Com. v. Velazquez, A.

CourtSuperior Court of Pennsylvania
DecidedJuly 24, 2015
Docket2206 MDA 2014
StatusUnpublished

This text of Com. v. Velazquez, A. (Com. v. Velazquez, A.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Com. v. Velazquez, A., (Pa. Ct. App. 2015).

Opinion

J-S41020-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

ANTHONY VELAZQUEZ

Appellant No. 2206 MDA 2014

Appeal from the PCRA Order June 10, 2014 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0003824-2008 CP-36-CR-0003826-2008 CP-36-CR-0005949-2009

BEFORE: ALLEN, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.: FILED JULY 24, 2015

Anthony Velazquez appeals from the order of the Court of Common

Pleas of Lancaster County that dismissed his petition filed pursuant to the

Post Conviction Relief Act1 and granted his counsel’s motion to withdraw.

After careful review, we affirm based on the opinion of the Honorable Dennis

E. Reinaker.

On April 13, 2010, Velazquez pled guilty to one count of burglary, one

count of harassment, one count of aggravated assault, two counts of

terroristic threats, and fifteen counts of intimidation of a witness. On June

____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541-9546. J-S41020-15

17, 2010, the trial court sentenced him to an aggregate sentence of 13 to 26

years’ incarceration.

Velazquez filed an appeal to this Court, which affirmed his judgment of

sentence on June 27, 2011. Velazquez’s counsel did not file a petition for

allowance of appeal. However, following reinstatement of his appellate

rights, he filed a petition for allowance of appeal, which the Supreme Court

denied on October 30, 2013.

On March 3, 2014, Velazquez filed a pro se PCRA petition, and on

March 5, 2014, the court appointed Christopher Lyden, Esquire, to represent

Velazquez and directed that an amended petition be filed within 45 days.

Instead, on April 2, 2014, counsel filed a motion to withdraw pursuant to

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

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

the motion was a copy of a letter to Velazquez in which counsel explained

that the six issues raised in Velazquez’s pro se petition had no merit, and

that after an independent review of the record, he found no other

meritorious claims.

On May 13, 2014, the court issued a notice of intent to dismiss

pursuant to Pa.R.Crim.P. 907, which included an independent analysis based

on its review of “the pro se motion, the guilty plea and sentencing

transcripts and the other documentation contained in the file.” Notice of

Intent to Dismiss, 5/13/14, at 4. On June 2, 2014, Velazquez filed a

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response. By order filed June 10, 2014, the court dismissed the PCRA

petition and granted counsel’s motion to withdraw.

On November 21, 2014, the court granted Velazquez’s request to file

an appeal nunc pro tunc and on December 15, 2014, he filed a timely notice

of appeal. In response to an order from the trial court, Velazquez filed a

statement of matters complained of on appeal pursuant to Pennsylvania Rule

of Appellate Procedure 1925(b). The trial court filed its Rule 1925(a) opinion

on February 17, 2015.

On appeal, Velazquez raises the following issues, verbatim, for our

review:

1. Whether the PCRA court abused its discretion in accepting PCRA counsel’s defective “no-merit” letter, and for agreeing with PCRA counsel that the pro se PCRA petition is meritless, when [Velazquez] was deprived of the opportunity of legally trained counsel to advance his position in acceptable legal terms, amounting to his first timely filed PCRA petition being effectively uncounseled, when PCRA counsel failed to participate meaningfully by failing to modify and amend the inarticulately drafted pro se PCRA petition, failed to properly review the entire certified record in this case, failed to communicate with [Velazquez] and for failing to investigate [Velazquez’s] claims and contentions first, before filing the defective “no-merit” letter, despite the presence of claims of arguable merit, in violation of [Velazquez’s] right to counsel on his first timely filed PCRA petition?

2. Whether the PCRA court abused its discretion in accepting PCRA counsel’s defective “no-merit” letter, and for agreeing with PCRA counsel that the pro se PCRA petition is meritless, and for denying and dismissing the pro se PCRA petition without a hearing, despite the presence of claims of arguable merit, in that guilty plea counsel rendered ineffective assistance of counsel for advising [Velazquez] to plead guilty to aggravated assault – law enforcement officer, 18 Pa.C.S.A.

-3- J-S41020-15

§ 2702(a)(3), when there was no factual basis to establish the crime, causing [Velazquez] to enter into an unknowing, unintelligent and involuntary pleas of guilty, in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, Section 9 of the Pennsylvania Constitution?

3. Whether the PCRA court abused its discretion in accepting PCRA counsel’s defective “no-merit” letter, and for agreeing with PCRA counsel that the pro se PCRA petition is meritless, and for denying and dismissing the pro se PCRA petition without a hearing, despite the presence of claims of arguable merit, in that guilty plea counsel rendered ineffective assistance of counsel for failing to object at the guilty plea proceedings when the court erred in failing to hold a hearing on [Velazquez’s] mental illness at the time of the offenses to which the guilty-but mentally ill plea was entered and/or the guilty-but-mentally ill aspects of the plea, under 18 Pa.C.S.A. § 314 and 42 Pa.C.S.A. § 9727(a), constituting a defective plea of guilty-but mentally ill, in violation of [Velazquez’s] right under the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, Section 9 of the Pennsylvania Constitution?

Appellant’s Brief, at xi.

On appeal from the denial of PCRA relief, this Court must determine

whether the post-conviction court’s findings were supported by the record

and whether the court’s order is otherwise free of legal error.

Commonwealth v. Blackwell, 647 A.2d 915 (Pa. Super. 1994). The

findings of the PCRA court will not be disturbed unless they have no support

in the record. Id.

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 . . . 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

-4- J-S41020-15

wishes to have examined, explaining why those issues are meritless. The PCRA court . . . then must conduct its own independent evaluation of the record and agree with counsel that the petition is without merit.

Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super. 2012)

(citations omitted).

After careful review of the parties’ briefs, the record and the relevant

law, we agree with President Judge Reinaker’s analysis and affirm on the

basis of his opinion.

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Related

Commonwealth v. Brooks
839 A.2d 245 (Supreme Court of Pennsylvania, 2003)
Commonwealth v. Lambert
797 A.2d 232 (Supreme Court of Pennsylvania, 2001)
Commonwealth v. Finley
550 A.2d 213 (Supreme Court of Pennsylvania, 1988)
Commonwealth v. Pitts
981 A.2d 875 (Supreme Court of Pennsylvania, 2009)
Commonwealth v. Blackwell
647 A.2d 915 (Superior Court of Pennsylvania, 1994)
State v. Saari
568 A.2d 344 (Supreme Court of Vermont, 1989)
Commonwealth v. Lyons
568 A.2d 1266 (Supreme Court of Pennsylvania, 1989)
State v. Singleton
876 A.2d 1 (Supreme Court of Connecticut, 2005)
Commonwealth v. Friend
896 A.2d 607 (Superior Court of Pennsylvania, 2006)
Commonwealth v. Turner
544 A.2d 927 (Supreme Court of Pennsylvania, 1988)
Commonwealth v. Miller
746 A.2d 592 (Supreme Court of Pennsylvania, 2000)
Commonwealth v. Miller
819 A.2d 504 (Supreme Court of Pennsylvania, 2002)
Commonwealth v. Rykard
55 A.3d 1177 (Superior Court of Pennsylvania, 2012)

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