J-S43017-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WILLIAM A. WILSON,                         :
                                               :
                       Appellant               :   No. 1779 WDA 2017

                  Appeal from the PCRA Order October 25, 2017
                 In the Court of Common Pleas of Beaver County
              Criminal Division at No(s): CP-04-CR-0000396-2015,
              CP-04-CR-0001013-2013, CP-04-CR-0001014-2013,
              CP-04-CR-0001015-2013, CP-04-CR-0002157-2013

BEFORE: STABILE, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY DUBOW, J.:                              FILED JANUARY 30, 2019

       Appellant, William A. Wilson, appeals from the October 25, 2017 Order

entered in the Beaver County Court of Common Pleas dismissing his first

Petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546.         Additionally, Appellant’s appointed counsel, Simone S.

Temple, Esquire, has filed an Anders1 Brief and a Petition to Withdraw as




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1 See Anders v. California, 386 U.S. 738 (1967). Counsel has filed an
Anders Brief. The proper mechanism when seeking to withdraw in PCRA
proceedings is a Turner/Finley letter. See Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc). However, because an Anders brief provides greater
protection to a criminal appellant, we may accept an Anders brief in lieu of a
Turner/Finley no-merit letter. Commonwealth v. Widgins, 29 A.3d 816,
817 n.2 (Pa. Super. 2011); Commonwealth v. Fusselman, 866 A.2d 1109,
1111 n.3 (Pa. Super. 2004).
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Counsel.     After careful review, we grant Attorney Temple’s Petition to

Withdraw and affirm.

       A detailed recitation of the underlying facts is not necessary to an

understanding of our analysis of the issues that Appellant raises on appeal.

Briefly, on March 7, 2016, Appellant entered negotiated guilty pleas at five

separate dockets to two counts of Persons Not to Possess Firearms, two counts

of Possession of a Controlled Substance with Intent to Deliver (“PWID”), and

Possession of a Small Amount of Marijuana.2 That same day, the trial court

sentenced Appellant to the negotiated aggregate term of five to fifteen years’

incarceration, followed by ten years’ probation.

       Appellant did not file a direct appeal. Appellant’s Judgment of Sentence

became final thirty days later on April 6, 2016, upon expiration of the time to

file a direct appeal. See Pa.R.A.P. 903(a); 42 Pa.C.S. § 9545(b)(3).

       On March 16, 2017, Appellant filed a pro se PCRA Petition, his first,

alleging that plea counsel failed to file a direct appeal and requesting the

appointment of PCRA counsel. The PCRA court appointed Attorney Temple,

who filed an Amended PCRA Petition asserting, inter alia, that plea counsel

was ineffective for misinforming him about the terms of the plea agreement.

After conducting an evidentiary hearing, at which Appellant and his plea




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218 Pa.C.S. § 6105; 35 P.S. § 780-113(a)(30); and 35 P.S. § 780-113(a)(31),
respectively.

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counsel testified, the PCRA court denied Appellant’s PCRA Petition on October

25, 2017.

       This timely appeal followed.             Both Appellant and the PCRA court

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

       On May 8, 2018, Attorney Temple filed an Anders Brief and Petition to

Withdraw as Counsel, concluding that there were no non-frivolous issues to

be raised on appeal since the PCRA Petition was wholly without merit.

Appellant did not file a pro se response.3

       Counsel presents three issues in her Anders Brief for our review:

       I. Whether [Appellant’s] guilty pleas on March 7, 2016 were
       knowing, intelligent[,] and voluntary?

       II. Whether plea counsel was ineffective for failing to file a post-
       sentence motion or a direct appeal on [Appellant’s] behalf
       following his plea and sentence on March 7, 2016?

       III. Whether [Appellant’s] appeal of the denial of his [PCRA
       Petition] is frivolous and wholly without merit?

Anders Brief at 6.

       Before we consider Appellant’s arguments, we must review Attorney

Temple’s     request     to   withdraw         from   representation.   Pursuant   to

Turner/Finley, independent review of the record by competent counsel is



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3 On February 16, 2018, this Court denied without prejudice Appellant’s Motion
to file a response to Attorney Temple’s anticipated Anders Brief and instructed
him to renew his request. Appellant has not renewed his request now that
Attorney Temple has filed her Anders Brief and Appellant has not filed a
substantive response or a brief.

