Com. v. Martinez, J.

• Court: Superior Court of Pennsylvania
• Decided: October 25, 2022
• Docket: 1486 EDA 2021
• Status: Unpublished

Opinion

J-S27026-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSHUA MARTINEZ : : Appellant : No. 1486 EDA 2021

Appeal from the PCRA Order Entered June 9, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008133-2017, CP-51-CR-0008135-2017

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSHUA MARTINEZ : : Appellant : No. 1487 EDA 2021

Appeal from the PCRA Order Entered June 9, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008133-2017, CP-51-CR-0008135-2017

BEFORE: STABILE, J., NICHOLS, J., and SULLIVAN, J.

MEMORANDUM BY NICHOLS, J.: FILED OCTOBER 25, 2022

Appellant Joshua Martinez appeals from the order denying his timely

first Post Conviction Relief Act1 (PCRA) petition. Appellant’s counsel (Current

PCRA Counsel) has filed a motion to withdraw from representation and an

____________________________________________

1 42 Pa.C.S. §§ 9541-9546. J-S27026-22

Anders/Santiago brief.2 For the reasons that follow, we affirm the PCRA

court’s order and grant Current PCRA Counsel’s motion to withdraw.

The PCRA court summarized the relevant facts and procedural history

of this matter as follows:

Appellant and his co-defendant, Ruben Rodriguez, proceeded to a jury trial before this court on April 2, 2019 on [Docket Nos.] 8133- 2017 and 5456-2018, after this court declared a mistrial without any intentional misconduct on March 29, 2019. On April 11, 2019, a jury found Appellant guilty on [Docket No.] 8133-2017 of aggravated assault and three violations of the Uniform Firearms Act. On the same date, a jury also found Appellant guilty on [Docket No.] 5456-2018 of attempted murder, aggravated assault, three violations of the Uniform Firearms Act, possessing instruments of crime, and conspiracy to commit aggravated assault and murder.[fn1]

18 Pa.C.S. §§ 2702(a)(1); 6105(a)(1); 6106(a)(1); [fn1]

6108; 901(a); 2702(a)(1); 6105(a)(1); 6106(a)(1); 6108; 907(a); 903(c) respectively.

On September 3, 201[9], Appellant entered an open guilty plea on [Docket No.] 8135-2017 to attempted murder, aggravated assault, three violations of the Uniform Firearms Act, and possessing instruments of crime. On September 3, 201[9], this court also held a sentencing hearing for all three of Appellant’s cases. This court first sentenced Appellant on [Docket No.] 8135- ____________________________________________

2 Current PCRA Counsel erroneously filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which provide the procedure for counsel to withdraw in a direct appeal. In an order filed on May 25, 2022, this Court notified Current PCRA Counsel of this error and informed him that to withdraw as PCRA counsel he must satisfy the requirements set forth in Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). See Order, 5/25/22. However, because an Anders/Santiago brief provides greater protections to Appellant, we may accept an Anders/Santiago brief in lieu of a Turner/Finley brief. See Commonwealth v. Reed, 107 A.3d 137, 139 n.5 (Pa. Super. 2014).

-2- J-S27026-22

2017 to an aggregate term of fifteen (15) to thirty (30) years of confinement. This court then sentenced Appellant on [Docket No.] 8133-2017 to a consecutive aggregate term of eight (8) to twenty (20) years of confinement. Finally, this court sentenced Appellant on [Docket No.] 5456-2018 to another consecutive term of fifteen (15) to thirty (30) years of confinement. Appellant thus received a total aggregate sentence of thirty-eight (38) to eighty (80) years.[fn2]

18 Pa.C.S. §§ 901(a); 2702(a)(1); [fn2] 6105(a)(1); 6106(a)(1); 6108; 907(a) respectively.

PCRA Ct. Op., 3/22/22, at 1-2 (footnotes omitted and formatting altered).

Appellant did not file a direct appeal in any of the three cases. On July

20, 2020, Appellant filed a pro se PCRA petition challenging the legality of his

sentence, which the PCRA court docketed at Docket Nos. 8135-2017 and

8133-2017. Therein, Appellant claimed that his sentence was illegal because

he had entered a “negotiated guilty plea for a maximum sentence of fifteen

years,” and the trial court had imposed a minimum sentence eight-and-a-half

years’ incarceration, which exceeded one-half of the maximum sentence in

violation of 42 Pa.C.S. § 9756(b)(1). Pro Se PCRA Pet., 7/20/20, at 3.

