Com. v. Severino, A.

• Court: Superior Court of Pennsylvania
• Decided: June 26, 2020
• Docket: 1513 WDA 2019
• Status: Unpublished

Opinion

J-A12042-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANTHONY LAWRENCE SEVERINO : : Appellant : No. 1513 WDA 2019

Appeal from the PCRA Order Entered September 4, 2019, in the Court of Common Pleas of Crawford County, Criminal Division at No(s): CP-20-CR-0000705-2017.

BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED JUNE 26, 2020

Anthony Lawrence Severino appeals from the order denying his petition

for relief filed pursuant to the Post Conviction Relief Act (“PCRA”). 42

Pa.C.S.A. §§9541-46. Additionally, Severino’s court-appointed PCRA counsel

has filed a motion for leave to withdraw from representation, as well as 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 motion to withdraw and affirm the PCRA court’s

order denying post-conviction relief.

The relevant factual and protracted procedural history underlying this

appeal can be summarized as follows. On January 4, 2018, Severino entered

a guilty plea to driving under the influence (“DUI”) and related summary ____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-A12042-20

offenses.1 On April 3, 2018, the trial court sentenced him to an aggregate

term of fifteen months to sixty months of incarceration.

On April 11, 2018, plea counsel filed a motion to modify and reconsider

sentence, which the trial court denied the next day. On April 23, 2018,

Severino filed a pro se motion to withdraw his guilty plea, in which he raised

a claim of plea counsel’s ineffectiveness. There is no indication in the certified

record that this pro se filing was forwarded to plea counsel. In a letter filed

May 3, 2018, Severino informed the court that plea counsel had failed to

contact him and file his requested motions and a direct appeal. By order

entered May 14, 2018, the trial court directed this pro se filing to be forwarded

to Severino’s counsel of record. That same day, plea counsel filed a motion to

withdraw as counsel, which the trial court granted.

In a letter filed on May 25, 2018, Severino informed the trial court that

his pro se motion to withdraw his guilty plea was still pending, and that plea

counsel had filed a petition to withdraw. In a memorandum order filed on May

31, 2018, the trial court noted the procedural irregularities, including the fact

that the pro se motion was never forwarded to plea counsel pursuant to

Pa.R.Crim.P. 576(A)(4), and that plea counsel was already permitted to

withdraw. Thus, the trial court appointed new counsel to represent Severino

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1That same day, at a different docket, Severino pled guilty to criminal mischief and harassment, and was sentenced to fines, costs, and restitution. This docket is not at issue in this appeal.

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in his request to withdraw his guilty plea. New counsel filed a memorandum

in support of Severino’s pro se motion, and the trial court held an evidentiary

hearing on September 7, 2018.2 By order entered September 19, 2018, the

trial court denied Severino’s motion. Severino did not file a direct appeal.

On October 4, 2018, Severino filed a pro se PCRA petition, in which he

claimed that plea counsel’s ineffectiveness caused him to enter an invalid plea,

and that plea counsel failed to file a requested appeal. The PCRA court

appointed counsel. On October 9, 2018, counsel filed a motion to withdraw

in which he stated that his contract with the county to represent indigent

defendants as conflict counsel did not include PCRA proceedings. By order

October 10, 2018, the PCRA court granted counsel’s motion, and stated that

new counsel would be appointed. New PCRA counsel was appointed that same

day.

Originally, the PCRA court scheduled an evidentiary hearing for January

28, 2019. Thereafter, Severino filed several pro se letters in which he stated

he had no contact with PCRA counsel. On February 13, 2019, the PCRA court

heard oral argument from counsel for the parties regarding how to proceed

on Severino’s PCRA petition. Thereafter, Severino’s evidentiary hearing was

scheduled for May 31, 2019, but it was continued to August 1, 2019, due to

the unavailability of the PCRA court. On that date, Severino’s PCRA counsel

did not appear. Thus, in an order entered that same date, the court directed ____________________________________________

2 A transcript of this hearing does not appear in the certified record.

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PCRA counsel to withdraw his appearance, and the PCRA court appointed

current counsel. The PCRA court held an evidentiary hearing on August 14,

2019. Both Severino and plea counsel testified. By order entered September

4, 2019, the PCRA court denied Severino’s PCRA petition. This timely appeal

followed.

