Com. v. Harper, A.

• Court: Superior Court of Pennsylvania
• Decided: October 6, 2016
• Docket: 60 MDA 2016
• Status: Unpublished

Opinion

J-S62034-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

ASIA MARIE HARPER

Appellant No. 60 MDA 2016

Appeal from the PCRA Order December 7, 2015 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0000662-2013

BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 06, 2016

Appellant, Asia Marie Harper, appeals from the order entered in the

Dauphin County Court of Common Pleas, which dismissed her first petition

filed under the Post Conviction Relief Act (“PCRA”).1 We affirm and grant

counsel’s petition to withdraw.

The relevant facts and procedural history of this case are as follows.

On November 5, 2012, Appellant and her boyfriend (“Victim”) had an

argument. During the verbal altercation, Appellant stabbed Victim seven

times with a knife. The Commonwealth subsequently charged Appellant with

attempted homicide, aggravated assault, terroristic threats, and recklessly

____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546. J-S62034-16

endangering another person (“REAP”). Appellant entered a negotiated guilty

plea on January 9, 2014. Pursuant to the terms of the plea agreement, the

Commonwealth would withdraw the attempted homicide charge, and

Appellant would plead guilty to the remaining offenses in exchange for a

sentence of 5-15 years’ imprisonment. Appellant completed a written guilty

plea colloquy detailing the terms of the parties’ agreement and the court

performed an on-the-record plea colloquy. After confirming Appellant’s plea

was knowing, intelligent, and voluntary, the court accepted the plea and

imposed the negotiated sentence of an aggregate 5-15 years’

imprisonment.2 Appellant did not file post-sentence motions or a direct

appeal.

On December 8, 2014, Appellant timely filed a pro se PCRA petition

alleging, inter alia, plea counsel was ineffective for coercing Appellant to

plead guilty and failing to file a requested direct appeal on Appellant’s

behalf. The court appointed counsel on February 6, 2015, who filed an

amended PCRA petition. The court held a PCRA hearing on July 20, 2015,

which was mostly limited to exploring whether Appellant had asked plea

counsel to file a direct appeal. Plea counsel testified at the hearing that

Appellant did not ask him to file a direct appeal on her behalf. Plea counsel

2 The court sentenced Appellant to 5-15 years’ imprisonment for aggravated assault, and imposed concurrent terms of 1-2 years’ imprisonment for terroristic threats and REAP.

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said he would have filed an appeal for Appellant if she had asked him to do

so, even if counsel believed an appeal would lack merit. Plea counsel

admitted he received a letter from the Office of Disciplinary Counsel on

February 10, 2014 (two days after Appellant’s appeal period had expired),

containing a complaint from Appellant stating she wanted to withdraw her

guilty plea and proceed to trial. Plea counsel maintained he was unaware

Appellant wanted to withdraw her guilty plea until he received that letter.

The Office of Disciplinary Counsel asked plea counsel to communicate with

Appellant about the status of her case. Plea counsel complied.

Appellant testified at the hearing that plea counsel coerced her to

accept the negotiated guilty plea of 5-15 years’ imprisonment by stating

Appellant would receive 20-40 years’ imprisonment if she did not plead

guilty. Appellant claimed she mailed plea counsel a letter on January 13,

2014 (four days after she pled guilty) asking counsel to file a direct appeal

on her behalf. Appellant admitted she did not have a copy of the letter.

Appellant insisted her mother also called plea counsel multiple times asking

counsel to file an appeal on Appellant’s behalf. Appellant claimed she

contacted the Office of Disciplinary Counsel when plea counsel did not

respond to her January 13, 2014 letter.

On November 9, 2015, the court issued notice of its intent to dismiss

the petition without any further proceedings pursuant to Pa.R.Crim.P. 907.

Appellant responded on November 27, 2015. On December 7, 2015, the

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court denied PCRA relief. Appellant timely filed a notice of appeal on

January 6, 2016. On February 4, 2016, the court ordered Appellant to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). Counsel filed, on February 24, 2016, a statement of intent to file a

“no-merit” brief pursuant to Pa.R.A.P. 1925(c)(4).

Preliminarily, appellate counsel has filed a Turner/Finley3 brief and

motion to withdraw as counsel. Before counsel can be permitted to

withdraw from representing a petitioner under the PCRA, Pennsylvania law

requires counsel to file a “no-merit” brief or letter pursuant to Turner and

Finley. Commonwealth v. Karanicolas, 836 A.2d 940 (Pa.Super. 2003).

