Com. v. Holloway, T.

• Court: Superior Court of Pennsylvania
• Decided: January 27, 2017
• Docket: 297 MDA 2016
• Status: Unpublished

Opinion

J-S91038-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TYE EDWIN HOLLOWAY : : Appellant : No. 297 MDA 2016

Appeal from the PCRA Order January 27, 2016 In the Court of Common Pleas of Columbia County Criminal Division at No(s): CP-19-CR-0000067-2014

BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 27, 2017

Tye Edwin Holloway (“Appellant”) appeals from the order entered in

the Court of Common Pleas of Columbia County dismissing his petition for

collateral relief filed under the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-9546. Appellant’s counsel has filed a petition for leave to

withdraw as counsel pursuant to Commonwealth v. Turner, 544 A.2d 927

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

and Appellant has filed a pro se motion for the substitution of appointed

counsel. We affirm the order denying Appellant post-conviction relief, grant

counsel’s petition to withdraw, and deny Appellant’s pro se motion for

substitution of appointed counsel.

* Former Justice specially assigned to the Superior Court. J-S91038-16

On March 10, 2014, Appellant entered an open guilty plea to

possession with intent to deliver (“PWID”), two counts of possession of a

small amount of marijuana, criminal trespass, and two counts of defiant

trespass and recklessly endangering.1 On March 27, 2014, the trial court

sentenced him to a standard range sentence of 16 to 48 months’

incarceration, boot camp eligible, with the other sentences running

concurrently.

Appellant filed no direct appeal. On January 28, 2015, Appellant filed

a timely pro se PCRA petition. The PCRA court appointed counsel and

presided over a hearing dated January 20, 2016, at which Appellant

complained about some of the circumstances surrounding his decision to

plead guilty to PWID. 1/20/16 at 3-4. Specifically, Appellant testified:

APPELLANT: The reason why I filed this [PCRA petition] is due to the fact that my previous lawyer, Leslie Bryden, didn’t hear the facts of the case and, also, didn’t check into as far as the CIs that were used in my case like the CIs that were used in my case were junkies as well, they get high. The one actually got arrested a month and five days after I got arrested. And the things that I pointed in the case it just doesn’t make sense like I feel as if I shouldn’t have got [sic] the time that I got because there was so much – I can’t really say foul play but there was so many things in the case that it should have never happened. And due to everything that they say that happened and stuff really didn’t happen. Like it was more the confidential informants that were used than me.

N.T. at 3-4. ____________________________________________

1 35 P.S. §§ 780-113(a)(30) and (a)(16), 18 Pa.C.S.A. §§ 3503(a)(1), 3503(b)(1)(v), and 2705, respectively.

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On cross-examination, Appellant conceded that he pled guilty of his

own free will and completely understood the elements of his crimes and the

consequences of entering a plea. N.T. at 4-9. Plea counsel also testified

that Appellant entered his plea voluntarily and intelligently, without the

influence of coercion or false promises. N.T. at 9-11. On cross-examination,

counsel denied advising Appellant that his was not a case to be tried.

Instead, she testified that she discussed with him the factors surrounding his

arrest at a methamphetamine lab and explained that many confidential

informants whom juries deem credible are, themselves, drug users. N.T. at

13. The decision of whether to proceed to trial or plead guilty, however,

remained with Appellant, she insisted. Id.

The PCRA court recalled going over the plea colloquies with Appellant

and ascertaining that Appellant was entering a knowing and voluntary plea.

N.T. at 14. Finding plea counsel’s testimony before it both credible and

consistent with its own recollection of Appellant’s plea, as well, the court

concluded there was no basis for Appellant’s PCRA claim and dismissed his

petition. This timely appeal followed.

Appellant presents the following question for our review:

WHETHER THE DEFENDANT’S APPEAL OF THE DENIAL OF HIS PCRA PETITION IS WHOLLY WITHOUT MERIT?

Appellant’s brief at 5.

Our standard of review of a PCRA court's denial of a PCRA petition is

limited to examining whether the PCRA court's determination is supported by

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the record evidence and free of legal error. Commonwealth v. Wilson,

824 A.2d 331, 333 (Pa.Super. 2003) (en banc). Before we review

Appellant's claim, however, we must ascertain whether counsel satisfied the

requirements to withdraw. Commonwealth v. Freeland, 106 A.3d 768,

774-75 (Pa.Super. 2014). The Court in Freeland explained:

The Turner/Finley decisions provide the manner for post- conviction counsel to withdraw from representation. The holdings of those cases mandate an independent review of the record by competent counsel before a PCRA court or appellate court can authorize an attorney's withdrawal. The necessary independent review requires counsel to file a “no-merit” letter detailing the nature and extent of his review and list each issue the petitioner wishes to have examined, explaining why those issues are meritless. The PCRA court, or an appellate court if the no-merit letter is filed before it, see Turner, supra, then must conduct its own independent evaluation of the record and agree with counsel that the petition is without merit. See [Commonwealth v.] Pitts[, 603 Pa. 1, 3 n.1, 981 A.2d 875, 876 n.1 (2009)].

