Com. v. Kirksey, L.

• Court: Superior Court of Pennsylvania
• Decided: July 1, 2021
• Docket: 713 WDA 2020
• Status: Unpublished

Opinion

J-S15040-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LAVANCE KIRKSEY : : Appellant : No. 713 WDA 2020

Appeal from the PCRA Order Entered June 17, 2020 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000998-2017

BEFORE: LAZARUS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED: JULY 1, 2021

Appellant, LaVance Kirksey, appeals from the order of the Court of

Common Pleas of Erie County (trial court) that dismissed his first petition filed

under the Post Conviction Relief Act (PCRA)1 without a hearing. Counsel for

Appellant (PCRA Counsel) has filed an application to withdraw and a brief

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and

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

this appeal presents no issues of any arguable merit. After careful review, we

grant counsel’s application to withdraw and affirm the order dismissing

Appellant’s PCRA petition.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546. J-S15040-21

On January 4, 2017, Appellant was charged with homicide, conspiracy

to commit homicide, aggravated assault, reckless endangerment, possession

of an instrument of crime, and carrying a firearm without a license, for the

shooting death of Jemar Phillips in Erie, Pennsylvania on February 14, 2016.

On January 19, 2018, Appellant pled no contest to third-degree murder under

a plea agreement in exchange for the Commonwealth reducing the homicide

charge to third-degree murder and withdrawing all other charges. N.T. Plea

Hearing at 4-7. This plea agreement did not include any agreement as to

sentence or sentencing recommendations and Appellant was advised before

his plea that he could be sentenced to up to 40 years’ incarceration. Id. at 2-

3, 6-7. Prior to Appellant’s plea, Appellant’s co-defendant had been tried

separately and convicted of first-degree murder. Id. at 6. On February 27,

2018, the trial sentenced Appellant to 18 to 36 years’ incarceration. N.T.

Sentencing at 19.

Appellant filed a motion for reconsideration of sentence, which the trial

court denied on March 27, 2018. Appellant filed a timely appeal to this Court

in which he challenged his sentence as excessive, unreasonable, and

inconsistent with the Sentencing Code. Commonwealth v. Kirksey, No. 899

WDA 2018, unpublished memorandum at 4 (Pa. Super. filed February 27,

2019). On February 27, 2019, this Court affirmed the judgment of sentence.

Appellant filed a petition for allowance of appeal, which the Pennsylvania

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Supreme Court denied on August 14, 2019. Commonwealth v. Kirksey,

217 A.3d 194 (Pa. 2019).

On September 11, 2019, Appellant timely filed a pro se PCRA petition in

which he alleged ineffective assistance of trial counsel with respect to his no

contest plea based on counsel allegedly having previously advised him not to

accept a prior plea agreement with a 15 to 30 year prison sentence. PCRA

Counsel was appointed and, following review of the record, filed a petition to

withdraw and a letter concluding that the ground that Appellant sought to

raise in his PCRA petition had no merit because the record established that his

no contest plea was knowing and voluntary. Appellant filed a pro se objection

to PCRA Counsel’s letter and petition to withdraw in which he asserted that

also wished to assert three challenges to his sentence. On December 23,

2019, the trial court ordered PCRA Counsel to file an amended PCRA petition

on Appellant’s behalf that included the additional issues that Appellant sought

to raise and to address those issues. On January 22, 2020, PCRA Counsel

filed an amended PCRA petition in compliance with the trial court’s order and

a new no-merit letter addressing the issues in both Appellant’s original and

amended PCRA petitions. Appellant again filed a pro se objection to this no-

merit letter.

On May 18, 2020, the trial court issued a notice pursuant to Pa.R.Crim.P.

907 of its intent to dismiss Appellant’s PCRA petition without a hearing.

Appellant filed no response to the Rule 907 notice and the trial court, on June

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17, 2020, dismissed Appellant’s PCRA petition. The trial court did not grant

PCRA Counsel’s petition to withdraw. Appellant timely appealed the June 17,

2020 order dismissing his PCRA petition.