[C]ounsel must…submit a “no-merit” letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel’s diligent review of the case, listing the issues which the petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007). Counsel

must also send to the petitioner a copy of the “no-merit” letter or brief and

motion to withdraw and advise petitioner of her right to proceed pro se or

with privately retained counsel. Id. “Substantial compliance with these

requirements will satisfy the criteria.” Karanicolas, supra at 947.

Instantly, appellate counsel filed a motion to withdraw as counsel and

3 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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a Turner/Finley4 brief detailing the nature of counsel’s review and

explaining why Appellant’s issues lack merit. Counsel’s brief also

demonstrates she reviewed the certified record and found no meritorious

issues for appeal. Counsel notified Appellant of counsel’s request to

withdraw and advised Appellant regarding her rights. Thus, counsel

substantially complied with the Turner/Finley requirements. See Wrecks,

supra; Karanicolas, supra.

Appellant raises the following issues in the brief filed on appeal:5

WHETHER [PLEA] COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE AN APPEAL ON APPELLANT’S BEHALF?

WHETHER THE PCRA COURT ERRED BY DISMISSING APPELLANT’S PCRA PETITION?

WHETHER APPELLANT’S GUILTY PLEA WAS UNLAWFULLY INDUCED?

(Turner/Finley Brief at 5).

Our standard of review of the denial of a PCRA petition is limited to

examining whether the record evidence supports the court’s determination

4 Counsel incorrectly designated her brief as one per Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which applies to attorneys seeking to withdraw representation on direct appeal. We can accept counsel’s filing in this case as a Turner/Finley brief. See Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super. 2004), appeal denied, 584 Pa. 691, 882 A.2d 477 (2005) (stating Superior Court can accept Anders brief in lieu of Turner/Finley brief, where PCRA counsel seeks to withdraw on appeal). 5 For purposes of disposition, we have reordered Appellant’s issues.

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and whether the court’s decision is free of legal error. Commonwealth v.

Ford, 947 A.2d 1251, 1252 (Pa.Super. 2008), appeal denied, 598 Pa. 779,

959 A.2d 319 (2008). This Court grants great deference to findings of the

PCRA court if the record contains any support for those findings.

Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007), appeal

denied, 593 Pa. 754, 932 A.2d 74 (2007). If the record supports a post-

conviction court’s credibility determination, it is binding on the appellate

court. Commonwealth v. Knighten, 742 A.2d 679, 682 (Pa.Super. 1999),

appeal denied, 563 Pa. 659, 759 A.2d 383 (2000).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Richard A.

Lewis, we conclude Appellant’s first and second issues merit no relief. The

PCRA court opinion comprehensively discusses and properly disposes of

those questions.6 (See Memorandum Opinion and Order, filed November 9,

2015, at 3-4) (finding: plea counsel’s testimony was credible that he

received no contact from Appellant following entry of her negotiated guilty

plea; plea counsel did not receive copy of letter Appellant had sent to Office

of Disciplinary counsel until after time to file direct appeal on Appellant’s

6 In her second issue, Appellant complains the court should not have denied PCRA relief given her testimony that she asked plea counsel to file a direct appeal and her production of a copy of the letter she sent to the Office of Disciplinary Counsel. We will not disturb the court’s credibility determination in favor of plea counsel. See Knighten, supra.

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behalf had expired; Appellant failed to prove she asked counsel to file direct

appeal; thus, Appellant’s ineffectiveness claim fails). Therefore, we affirm

Appellant’s first and second issues on the basis of the PCRA court’s opinion.

In her third issue, Appellant argues plea counsel pressured her to

plead guilty by telling her she could face a sentence of 20-40 years’

imprisonment if she did not accept the plea bargain. Appellant asserts that

she asked the court, following the entry of her plea, why the court could not

impose a maximum 10-year sentence. Appellant claims her question

demonstrates she did not understand the nature of the parties’ agreement.

Appellant contends she was unaware of the consequences of pleading guilty.

Appellant insists plea counsel failed to investigate the history between

Appellant and Victim and ignored Appellant’s complaints that Victim had

abused Appellant in the past. Appellant insists plea counsel refused to argue

Appellant’s innocence. Appellant concludes plea counsel induced her to

enter an unlawful guilty plea, and this Court must reverse the order denying

PCRA relief and allow Appellant to withdraw her guilty plea. We disagree.

The law presumes counsel has rendered effective assistance.

