Com. v. Iverson, L.

Superior Court of Pennsylvania·Decided January 11, 2018·No. 671 MDA 2016·Unpublished

Opinion

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

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

Appellee :

:

v. :

:

LEON L. IVERSON, :

:

Appellant : No. 671 MDA 2016

Appeal from the PCRA Order March 29, 2016 in the Court of Common Pleas of Lebanon County, Criminal Division, at No(s): CP-38-CR-0001012-2012, CP-38-CR-0001016-2012, CP-38-CR-0001018-2012

BEFORE: GANTMAN, P.J., SHOGAN, and STRASSBURGER,* JJ. MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 11, 2018 Leon L. Iverson (Appellant) appeals from the March 29, 2016 order dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Also before us is a petition to withdraw filed by Appellant’s counsel and 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). We grant counsel’s petition to withdraw and affirm the order of the PCRA court.

A prior panel of this Court summarized the facts of Appellant’s case as follows.

On April 14, 2012, [Appellant] sold marijuana to Sergeant Brett Hopkins (“Sergeant Hopkins”), a member of the Lebanon County Drug Task Force who was working undercover, for ten dollars. Following the transaction, [Appellant] provided Sergeant Hopkins with a phone number in the event that Sergeant Hopkins

*Retired Senior Judge assigned to the Superior Court.

wanted more drugs. Sergeant Hopkins told [Appellant] that he was looking for crack cocaine, after which [Appellant] instructed Sergeant Hopkins to call him. Sergeant Hopkins called [Appellant]

and set up a meeting at which [Appellant] provided him with an item in exchange for fifty dollars. The item’s size, color, appearance, and packaging were consistent with crack cocaine.

The item was subsequently tested and determined to be benzocaine, a non-controlled substance.

On April 17, 2012, Sergeant Hopkins called [Appellant] and arranged to purchase marijuana. Upon meeting [Appellant], Sergeant Hopkins purchased two bags of marijuana in exchange for twenty dollars. [Appellant] was subsequently arrested.

Commonwealth v. Iverson, 100 A.3d 313 (Pa. Super. 2014) (unpublished memorandum) (citations omitted). Following a jury trial, Appellant was convicted of two counts of possession with intent to deliver a controlled substance, one count of possession with intent to deliver a non-controlled substance, and two counts of criminal use of a communication facility. On January 24, 2013, he was sentenced to an aggregate term of four to ten years of incarceration. On March 19, 2014, this Court affirmed Appellant’s judgment of sentence. Id. Appellant did not file a petition for allowance of appeal with our Supreme Court.

On March 25, 2015, Appellant timely filed a pro se PCRA petition, which is the subject of this appeal. An attorney was appointed to represent Appellant, and soon thereafter, an amended petition was filed. On March 21, 2016, a hearing was held, after which the PCRA court issued an order dismissing Appellant’s petition. Counsel timely filed a notice of appeal on

Appellant’s behalf. On May 18, 2016, Appellant’s counsel complied with the PCRA court’s order to file a concise statement pursuant to Pa.R.A.P. 1925.1 Appellant’s counsel raises several issues within his Turner/Finley letter that Appellant wants this Court to review.2 Turner/Finley Letter at 3-9. However, before we may address the potential merit of Appellant’s claims, we must determine if counsel has complied with the technical requirements of Turner and Finley.

… Turner/Finley counsel 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 the 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

1Simultaneously, PCRA counsel filed with the PCRA court a motion to withdraw as counsel and a no-merit letter. The PCRA court granted counsel’s petition. Appellant pro se filed an appellate brief in this Court. Upon our initial review of the above-captioned matter, we determined that the PCRA court erred by permitting counsel to withdraw while Appellant’s appeal was pending in this Court. See Commonwealth v. Iverson, 671 MDA 2016 (Pa. Super. filed May 16, 2017) (unpublished memorandum). Thus, we remanded this case and directed counsel to file either an advocate’s brief or comply with the mandates of Turner/Finley. Id. A second remand was necessary after counsel’s Turner/Finley letter and motion to withdraw revealed several deficiencies. We again directed counsel to supplement the materials filed to this Court. Counsel has complied and thus, this case is now ripe for disposition.

2 Because Appellant’s prior pro se brief was filed while he was still represented by counsel, we consider this brief to be a legal nullity, and therefore, we only consider the issues raised in counsel’s Turner/Finley letter and Appellant’s subsequent pro se response.

withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel.

If counsel fails to satisfy the foregoing technical prerequisites of Turner/Finley, the court will not reach the merits of the underlying claims but, rather, will merely deny counsel’s request to withdraw. Upon doing so, the court will then take appropriate steps, such as directing counsel to file a proper Turner/Finley request or an advocate’s brief.

However, where counsel submits a petition and no-merit letter that do 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. By contrast, if the claims appear to have merit, the court will deny counsel’s request and grant relief, or at least instruct counsel to file an advocate’s brief.

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

We are satisfied that counsel has complied with the technical requirements of Turner and Finley. Therefore, we will consider the substantive issues contained in counsel’s letter.

“Our standard of review of a [PCRA] court order granting or denying relief under the PCRA calls upon us to determine ‘whether the determination of the PCRA court is supported by the evidence of record and is free of legal error.’” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (quoting Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)).

Appellant challenges the effectiveness of his trial and appellate counsel.

Accordingly, we bear in mind the following. “It is well-established that counsel

is presumed effective, and the defendant bears the burden of proving ineffectiveness.” Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). To overcome this presumption, Appellant must show each of the following: “(1) the underlying substantive claim has arguable merit; (2) counsel whose effectiveness is being challenged did not have a reasonable basis for his or her actions or failure to act; and (3) the petitioner suffered prejudice as a result of counsel’s deficient performance.” Id. Appellant’s claim will be denied if he fails to meet any one of these three prongs. Id.

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