J-S25006-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT
                                               :       OF PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TAVAUGHN PIERRE HAMLET                     :
                                               :
                       Appellant               :   No. 1817 MDA 2018

             Appeal from the PCRA Order Entered October 12, 2018
                 In the Court of Common Pleas of York County
               Criminal Division at No: CP-67-CR-0005677-2015


BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY STABILE, J.:                                FILED JUNE 10, 2019

       Appellant, Tavaughn Pierre Hamlet, appeals from the October 12, 2018

order entered in the Court of Common Pleas of York County, denying his

petition for collateral relief pursuant to the Post Conviction Relief Act,

42 Pa.C.S.A. §§ 9541-9546. Appellant’s counsel filed a Turner/Finley1 letter

brief contending any issues raised on appeal would lack merit and be frivolous.

Counsel also has filed a motion to withdraw.          Following review, we grant

counsel’s motion to withdraw and affirm the PCRA court’s denial of relief.

       The PCRA court provided the following factual background:

       On January 22, 2015, at approximately 9:51 p.m., members of
       the Drug Enforcement Agency and York County Drug Task Force
       executed a federal search warrant and forced entry to
       [Appellant’s] home located at 4096 Majestic Court, Dover
____________________________________________


1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988).
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       Township. [Appellant] arrived home shortly after the officers’
       entry. Police immediately arrested [Appellant], who was carrying
       $11,900.00 on his person.       Upon waiving his rights under
       Miranda, [Appellant] admitted that he owned a handgun and that
       it was located under the mattress in the master bedroom. Officers
       retrieved the handgun from underneath the mattress. Further,
       [Appellant] possessed over $50,000.00 in cash and a digital scale
       in his bedroom closet. [Appellant] has convictions in the State of
       Maryland that preclude him from possessing a firearm in
       Pennsylvania.

       [Appellant] was charged with: (1) Person Not to Possess Firearms
       under 18 [Pa.C.S.A.] § 6105(a)(1) and (2) Possession of Drug
       Paraphernalia under 35 P.S. § 780-113(a)(32).                The
       Commonwealth withdrew Count 2 at the lower court.

PCRA Court Opinion, 10/12/18, at 1-2.

       The PCRA court explained that Appellant’s counsel filed a motion to

suppress evidence and obtain information regarding the search warrant and

the GPS tracking of Appellant’s cell phone. Subsequently, counsel assisted

Appellant in negotiating a plea. Appellant entered a guilty plea to the gun

charge and, on September 2, 2016, was sentenced to three and a half to seven

years in a state correctional institution. Id. at 2. Appellant did not either

seek to withdraw his guilty plea or file a direct appeal. Id. at 3.

       On April 28, 2017, Appellant filed a timely pro se PCRA petition,

asserting his prior record score was incorrectly calculated, resulting in an

abuse of discretion on the part of the sentencing court.2             Counsel was

____________________________________________


2 Appellant also argued sentencing court error relating to the forfeiture of
$70,000 cash. However, the forfeiture issue was addressed in a separate
proceeding that was subsequently appealed to this Court and then transferred



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appointed and the case ultimately proceeded to a hearing on August 6, 2018.

During the hearing, PCRA counsel argued that plea counsel was ineffective in

relation to Appellant’s prior record score calculation because it included

incorrect calculations for Appellant’s previous convictions in Maryland. The

Commonwealth countered that Appellant waived the claim when he agreed to

a negotiated sentence. By order entered October 12, 2018, the PCRA court

denied Appellant’s petition. This timely appeal followed.

       Counsel filed a Turner/Finley letter brief and a motion to withdraw

with this Court. Before considering the merits, if any, of Appellant’s appeal,

we must address whether PCRA counsel has met the requirements of

Turner/Finley.

       In Commonwealth v. Rykard, 55 A.3d 1177 (Pa. Super. 2012), this

Court explained:

       The Turner/Finley decisions provide the manner for post-
       conviction counsel to withdraw from representation. The holdings
       of those cases mandate an independent review of the record by
       competent counsel before a PCRA court or appellate court can
       authorize an attorney’s withdrawal. The necessary independent
       review requires counsel to file a “no-merit” letter detailing the
       nature and extent of his review and list each issue the petitioner
       wishes to have examined, explaining why those issues are
       meritless. The PCRA court, or an appellate court if the no-merit
       letter is filed before it, [] then must conduct its own independent
       evaluation of the record and agree with counsel that the petition
       is without merit.



____________________________________________


to the Commonwealth Court by order entered on January 17, 2017.
Commonwealth v. Hamlet, 2082 MDA 2016.

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Id. at 1184 (citing Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa.

2009)).

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

counsel has petitioned for leave to withdraw and filed a Turner/Finley no-

merit letter detailing the nature and scope of his review, listing the appellate

issues, and explaining why the issues are meritless. Finally, PCRA counsel

informed Appellant of his right to hire a new lawyer or file a pro se response.3

See Commonwealth v. Widgins, 29 A.3d 816, 818-19 (Pa. Super. 2011).

