Com. v. Henry, D.

• Court: Superior Court of Pennsylvania
• Decided: July 15, 2016
• Docket: 1744 MDA 2015
• Status: Unpublished

Opinion

J-S43023-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

DYLON GREG HENRY

Appellant No. 1744 MDA 2015

Appeal from the PCRA Order September 24, 2015 In the Court of Common Pleas of Adams County Criminal Division at No(s): CP-01-CR-0001174-2014

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

MEMORANDUM BY PANELLA, J. FILED JULY 15, 2016

Appellant, Dylon Greg Henry, appeals from the order dismissing, after

a hearing, his petition pursuant to the Post Conviction Relief Act (“PCRA”).

Additionally, Henry’s court-appointed counsel, Thomas R. Nell, Esquire, has

filed an application to withdraw as counsel. After careful review, we affirm

the PCRA court’s order and grant Attorney Nell’s application to withdraw as

counsel.

On April 6, 2015, Henry pled guilty to terroristic threats and nolo

contendere to simple assault arising from allegations that he had threatened

an ex-girlfriend and her guest during dinner with her family at her home.

The trial court immediately sentenced Henry to an aggregate term of

imprisonment of 21 to 48 months. J-S43023-16

Henry filed a timely, pro se PCRA petition shortly thereafter. Attorney

Nell was appointed to represent Henry, and filed an amended PCRA petition.

The PCRA court held a hearing on the amended petition, and at the close of

the hearing entered an order dismissing the petition. This timely appeal

followed.

We will first address counsel’s motion to withdraw. Pennsylvania law

requires counsel seeking to withdraw from representing a petitioner under

the PCRA to file a ‘no-merit’ letter pursuant to Commonwealth v. Turner,

544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213

(1988) (en banc). See Commonwealth v. Karanicolas, 836 A.2d 940, 947

(Pa. Super. 2003).

Counsel petitioning to withdraw from PCRA representation must proceed ... under [Turner and Finley and] ... must review the case zealously. Turner/Finley counsel must then 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 petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.

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.

***

[W]here counsel submits a petition and no-merit letter that ... 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.

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Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation

omitted).

Here, counsel has complied with the foregoing procedural

requirements. In response to counsel’s no-merit letter, Henry has filed no

less than five documents with this Court asserting various claims. Thus, we

must determine whether we agree with counsel’s assessment of Henry’s

arguments.

In his first filing, Henry raised, to the best of our ability to discern, six

separate claims. The first five of these claims concern his treatment while in

prison, and do not constitute collateral attacks on his judgment of sentence.

Thus, they cannot form the basis of relief under the PCRA. See

Commonwealth v. McCord, 644 A.2d 1206, 1213 (Pa. Super. 1994)

(“Where an issue does not bear upon a defendant’s ultimate guilt or

innocence … the claim is not cognizable under the PCRA”). The sixth issue

asserts that his right against a coerced confession was violated. Henry was

entitled to litigate this claim via direct appeal. As such, it is not cognizable

under the PCRA. See 42 Pa.C.S.A. § 9544(b).

In his second filing, Henry argues that the PCRA court erred when it

found that he could read and understand the English language. Henry

testified at the PCRA hearing that he could not read English and therefore

could not understand the written guilty plea colloquy. The PCRA court found

Henry’s testimony to be self-serving and incredible. Furthermore, the PCRA

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court observed that Henry had initialed in the appropriate spaces on the

written guilty plea colloquy and did not voice an objection when asked if he

understood what was happening during his oral guilty plea colloquy.

Furthermore, plea counsel testified that she had never received any

indication from Henry that he was unable to read. We can discern no abuse

of discretion in the PCRA court’s findings or conclusions, and therefore, this

claim has no merit.

Henry also argues that he did not receive the benefit of his negotiated

plea agreement with the Commonwealth. To the extent that Henry is arguing

an abuse of the sentencing court’s discretion, this claim could have been

raised on direct appeal, and therefore cannot form the basis of relief under

the PCRA. To the extent that Henry is arguing that plea counsel was

ineffective for communicating incorrect information to him, thereby inducing

an involuntary guilty plea, such a claim is cognizable under the PCRA. See

Commonwealth v. Hickman, 799 A. 2d 136, 141 (Pa. Super. 2002).