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required   before    withdrawal    on   collateral    appeal   is   permitted.

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

required to submit a “no merit” letter (1) detailing the nature and extent of

his or her review; (2) listing each issue the petitioner wished to have

reviewed; and (3) providing an explanation of why the petitioner’s issues were

meritless. Id. The court then conducts its own independent review of the

record to determine if the Petition is meritless. Id. “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.” Commonwealth v. Wrecks, 931

A.2d 717, 721 (Pa. Super. 2007) (citation omitted).

      Our review of the record discloses that Attorney Temple has complied

with each of the above requirements.      In addition, Attorney Temple sent

Appellant copies of the Anders Brief and Petition to Withdraw, and advised

him of his rights in lieu of representation. See Commonwealth v. Widgins,

29 A.3d 816, 818 (Pa. Super. 2011). Since Attorney Temple has complied

with the Turner/Finley requirements, we now proceed with our independent

review of the record and the merits of Appellant’s claims.

      We review the denial of a PCRA petition to determine whether the record

supports the PCRA court’s findings and whether its Order is otherwise free of

legal error.   Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014).

Further, “[t]he PCRA court’s findings will not be disturbed unless there is no


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support for the findings in the certified record.”              Commonwealth v.

Johnson, 945 A.2d 185, 188 (Pa. Super. 2008).

      Guilty Plea

      Appellant first claims that he did not enter his guilty pleas knowingly,

intelligently, or voluntarily because plea counsel was ineffective for failing “to

adequately explain to him the details and terms of the plea offers . . . .”

Anders Brief at 12, 14.

      The    law   presumes     counsel    has     rendered     effective   assistance.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).                      The

burden of demonstrating ineffectiveness rests on Appellant. Id. To satisfy

this burden, Appellant must plead and prove by a preponderance of the

evidence that: “(1) his underlying claim is of arguable merit; (2) the particular

course of conduct pursued by counsel did not have some reasonable basis

designed to effectuate his interests; and, (3) but for counsel’s ineffectiveness,

there is a reasonable probability that the outcome of the challenged

proceeding would have been different.” Commonwealth v. Fulton, 830 A.2d

567, 572 (Pa. 2003). Failure to satisfy any prong of the test will result in

rejection   of   the   appellant’s   ineffective   assistance     of   counsel   claim.

Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).

      Further, “[a]llegations of ineffectiveness in connection with the entry of

a guilty plea will serve as a basis for relief only if the ineffectiveness caused




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[A]ppellant to enter an involuntary or unknowing plea.” Fears, 86 A.3d at

806-07 (citation omitted).

      Appellant’s underlying claim is without merit.     Here, the PCRA court

determined that Appellant entered his guilty plea voluntarily, knowingly, and

intelligently. See PCRA Court Opinion, filed 12/12/17, at 3. The PCRA court

opined as follows:

      Additionally, in review of [Appellant’s] Guilty Plea Colloquy,
      [Appellant] stated he was entering the pleas of his own free will,
      that no threats were made to him to enter pleas of guilty, and that
      no promises other than the Plea Agreement that had been
      negotiated had been made to him. Lastly, in review of the
      transcript of the Guilty Plea on March 7, 2016, it is clear that the
      terms of [Appellant’s] sentence were fully stated on the record by
      not only the Assistant District Attorney but also this Court upon
      imposing the sentence. At no point during the pleas or sentence
      did [Appellant] communicate to this Court he did not understand
      the terms of the sentence, nor did he communicate he felt forced
      to enter the pleas.

Id. at 3. We agree with the PCRA Court’s analysis.

      After carefully reviewing Appellant’s written and oral guilty plea

colloquies, we conclude that the record belies Appellant’s claims. Appellant

acknowledged on the record that he was entering a negotiated guilty plea to

an aggregate term of five to fifteen years’ incarceration, followed by ten years’

probation.    See N.T., 3/7/16, at 8-17, 23-25.         Additionally, Appellant

acknowledged on the record that he was not induced or coerced into pleading

guilty. See id. at 14-15. He also acknowledged on the record that he was

satisfied with the representation of his attorney.        See id.     Moreover,




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Appellant’s signed guilty plea colloquy confirms his oral statements on the

record. See Guilty Plea Colloquy, 3/7/16, at 1-4.