By order entered October 1, 2019, the PCRA court directed Severino to

file, pursuant to Pa.R.A.P. 1925(b), a concise statement of errors complained

of on appeal. Severino’s counsel filed a timely statement of intention to file

an Anders/McClendon Brief.3 In its Rule 1925(a) opinion, the PCRA court

referred this Court to its prior September 4, 2019 memorandum in which it

explained its reasons for denying post-conviction relief.

This Court then issued a briefing schedule. On January 14, 2020,

counsel filed an application to withdraw pursuant to Turner/Finley, supra,

as well as a brief in support of his determination that Severino had no non-

frivolous issues to raise. By order entered January 17, 2020, we struck

counsel’s motion to withdraw as facially deficient, and directed counsel to file

a revised application to withdraw. Counsel timely complied. Thereafter,

Severino filed a pro se response to counsel’s motion to withdraw.4 ____________________________________________

3Although counsel mischaracterized his intention as one to withdraw by citing case law involving a direct appeal withdrawal, counsel later properly complied with dictates of Turner/Finley, supra.

4 In several pro se filings, Severino has asked this Court for clarification and the appointment of counsel to assist him in filing a response. By order entered

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In the Turner/Finley brief, PCRA counsel discusses Severino’s wish to

challenge the denial of post-conviction relief because “he received ineffective

assistance of counsel when plea counsel provided [him] with erroneous

information regarding the standard [sentencing] range for the [DUI] offense

that [he] pled guilty to.” Turner/Finley Brief at 10.5

Prior to considering this claim, we must address PCRA counsel’s petition

to withdraw. Pursuant to Turner/Finley, supra, independent review of the

record is required before withdrawal on collateral appeal is permitted. See

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;

March 11, 2020, we denied Severino’s request for the appointment of new counsel.

5 At the PCRA hearing, the parties stipulated that plea counsel failed to file a requested direct appeal after the trial court denied his post-sentence motion to withdraw his guilty plea. See N.T., 8/14/19, at 3-7. The parties agreed that, because the underlying claim Severino wished to raise on direct appeal regarding his plea lacked merit, plea counsel could not be found ineffective for failing to file the appeal. See id. at 33-34. See also PCRA Court Opinion, 9/5/19, at unnumbered 2 (citing Commonwealth v. Dozier, 208 A.3d 1101, 1105 (Pa. Super. 2019). Compare Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999) (explaining that counsel’s unexplained failure to file a requested direct appeal constitutes ineffective assistance per se, such that the petitioner is entitled to the reinstatement of direct appeal rights nunc pro tunc without establishing prejudice).

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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, PCRA counsel seeking to

withdraw from representation in this Court must contemporaneously forward

to the petitioner a copy of the petition to withdraw that includes (1) a copy of

both the “no-merit” letter, and (2) a statement advising the PCRA petitioner

that, upon the filing of counsel’s petition to withdraw, the petitioner has the

immediate right to proceed pro se, or with the assistance of privately retained

counsel. Commonwealth v. Muzzy, 141 A.3d 509, 511-12 (Pa. Super.

2016).

Upon review, we conclude that PCRA counsel has substantially complied

with the Turner/Finley requirements as set forth above. 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

Severino’s claim to ascertain whether it entitles him to relief.

Our scope and standard of review is well settled:

In PCRA appeals, our scope of review is limited to the findings of the PCRA court and the evidence on the record of the PCRA court's hearing, viewed in the light most favorable to the prevailing party. Because most PCRA appeals involve questions of fact and law, we employ a mixed standard of review. We defer to the PCRA court's

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factual findings and credibility determinations supported by the record. In contrast, we review the PCRA court's legal conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)

(citations omitted).

Severino’s claim alleges the ineffective assistance of plea counsel. To

obtain relief under the PCRA premised on a claim that counsel was ineffective,

a petitioner must establish by a preponderance of the evidence that counsel’s

ineffectiveness so undermined the truth determining process that no reliable

adjudication of guilt or innocence could have taken place. Commonwealth

v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally, counsel’s

performance is presumed to be constitutionally adequate, and counsel will

only be deemed ineffective upon a sufficient showing by the petitioner.” Id.

