Com. v. Fultz, O., Jr.

• Court: Superior Court of Pennsylvania
• Decided: July 23, 2020
• Docket: 441 MDA 2020
• Status: Unpublished

Opinion

J-S31021-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ORTHELLO LEE FULTZ JR. : : Appellant : No. 441 MDA 2020

Appeal from the PCRA Order Entered February 7, 2020 In the Court of Common Pleas of Mifflin County Criminal Division at No(s): CP-44-CR-0000177-2017

BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.: FILED JULY 23, 2020

Appellant, Orthello Lee Fultz, Jr., appeals from the February 7, 2020

Order entered in the Mifflin County Court of Common Pleas denying his first

Petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. Counsel for Appellant, Nicholas E. Newfield, Esquire, has filed

an Anders1 Brief and a Motion to Withdraw as Counsel. After careful review,

we grant counsel’s Motion to Withdraw and affirm.

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1 See Anders v. California, 386 U.S. 738 (1967). Although Counsel filed an Anders brief, the proper mechanism when seeking to withdraw in PCRA proceedings is a Turner/Finley brief. See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). However, because an Anders brief provides greater protection to a criminal appellant, we may accept an Anders brief in lieu of a Turner/Finley no-merit brief. Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011); Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004). J-S31021-20

A detailed recitation of the factual and procedural history is unnecessary

to our disposition. Briefly, a jury convicted Appellant of Possession with Intent

to Deliver (“PWID”), Operating a Methamphetamine Laboratory and Illegal

Dumping of Methamphetamine Waste, and Use or Possession of Drug

Paraphernalia.2 On February 2, 2018, the trial court sentenced Appellant to

an aggregate term of five to ten years’ incarceration. On April 17, 2019, this

Court affirmed Appellant’s Judgment of Sentence. See Commonwealth v.

Fultz, 215 A.3d 619 (Pa. Super. 2019) (unpublished memorandum).

On May 15, 2019, Appellant filed pro se a timely first PCRA Petition. The

PCRA court appointed Attorney Newfield to represent Appellant, who, on

October 3, 2019, filed an Amended PCRA Petition raising a claim that

Appellant’s trial counsel, Tammy Dusharm, Esquire, had been ineffective for

failing to advise Appellant of the standard sentencing ranges or statutory

maximum sentences associated with the charged offenses. Amended Petition,

10/3/19, at ¶ 25. Appellant asserted that counsel’s ineffectiveness had

resulted in him electing to go to trial. Id.

On January 30, 2020, the PCRA court held a hearing on Appellant’s

Amended Petition at which Appellant presented the testimony of Attorney

Dusharm. Relevantly, she testified that, prior to Appellant retaining her to

represent him, the Commonwealth had made him a plea offer of 33 to 66

months incarceration. N.T., 1/30/20 at 7. She testified that she was in ____________________________________________

2 35 P.S. §§ 780-113(a)(30), 780-113.4(b)(1), and 780-113(a)(32), respectively.

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constant communication with the District Attorney and the Assistant District

Attorney to negotiate a plea agreement and that, ultimately, the first plea

offer was the only one the Commonwealth offered Id. at 7-8. She testified

that she discussed this offer with Appellant and that she explained to him the

standard range sentences for the offenses charged. Id. at 8. She testified

that Appellant was not interested in accepting the plea offered to him by the

Commonwealth. Id. at 9.

Attorney Dusharm brought to the hearing numerous letters that she had

written to Appellant prior to his trial, including several in which she indicated

that the Commonwealth had offered him a negotiated guilty plea that included

a sentence of 33 to 66 months’ incarceration. Id.at 8-9. She testified that

she specifically explained, both in person and in correspondence, the

sentencing guidelines applicable to a conviction of possession of

methamphetamine. Id. at 10-11. She also testified that, on April 27, 2017,

she sent Appellant a letter about the maximums and standard ranges provided

by the sentencing guidelines at each offense. Id. at 11, 13-15. The PCRA

court admitted into evidence Attorney Dusharm’s case file, including the

correspondence she sent to Appellant explaining to him the applicable

sentencing guidelines and statutory maximum sentences, and an April 27,

2017 letter from the District Attorney to Attorney Dusharm explaining that,

under the specific circumstances of this case, the sentencing range for

Appellant’s PWID charge was 54 to 72 months’ incarceration.

