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[U] Commonwealth v. Davis

Superior Court of Pennsylvania

February 28, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
JADI FREDERICK DAVIS Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order June 12, 2013 In the Court of Common Pleas of Adams County Criminal Division at No(s): CP-01-CR-0000454-2011

BEFORE: MUNDY, J., OLSON, J., and STABILE, J.

MEMORANDUM

MUNDY, J.

Appellant, Jadi Frederick Davis, appeals from the June 12, 2013 order denying his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Additionally, Appellant's counsel, Thomas R. Nell, Esquire (PCRA counsel), has filed, with this Court, a motion to withdraw as PCRA counsel together with a Turner/Finley letter, averring Appellant's issues are without merit.[1] After careful review, we affirm the denial of PCRA relief based on the thorough and well-supported opinion of the Honorable Thomas R. Campbell, and grant PCRA counsel's motion to withdraw.

The PCRA court has accurately summarized the factual and procedural history of this case, which we need not restate here. Following the PCRA court's June 12, 2013 order denying Appellant PCRA relief, Appellant filed a timely notice of appeal on July 9, 2013. On September 26, 2013, subsequent to filing the appeal, PCRA counsel filed a motion to withdraw as Appellant's PCRA counsel, together with a Turner/Finley letter, averring Appellant's issues are without merit. Appellant has not filed a response to PCRA counsel's motion.[2]

On behalf of Appellant, PCRA counsel identifies for our review the following issues raised in Appellant's PCRA petition.

[1.] [Appellant] did not receive the benefit of [his] plea bargain in that [trial counsel] told [Appellant] that [his] Adams County sentence would be totally concurrent with the sentence that [Appellant was] serving in York County.
[2.] [Appellant's] plea counsel was ineffective in promising [Appellant] that he would receive no additional time if [Appellant] pled guilty in exchange for a concurrent Adams County sentence.
[3.] [Appellant was] denied "due process of law[.]"

Turner/Finley Letter, at 1-2; see also Appellant's Pro Se PCRA Petition, 1/28/13, at 7-A - 7-C.

Prior to considering Appellant's arguments, we must review PCRA counsel's request to withdraw from representation. As explained by our Supreme Court, the requirements PCRA counsel must adhere to when requesting to withdraw include the following.

1) A "no-merit" letter by PC[R]A counsel detailing the nature and extent of his review;
2) The "no-merit" letter by PC[R]A counsel listing each issue the petitioner wished to have reviewed;
3) The PC[R]A counsel's "explanation", in the "no-merit" letter, of why the petitioner's issues were meritless[.]

Commonwealth v. Pitts, 981 A.2d 875, 876 (Pa. 2009), quoting Finley, supra at 215. "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).

[W]here counsel submits a petition and no-merit letter that do satisfy the technical demands of Turner/Finley, the court - trial court or this Court -must then conduct its own review of the merits of the case. If the court agrees with counsel that the claims are without merit, the court will permit counsel to withdraw and deny relief. By contrast, if the claims appear to have merit, the court will deny counsel's request and grant relief, or at least instruct counsel to file an advocate's brief.

Id. (citation omitted).

Instantly, we determine that PCRA counsel has complied with the requirements of Turner/Finley. Specifically, PCRA counsel's Turner/Finley letter details the nature and extent of PCRA counsel's review, addresses the claims Appellant raised in his pro se PCRA petition and determines that the issues lack merit. PCRA counsel provides a discussion of Appellant's claims, explaining why the issues are without merit. Additionally, counsel served Appellant with a copy of the petition to withdraw and Turner/Finley brief, advising Appellant that, if PCRA counsel was permitted to withdraw, Appellant had the right to proceed pro se or with privately retained counsel. As noted, Appellant has not filed any response. We proceed, therefore, to conduct an independent merits review of Appellant's claims.

We acknowledge the following principles, guiding our consideration of an appeal from the denial of PCRA relief.

Our standard of review is limited to examining whether the PCRA court's findings of fact are supported by the record, and whether its conclusions of law are free from legal error. Our scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the party who prevailed in the PCRA court proceeding.

Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012) (citations omitted). "The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record." Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011) (internal quotation marks and citations omitted), appeal denied, 38 A.3d 823 (Pa. 2012). "The PCRA court's factual determinations are entitled to deference, but its legal determinations are subject to our plenary review." Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009) (internal quotation marks and citations omitted). In order to be eligible for PCRA relief, a petitioner must plead and prove by a preponderance of the evidence that his conviction or sentence arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). These issues must be neither previously litigated nor waived. 42 Pa.C.S.A. § 9543(a)(3).

In addition, when reviewing a claim of ineffective assistance of counsel we apply the following test, first articulated by our Supreme Court in Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).

When considering such a claim, courts presume that counsel was effective, and place upon the appellant the burden of proving otherwise. Counsel cannot be found ineffective for failure to assert a baseless claim.
To succeed on a claim that counsel was ineffective, Appellant must demonstrate that: (1) the claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) counsel's ineffectiveness prejudiced him.
[T]o demonstrate prejudice, appellant must show there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different.

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (internal quotation marks and citations omitted). "Failure to establish any prong of the test will defeat an ineffectiveness claim." Commonwealth v. Birdsong, 24 A.3d 319, 330 (Pa. 2011).

In this case, the PCRA court limited the issues Appellant could present at the evidentiary hearing.

[T]he right to an evidentiary hearing on a post-conviction petition is not absolute. It is within the PCRA court's discretion to decline to hold a hearing if the petitioner's claim is patently frivolous and has no support either in the record or other evidence. It is the responsibility of the reviewing court on appeal to examine each issue raised in the PCRA petition in light of the record certified before it in order to determine if the PCRA court erred in its determination that there were no genuine issues of material fact in controversy and in denying relief without conducting an evidentiary hearing.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012), quoting Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa. Super. 2007) (internal citations omitted), appeal denied, 940 A.2d 365 (Pa. 2007); see also Pa.R.Crim.P. 907.

The PCRA court's June 12, 2013 Rule 1925(a) opinion fully sets forth Appellant's PCRA claims, discusses the relevant law and explains the basis for its conclusion that said claims lack merit. Instantly, we carefully reviewed the entire record and Appellant's claims and we conclude that the thorough and well-reasoned opinion of Judge Thomas R. Campbell is in concert with our own views. Specifically, we agree that Appellant's first claim, that his sentence failed to afford him the benefit of his plea bargain, is not cognizable in this PCRA action, since Appellant challenged his sentence on this ground in a timely post-sentence motion and did not file a direct appeal. Accordingly, the issue has been previously litigated and cannot be revisited in a PCRA action. See 42 Pa.C.S.A. § 9543(a)(3).

We also agree with the PCRA court that Appellant failed in his burden to show that plea counsel was ineffective for inducing Appellant to enter an unknowing and involuntary plea. Appellant and plea counsel testified that they assumed that the minimum term of the Adams County sentence, by running concurrent with an unrelated York County sentence, would not exceed the end date of the York County minimum sentence. N.T., 5/2/13, at 11-12, 23. Counsel testified, however, that Appellant specifically declined to file a motion to withdraw his plea after sentencing when plea counsel discussed the issue with him. N.T., 5/2/13, at 28-29. Additionally, a review of the plea proceedings makes clear there was no plea agreement relative to the sentence other than it would run concurrently with the existing York County sentence. We agree with the PCRA court that the record further demonstrates Appellant entered his plea knowingly, intelligently and voluntarily. Accordingly, Appellant has failed to demonstrate he was prejudiced by plea counsel's erroneous assumption, when Appellant himself declined to take remedial actions. See Michaud, supra.

Finally, we agree with the PCRA court that Appellant's due process claim, based on unlawful inducement to plead guilty, is not cognizable in this PCRA action. As with Appellant's first issue, this claim could have been pursued at sentencing, in post-sentence motions, and on direct appeal. Since it was not, the issue is waived and cannot be revisited in a PCRA action. See 42 Pa.C.S.A. § 9543(a)(3).

After careful review of the record and the applicable law, we agree with the thorough analysis of the law and facts as developed by the PCRA court in its June 12, 2013 opinion. We conclude the PCRA court did not abuse its discretion when it denied Appellant's PCRA petition. Accordingly, we adopt the opinion by the Honorable Thomas R. Campbell as our own for purposes of further appellate review. See PCRA Court Opinion, 6/12/13.

Order affirmed.

Motion to withdraw granted.

Judgment Entered.

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