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[U] Commonwealth v. Sloan

Superior Court of Pennsylvania

March 13, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JOHN SLOAN, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order June 12, 2013 in the Court of Common Pleas of Allegheny County Criminal Division at Nos.: CP-02-CR-0002956-2011 CP-02-CR-0003278-2011

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, J., and PLATT, J. [*]

MEMORANDUM

PLATT, J.

Appellant, John Sloan, appeals from the order denying his petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541–9546. He claims the PCRA court erred by denying him an evidentiary hearing. The PCRA court has not provided a compliant Rule 1925(a) opinion. Accordingly, we remand.

This is a collateral appeal based on two separate judgments of sentence.[1] On December 5, 2011, Appellant entered a counseled plea of nolo contendere to the charges at Criminal Information 201102956, [2] and Criminal Information 201103278.[3]

On the same day, the court sentenced Appellant to the negotiated aggregate sentence of not less than four nor more than eight years' incarceration in a state correctional institution, to be followed by two years of state supervised probation. As part of the negotiated plea, the Commonwealth withdrew the charge of criminal trespass. Appellant did not file post-sentence motions or a direct appeal.

On December 5, 2012, Appellant filed a pro se request for post-conviction relief. The PCRA court appointed counsel who subsequently filed a "Turner/Finley" no-merit letter and a motion to withdraw. See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On March 28, 2013, the PCRA court entered an order granting counsel's petition to withdraw, and serving notice of its intent to dismiss Appellant's PCRA petition without a hearing. (See Order, 3/28/13). The court denied Appellant's petition by order dated June 12, 2013, (filed June 13, 2013), citing its Notice of Intention to Dismiss. (See Order, 6/13/13).

Appellant timely appealed, pro se.[4] The PCRA Court filed an order referencing its Notice of Intention to Dismiss for the reasons denying Appellant's petition. (See Order, 9/17/13). The PCRA court also appointed new counsel for Appellant, who continues to represent him in this appeal. (See id.). The court subsequently vacated the order of September 17, 2013, in a substitute order which substantially tracked the September 17 order. (See Order, 10/08/13). In particular, the October 8 order repeated the recitation that it had satisfied the requirement of Pennsylvania Rule of Appellate Procedure 1925(a), by reference to the Notice of Intention to Dismiss, dated March 28, 2013.

Appellant raises one question for our review:
Did the [PCRA] [c]ourt err when it dismissed Appellant's [a]mended [p]etition for Post Conviction [r]elief without an evidentiary hearing relative to Appellant's claims of ineffective assistance of counsel wherein Appellant's claims were not "patently frivolous" and, if proven, would have entitled Appellant to relief?

(Appellant's Brief, at 5).

Appellant argues that the PCRA court should have held an evidentiary hearing on his claim of ineffective assistance of counsel. (See Appellant's Brief, at 8). He alleges counsel was deficient in pre-trial preparation. He also claims counsel should have litigated a motion to suppress. Further, he alleges his guilty plea was not knowing, voluntary and intelligent because "trial counsel essentially abandoned his right to file and litigate pre-trial motions." (Id.).

Our standard of review for an order denying PCRA relief is whether the record supports the PCRA court's determination, and whether the PCRA court's determination is free of legal error. The PCRA court's findings will not be disturbed unless ...

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