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Appellant also testified at the PCRA hearing, stating that he received the

letters sent to him by Attorney Dusharm but that he did not read them. Id.

at 19, 21. Appellant denied discussing with Attorney Dusharm the

Commonwealth’s plea offer or the standard range sentences or other penalties

the court could impose if a jury convicted Appellant of the charged offenses.

Id. He testified that he “was under the impression that the worst he could

get was a two to four” year sentence because that is what Attorney Dusharm

told him. Id. at 20.

On February 7, 2020, the PCRA court denied Appellant’s PCRA Petition.

This timely appeal followed. Both Appellant and the PCRA court complied with

Pa.R.A.P. 1925.

Before we consider Appellant’s arguments, we must review appellate

counsel’s request to withdraw from representation. Pursuant to

Turner/Finley, counsel must conduct an independent review of the record

before withdrawal on collateral appeal is permitted. Commonwealth v.

Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009). Counsel is then required to submit

a "no merit" letter (1) detailing the nature and extent of his or her review; (2)

listing each issue the petitioner wished to have reviewed; and (3) providing

an explanation of why the petitioner’s issues are meritless. Id. The court

then conducts its own independent review of the record to determine if the

Petition is meritless. Id. 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

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se or by new counsel.” Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.

Super. 2007).

Our review of the record discloses that counsel has complied with each

of the above requirements. Additionally, counsel served Appellant with a copy

of the Motion to Withdraw and Anders Brief, advising him that he had the

right to proceed pro se or with privately retained counsel. Since counsel has

complied with the Turner/Finley requirements, we will proceed with our

independent review of the record and the merits of Appellant’s claims.

In the Anders Brief, counsel raises the issue of whether the PCRA court

erred in determining that Attorney Dusharm rendered effective assistance of

counsel. Anders Brief at 11.

We review the denial of a PCRA Petition to determine whether the record

supports the PCRA court’s findings and whether its Order is otherwise free of

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This

Court grants great deference to the findings of the PCRA court if they are

supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.

Super. 2007). We likewise give great deference to the PCRA court’s credibility

determinations. Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa.

2009). We give no such deference, however, to the court’s legal conclusions.

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

A PCRA petitioner who alleges ineffective assistance of counsel “will be

granted relief only when he proves, by a preponderance of the evidence, that

his conviction or sentence resulted from the ‘[i]neffective assistance of counsel

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which, in the circumstances of the particular case, so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could

have taken place.’” Johnson, 966 A.2d at 532 (quoting 42 Pa.C.S. §

9543(a)(2)(ii)).

We presume counsel is effective. Commonwealth v. Cox, 983 A.2d

666, 678 (Pa. 2009). To overcome this presumption, a petitioner must

establish that: (1) the underlying claim has arguable merit; (2) counsel lacked

a reasonable basis for his act or omission; and (3) petitioner suffered actual

prejudice. Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015). In

order to establish prejudice, a petitioner must demonstrate “that there is a

reasonable probability that, but for counsel’s error or omission, the result of

the proceeding would have been different.” Commonwealth v. Koehler, 36

A.3d 121, 132 (Pa. 2012) (citation omitted). A court will deny the claim if the

petitioner fails to meet any one of these prongs. Commonwealth v. Jarosz,

152 A.3d 344, 350 (Pa. Super. 2016).

Instantly, the PCRA court denied Appellant PCRA relief because it

concluded that Appellant’s claim lacked arguable merit. The record supports

this finding. In particular, the trial court found credible Attorney Dursham’s

testimony that she explained to Appellant, both in person and in

correspondence, the applicable sentencing guidelines. Attorney Dursham

supported this testimony with corroborating documentary evidence.

Moreover, Appellant’s testimony that he received letters from Attorney

Dursham, but that he did not read them, undermines his claim that Attorney

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Dursham did not inform him of the guideline sentencing ranges and statutory

maximum sentences. Accordingly, Appellant is not entitled to relief on his

claim.

Order affirmed. Motion to Withdraw as Counsel granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 07/23/2020

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