Commonwealth v. Gonzalez, 858 A.2d 1219, 1222 (Pa.Super. 2004),

appeal denied, 582 Pa. 695, 871 A.2d 189 (2005). To prevail on a claim of

ineffective assistance of counsel, a petitioner must show, by a

preponderance of the evidence, ineffective assistance of counsel which, in

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

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determining process that no reliable adjudication of guilt or innocence could

have taken place. Commonwealth v. Turetsky, 925 A.2d 876 (Pa.Super.

2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007). The petitioner

must demonstrate: (1) the underlying claim has arguable merit; (2) counsel

lacked a reasonable strategic basis for his action or inaction; and (3) but for

the errors and omissions of counsel, there is a reasonable probability that

the outcome of the proceedings would have been different. Id. at 880.

“The petitioner bears the burden of proving all three prongs of the test.” Id.

“Allegations of ineffectiveness in connection with the entry of a guilty

plea will serve as a basis for relief only if the ineffectiveness caused the

defendant to enter an involuntary or unknowing plea.” Commonwealth v.

Moser, 921 A.2d 526, 531 (Pa.Super. 2007) (quoting Commonwealth v.

Hickman, 799 A.2d 136, 141 (Pa.Super. 2002)). “Where the defendant

enters [her] plea on the advice of counsel, the voluntariness of the plea

depends on whether counsel’s advice was within the range of competence

demanded of attorneys in criminal cases.” Moser, supra. Pennsylvania law

does not require the defendant to “be pleased with the outcome of [her]

decision to enter a plea of guilty[; a]ll that is required is that [her] decision

to plead guilty be knowingly, voluntarily and intelligently made.” Id. at 528-

29. A guilty plea will be deemed valid if the totality of the circumstances

surrounding the plea shows that the defendant had a full understanding of

the nature and consequences of her plea such that she knowingly and

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intelligently entered the plea of her own accord. Commonwealth v.

Fluharty, 632 A.2d 312 (Pa.Super. 1993). Further, a defendant who

decides to plead guilty is bound by the statements she makes while under

oath and may not later assert grounds for withdrawing her plea which

contradict statements she made during the plea colloquy. Commonwealth

v. Pollard, 832 A.2d 517 (Pa.Super. 2003).

Instantly, the Commonwealth initially charged Appellant with

attempted homicide, aggravated assault, terroristic threats, and REAP, in

connection with Appellant’s attack on her boyfriend in which she stabbed

him with a knife seven times. Plea counsel met with Appellant several

times, during which they discussed whether Appellant should enter a guilty

plea.7 After multiple negotiations with the Commonwealth, plea counsel was

able to secure what he deemed “a very good deal for [Appellant], given the

allegation of her offenses.” (N.T. PCRA Hearing, 7/20/15, at 7-8). Pursuant

to the terms of the agreement, the Commonwealth would withdraw the

attempted homicide charge, and Appellant would plead guilty to the

remaining offenses in exchange for an agreed-upon sentence of 5-15 years’

imprisonment.

On January 9, 2014, Appellant completed a written guilty plea colloquy

7 Appellant testified at the PCRA hearing that plea counsel met with her approximately three times. Plea counsel testified he met with Appellant at least a half a dozen times, if not more.

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confirming the terms of the parties’ agreement. The court performed an on-

the-record plea colloquy that day, at the beginning of which the prosecutor

set forth the terms of the parties’ agreement. Appellant confirmed the

prosecutor’s recitation of those terms was consistent with Appellant’s

understanding of their agreement. Appellant agreed she had reviewed the

written plea colloquy with counsel, signed it, and affirmed she understood

everything that was within the document.8 Appellant acknowledged she

would forgo certain constitutional rights in exchange for her guilty plea and

her appellate rights would be limited as a result of her plea. The prosecutor

then explained the factual basis for Appellant’s guilty plea. Following

recitation of the facts, Appellant said she wanted to plead guilty to the

charges of aggravated assault, terroristic threats, and REAP. After

confirming Appellant’s plea was knowing, intelligent, and voluntary, the

court accepted the plea and imposed the negotiated sentence of an

aggregate 5-15 years’ imprisonment. At the conclusion of the hearing,

Appellant had the following exchange with the court:

THE COURT: [Appellant], anything you want to say? You don’t have to. You have that right to do that.

[APPELLANT]: No, sir. I was just kind of wondering why it had to be a 5 to 15 and not just a 5 to 10.

THE COURT: Well, you just pled guilty to the 5 to 15. ____________________________________________

8 Appellant’s written plea colloquy includes a statement that expressed Appellant’s satisfaction with counsel’s representation.

