Com. v. Hernandez, T.

• Court: Superior Court of Pennsylvania
• Decided: May 19, 2017
• Docket: Com. v. Hernandez, T. No. 1518 EDA 2016
• Status: Unpublished

Opinion

J-S23034-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : TYSON HERNANDEZ, : : Appellant : No. 1518 EDA 2016

Appeal from the PCRA Order February 5, 2016 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0800861-2006

BEFORE: OLSON, SOLANO and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED MAY 19, 2017

Tyson Hernandez (“Hernandez”) appeals from the Order dismissing his

first Petition filed pursuant to the Post Conviction Relief Act. (“PCRA”)1

Additionally, Hernandez’s counsel, Todd Mosser, Esquire (“Attorney

Mosser”), has filed a Petition for Leave to Withdraw as Counsel. We grant

Attorney Mosser’s Petition, and affirm the PCRA court’s Order.

On August 29, 2006, Hernandez entered a nolo contendere plea to

possession with intent to deliver a controlled substance, and was sentenced

to a one-year probationary term. Hernandez did not file a post-sentence

motion or a direct appeal; consequently, his judgment of sentence became

final on September 28, 2006. On September 26, 2014, Hernandez filed a

“Motion for New Trial Based Upon After-Discovered Evidence; Alternatively,

for Post Conviction Collateral Relief; or Alternatively, for a Writ of Habeas

1 See 42 Pa.C.S.A. §§ 9541-9546. J-S23034-17

Corpus.” The PCRA court appointed Hernandez counsel. The PCRA court

determined that, although Hernandez’s claim was subsumed under the

PCRA,2 he was no longer eligible for PCRA relief because he was no longer

serving a sentence. Accordingly, the PCRA court issued a Pa.R.Crim.P. 907

Notice of its intent to dismiss the Petition without a hearing. Hernandez did

not respond to the Rule 907 Notice, and on February 5, 2016, the PCRA

court dismissed the Petition.3 Hernandez filed a timely Notice of Appeal.

The PCRA court appointed appellate PCRA counsel, Attorney Mosser, who

filed a Concise Statement of matters complained of on appeal, pursuant to

Pa.R.A.P. 1925(b). Attorney Mosser subsequently determined that

Hernandez had no meritorious claims to advance, and filed a Petition to

withdraw, along with a “no-merit letter” pursuant to Commonwealth v.

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

A.2d 213 (Pa. Super. 1988) (en banc).

Prior to addressing Hernandez’s claims on appeal, we must address

Attorney Mosser’s Petition to withdraw as counsel. Pursuant to

Turner/Finley, independent review of the record by competent counsel is

required before withdrawal on collateral appeal is permitted. See

2 As Hernandez’s claim was subsumed under the PCRA, the PCRA court treated his Motion as a Petition filed pursuant to the PCRA. 3 The PCRA court also permitted PCRA counsel to withdraw from representation.

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Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009). In Pitts, our

Supreme Court explained that such independent review requires proof of:

1. A “no-merit” letter by PC[R]A counsel detailing the nature and extent of his review;

2. The “no-merit” letter by PC[R]A counsel listing each issue the petitioner wished to have reviewed;

3. The PC[R]A counsel’s “explanation,” in the “no-merit” letter, of why the petitioner’s issues were meritless;

4. The PC[R]A court conducting its own independent review of the record; and

5. The PC[R]A court agreeing with counsel that the petition was meritless.

Id. (citation and brackets omitted). Further, our Court has held that the

Supreme Court in Pitts did not expressly overrule the additional

requirement imposed by this Court in Commonwealth v. Friend, 896 A.2d

607, 615 (Pa. Super. 2006), stating

that PCRA counsel seeking to withdraw contemporaneously forward to the petitioner a copy of the application to withdraw that includes (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.

Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011).

Here, in the Turner/Finley “no merit” letter, Attorney Mosser

described the extent of his review, identified the issues that Hernandez

sought to raise, and explained why the issues lacked merit. In addition,

Attorney Mosser provided Hernandez with a notice of his intention to seek

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permission to withdraw from representation, a copy of the Turner/Finley

“no-merit” letter, and advised Hernandez of his rights in lieu of

representation. Thus, we conclude that Attorney Mosser has substantially

complied with the requirements necessary to withdraw as counsel. See

Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa. Super. 2003)

(holding that substantial compliance with requirements to withdraw as

counsel will satisfy the Turner/Finley criteria). We now independently

review Hernandez’s claims to ascertain whether they entitle him to relief.

We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court’s ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court’s decision on any grounds if the record supports it. We grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Further, where the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary.

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

omitted).

To be eligible for relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that he has been convicted of a

crime under the laws of this Commonwealth, “and is at the time relief is

granted … currently serving a sentence of imprisonment, probation or parole

for the crime.” 42 Pa.C.S.A. § 9543(a)(1).

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Here, Hernandez was not eligible for relief under the PCRA because, at

the time he filed his Petition, he was no longer serving a sentence of

imprisonment, probation or parole. See id.; see also PCRA Court Opinion,

6/6/16, at 4. Thus, the PCRA court’s ruling is supported by the evidence of

record and is free of legal error. We therefore affirm the dismissal of

Hernandez’s Petition.

Petition to withdraw granted; Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/19/2017

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