      Even on post-conviction collateral review, Appellant is bound by his

statements made at the plea colloquy under oath, and “he may not now

assert[] grounds for [challenging] the plea which contradict the statements.”

Commonwealth v. Willis, 68 A.3d 997, 1009 (Pa. Super. 2013) (citation

omitted).

      Based on our review, we conclude that the record supports the PCRA

court’s determination that plea counsel was not ineffective and Appellant

entered his guilty plea voluntarily, knowingly, and intelligently.

      Failure to File Direct Appeal

      Appellant next claims that plea counsel failed to file a requested direct

appeal.     Anders Brief at 19-22. Our Supreme Court has held that where

“there is an unjustified failure to file a requested direct appeal, the conduct

of counsel falls beneath the range of competence demanded of attorneys in

criminal cases.” Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999)

(emphasis added). Such conduct denies the accused the assistance of counsel

guaranteed by the Sixth Amendment to the United States Constitution and

Article I, Section 9 of the Pennsylvania Constitution, as well as the right to

direct appeal under Article V, Section 9. Id. The Supreme Court concluded

that the unjustified failure to file a requested direct appeal constitutes

prejudice and per se ineffectiveness for PCRA purposes. Id.


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      Before a court will find ineffectiveness of counsel for failing to file a direct

appeal, however, Appellant must prove that he requested an appeal and that

counsel disregarded this request. Commonwealth v. Touw, 781 A.2d 1250,

1254 (Pa. Super. 2001). In such a circumstance, a defendant is automatically

entitled to reinstatement of his appellate rights.        Lantzy, supra at 572.

Counsel has a constitutional duty to consult with a defendant about an appeal

where counsel has reason to believe either (1) that a rational defendant would

want to appeal, for example, because there are meritorious grounds for

appeal, or (2) that this particular defendant reasonably demonstrated to

counsel that he was interested in appealing. Touw, supra at 1254 (citing

Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000)).

      To obtain relief, Appellant must also show prejudice, which in these

circumstances requires a showing that “there is a reasonable probability that,

but for counsel’s deficient failure to consult with him about an appeal, he would

have timely appealed.” Flores-Ortega, 528 U.S. at 484.

      Here, plea counsel unambiguously informed Appellant on the record that

he would need to contact him within the prescribed time period if he wanted

to file a post-sentence motion or a direct appeal. See N.T. Plea, 3/7/16, 24-

25. Appellant also signed paperwork acknowledging that he understood these

rights. Notice of Rights Following Sentence, dated 3/7/16.

      At the PCRA hearing, plea counsel testified that Appellant never

indicated that he wanted to file a post-sentence motion or a direct appeal.


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N.T. PCRA, 10/18/17, at 12.          Plea counsel received some communications

from Appellant related to transcripts and time credit, but nothing in those

letters informed counsel that Appellant wanted to pursue an appeal. Id. at

12-17.4

       We find that the record amply supports the PCRA court’s conclusion that

plea counsel informed Appellant of his limited appeal rights following his guilty

plea, and plea counsel instructed Appellant to inform him if he wanted to file

an appeal.     However, despite counsel’s clear instructions, which Appellant

acknowledged in writing and in court, the evidence believed by the trial court

indicated that Appellant did not ask plea counsel to pursue an appeal. PCRA

Court Opinion at 3. We will not disturb the court’s credibility determinations.

See Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (reiterating that

“[t]he PCRA court’s credibility determinations, when supported by the record,

are binding on this Court.”).

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

findings and its Order is otherwise free of legal error. We, thus, affirm the

denial of PCRA relief.5

       Order affirmed. Petition to Withdraw granted.


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4 At the PCRA hearing, Appellant claimed that he had copies of letters asking
plea counsel to file an appeal, but he “didn’t want to provide them to” PCRA
counsel. N.T. PCRA, 10/18/17, at 47.

5 Based on the foregoing, we need not address the overarching third issue in
the Anders Brief separately.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/30/2018




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