J-S74023-18


                               2019 PA Super 41

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                          Appellee

                     v.

MAURICE WILLIAMS

                          Appellant                    No. 2500 EDA 2017


             Appeal from the PCRA Order entered July 10, 2017
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at Nos: CP-51-CR-0014634-2008;
                          CP-51-CR-0005227-2013


BEFORE: LAZARUS, J., STABILE, J., and McLAUGHLIN, J.

OPINION BY STABILE, J.:                           FILED FEBRUARY 14, 2019

      Appellant, Maurice Williams, appeals from the July 10, 2017 order

entered in the Court of Common Pleas of Philadelphia County, dismissing as

meritless his petition for collateral relief filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. In addition, Appellant’s counsel

seeks leave to withdraw. Upon review, we grant counsel’s petition to withdraw

and affirm the order dismissing Appellant’s PCRA petition.

      The underlying facts are not in dispute.       Briefly, in 2010, Appellant

received a sentence of probation following entry of a guilty plea to possession

with intent to deliver (“PWID”) at CP-51-CR-0014634-2008 (“PWID case”). In

December 2014, Appellant entered a guilty plea at CP-51-CR-0005225-2013

(“firearm case”) to one count of PWID, one count of conspiracy to
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manufacture, possess, or deliver, and one count of prohibited possession of a

firearm, putting him in direct violation of his probation on the PWID case.1

       In August 2015, the trial court imposed a sentence in the firearm case

of two and one-half to five years in prison followed by five years’ probation for

prohibited possession of a firearm.            Because Appellant had violated his

probation in the PWID case, he was sentenced on the same day to four to

eight years in prison followed by two years’ probation. The court ordered the

sentences to run concurrently, resulting in a total aggregate sentence of four

to eight years in prison followed by five years’ probation.

       While the underlying facts are not in dispute, the procedural history

following imposition of Appellant’s sentence is somewhat convoluted.

Appellant did not file a direct appeal from his judgment of sentence. On May

9, 2016, he filed a timely pro se PCRA petition in the PWID case, claiming an

illegal sentence on resentencing and requesting correction of his sentence.

PCRA Petition, 5/9/16, at 2, 3, and 6. On May 18, 2016, he filed a pro se

PCRA petition in the firearm case, asserting it was a first PCRA petition being

utilized to obtain nunc pro tunc restoration of his direct appeal rights that were

abandoned by counsel.          He claimed his due process rights were violated

because he was not brought to trial within 365 days and asserted



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1 Although the captions for all subsequent filings in the trial court, PCRA court,
and this Court included both docket numbers, there is no indication in the
record to suggest the cases were ever consolidated.

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ineffectiveness of counsel for preparing but not filing a Rule 600 motion. PCRA

Petition, 5/18/16, at 2-4.       On July 12, 2016, he filed an amended pro se

petition in the firearm case, asking for restoration of his direct appeal rights

and noting that PCRA counsel had not yet been appointed. Amended Petition,

7/12/16, at 1.       Attorney John P. Cotter was appointed counsel and his

appearance was entered on the dockets for both cases on November 4, 2016.

       On February 17, 2017, Attorney Cotter filed a Finley letter,2 asserting

that Appellant failed to raise any issues of arguable merit in his PCRA petition

and requesting leave to withdraw. Although he referenced both the PWID

case and the firearm case in the introduction to the letter, the only claim he

addressed specifically was the illegal sentencing claim raised in the May 9,

2016 petition filed in the PWID case. Counsel stated he reviewed the record,

determined the sentence was legal, and concluded there were no other issues

of arguable merit that could be raised in a counseled petition. Finley Letter,

2/17/17, at 1-2. A copy of the letter was provided to Appellant and included

a notice indicating that he had the right to proceed pro se or with the

assistance of privately-retained counsel in the event the PCRA court should

grant the request to withdraw.

       On May 15, 2017, the PCRA court issued a notice in accordance with

Pa.R.Crim.P. 907, informing Appellant of its intent to dismiss the petition and



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

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advising Appellant of his opportunity to respond within twenty days.         The

caption on the notice listed the docket numbers for both the PWID case and

the firearm case. Appellant did not file a response. On July 10, 2017, the

court entered its order, again with both docket numbers in the caption,

granting counsel’s request to withdraw and dismissing Appellant’s petition for

lack of merit. The order advised Appellant of his right to appeal to this Court

within 30 days and stated that Appellant “may proceed pro se, or retain

counsel; no new counsel will be appointed.” Order, 7/10/17, at 1.