On August 28, 2020, the PCRA court appointed Douglas Earl, Esquire

(Prior PCRA Counsel), who subsequently filed a Turner/Finley brief in the

PCRA court.3 On April 7, 2021, the PCRA court issued a Pa.R.Crim.P. 907

notice of intent to dismiss Appellant’s petition without a hearing. Rule 907

Notice, 4/7/21. Appellant did not file a response. On June 9, 2021, the PCRA ____________________________________________

3 Although it is undisputed that prior PCRA Counsel also filed a motion to withdraw, the motion was not included in the certified record transmitted to this Court.

-3- J-S27026-22

court issued an order dismissing Appellant’s petition. PCRA Ct. Order, 6/9/21,

at 1. However, the PCRA court did not rule on Prior PCRA Counsel’s motion

to withdraw.

While still represented by Prior PCRA Counsel, Appellant filed a pro se

motion for reconsideration on July 2, 2021, and subsequently filed two notices

of appeal listing both docket numbers on July 8, 2021.4 Pro Se Mot. for

Recons., 7/2/21; Notice of Appeal, 7/8/21. On August 16, 2021, the PCRA

court issued an order directing Appellant to file a Pa.R.A.P. 1925(b) statement.

PCRA Ct. Order, 8/16/21. However, Prior PCRA Counsel did not comply with

the PCRA court’s order.

On December 2, 2021, the PCRA court issued an order granting Prior

PCRA Counsel’s motion to withdraw and appointed Matthew Sullivan, Esquire

(Current PCRA Counsel) on Appellant’s behalf. PCRA Ct. Order, 12/2/21. On

January 11, 2022, Current PCRA Counsel filed a Pa.R.A.P. 1925(c)(4)

statement of intent to file a motion to withdraw. The PCRA court issued a Rule

1925(a) opinion addressing Appellant’s legality-of-sentence claim and

concluding that it was meritless. PCRA Ct. Op. at 4.

On appeal, Current PCRA Counsel filed a motion to withdraw and an

Anders/Santiago brief stating that he thoroughly reviewed the case,

4 Appellant filed a separate notice of appeal at each PCRA court docket in accordance with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) and Pa.R.A.P. 341(a). On December 21, 2021, this Court consolidated the appeals sua sponte pursuant to Pa.R.A.P. 513. Order, 12/21/21.

-4- J-S27026-22

believed an appeal was wholly frivolous, notified Appellant of his intent to

withdraw, and provided Appellant with copy of his brief.5 Current PCRA

Counsel has provided this Court with a copy of his letter to Appellant, which

informed Appellant of his right to proceed pro se or with private counsel. Resp.

to Order, 5/27/22. Additionally, the record reflects that Appellant did not file

a response either pro se or through private counsel.

In the Anders/Santiago brief, Current PCRA Counsel identifies two

issues. The first issue relates to the legality of Appellant’s sentence. See

Anders/Santiago Brief at 10. The second issue concerns a claim concerning

ineffectiveness of prior counsel. See id. at 17.

Before addressing the matters raised in Current PCRA Counsel’s

Anders/Santiago brief, we must first consider his request to withdraw as

PCRA counsel. Although Current PCRA Counsel filed an Anders/Santiago

brief, this Court is required to apply the Turner/Finley requirements in this

collateral appeal even though Anders/Santiago affords greater protections

to an appellant on direct appeal. Commonwealth v. Widgins, 29 A.3d 816,

817 n.2 (Pa. Super. 2011); see also Commonwealth v. Muzzy, 141 A.3d

509, 510 n.3 (Pa. Super. 2016). Current case law allows this Court to accept

the Anders/Santiago brief from PCRA counsel; however, instantly, this Court ____________________________________________

5 On May 25, 2022, this Court issued an order directing Current PCRA Counsel to provide proof of service for his motion to withdraw and the no-merit letter as well as a statement advising Appellant that he had the right to proceed pro se or with the assistance of privately retained counsel. Order, 5/25/22, at 1. Current PCRA Counsel complied with this Court’s order on May 27, 2022.