This requires the petitioner to demonstrate that: (1) the underlying claim is

of arguable merit; (2) counsel had no reasonable strategic basis for his or her

action or inaction; and (3) petitioner was prejudiced by counsel's act or

omission. Id. at 533. A finding of "prejudice" requires the petitioner to show

"that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different." Id. A failure

to satisfy any prong of the test for ineffectiveness will require rejection of the

claim. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).

This Court has summarized the following regarding claims that the entry

of a guilty plea was the result of ineffective assistance of counsel:

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A criminal defendant has the right to effective counsel during a plea process as well as during trial. A defendant is permitted to withdraw his guilty plea under the PCRA if ineffective assistance caused the defendant to enter an involuntary plea[.] We conduct our review of such a claim in accordance with the three-pronged ineffectiveness test under section 9543(a)(2)(ii) of the PCRA. The voluntariness of the plea depends on whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases.

Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa. Super. 2017)

In this case, the PCRA court concluded Severino’s claims that plea

counsel was ineffective for misinforming him about the sentencing range for

his DUI conviction lacked arguable merit:

[W]e find [Severino’s] underlying claim does not have arguable merit. Essentially, his underlying claim of ineffectiveness is that he received erroneous information from [plea] counsel that he was only facing a maximum of six months of jail time when he entered his plea when actually he was facing a much higher penalty.

The problem with [Severino’s] argument is that while he may have received that information prior to entering his plea, not only was the information provided by the Court at the time of the plea colloquy contradictory to that information but also before [Severino] was sentenced and could have asked to withdraw his plea based on the misinformation he had earlier received, [plea counsel] provided the correct guideline information. At that point [Severino], instead of seeking a continuance of sentencing to consider the situation or indicating he wished to withdraw his guilty plea, chose to go forward with sentencing well aware of the standard guideline he was facing. That standard guideline range was reiterated by the Court at the time that sentencing began.

PCRA Court Opinion, 9/5/19, at unnumbered 2.

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Our review of the record supports the PCRA court’s conclusions. At the

time of entering his plea, the trial court advised Severino that, if he plead

guilty to DUI, he was facing a maximum sentence of five years of

imprisonment, and Severino acknowledged this fact. N.T., 1/4/18, at 23.6 In

addition, Severino, in response to the trial courts inquiry of whether anybody

including plea counsel promised him anything, Severino responded “No.” Id.

at 27. Importantly, Severino is bound by the statements he made during the

guilty plea colloquy and cannot later assert grounds for withdrawing the plea

that contradict statements he made when pleading guilty. See

Commonwealth v. Pollard, 832 A.2d 517, 523-24 (Pa. Super. 2003). Nor

may Severino challenge his guilty plea by asserting that he lied while under

oath. Id.

Moreover, at the PCRA hearing, Severino and plea counsel presented

conflicting testimony regarding when counsel informed Severino of the

applicable sentencing guidelines and whether Severino ever asked plea

counsel to file a motion to withdraw his guilty plea. Although, the PCRA court

did not expressly find counsel more credible, the court’s conclusion that plea

counsel informed Severino of the correct guidelines and that Severino opted

not to request a continuance or file a motion to withdraw his guilty plea aligns ____________________________________________

6 Severino’s original information listed the DUI charge to which he pled guilty as an ungraded misdemeanor with a maximum sentence of six months of incarceration. During discussion regarding his plea, the information was corrected to indicate the correct charge and penalty. See N.T., 1/4/18, at 23; Trial Court Opinion, 9/19/18, at 6.

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with plea counsel’s testimony. See N.T., 8/14/19, at 20. Thus, the PCRA

court essentially credited the testimony of counsel over the testimony and

other allegations made by Severino at the hearing. We cannot disturb this

determination. See Commonwealth v. Battle, 883 A.2d 641, 648 (Pa.

Super. 2005) (explaining that credibility determinations are solely within the

province of the PCRA court).

In sum, because the record supports PCRA counsel’s determination that

Severino’s claim regarding his plea lacks merit, we grant PCRA counsel’s

motion to withdraw.

Motion to withdraw granted. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/26/2020

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