Com. v. Hayward, Q.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

QUENTIN HAYWARD :

:

Appellant : No. 3625 EDA 2018

Appeal from the PCRA Order Entered November 14, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003705-2016

BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 31, 2020

Appellant, Quentin Hayward, appeals from the post-conviction court’s

November 14, 2018 order denying his first petition filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Additionally,

Appellant’s counsel, Lawrence J. Bozzelli, Esq., has filed a Turner/Finley1

‘no-merit’ letter and a petition to withdraw from representing Appellant. After

careful review, we affirm the order denying Appellant PCRA relief and grant

counsel’s petition to withdraw.

____________________________________________

* Former Justice specially assigned to the Superior Court.

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

The facts underlying Appellant’s convictions are not pertinent to his

present appeal. The Commonwealth summarized the procedural history of his

case, as follows:2

On January 13, 2017, [Appellant] pled guilty … to possession with intent to deliver (“PWID”) and … possession of [a controlled substance]. The trial court imposed a county sentence (“Philadelphia sentence”) of nine to twenty-three months’ imprisonment followed by three years of probation on April 7, 2017. [Appellant] did not file post-sentence motions or a direct appeal; therefore, his judgment of sentence became final on May 7, 2017.

On June 27, 2017, after the Philadelphia sentence had been imposed, [Appellant] had a violation of probation hearing in Delaware County. The Delaware County court found that [Appellant] had been arrested for, and ultimately convicted of, PWID and [possession of a controlled substance] in this Philadelphia matter. The Delaware County court sentenced [Appellant] to eighteen to thirty-six months’ imprisonment (“Delaware County sentence”). The Delaware County court did not clarify whether the revocation sentence would be served concurrently with[,] or consecutively to[,] the preceding Philadelphia sentence. In the absence of this sentencing condition, the Pennsylvania Department of Corrections (“DOC”) fashioned one consecutive, continuous state sentence when it aggregated [Appellant’s] Philadelphia and Delaware County sentences.

On October 10, 2017, [Appellant] filed his first PCRA petition, which is the subject of this appeal. In his pro se petition, [Appellant] asserted that the DOC violated the Philadelphia trial court’s sentencing order by converting his county sentence, i.e., his Philadelphia sentence, into a consecutive state sentence when it aggregated it with his Delaware County sentence.

____________________________________________

2 Neither Attorney Bozzelli, nor the PCRA court, provided a factual history for this Court, and Attorney Bozzelli’s procedural history is simply a bullet-point recitation of the filings in this case. We therefore utilize the Commonwealth’s more developed statement of the procedural history.

3

On December 19, 2017, PCRA counsel filed an amended PCRA petition, in which he identified one issue for review: whether the DOC had legal authority to require [Appellant] to serve his Philadelphia sentence—a county sentence—in state custody. In addition, [Appellant] acknowledged that Philadelphia plea counsel was not ineffective with respect to this issue because [Appellant] had signed a written guilty plea colloquy in which he was notified that his plea could result in a probation violation. [Appellant] also conceded that his sentence was legal, given that his potential exposure for felony PWID was ten years but he received only twenty-three months’ imprisonment followed by three years’ probation.

The Commonwealth filed its motion to dismiss on June 28, 2018, arguing that (1) [Appellant’s] sentencing claim did not implicate the truth-determining process or the legality of sentence, and therefore, [it] was not cognizable under the PCRA, see 42 Pa.C.S. § 9543(a)(2)(vii); and (2) his sentencing claim was moreover meritless because the DOC is authorized to require [Appellant] to serve his county sentence in state custody, see 42 Pa.C.S. § 9762. The PCRA court issued a [Pa.R.Crim.P.] 907 notice of intent to dismiss [Appellant’s] PCRA petition.

On October 15, 2018, [Appellant] responded to the PCRA court’s Rule 907 notice. In his pro se response, [Appellant] challenged the effectiveness of his present PCRA counsel for failing to include in his amended PCRA petition “that [the] county [j]udge or the county defense attorney was to have the [Delaware County] sentence run current4 to the already existing Phila[delphia] sentence, nor did he includ[e] in his amended PCRA petition that his plea counsel was ineffective for fail[ing] to [challenge the] defective guilty [plea] colloquy [and his] illegal sentence pursuant to Alleyne v. United States[, 570 U.S. 99, 106 (2013) (holding that ‘facts that increase mandatory minimum sentences must be submitted to the jury’ and found beyond a reasonable doubt)].” ([Appellant’s] Pro Se Response, at *1) (unpaginated) (missing words and typographical errors corrected for clarity). In addition, [Appellant] contended that plea counsel was also ineffective for failing to file a notice of appeal despite his alleged requests for him to do so.

