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[U] Commonwealth v. Bertolini

Superior Court of Pennsylvania

September 24, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
ANTHONY THOMAS BERTOLINI, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order December 12, 2012 In the Court of Common Pleas of Wayne County Criminal Division at No(s): CP-64-CR-0000474-2007

BEFORE: BOWES, MUNDY, and FITZGERALD, [*] JJ.

MEMORANDUM

BOWES, J.

Anthony Thomas Bertolini appeals pro se from the December 12, 2012 order denying his first PCRA petition. We affirm.

On January 28, 2008, Appellant entered guilty pleas to two counts of possession with intent to deliver ("PWID") (cocaine). The guilty pleas stem from Appellant's participation in a series of controlled drug transactions that occurred during July and August 2007 in Damascus Township, Pennsylvania. The Commonwealth outlined the factual basis of the guilty pleas as follows:

[O]n July 3rd, 2007 [and] July 8, 2007 . . . the Pennsylvania State Police using a confidential informant made [two] buys of cocaine from the Defendant. The first one was at his trailer. They paid a hundred dollars, they got 1.4 grams of cocaine. The second one on July 8, 2007, was again at his trailer. They paid a hundred dollars and they got cocaine — 1.2 grams. . . .

N.T., Guilty Plea, 1/28/06, at 2.[1] Following an oral guilty plea colloquy and confirmation of Appellant's execution of a written plea colloquy, the trial court accepted Appellant's guilty plea.

On March 12, 2008, the trial court imposed two concurrent terms of twenty-seven to sixty months imprisonment. While Appellant failed to file a direct appeal, on March 9, 2009, he timely filed a pro se PCRA petition wherein he asserted that his guilty plea was unlawfully induced, raised a nonspecific constitutional violation, and leveled several allegations of plea counsel's ineffective assistance. As it relates to the ineffective assistance of trial counsel, the PCRA petition alleged 1) counsel misrepresented facts and withheld information; 2) counsel lied to defendant to induce the guilty plea, 3) counsel failed to file pretrial motions, consolidate the charges with another proceeding, or file a motion for reconsideration, and 4) counsel willingly accepted the Commonwealth's version of the facts without performing an independent investigation. See PCRA Petition, 3/9/09, at 2-3. The PCRA court appointed Oressa Campbell, Esquire, to represent Appellant during the post-conviction proceedings. However, Attorney Campbell did not file an amended PCRA petition, and on August 2, 2010, Appellant filed a pro se motion to appoint substitute counsel based upon undisclosed irreconcilable differences between him and Attorney Campbell. Four days later, Attorney Campbell filed a thorough no-merit letter and petition to withdraw from representation pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). On August 10, 2010, the PCRA court granted Attorney Campbell's' petition and permitted her to withdraw.[2]

There was no further activity on the PCRA petition until November 19, 2012, when the PCRA court issued an "opinion, order, and notice of intent to dismiss pursuant to Pa.R.Crim.P. 907." Within the opinion, the PCRA court outlined its independent review of the record and confirmed that it had allowed Attorney Campbell to withdraw from representation. Appellant did not file a response to the Rule 907 notice. Instead, on November 29, 2012, Appellant filed a purported pro se amended petition pursuant to Pa.R.Crim.P. 905(A), wherein he raised novel bases for PCRA relief including, inter alia, allegations that trial counsel lied to him in order to induce the guilty plea and that she failed to file a direct appeal or motion for reconsideration. Significantly, Appellant did not assert that Attorney Campbell provided ineffective assistance during the PCRA proceedings. Thereafter, on December 12, 2012, the PCRA court dismissed Appellant's PCRA petition. This pro se appeal followed. Appellant timely filed a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925 (b). He presents five issues for our review, which we restate for clarity as follows:

1. Did the PCRA court err in permitting Attorney Campbell to withdraw from representation before it addressed Appellant's motion for substitute counsel?
2. Did Attorney Campbell provide ineffective assistance in failing to communicate with Appellant when her actions prevented Appellant from articulating his claim that the guilty plea was induced by trial counsel's failure to explain all of the elements of PWID?
3. Did trial counsel induce Appellant to plead guilty by failing to inform him of the Commonwealth's burden of proof to establish the elements of PWID beyond a reasonable doubt?
4. Did the trial court err in accepting the guilty plea where the record was devoid of physical evidence to prove PWID beyond a reasonable doubt?
5. Did trial counsel provide ineffective assistance in failing to perform a proper investigation and preventing Appellant from raising a defense to the charges?