      The docket for each case includes two identical entries on July 10, 2017.

The first entry on each docket includes the order denying Appellant’s PCRA

petition as frivolous and advising Appellant of his right to appeal to this Court

within 30 days. The entry also reflects that counsel’s application to withdraw

is granted and that Appellant “may proceed pro se or retain counsel; no new

counsel will be appointed.” First Docket Entry, 7/10/17 (emphasis added).

The second entry on each docket reflects the order denying PCRA relief, the

grant of counsel’s request to withdraw, and notes “appeals counsel appointed

{J. Mann}.” Second Docket Entry, 7/10/17.

      Attorney Jessica C. Mann entered her appearance on July 13, 2017 on

both dockets and filed a single notice of appeal to this Court on August 4,




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2017, listing both cases.3 By order entered August 13, 2017, the PCRA court

directed counsel to file a concise statement of errors complained of on appeal

in accordance with Pa.R.A.P. 1925(b). Counsel filed a Rule 1925(b) statement

on September 11, 2017, asserting PCRA court error “as a matter of law when

it denied [Appellant’s] PCRA Petition without a hearing, where [Appellant]

alleged an issue of arguable merit.” Rule 1925(b) Statement, 9/11/17, at ¶ 2.

The statement did not identify the “issue of arguable merit” purportedly

alleged in either of Appellant’s petitions.4


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3 We note that a separate notice of appeal should have been filed for each
case. See Pa.R.A.P. 341 (Note: “Where, however, one or more orders
resolves issues arising on more than one docket or relating to more than one
judgment, separate notices of appeal must be filed.”) In Commonwealth v.
Walker, 185 A.3d 969 (Pa. 2018), our Supreme Court instructed that the
failure to file separate notices of appeal from an order resolving issues arising
on more than one lower court docket will result in quashal of the appeal. Id.
at 977. However, that mandate applies only to appeals filed after the date of
the Walker decision, i.e., June 1, 2018. The instant appeal was filed on
August 4, 2017.

In Walker, our Supreme Court recognized that prior to the 2013 amendment
to the Rule 341 Note (requiring separate notices of appeal), this Court seldom
quashed appeals, even while disapproving of the practice of filing a single
notice. The Court specifically acknowledged In the Interest of P.S., 158
A.3d 643 (Pa. Super. 2017), in which this Court “interpreted the Official Note
to apply only where separate appeals are necessary because review of the
orders in question requires ‘individualized arguments, separate appellate
analyses of the evidence, and distinct examination of the different sentences
imposed.’” Walker, 185 A.3d at 977 (quoting In the Interest of P.S., 158
A.3d at 648). Because the instant appeal from the PCRA court’s order does
not require individual arguments, separate evidentiary analyses or distinct
examinations of the sentences imposed, we decline to quash the appeal.

4 We note that Appellant does not challenge the PCRA court’s grant of PCRA
counsel’s petition to withdraw.

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      The PCRA court issued its Rule 1925(a) opinion on November 13, 2017,

noting initially that the Rule 1925(b) statement failed to identify the issues

raised on appeal and violated the requirements of Rule 1925(b)(4)(ii), which

requires that the statement “concisely identify each ruling or error that the

appellant intends to challenge with sufficient detail to identify all pertinent

issues for the judge.” Rule 1925(a) Opinion, 11/13/17, at 2 (unnumbered).

The court explained that Appellant did not state “which of his two PCRA claims

he believe[d] had arguable merit, which is of particular importance in light of

the fact that PCRA counsel filed a Finley letter.”      Id. (citations omitted).

Although the PCRA court determined Appellant’s 1925(b) statement was

insufficient on its face, the Court proceeded to address “both of the issues”

raised in Appellant’s PCRA petition, “in the hopes that they do in fact represent

[Appellant’s] only complaints on appeal.” Id. at 3-7 (unnumbered). The two

claims examined and dismissed in the Rule 1925(a) opinion included the two

claims raised in the petition filed in the firearm case, i.e., a violation of due

process rights claim for not bringing Appellant to trial within 365 days and an

ineffectiveness claim for preparing but not filing a Rule 600 motion to dismiss.