On November 14, 2018, the PCRA court dismissed [Appellant’s] PCRA petition. [Appellant] appealed, and PCRA counsel filed a notice of intent[] to file a brief pursuant to [Turner/Finley] on April 11, 2019.

4

4 It appears that [Appellant] believes his Delaware and Philadelphia sentences should have been concurrent rather than consecutive.

Commonwealth’s Brief at 3-6 (some footnotes omitted).

In light of counsel’s statement of his intent to seek to withdraw, the

PCRA court did not issue a Pa.R.A.P. 1925(a) opinion. On July 26, 2019,

Attorney Bozzelli filed a no-merit letter and a petition to withdraw. In the no-

merit letter, counsel addressed the single issue raised in Appellant’s amended

PCRA petition, i.e., whether “the Pennsylvania [DOC] ha[d] legal authority to

require [Appellant] to serve the original 9-23 month county sentence in state

custody[.]” No-Merit Letter at 4 (unnecessary capitalization omitted).

Appellant has not filed any response to counsel’s petition to withdraw.

We must begin by determining if Attorney Bozzelli has satisfied the

requirements for withdrawal. In Turner, our Supreme Court “set forth the

appropriate procedures for the withdrawal of court-appointed counsel in

collateral attacks on criminal convictions[.]” Turner, 544 A.2d at 927. The

traditional requirements for proper withdrawal of PCRA counsel, originally set

forth in Finley, were updated by this Court in Commonwealth v. Friend,

896 A.2d 607 (Pa. Super. 2006), abrogated by Commonwealth v. Pitts, 981

A.2d 875 (Pa. 2009),3 which provides:

____________________________________________

3 In Pitts, our Supreme Court abrogated Friend “[t]o the extent Friend stands for the proposition that an appellate court may sua sponte review the sufficiency of a no-merit letter when the [Appellant] has not raised such issue.” Pitts, 981 A.2d at 879. In this case, Attorney Bozzelli filed his petition

5

1) As part of an application to withdraw as counsel, PCRA counsel must attach to the application a “no-merit” letter[;]

2) PCRA counsel must, in the “no-merit” letter, list each claim the petitioner wishes to have reviewed, and detail the nature and extent of counsel’s review of the merits of each of those claims[;]

3) PCRA counsel must set forth in the “no-merit” letter an explanation of why the petitioner’s issues are meritless[;]

4) PCRA counsel must contemporaneously forward to the petitioner a copy of the application to withdraw, which must include (i) a copy of both the “no-merit” letter, and (ii) a statement advising the PCRA petitioner that, in the event the trial court grants the application of counsel to withdraw, the petitioner has the right to proceed pro se, or with the assistance of privately retained counsel;

5) the court must conduct its own independent review of the record in the light of the PCRA petition and the issues set forth therein, as well as of the contents of the petition of PCRA counsel to withdraw; and

6) the court must agree with counsel that the petition is meritless.

Friend, 896 A.2d at 615 (footnote omitted).

Instantly, we conclude that Attorney Bozzelli has complied with the

requirements of Turner/Finley. Specifically, in his no-merit letter, counsel

details the nature and extent of his review, addresses the claim Appellant

raised in his PCRA petition, and discusses his conclusion that the issue lacks

merit. See No-Merit Letter at 4-6. Additionally, counsel served Appellant with

a copy of the petition to withdraw and Turner/Finley no-merit letter, and

advised Appellant of his right to proceed pro se or with privately retained

____________________________________________

to withdraw and no-merit letter with this Court and, thus, our Supreme Court’s holding in Pitts is inapplicable.

6

counsel. Thus, we will now conduct an independent review of the merits of

Appellant’s claim.

According to Attorney Bozzelli, Appellant “believes that his rights were

violated because the original county sentence imposed by [the Philadelphia

Court of Common Pleas] was amended to essentially become a state sentence.