Appellant's brief at 4-5.

"Our standard of review in an appeal from the grant or denial of PCRA relief requires us to determine whether the ruling of the PCRA court is supported by the record and is free from legal error." Commonwealth v. Lesko, 15 A.3d 345, 358 (Pa. 2011).

This review is limited to the findings of the PCRA court and the evidence of record. Id. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. Id. This Court may affirm a PCRA court's decision on any grounds if the record supports it. Id. 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. Commonwealth v. Carter, 21 A.3d 680, 682 (Pa.Super. 2011). However, we afford no such deference to its legal conclusions. Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 431, 442 (2011); Commonwealth v. Reaves, 592 Pa. 134, 923 A.2d 1119, 1124 (2007). Where the petitioner raises questions of law, our standard of review is de novo and our scope of review plenary. Commonwealth v. Colavita, 606 Pa. 1, 993 A.2d 874, 886 (2010).

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

At the outset, we observe that the second and fourth issues listed in Appellant's statement of questions involved are waived. First, as it relates to Attorney Campbell's stewardship during the PCRA proceedings, the complaint is waived due to Appellant's failure to raise the assertion in response to the PCRA court's Rule 907 notice. In Ford, id. at 1198, we explained, "when counsel files a Turner/Finley no-merit letter to the PCRA court, a petitioner must allege any claims of ineffectiveness of PCRA counsel in a response to the court's notice of intent to dismiss." See also Commonwealth v. Rykard, 55 A.3d 1177, 1186 (Pa.Super. 2012), ("Pursuant to [Commonwealth v. Pitts, 981 A.2d 875 (2009)], a petitioner waives issues of PCRA counsel's effectiveness regarding Turner/Finley requirements if he declines to respond to the PCRA court's notice of intent to dismiss."). Herein, Appellant not only failed to file a response to the PCRA Court's Rule 907 notice, but he also failed to include the assertion in his pro se amended PCRA petition filed after the court issued 907 notice. Hence, Appellant never leveled the allegations before the PCRA court. Accordingly, while we will review Appellant's contention that the PCRA court erred in permitting Attorney Campbell to withdraw pursuant to Turner and Finley, we cannot address Appellant's independent allegation of ineffective assistance.

Likewise, we do not confront the merits of Appellant's fourth issue because he failed to assert that issue in his PCRA petition. Simply stated, if an issue is not raised in the PCRA petition, it cannot be considered on appeal.[3] See Paddy, supra at 466 n.21 ("We cannot consider issues not raised in the PCRA court"); Commonwealth v. Wallace, 724 A.2d 916, 921 n.5 (1999); (Pa.R.A.P. 302).

Next, we address the first of the three claims that are properly before this Court. Appellant argues that the PCRA court erred in granting Attorney Campbell's request to withdraw pursuant to Turner and Finley before addressing the merits of his motion for substitute counsel. We disagree.

Initially, we note that, despite the manner that Appellant elected to phrase this argument, he does not challenge the procedural aspects of the trial court's actions in addressing counsel's subsequently filed motion rather than confronting his motion for substitute counsel. Instead, Appellant asserts the actual merits of his motion for substitute counsel and invokes Attorney Campbell's' effectiveness during the PCRA proceedings as the reason that he sought to request substitute counsel. However, as we previously discussed, since Appellant did not raise Attorney Campbell's effectiveness in response to the Rule 907 notice, we cannot address the merits of those claims herein.

Moreover, as we highlighted in footnote two, supra, the PCRA court's order permitting counsel to withdraw pursuant to Turner and Finley, effectively rendered his motion to appoint substitute counsel moot. The fact the PCRA court considered the dispositive motion out of sequence is not tantamount to legal error. In addition, to the extent that Appellant's brief can be interpreted as challenging the procedural aspects of the PCRA court's order permitting Attorney Campbell to withdraw, our review of the certified record sustains the propriety of that order.

In Pitts, supra at 876 n.1, our Supreme Court explained that the procedure for withdrawal of court-appointed counsel in collateral attacks on criminal convictions pursuant to Turner and Finley requires independent review of the record by competent counsel. According to the Supreme Court,

Such independent review requires proof of:

1. A "no-merit" letter by PCRA counsel detailing the nature and extent of his review;
2. The "no-merit" letter by PCRA counsel listing each issue the petitioner wished to ...

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