PCRA Counsel has filed and served on Appellant an application to

withdraw and a “Finley Brief” in which he analyzed the issues that Appellant

sought to raise and concluded that they were without merit. PCRA Counsel

has also sent Appellant a letter advising Appellant of his rights to proceed pro

se or with privately retained counsel and to raise any additional points that he

deems worthy of the court’s attention. Appellant has filed a response, in which

he argues that PCRA Counsel failed to address his sentencing claims. The

Commonwealth has filed a brief in support of the trial court’s order.

Before this Court can consider the merits of this appeal, we must first

determine whether counsel has satisfied all of the requirements that court-

appointed counsel must meet before leave to withdraw may be granted in a

PCRA appeal. Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super.

2016); Commonwealth v. Freeland, 106 A.3d 768, 774 (Pa. Super. 2014);

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

from representing a PCRA petitioner in a collateral attack on his criminal

conviction, counsel must file a no-merit letter, send the petitioner copies of

the application to withdraw and no-merit letter, and advise petitioner of his

right to proceed pro se or with a privately retained attorney. Walters, 135

A.3d at 591; Freeland, 106 A.3d at 774-75; Doty, 48 A.3d at 454. The no-

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merit letter must set forth: 1) the nature and extent of counsel’s review of the

case; 2) each issue that the petitioner wishes to raise on appeal; and 3)

counsel’s explanation of why each of those issues is meritless.

Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009); Turner, 544

A.2d at 928-29; Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa.

Super. 2011). If counsel has satisfied the above requirements, this Court

must then conduct its own review of the record and render an independent

judgment as to whether the appeal is without merit. Walters, 135 A.3d at

591; Doty, 48 A.3d at 454.

Here, counsel provided Appellant a copy of the no-merit brief and the

application to withdraw and sent Appellant a letter advising him of his right

either to retain new counsel or proceed pro se. Although counsel here filed a

no-merit brief, rather than a no-merit letter, that can satisfy counsel’s

obligations, provided that the brief contains all the information that must be

included in a no-merit letter. Widgins, 29 A.3d at 817 n.2. We conclude that

it does. Counsel’s brief discusses both the plea and sentencing issues that

Appellant has sought to raise and explains why all of these issues lack merit.

We therefore conduct our own review and independently determine whether

these issues are without merit.

We review the dismissal of a PCRA petition to determine whether the

record supports the PCRA court’s determination and whether its decision is

free of legal error. Commonwealth v. Pier, 182 A.3d 476, 478 (Pa. Super.

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2018); Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012). The

only claims that Appellant sought to assert in his PCRA petition are claims that

trial counsel was ineffective in his advice with respect to plea negotiations and

claims concerning his sentence. We conclude that the trial court did not err

in holding that none of these claims could support PCRA relief.

Appellant pled no contest to the charge of third-degree murder. In

terms of its effect in this case, a plea of no contest is treated the same as a

guilty plea. Commonwealth v. Prieto, 206 A.3d 529, 533 (Pa. Super.

2019); Commonwealth v. Jabbie, 200 A.3d 500, 505 (Pa. Super. 2018);

Pier, 182 A.3d at 478 n.3. Such a plea waives all claims other than challenges

to the jurisdiction of the court, the validity of the plea, and the sentence

imposed. Prieto, 206 A.3d at 533-34; Jabbie, 200 A.3d at 505. Ineffective

assistance of counsel in connection with a guilty plea or no contest plea will

thus constitute a ground for PCRA relief only if the ineffectiveness caused the

defendant to enter an involuntary or unknowing plea. Pier, 182 A.3d at 478

& n.3; Wah, 42 A.3d at 338; Commonwealth v. Allen, 833 A.2d 800, 802

(Pa. Super. 2003).

Appellant’s only claim of ineffectiveness of counsel with respect to his

conviction is the contention that trial counsel allegedly misadvised him to

reject an earlier plea offer, not that trial counsel was ineffective in advising

him with respect to his no contest plea or that trial counsel’s ineffectiveness

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caused his no contest plea to be unknowing or involuntary. Moreover, the

record is clear that Appellant’s plea was knowing and voluntary.