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[APPELLANT]: I know. No, I don’t have anything else to say.

(N.T. Guilty Plea/Sentencing Hearing, 1/9/14, at 6).

The record makes clear Appellant understood the terms of the parties’

negotiated plea agreement. We reject Appellant’s contention that her

comment to the court at the conclusion of her guilty plea hearing indicates

she did not understand the parties’ plea agreement. Appellant faced serious

charges carrying substantial sentences as a result of her actions. Plea

counsel’s statement that Appellant could face 20-40 years’ imprisonment if

she proceeded to trial was an accurate statement of law. See 18 Pa.C.S.A.

§ 1102(c) (explaining person who has been convicted of attempted murder

where serious bodily injury results may be sentenced to term of

imprisonment which shall be fixed by court at not more than 40 years).

Additionally, the record belies Appellant’s assertion that plea counsel

ignored her complaints of Victim’s past abuse. Plea counsel testified at the

PCRA hearing that he was aware of the abusive relationship between

Appellant and Victim and that the Commonwealth considered the abuse in

formulating the terms of the plea agreement. Significantly, Appellant does

not allege her actions on the night in question were in self-defense. Quite

simply, nothing in the record supports Appellant’s claim that plea counsel

coerced her to plead guilty. Rather, the record shows plea counsel believed

the negotiated plea agreement would best serve Appellant’s interests under

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the circumstances, and Appellant knowingly, intelligently, and voluntarily

heeded counsel’s advice. See Moser, supra; Pollard, supra; Fluharty,

supra. Thus, Appellant’s third issue merits no relief. Following our

independent examination of the record, we conclude the appeal is frivolous

and affirm; we grant counsel’s petition to withdraw.

Order affirmed; counsel’s petition to withdraw is granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/6/2016

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COMMONWEAL TH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS : DAUPHIN COUNTY, PENNSYLVANIA : NO. 662 CR 2013 v. : SUPERIOR COURT DOCKET NO. 60 MDA 2016

CHARGES: Aggravated Assault; ASIA M. HARPER Terroristic Threats; Recklessly Endangering Another Person

TRIAL COURT OPINION

This appeal follows the denial ofrequest for relief under the Post Conviction Relief Act by

Final Order entered December 7, 2015.

We set forth the reasons for our denial in our Memorandum Opinion filed November 9, 2015,

a copy of which we attach hereto for ease of reference. For all of those reasons, the Final Order

of December 7, 2015 should be affirmed .

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March :)__ , 2016

Distribution: Dauphin County District Attorney's Office~ Jennifer E. Tobias, Esq., P.O. Box 365, Stewartstown, PA 17363~ Asia Harper, OV-2096, P.O. Box 180, Muncy, PA 17756 ~'- ftp~ £"'~~)( co c: ..--- ORIGINAL

COMMONWEAL TH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS : DAUPHIN COUNTY, PENNSYLVANIA

v. : NO. 662 CR 2013

: CHARGES: Aggravated Assault; ASIA M. HARPER : Terroristic Threats; : Recklessly Endangering Another Person

MEMORANDUM OPINION AND ORDER

This matter comes before the court on the Petition for Relief Pursuant to the. .. Post Conviction

Relief Act ("PCRA") on behalf of Asia Harper ("Defendant"). For the reasons set forth, we

apprise Defendant of our INTENT TO DISMISS PCRA.

PROCEDURAL HISTORY

On January 9, 2014, Defendant plead guilty to Aggravated Assault, Terroristic Threats, and 1. Recklessly Endangering Another Person The court imposed a sentence of not less than 5 nor

more than 15 years imprisonment.

On December 8, 2014, Defendant filed a pro se PCRA petition in which she asserted that her

pleas counsel, Attorney William Shreve was ineffective in allegedly coercing her to take a guilty

plea and failing to file an appeal. The Court appointed Attorney Jennifer Tobias as PCRA

counsel.

On April 16, 2015, Ms. Tobias filed a counseled PCRA Petition. In the Petition, Ms. Tobias

reviewed Defendant's prose claim that Mr. Shreve unlawfully induced her to plead guilty. Ms.

1 18 Pa.C.S.A. §§ 2702(A)(l), 2706(A)(I), and 2705, respectively. The Commonwealth withdrew the charge of Attempted Criminal Homicide. To bias concluded that the claim of ineffectiveness related to Defendant's guilty plea lacked

merit. (PCRA Petition, April 4, 2015, para. 8-9).