The court determined that neither claim had merit and concluded its order

“must not be disturbed.” Id. at 8 (unnumbered). The court did not discuss

the illegal sentence claim raised in the petition filed in the PWID case, the sole

claim specifically explored in Attorney Cotter’s Finley letter upon which the

court entered the July 10, 2017 order denying post-conviction relief.


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        Attorney Mann filed an Anders5 brief with this Court, raising three

issues:

        A. Whether [Appellant’s] due process rights were violated due to
           the court’s inability to bring him to trial within 365 days?

        B. Whether plea counsel was ineffective for preparing a motion to
           argue that [Appellant’s] due process rights were being violated
           but never filed the motion?

        C. Whether the sentence was illegal due to recent court rulings on
           mandatory drug cases and the sentencing guidelines?

Appellant’s Brief at 3.

        Before addressing the merits of Appellant’s issues, and even before

considering whether Appellant has preserved his issues for appeal, we first

address the PCRA court’s appointment of counsel for this appeal. As this Court

noted in Commonwealth v. Rykard, 55 A.3d 1177 (Pa. Super. 2012):

        Commonwealth v. Maple, [559 A.2d 953 (Pa Super. 1989)],
        forbids appointment of new counsel where a proper
        Turner6/Finley no-merit letter has been accepted and counsel
        was permitted to withdraw. Maple, supra at 956 (“when counsel
        has been appointed to represent a petitioner in post-conviction
        proceedings as a matter of right under the rules of criminal
        procedure and when that right has been fully vindicated by
        counsel being permitted to withdraw under the procedure
        authorized in Turner, new counsel shall not be appointed and the
        petitioner, or appellant, must thereafter look to his or her own
        resources for whatever further proceedings there might be.”)




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5   Anders v. California, 386 U.S. 738 (1967).

6   Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).

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Id. at 1183 n. 1 (footnote omitted).        Based on Maple, and as recently

reflected in this Court’s decision in Rykard, it is clear counsel should not have

been appointed. Therefore, we grant counsel’s petition to withdraw.

      Because we have granted counsel’s petition to withdraw, we next

consider, as did this Court in Maple, whether Appellant must be afforded the

opportunity to file a brief on his own where the appeal is supported only by

an Anders brief. Addressing the issue in Maple, this Court concluded, “We

necessarily answer in the affirmative because the right to pursue the appeal

remains unaffected by Turner, even if the right to counsel has been vindicated

by a proper withdrawal.” Maple, 559 A.2d at 957. Moreover,

      whatever the lack of entitlement to counsel, the fact remains that
      when counsel is appointed the effect is to instill in the mind of the
      appellant a belief that his interests are being protected without
      the need for participation on his part. Thus, whenever appellate
      counsel is permitted to withdraw on the grounds that his
      appointment was improper under Turner, the court must
      determine whether the appellant has been given the opportunity
      to proceed on his own behalf.

Id. at 958.

      In the instant case, PCRA counsel provided a copy of his Finley letter

to Appellant and advised him of his right to proceed pro se or retain other

counsel in the event the PCRA court granted the petition to withdraw. Further,

the PCRA court invited Appellant to respond to the Rule 907 notice within 20

days of its issuance. Appellant did not file a response and did not proceed

either pro se or with privately-retained counsel after the court issued its order

granting counsel’s petition to withdraw and dismissing Appellant’s petition.

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Further, Appellant did not respond to the letter from appeals counsel that

accompanied counsel’s petition to withdraw filed in conjunction with her

Anders brief. Under the circumstances, we conclude, as did this Court in

Maples, that “[f]rom his silence we conclude that [Appellant] is content to

have us review his appeal based on what we have before us.” Maples, 559

A.2d at 958.

      We next consider whether Appellant has preserved any issues for

appeal. While he asks us to consider three issues, his Rule 1925(b) statement

simply asserted PCRA court error, as a matter of law, for denying Appellant’s

petition without a hearing, “where [Appellant] alleged an issue of arguable

merit.”   Rule 1925(b) Statement, 9/11/17, at ¶ 2.       As noted above, the

statement did not identify the “issue of arguable merit” purportedly alleged in

either of Appellant’s petitions.