To establish that a plea of guilty or no contest is knowing and voluntary,

the plea colloquy must ascertain the factual basis for the plea, and that the

defendant understands the nature of the charges to which he is pleading guilty

or no contest, his right to a jury trial, the presumption of innocence, the

sentencing ranges for the charges, and the plea court’s power to deviate from

any recommended sentence. Jabbie, 200 A.3d at 506; Commonwealth v.

Reid, 117 A.3d 777, 782 (Pa. Super. 2015); Commonwealth v. Morrison,

878 A.2d 102, 107 (Pa. Super. 2005) (en banc); Comment to Pa.R.Crim.P.

590(A)(2). These matters may also be shown by a written plea colloquy read

and signed by the defendant and made part of the record when supplemented

by an oral, on-the-record examination. Reid, 117 A.3d at 782; Morrison,

878 A.2d at 108-09; Comment to Pa.R.Crim.P. 590(A)(2).

All of those requirements were satisfied here. At the plea hearing and

in the written plea colloquy that he signed, Appellant was advised that he was

presumed innocent and had a right to a jury trial and confirmed that he

understood those rights and was giving them up in his plea. N.T. Plea Hearing

at 2, 6; Defendant’s Statement of Understanding of Rights. The factual basis

and elements of the third-degree murder charge were set forth and Appellant

acknowledged that he understood the nature of the third-degree murder

charge to which he was pleading no contest. N.T. Plea Hearing at 4-5;

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Defendant’s Statement of Understanding of Rights. Appellant was advised

that while the no contest plea did not admit guilt, it had the same effect with

respect to punishment as a guilty plea and testified that he understood the

effect of his plea. N.T. Plea Hearing at 4-6. Appellant testified that he

understood that he could be sentenced to as much as 40 years in prison, a

longer sentence than he received, and it was made clear at the plea hearing

that there was no agreement by the Commonwealth to recommend any lesser

sentence. Id. at 2-3, 6-7. Appellant further testified that while he did not

admit that he committed the crime, he understood the evidence against him

and wished to plead no contest to third-degree murder in light of that

evidence. Id. at 5-6.

Appellant’s PCRA claims concerning his sentence are likewise without

merit. PCRA relief cannot be granted on the basis of any claim that the

defendant has previously litigated on direct appeal. 42 Pa.C.S. §§ 9543(a)(3),

9544(a)(2); Commonwealth v. Spotz, 47 A.3d 63, 101 (Pa. 2012);

Commonwealth v. Miller, 212 A.3d 1114, 1130-31 (Pa. Super. 2019).

The three claims that Appellant has asserted in his PCRA concerning his

sentence are all claims that his 18-to-40-year sentence is unreasonable and

excessive. That is precisely the issue that Appellant raised and argued on

direct appeal. Kirksey, No. 899 WDA 2018, unpublished memorandum at 4.

Moreover, the bases asserted in Appellant’s PCRA petition for his claims that

the sentence was unreasonable and excessive were considered and rejected

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by this Court in Appellant’s direct appeal. Appellant asserted in his PCRA

petition that the sentence was unreasonable and excessive because

statements by the judge at sentencing allegedly show that he was biased,

because the judge did not properly consider the sentencing guidelines, and

because the sentence was inconsistent with the Sentencing Code. In ruling

on Appellant’s direct appeal, this Court examined the trial court’s application

of the sentencing guidelines and its consideration of the standards set forth in

the Sentencing Code. Id. at 6-10. In addition, this Court, in concluding that

Appellant’s sentence was not excessive or unreasonable, specifically quoted

and considered the statements made by the judge at sentencing that

Appellant contends show bias. Id. at 7-9.

Because the record establishes that Appellant’s no contest plea was

knowing and voluntary and his sentencing claims were previously litigated in

his direct appeal, the trial court properly concluded that none of Appellant’s

PCRA claims had merit. We therefore affirm the trial court’s dismissal of

Order affirmed. Application to withdraw as counsel granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/1/2021

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