In Commonwealth v. Friend, 896 A.2d 607 (Pa.Super. 2006) abrogated in part by Pitts, supra, this Court imposed additional requirements on counsel that closely track the procedure for withdrawing on direct appeal. Pursuant to Friend, counsel is required to contemporaneously serve upon his client his no-merit letter and application to withdraw along with a statement that if the court granted counsel's withdrawal request, the client may proceed pro se or with a privately retained attorney. Though Chief Justice Castille noted in Pitts that this Court is not authorized to craft procedural rules, the Court did not overturn this aspect of Friend as those prerequisites did not apply to the petitioner in Pitts. See Pitts, supra at 881 (Castille, C.J., concurring).

After the decision in Pitts, this Court held in Commonwealth v. Widgins, 29 A.3d 816 (Pa.Super. 2011), that the additional procedural requirements of Friend were still applicable during collateral review.

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Id.

Here, counsel submitted his Turner/Finley letter as a brief pursuant

to the requirements of Anders v. California, 386 U.s. 738 (1967). The

procedure to withdraw from a direct appeal imposes stricter requirements

than those imposed in a Turner/Finley situation. Commonwealth v.

Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super. 2004). Although counsel’s

statement of the question presented couches the issue as whether the

appeal is meritless, the brief’s argument section identifies and addresses the

issue that Appellant wishes to raise.

Counsel sent Appellant a letter informing him of his rights, pursuant to

Friend, and referencing the withdrawal petition and brief as being enclosed.

Neither the petition nor brief, however, contain proof of service on Appellant.

Moreover, at the conclusion of counsel’s Friend letter, dated August 12,

2016, he incorrectly advised Appellant, “If I am granted leave to withdraw

and you still wish to proceed with an [a]ppeal, you may hire private counsel

or represent yourself.” In light of counsel’s incorrect advice, this Court

entered its Order of August 19, 2016, informing Appellant that he could file

his response to counsel’s “no-merit” letter, either pro se or via privately

retained counsel, within 30 days. Appellant subsequently filed a pro se

application for relief, requesting new appointed counsel and discovery.

Based on this procedural history, we conclude that counsel’s

Turner/Finley no-merit letter complies with all pertinent requirements.

See Freeland, 106 A.3d at 774-75. Accordingly, we conduct our own

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independent evaluation of the record to ascertain whether we agree with

counsel that Appellant is not entitled to relief. See id.

Appellant's claim that plea counsel induced him to enter an unknowing

plea asserts the ineffective assistance of counsel. We presume counsel is

effective. Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007).

To overcome this presumption and establish the ineffective assistance of

counsel, a PCRA petitioner must prove, by a preponderance of the evidence:

“(1) the underlying legal issue has arguable merit; (2) that counsel's actions

lacked an objective reasonable basis; and (3) actual prejudice befell the

petitioner from counsel's act or omission.” Commonwealth v. Johnson,

966 A.2d 523, 533 (Pa. 2009) (citations omitted). “A petitioner establishes

prejudice when he demonstrates that there is a reasonable probability that,

but for counsel's unprofessional errors, the result of the proceeding would

have been different. Id. A claim will be denied if the petitioner fails to meet

any one of these requirements. Commonwealth v. Springer, 961 A.2d

1262, 1267 (Pa.Super. 2008) (citing Commonwealth v. Natividad, 938

A.2d 310, 322 (Pa. 2007)); Commonwealth v. Jones, 942 A.2d 903, 906

(Pa.Super. 2008).

In addressing Appellant’s claim of an involuntarily made guilty plea,

the PCRA court considered the testimony of both plea counsel and Appellant,

and it drew upon its own recollection of having conducted a thorough plea

colloquy during which Appellant demonstrated an understanding of what he

was doing. The PCRA court, therefore, concluded that Appellant entered his

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guilty plea voluntarily, knowingly, and intelligently. We agree with the PCRA

court’s findings, which are supported by the record and free of legal error,

and discern no merit with Appellant’s claim. 2

PCRA order denying relief based on allegations of ineffective assistance

of counsel in inducing an unknowing guilty plea is Affirmed. Counsel’s

petition to withdraw is Granted. Appellant’s pro se application for

substitution of appointed counsel is Denied.

____________________________________________

2 Additionally, we deny Appellant’s petition for substitution of appointed counsel. This Court has previously held that

when counsel has been appointed to represent a petitioner in post-conviction proceedings as a matter of right under the rules of criminal procedure and when that right has been fully vindicated by counsel being permitted to withdraw under the procedure authorized in [Turner/Finley], new counsel shall not be appointed and the petitioner, or appellant must thereafter look to his or her own resources for whatever further proceedings there might be.

Commonwealth v. Rykard, 55 A.3d 1177, 1183 n.1 (Pa.Super. 2012), quoting Commonwealth v. Maple, 559 A.2d 953, 956 (Pa.Super. 1989). Here, we permit PCRA counsel to withdraw pursuant to Turner/Finley after reviewing the record and concluding that no arguably meritorious claims exist. Accordingly, Appellant is not entitled to the appointment of new counsel to pursue his PCRA appellate claims, as he was required, instead, to look to his own resources to retain new counsel, or proceed pro se, as we advised him by our Order of August 19, 2016. See Rykard. As such, we deny Appellant’s petition for the appointment of new counsel to represent him on the present appeal.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/27/2017

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