As to the allegation that Mr. Shreve's failed to file a requested appeal, the counseled Petition

requested an evidentiary hearing to address whether Defendant made a timely request that Mr.

Shreve do so.

The PCRA court conducted an evidentiary hearing on July 20, 2015. At the evidentiary

hearing, Mr._Shreve_testified thatDefendant never requested that he.file.an.appeal.f'Iranscriptof ··· · ·

Proceedings, PCRA Hearing, July 20, 2015, p. 5). He testified that he first became aware of the

Defendant's desire to change her plea by way of a letter he received not from Defendant but

from the Office of Disciplinary Counsel on February 10, · 1-o \1, In that letter, Defendant

complained that Mr. Shreve failed to file a direct appeal from her negotiated plea agreement. Id

Mr. Shreve received a copy of that letter beyond the 30 day period within which to seek

withdrawal or appeal. Id., pp. 5-6.

Mr. Shreve testified that he had no communication with Defendant after the entry of the

guilty plea on January 9, 2014. Id. Further, he testified that he believed Defendant entered a

knowing and intelligent guilty plea and that he saw no meritorious basis on which to seek

withdrawal of the guilty plea. (N.T. at 9). Mr. Shreve testified nevertheless, had he received a

timely request from Defendant to do so, he would have filed an appeal . Id.

Defendant testified that on January 13, 2014, four days after pleading guilty, she mailed a

letter to Mr. Shreve in which she stated her desire to appeal based upon an allegation that Mr.

Shreve failed to properly investigate the case and did not care about her guilt or innocence. Id.,

pp. 12-13. Defendant acknowledged that she did not have a copy of that letter. Id Defendant

2. acknowledged that the letter to the Office of Disciplinary Counsel constituted the only proof that

she requested an appeal. Id., p.18.

DISCUSSION

Because we find that Defendant did not timely apprise her counsel of a desire to appeal the

entry of her guilty plea and therefore no ineffectiveness occurred in counsel' s refraining from

filing an appeal .

... . In order.to.proveineffective.assistance of counsel for a failure to-appeal, a defendant must -

prove that they notified their attorney of a desire to appeal. "[B]efore a court will find

ineffectiveness of trial counsel for failing to file a direct appeal, Appellant must prove that he

requested an appeal and that counsel disregarded this request." Commonwealth. v. Harmon, 738

A.2d 1023, 1024 (Pa. Super. Ct. 1999). "It is the client's obligation to affirmatively tell the

lawyer that he wants to appeal, not the lawyer's burden to ask if the client is no longer satisfied

with the negotiations." Commonwealth v. Maynard, 900 A.2d 395, 396 (2006). Further, a

"[m]ere allegation will not suffice; the burden is on Appellant to plead and prove that his request

for an appeal was ignored or rejected by trial counsel." Harmon, 738 A.2d at 1024 (citing

Commonwealth v. Collins, 546 Pa. 616, 622, 687 A.2d 1112, 1115 (1996); Commonwealth v.

Fanase,_446 Pa.Super. 654, 667 A.2d 1166, 1169 (1995)). Further, credibility determinations are

a matter for the PCRA Court. See, e.g. Commonwealth v. Jones, 590 PA. 202, 912 A.2d 268

(2006).

In the instant case, we find that Defendant failed to prove that counsel ignored a request to

appeal. We find credible Mr. Shreve's testimony that he received no contact from Defendant

3 after entry of the plea. Rather, Mr. Shreve received a copy of the letter Defendant directed to the

Office of Disciplinary Counsel only after the expiration of the appeal period.

Because we find that Defendant made no timely request that Mr. Shreve file an appeal, we

need not address whether any basis existed on which Defendant could withdraw her guilty plea.

For all of the foregoing reasons, we enter the following:

ORDER

AND NOW, this 0 ifJ__day of November, 2015, it is hereby ORDERED that:

( We find that no genuine issues of fact exist and no purpose could be served by further I proceedings. We apprise Defendant of our INTENT TO DISMISS PCRA.

Ifno objections to the NOTICE OF INTENT TO DISl'vIISS PCRA within twenty days of

,tfie receipt of this ORDER, the Court will enter a FINAL ORDER dismissing the PCRA. '""· ·.

·- .. •

Distribution: nl ct/1 S' t ~:-- ,c:? ('""' Dauphin County Office of the District Attorney ~ Jennifer E. Tobias, Esq., P.O. Box 365, Stewartstown PA 17363 ·~"--, Asia Harper, OV-2096, P.O. Box 180, Muncy, PA 17756 via certified mail, return receipt requested i-.C-<..•,