-5- J-S27026-22

must apply the Turner/Finley requirements in its appellate review. “While

an Anders brief is acceptable on collateral review even though a no merit

[Turner/Finley] letter is the appropriate filing, counsel must adhere to all the

Turner/Finley requirements[.]” Commonwealth v. Paris, 2022 WL

4231231, at *1 (Pa. Super. filed Sept. 14, 2022) (unpublished mem).6 “As

stated previously, the procedure set forth in Anders is not appropriate for

withdrawing from PCRA representation, as counsel seeking to withdraw on

collateral appeal must follow the procedure outlined in Turner/Finley.”

Commonwealth v. Blake, 2022 WL 4127227, at *4 (Pa. Super. filed Sept.

12, 2022) (unpublished mem). Accordingly, we will apply the Turner/Finley

requirements in our review of Current PCRA Counsel’s request to withdraw

from his representation of this collateral appeal.

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.

Where counsel submits a petition and no-merit letter that satisfy the technical demands of Turner/Finley, the court—trial court or ____________________________________________

6 See generally Pa.R.A.P. 126(b) (noting that unpublished memorandum decisions of the Superior Court filed after May 1, 2019, may be cited for their persuasive value).

-6- J-S27026-22

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.

Muzzy, 141 A.3d at 510-11 (citations omitted and formatting altered).

Current PCRA Counsel’s brief summarizes relevant portions of the record

and explains why Appellant’s sentencing claim is meritless.

Anders/Santiago Brief at 7-17. Essentially, in the Anders/Santiago brief,

Current PCRA Counsel explains that Appellant’s sentencing claims lack merit

because the sentences imposed for each count imposed a penalty of total

confinement in which the minimum does not exceed one-half of the maximum

sentence. Further, the sentences for each count do not exceed the statutory

maximums for the crimes. Therefore, the aggregate sentences imposed at

both dockets are legal and consistent with 42 Pa.C.S. § 9756(b)(1).

In the Anders/Santiago brief, Current PCRA Counsel also concludes

that Appellant’s ineffectiveness claims concerning Prior PCRA Counsel’s

alleged failure to file an amended PCRA petition including trial counsel’s

alleged failure to file a direct appeal when requested to do so are without

merit. Anders/Santiago Brief at 17-18. Current PCRA Counsel concludes

that there is no support in the record that Appellant filed PCRA petitions at

trial court Docket Nos. 8133-2017 and 8135-2017, and that in any event,

Appellant’s pro se PCRA issues do not raise claims of arguable merit.

Therefore, Prior PCRA Counsel cannot be held ineffective for failing to file an

amended petition. Id. at 18-19.

-7- J-S27026-22

Here, Current PCRA Counsel filed his petition to withdraw indicating that

he reviewed the record and determined that an appeal is frivolous and without

merit. Pet. To Withdraw, 5/3/22. Counsel also filed a copy of the letter he

sent to Appellant, which indicates that Counsel sent Appellant a copy of the

Anders/Santiago brief and advised Appellant that he may proceed pro se or

retain private counsel to raise any additional issues he believes should be

brought to this Court’s attention. Resp. to Order, 5/27/22; Anders/Santiago

Brief at 9. Accordingly, we conclude that Counsel has met the technical

requirements of Anders and Santiago, and we will proceed to address the

issues Current PCRA Counsel identified in the Anders/Santiago brief.

Anders/Santiago Brief at 10-19.

Legality of Sentencing Claims

We note that issues relating to the legality of a sentence are questions

of law, therefore, our standard of review is de novo and our scope of review

is plenary. Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013)

(citations omitted). “If no statutory authorization exists for a particular

sentence, that sentence is illegal and . . . . must be vacated. Likewise, a

sentence that exceeds the statutory maximum is illegal.” Id. (citations and

quotation marks omitted); see also 42 Pa.C.S. § 9756(b)(1) (stating that

“[t]he court shall impose a minimum sentence of confinement which shall not

exceed one-half of the maximum sentence imposed”).

Pursuant to Section 1102 of the Crimes Code, a person who has been

convicted of attempted murder resulting in serious bodily injury “may be

-8- J-S27026-22

sentenced to a term of imprisonment which shall be fixed by the court at not

more than 40 years.” 18 Pa.C.S. § 1102(c).