“Claims challenging the effectiveness of plea counsel’s stewardship

during a guilty plea are cognizable under 42 [Pa.C.S.A.] § 9543(a)(2)(ii).”

Commonwealth v. Lee, 820 A.2d 1285, 1287 (Pa. Super. 2003) (citation

omitted). In Commonwealth v. Morrison, 878 A.2d 102 (Pa. Super.

2005), the panel explained that we review allegations of counsel’s

ineffectiveness in connection with a guilty plea as follows:

The standard for post-sentence withdrawal of guilty pleas dovetails with the arguable merit/prejudice requirements for

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relief based on a claim of ineffective assistance of plea counsel, see generally Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999), under which the defendant must show that counsel’s deficient stewardship resulted in a manifest injustice, for example, by facilitating entry of an unknowing, involuntary, or unintelligent plea. See, e.g., [Commonwealth v.] Allen, 557 Pa. [135,] 144, 732 A.2d [582,] 587 [(1999)] (“Allegations of ineffectiveness in connection with the entry of a guilty plea will serve as a basis for relief only if the ineffectiveness caused appellant to enter an involuntary or unknowing plea.”)….

Id., at 105 (quoting Commonwealth v. Flanagan, 578 Pa. 587, 608-609,

854 A.2d 489, 502 (2004)) (brackets in original). “This standard is

equivalent to the ‘manifest injustice’ standard applicable to all post-sentence

motions to withdraw a guilty plea.” Id. (citation omitted). “To succeed in

showing prejudice, the defendant must show that it is reasonably probable

that, but for counsel’s errors, he would not have pleaded guilty and would

have gone to trial.” Commonwealth v. Hickman, 799 A. 2d 136, 141 (Pa.

Super. 2002).

“[A] defendant is bound by the statements which he makes during his

plea colloquy.” Commonwealth v. Barnes, 687 A.2d 1163, 1167 (Pa.

1997) (citations omitted). As a result, a defendant “may not assert grounds

for withdrawing the plea that contradict statements made when he pled

guilty.” Id.; see also Commonwealth v. Yeomans, 24 A.3d 1044 (Pa.

Super. 2011).

Henry contends that he was promised a six-month maximum sentence

in exchange for his guilty plea. The PCRA court did not credit Henry’s

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testimony to this effect. To the contrary, the PCRA court found credible plea

counsel’s testimony that she had never discussed a six-month maximum

sentence with Henry. A review of the sentencing transcript reveals no

evidence of any agreement on the maximum sentence. Under these

circumstances, we cannot conclude that the PCRA court abused its discretion

or committed error in finding that Henry had not established that plea

counsel had provided him with erroneous information.

In his remaining filings, Henry reiterates the above claims repeatedly.

In addition, he raises two new claims. First, he claims that a Commonwealth

witness committed perjury, presumably at his preliminary hearing. Henry

does not raise this claim under the rubric of after-discovered evidence, and

therefore it could have been raised in a direct appeal. It therefore cannot

form the basis for relief under the PCRA.

In the final issue raised by Henry in his pro se filings, he argues that

he has been incompetent throughout the proceedings against him. However,

this issue was not contained in his petition, and therefore the PCRA court

was under no obligation to address it. See Commonwealth v. Blakeney,

108 A.3d 739, 755 (Pa. 2014). This claim cannot form the basis of relief

under the PCRA.

As a result, we concur with Attorney Nell’s conclusion that Henry’s

issues are wholly without merit. Our independent review of the record

furthermore reveals no other issues of arguable merit. We therefore grant

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Attorney Nell’s applications to withdraw, and affirm the order denying PCRA

relief.

Order affirmed. Application for withdrawal of appearance granted.

Jurisdiction relinquished.

Judge Jenkins joins in the memorandum.

President Judge Gantman concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/15/2016

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