Therefore, we must consider whether this appeal 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. As this Court

has instructed:

       We review an order dismissing a petition under the PCRA in the
       light most favorable to the prevailing party at the PCRA level.
       This review is limited to the findings of the PCRA court and the
       evidence of record. We will not disturb a PCRA court’s ruling if it
       is supported by evidence of record and is free of legal error. This
       Court may affirm a PCRA court’s decision on any grounds if the
       record supports it. Further, we grant great deference to the
       factual findings of the PCRA court and will not disturb those
       findings unless they have no support in the record. However, we
       afford no such deference to its legal conclusions. Where the
       petitioner raises questions of law, our standard of review is de
       novo and our scope of review plenary.



____________________________________________


3There is no indication in the record to suggest Appellant hired new counsel.
He did not file a pro se response with this Court.

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Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

       Again, at issue is Appellant’s contention that plea counsel was ineffective

with respect to the calculation of Appellant’s prior record score leading to

imposition of an incorrect sentence.4 The PCRA court determined Appellant’s

claim is not only waived but also meritless. The court noted that “[f]ailure to

withdraw one’s plea, combined with failure to take direct appeal bars

consideration of an attack of the guilty plea in collateral proceedings when the

petitioner has been advised of his post-sentence rights.”         PCRA Opinion,

10/12/18, at 6 (citing Commonwealth v. Scott, 465 A.2d 678, 679 (Pa.

Super. 1983)).      See also 42 Pa.C.S.A. § 9544(b) (“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”).

       As the PCRA court explained, Appellant initialed and signed a written

plea colloquy, evidencing his understanding of his post-sentence rights.

However, Appellant declined to exercise those rights, despite voicing concerns

about the prior record score calculations at the time of sentencing.        PCRA

Opinion, 10/12/18, at 7 (citing Notes of Testimony, PCRA Hearing, 8/6/18, at

5). Consequently, Appellant is barred from collaterally attacking his plea and




____________________________________________


4In his Turner/Finley letter brief, counsel also examined the forfeiture issue.
As noted above, the forfeiture issue is not before us.

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the “claim is deemed waived and not cognizable to the PCRA court.” Id. (some

capitalization omitted).

      The PCRA court also determined that Appellant’s claim lacked merit,

even if not waived.     The court noted that entering a guilty plea results in

waiver of all grounds for appeal, except voluntariness of the plea, jurisdiction

of the court, and legality of sentence. Id. at 7-8 (citing Commonwealth v.

Boyd, 835 A.2d 812, 815 (Pa. Super. 2003)). Here there was no question of

the court’s jurisdiction or the legality of Appellant’s sentence. With respect to

the voluntariness of the appeal, the court explained, “[t]he focus of the inquiry

is whether the accused was misled or misinformed and acted under that

misguided   influence      when   entering   the   plea.”   Id.   at    8   (quoting

Commonwealth v. Flood, 627 A.2d 1193, 1199 (Pa. Super. 1993)).

      Here, Appellant not only completed a written plea colloquy but also

responded to the court’s questions during an oral colloquy at sentencing,

agreeing to a term of three and a half to seven years and acknowledging he

faced a maximum sentence of ten years in prison. Id. at 9 (citing Notes of

Testimony, Guilty Plea Hearing, 4/29/16, at 3 and Written Plea Colloquy,

4/29/16, at 6). As the court further noted, Appellant rejected two other plea

offers before accepting the plea for the sentence imposed.             As the court

observed, “[Appellant] actively negotiated with the Commonwealth until he

struck a deal that he could live with irrespective of any calculated prior record

score.” Id. at 10. Moreover, during the PCRA hearing, there was a question


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as to whether the Probation Department even calculated Appellant’s prior

record score or furnished a pre-sentence investigation report because the

court did not order one. Id. In addition, Appellant could not recall the prior

record score he believed was assessed or provide any evidence that his

Maryland convictions should yield a prior record scored lower than that

calculated. “These deficiencies greatly impede [Appellant] from meeting his

burden of proving by a preponderance of evidence that plea counsel’s

ineffectiveness resulted in [Appellant] entering an involuntary plea.” Id.

      The court concluded:

      In examining the totality of the circumstances surrounding the
      entry of [Appellant’s] plea and whether he understood its
      connotations and subsequent consequences, this court finds that
      [Appellant] entered a voluntary and knowing plea and that he was
      not misled nor misinformed when he tendered his guilty plea. The
      calculation of [Appellant’s] prior record score, if there was any
      such calculation, has no bearing on the voluntariness of
      [Appellant’s] plea.

Id. at 11 (some capitalization omitted).      Therefore, even if not waived,

Appellant’s claim lacked merit because he failed to prove, by a preponderance

of evidence, that he entered into an involuntary plea due to plea counsel’s

ineffectiveness. Id.

      Based on its independent review of the record, the PCRA court agreed

with counsel’s legal assessment that Appellant’s claims lacked merit.        Our

review of the record confirms that the PCRA court’s ruling is supported by the

evidence and is free of legal error. Therefore, we shall not disturb it.

      Motion to withdraw granted. Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/10/2019




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