Aggravated assault and possession of a firearm by a prohibited person

are felonies of the first degree. 18 Pa.C.S. §§ 2702(a)(1), (b); 6105(a)(1),

(a.1)(i). Pursuant to Section 1103(1) of the Crimes Code, the maximum

sentence for a first-degree felony is twenty years’ incarceration. 18 Pa.C.S. §

1103(1).

Carrying a firearm without a license is a third-degree felony. 18 Pa.C.S.

§ 6106(a)(1). The maximum sentence for a third-degree felony is seven

years’ incarceration. 18 Pa.C.S. § 1103(3).

Finally, carrying firearms in public and possessing an instrument of

crime are misdemeanors of the first degree. 18 Pa.C.S. §§ 6108, 6119;

907(a). The maximum sentence for a first-degree misdemeanor is five years’

incarceration. 18 Pa.C.S. § 1104(1).

Here, at Docket No. 8135-2017, Appellant entered an open guilty plea

that did not contain a negotiated sentence. Therefore, the trial court was

restricted to impose no more than the statutory maximum sentence for each

offense. At sentencing, the trial court ordered Appellant to serve fifteen to

thirty years’ incarceration for attempted murder, five to ten years’

incarceration for possession of a firearm by a prohibited person, three-and-

one-half to seven years’ incarceration for firearms not to be carried without a

license, and one to two years’ incarceration for both carrying firearms in public

-9- J-S27026-22

and possessing an instrument of crime. See Sentencing Order, Docket No.

8135-2017, 9/3/19, at 1-2.

At Docket No. 8133-2017, Appellant was found guilty following a jury

trial, and the trial court was required to impose no more than the statutory

maximum sentence for each offense. At sentencing, the trial court ordered

Appellant to serve eight to twenty years’ incarceration for aggravated assault,

five to ten years’ incarceration for possession of a firearm by a prohibited

person, three-and-one-half to seven years’ incarceration for firearms not to

be carried without a license, and one to two years’ incarceration for carrying

firearms in public. See Sentencing Order, Docket No. 8133-2017, 9/3/19, at

1.

Following our review of the record, we conclude that Appellant’s

individual sentences do not exceed the statutory maximum for each offense,

further, the minimum does not exceed half of the maximum of each imposed

sentence consistent with 42 Pa.C.S. § 9756(b)(1). Therefore, Appellant’s

sentences are legal. See Infante, 63 A.3d at 363. For these reasons, we

agree with Current PCRA Counsel’s assessment that Appellant’s sentencing

claims lack merit. Accordingly, no relief is due.

Ineffectiveness of Counsel Claims

Finally, Current PCRA Counsel discussed Appellant’s claims that trial

counsel was ineffective for failing to file a direct appeal when requested to do

so, and that Prior PCRA Counsel was ineffective for failing to file an amended

PCRA petition challenging trial counsel’s failure to file a direct appeal.

- 10 - J-S27026-22

Anders/Santiago Brief at 17. Prior to our Supreme Court’s holding in

Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), obtaining appellate

review of allegations of PCRA counsel’s ineffectiveness required that PCRA

petitioners raise their challenges in response to a motion to withdraw as

counsel or in a timely response to a lower court’s Rule 907 notice. See id. at

386 (explaining the history of the right to representation by PCRA counsel and

the procedural mechanisms for challenging PCRA counsel’s effectiveness).

Notably, the Bradley Court held that “a PCRA petitioner may, after a PCRA

court denies relief, and after obtaining new counsel or acting pro se, raise

claims of PCRA counsel’s ineffectiveness at the first opportunity to do so, even

if on appeal.” Id. at 401. Instantly, Current PCRA Counsel noted that

Appellant might argue that he has complied with Bradley’s requirements

because he raised the issue of Prior PCRA Counsel’s ineffectiveness at the first

opportunity to do so. Anders/Santiago Brief at 17.