This would be a violation of [the trial court’s] order to serve the sentence in

county [prison].” Id. at 5. Attorney Bozzelli and the Commonwealth agree

that this claim is meritless. In particular, the Commonwealth concludes that

Appellant’s sentencing challenge is not cognizable under the PCRA, explaining:

The PCRA does not provide relief for [Appellant’s] present challenge to the DOC’s authority to aggregate his Philadelphia and Delaware County sentences in the way that it did. See 42 Pa.C.S. § 9543(a)(2) ([stating that a] petitioner may be eligible for PCRA relief only if he can prove a constitutional violation, ineffective assistance of counsel, an unlawful guilty plea, government obstruction of appellate rights, after-discovered facts that would have changed the trial outcome, an illegal sentence, or lack of jurisdiction). [Appellant], in his amended PCRA petition, conceded that his Philadelphia sentence was legal and that he knowingly, intentionally, and voluntarily pled guilty.[4] He also asserted that

____________________________________________

4 Specifically, in Appellant’s amended petition, he stated:

[Appellant] acknowledge[s] signing the written guilty plea colloquy which explained that his plea of guilty could result in a violation of his probation. The sentence imposed by [the trial court] was not an illegal sentence[,] given that [Appellant’s] exposure for a felony PWID was 10 years and he was sentenced to serve 23 months followed by three years of probation. Further, trial counsel could not be found ineffective for failing to request that this sentence be run concurrent to any other sentence. Rather, it would have been the responsibility of trial counsel in Delaware County to make the request given that [that] was the

7

his Philadelphia plea counsel was not ineffective for failing to request his Philadelphia sentence to be made concurrent with his Delaware County revocation sentence, given the Delaware County sentence did not yet exist. Therefore, the PCRA court properly determined that [Appellant’s] sentencing claim, which did not seek relief for any of the reasons delineated under § 9543, did not warrant PCRA relief. See Commonwealth v. Gaerttner, 649 A.2d 139, 142 (Pa. Super. 1994) ([stating that] [s]entencing claims are not cognizable unless they implicate the truth- determining process or sentence legality).

[Appellant’s] instant challenge to the DOC’s authority could have been addressed in a mandamus action before the Pennsylvania Commonwealth Court, rather than in a PCRA petition. See Gillespie v. Dep’t of Corr., 527 A.2d 1061, 1064 (Pa. Cmwlth. 1987) (“[T]he proper method by which a prisoner could challenge the aggregation of his sentences [i]s through a mandamus action.”); Stodghill v. Pa. Bd. of Prob. & Parole, 123 A.3d 798 (Pa. Cmwlth. 2015) (“A writ of mandamus is an extraordinary remedy that compels an official’s performance of a ministerial act or mandatory duty.”); 42 Pa.C.S. § 761 (“[T]he Commonwealth Court shall have original jurisdiction in cases of mandamus[….]”).

Commonwealth’s Brief at 11-12.

We agree with the Commonwealth that the PCRA does not afford relief

for the specific claim that Appellant raised in his amended petition. Thus, we

discern no error in the PCRA court’s dismissing his petition.

We recognize that Attorney Bozzelli did not address the claims raised in

Appellant’s pro se response to the court’s Rule 907 notice. However, as the

Commonwealth points out, Appellant “was not permitted to litigate issues in

____________________________________________

later of the [two] sentences … imposed. [The Delaware County Court of Common Pleas] never ordered the time to run concurrent and so it is calculated as a consecutive sentence.

Amended Petition, 12/19/17, at 4.

8

his pro se response because he was already represented by counsel.”

Commonwealth’s Brief at 13 (citing Commonwealth v. Pursell, 724 A.2d

293, 302 (Pa. 1993) (prohibiting hybrid representation in PCRA proceedings)).

We acknowledge that Attorney Bozzelli could have sought to file an amended

petition raising Appellant’s pro se claims. However, he did not do so, and

Appellant has not filed with this Court any response to Attorney Bozzelli’s

petition to withdraw claiming that counsel acted ineffectively in this regard.

Thus, we are constrained to conclude that Attorney Bozzelli did not err by

omitting from his Turner/Finley analysis the claims raised in Appellant’s pro

se response to the court’s Rule 907 notice, as Appellant filed that response in

violation of the prohibition against hybrid representation.5

In sum, we agree with Attorney Bozzelli’s conclusion that the claim

raised in Appellant’s PCRA petition was meritless and that, consequently, the

PCRA court did not err in dismissing it. As such, we affirm the court’s order

and grant counsel’s petition to withdraw.

Order affirmed. Petition to withdraw granted. Jurisdiction relinquished.

____________________________________________

5 We recognize that we could sua sponte provide Appellant relief if we agreed with his assertion (set forth in his Rule 907 response) that his sentence is illegal under Alleyne. However, no mandatory-minimum sentence was imposed in this case, making it apparent that Alleyne does not apply.

9

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/31/20