      In its Rule 1925(a) opinion, the PCRA court noted “[a]s a preliminary

matter, [] that the concise statement submitted by [Appellant] on September

11, 2017 does not adequately identify the issues raise on appeal, and thus

does not meet the requirements of Pa.R.A.P. 1925.”        PCRA Rule 1925(a)

Opinion, 11/13/17, at 2 (unnumbered) (some capitalization omitted). As this

Court reiterated in Commonwealth v. Smith, 955 A.2d 391 (Pa. Super.

2008):

      It has been held that when the trial court directs an appellant to
      file a concise statement of matters complained of on appeal, any
      issues that are not raised in such a statement will be waived for
      appellate review. Commonwealth v. Dowling, 778 A.2d 683,

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      686 (Pa. Super. 2001), citing Commonwealth v. Lord, 553 Pa.
      415, 418, 719 A.2d 306, 308 (1998). Similarly, when issues are
      too vague for the trial court to identify and address, that is the
      functional equivalent of no concise statement at all. Id. Rule
      1925 is intended to aid trial judges in identifying and focusing
      upon those issues which the parties plan to raise on appeal.
      Commonwealth v. Lemon, 804 A.2d 34, 37 (Pa. Super. 2002).
      Thus, Rule 1925 is a crucial component of the appellate process.
      Id. “When the trial court has to guess what issues an appellant
      is appealing, that is not enough for meaningful review.” Id., citing
      Dowling, supra.

Id. at 393.

      The PCRA court here expressed its belief that Appellant’s 1925(b)

statement was insufficient on its face.        PCRA Opinion, 11/13/17, at 3

(unnumbered).      Nevertheless, the court indicated it would “address both of

the issues [Appellant] raised in his PCRA petition, in the hopes that they do in

fact represent [Appellant’s] only complaints on appeal.” Id. As noted above,

the court proceeded to address claims raised by Appellant in the petition filed

in the firearm case, but did not discuss the claim raised in the petition filed in

the PWID case, despite the fact PCRA counsel limited the discussion in the

Finley letter to that claim.    Clearly, the PCRA had to guess what issues

Appellant intended to raise on appeal. As such, the Rule 1925(b) statement

was insufficient for meaningful review by this Court.      “Because Appellant’s




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vague Concise Statement has hampered appellate review, [his issues are]

waived.” Dowling, 778 A.2d at 687.7

       Even if his issues were not waived, Appellant would not be entitled to

relief. As PCRA counsel correctly concluded in his Finley letter, the sentence

imposed in Appellant’s PWID case was not illegal. As PCRA counsel explained,

the sentence was less than the maximum allowable sentence, it was in the

mitigated range, and sentencing guidelines do not apply to violation-of-

probation cases.       Further, the guilty plea was knowing, intelligent, and

voluntary. See Finley letter, 2/16/17, at 2 (citations and references to notes

of testimony omitted). As for the firearm case, as the PCRA court explained,

counsel was not ineffective for failing to file a Rule 600 motion because counsel

did, in fact, file such a motion on May 27, 2014.          Rule 1925(a) Opinion,

11/13/17, at 5 (unnumbered).            Appellant entered into his guilty plea on

August 4, 2015, prior to disposition of the Rule 600 motion. Further, as the

PCRA court’s calculations reflect, Appellant cannot demonstrate a Rule 600

violation. Id. at 6-7. Moreover, as the Commonwealth recognizes, Appellant

waived his right to a Rule 600 claim by entering a guilty plea, and he cannot

raise a claim in a petition that has been waived. Commonwealth’s Brief at 6

(quoting Commonwealth v. Jones, 929 A.2d 205, 212 (Pa. 2007) (“A plea


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7In Lemon, we held that an issue not specifically raised in the appellant’s
Rule 1925(b) statement and not addressed by the PCRA court is “certainly
waived.” Lemon, 804 A.2d at 38 (citing, inter alia, Dowling).


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of guilty constitutes a waiver of all nonjurisdictional defects and defenses.

When a defendant pleads guilty, he waives the right to challenge anything but

the legality of his sentence and the validity of his plea.”)). Therefore, even if

Appellant had preserved the issues he raises in the brief filed with the Court,

he would not be entitled to relief.

      Because Appellant was not entitled to the appointment of counsel on

appeal, counsel’s petition to withdraw is granted. Because Appellant has not

preserved any issues for appeal, there is no basis for this Court to disturb the

July 10, 2017 order dismissing Appellant’s petitions. Again, even if preserved,

the issues raised in the brief do not provide any basis for relief.

      Petition to withdraw granted. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/19




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