     Moreover, a PCRA court may decline to hold a

hearing on the petition if the PCRA court determines that the petitioner’s

claim is patently frivolous and is without a trace of support in either the

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011

(Pa. Super. 2001).




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      Within his “no-merit” letter, PCRA counsel first notes that, although

Appellant raises claims of prior counsel’s effectiveness prior to the entry of

his guilty plea, Appellant concedes, in both his letter to the PCRA court, see

infra, and at the PCRA hearing, that he did not want to challenge the

validity of his plea.   See N.T., 4/4/14, at 22-23.     Given this concession,

Appellant’s ineffectiveness claim fails.     See e.g., Commonwealth v.

Johnson, 875 A.2d 328, 331 (Pa. Super. 2005) (explaining that when a

PCRA petitioner asserts a claim of ineffectiveness of counsel in the context of

a guilty plea, he or she must show that plea counsel’s ineffectiveness

induced him to enter the plea).

      In his only other claim, Appellant asserts that his consecutive

sentences for robbery and criminal conspiracy to commit robbery constitute

an illegal sentence because the convictions should have merged for

sentencing purposes.     As correctly recognized by PCRA counsel, however,

“[c]onspiracy to commit a substantive offense, and the substantive offense

itself which is the object of the conspiracy, are two entirely separate crimes.”

“No-Merit” Letter, 10/22/14, at 3 (citing Commonwealth v. Johnson, 26

A.3d 1078, 1090 (Pa. 2011)).      As such, Appellant’s convictions for these

crimes do not merge for sentencing purposes. See generally, 42 Pa.C.S.A.

§ 9765.

      In sum, we have reviewed the record, including the notes of testimony

from Appellant’s guilty plea hearing and the PCRA hearing, and agree with


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PCRA counsel’s determination that Appellant’s claims are without merit. We

therefore affirm the PCRA court’s denial of Appellant’s petition for post-

conviction relief, and grant counsel’s petition to withdraw.

      Petition to Withdraw granted. Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/2015




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