Current PCRA Counsel, in discussing Appellant’s ineffectiveness claims

consistent with Bradley, argues that this Court should consider the merits of

these claims, and that Appellant might claim that Prior PCRA Counsel was

ineffective for failing to file an amended PCRA petition alleging trial counsel’s

ineffectiveness for failing to pursue a direct appeal. See id. Further, Current

PCRA Counsel contends that Appellant might cite the February 10, 2021 letter,

which he wrote to the Philadelphia County Clerk Courts, asking about the

status of his appeal of cases at Docket Nos. 8133-2017 and 8135-2017, and

that Appellant might also cite the pro se motion for reconsideration he filed

- 11 - J-S27026-22

on July 2, 2021. See id. In his motion, Appellant averred that supplemental

PCRA petitions were filed at Docket Nos. 8133-2017 and 8135-2017, and that

he filed a PCRA petition at Docket No. 5456-2018. With respect to Docket

Nos. 8133-2017 and 8135-2017, Appellant averred that he argued that trial

counsel was ineffective for failing to file a direct appeal when requested to do

so. At Docket No. 5456-2018, Appellant averred that he argued that his

sentence was illegal, and that Prior PCRA Counsel did not address the

ineffective assistance of trial counsel for failing to file a direct appeal when

requested to do so. See id.; Pro Se Mot. for Recons., 7/2/21, at 1.

However, Current PCRA Counsel concludes that the record does not

support Appellant’s claims, and that there is no evidence that Appellant filed

supplemental PCRA petitions at Docket Nos. 8133-2017 and 8135-2017.

Accordingly, Current PCRA Counsel concludes that Appellant’s allegation of

Prior PCRA Counsel’s alleged ineffectiveness for failing to argue that trial

counsel was ineffective for failing to file a direct appeal is meritless, and that

in any event, there are no viable claims for relief to pursue on direct appeal,

therefore Prior PCRA Counsel cannot be deemed ineffective.

Anders/Santiago Brief at 16-18.

Our independent review of the record is guided with the understanding

that, consistent with Bradley, Appellant, acting pro se, or with newly retained

counsel, may raise claims of prior PCRA counsel’s ineffectiveness after the

PCRA court denies relief, at the first opportunity to do so, even on appeal.

- 12 - J-S27026-22

However, Appellant’s claims must have arguable merit and be supported by

the record. See Bradley, 261 A.3d at 401-02.7

In considering Appellant’s ineffectiveness claims, we agree with Current

PCRA Counsel’s assessment that Appellant’s ineffectiveness of counsel claims

are frivolous and do not have arguable merit. Our review of the February 10,

2021 letter that Appellant sent to the Philadelphia County Clerk of Courts

reveals that Appellant listed Docket Nos. 8133-2017 and 8135-2017 as cases

that “[he] appealed” and includes a request to know where “[his] appeal

stands”. Finally, it includes a request for a copy of Appellant’s “docket sheet”.

Appellant did not include any further information, such as any indication or

evidence that he instructed trial counsel to file a direct appeal or that he filed

PCRA petitions at those dockets. See Inmate Doc. Req., Docket No. 8133-

2017, 2/10/21, at 1. Further, there is no evidence elsewhere in the record

7 The Bradley Court explained:

In some instances, the record before the appellate court will be sufficient to allow for disposition of any newly-raised ineffectiveness claims. However, in other cases, the appellate court may need to remand to the PCRA court for further development of the record and for the PCRA court to consider such claims as an initial matter. Consistent with our prior case law, to advance a request for remand, a petition would be required to provide more than mere boilerplate assertions of PCRA counsel’s ineffectiveness; however, where there are material facts at issue concerning claims challenging counsel’s stewardship and relief is not plainly unavailable as a matter of law, the remand should be afforded[.]

Bradley, 261 A.3d at 402 (citations omitted and formatting altered).

- 13 - J-S27026-22

that Appellant requested trial counsel to file a direct appeal and no evidence

that Appellant filed supplemental PCRA petitions at Docket Nos. 8133-2017

and 8135-2017. There is also no evidence in the record to show that Appellant

requested that trial counsel file a direct appeal, despite what Appellant avers

in his motion for reconsideration. Therefore, the allegation of Prior PCRA

Counsel’s ineffectiveness for failing to argue trial counsel was ineffective for

failing to file a direct appeal is meritless and no relief is due. See

Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (explaining

that counsel cannot be deemed ineffective for failing to raise a meritless

claim).

After reviewing the issues identified in the Anders/Santiago brief and

following our independent review of the record, we agree with Current PCRA

Counsel’s assessment and conclude that no relief is due. For these reasons,

we affirm the order denying Appellant’s PCRA petition and grant Current PCRA

Counsel’s petition to withdraw.

Order affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/25/2022

- 14 -