Opinion
J-S85044-16 No. 347 EDA 2016
01-27-2017
COMMONWEALTH OF PENNSYLVANIA v. ARTHUR MACKENZIE, JR., Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order January 27, 2016 in the Court of Common Pleas of Bucks County, Criminal Division, No(s): CP-09-CR-0002393-2012; CP-09-CR-0002395-2012; CP-09-CR-0003363-2012; CP-09-CR-0003964-2012; CP-09-CR-0005066-2012 BEFORE: PANELLA, RANSOM and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Arthur Mackenzie, Jr. ("Mackenzie") appeals from the Order denying his first Petition filed pursuant to the Post Relief Conviction Act ("PCRA"). Additionally, Mackenzie's court-appointed PCRA counsel, Elissa B. Heinrichs, Esq. ("Attorney Heinrichs"), has filed an Application for leave to withdraw from representation. We grant Attorney Heinrichs's Application, and affirm the PCRA court's Order.
In its Opinion, the PCRA court set forth the relevant factual and procedural history, which we adopt for the purpose of this appeal. See PCRA Court Opinion, 5/3/16, at 1-4.
Additionally, the PCRA court directed Mackenzie to file a concise statement of matters complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Attorney Heinrichs filed a Concise Statement on Mackenzie's behalf, in compliance with the PCRA court's directive. Thereafter, the PCRA court issued its Pa.R.A.P. 1925(a) Opinion. Attorney Heinrichs then filed a Turner / Finley no-merit letter, and a separate Application to Withdraw as counsel.
See Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc).
Notably, Attorney Heinrichs failed to attach to the "no-merit" letter a copy of the PCRA court's Pa.R.A.P. 1925(a) Opinion, as well as a copy of the Concise Statement, in violation of Pa.R.A.P. 2111(b) and (d). Nevertheless, as these items are included in the certified record, we will proceed with our review.
On appeal, Mackenzie raises the following issues for our review:
1. [Whether t]he [PCRA] court erred when it failed to reinstate [Mackenzie's] post[-]sentence and appellate rights nunc pro tunc when [Mackenzie] submitted a timely "green slip" to plea counsel in which [Mackenzie] directed [plea counsel] to file a motion for reconsideration [of sentence] on [Mackenzie's] behalf[?]No Merit Letter at 3 (some capitalization omitted).
2. [Whether t]he [PCRA] court erred when it failed to find plea counsel ineffective[,] when counsel failed to speak to [Mackenzie] after sentencing[, or] file a post[-]sentence motion of his behalf[,] when [plea counsel] knew or should have known that [Mackenzie] was unhappy with his sentence and wanted the court to reconsider the sentence imposed[?]
Prior to addressing Mackenzie's claims on appeal, we must address Attorney Heinrichs's Application to Withdraw as counsel. Pursuant to Turner / Finley , independent review of the record by competent counsel 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 [her] review;Id. (citation and brackets omitted). Further, our Court has held that the Supreme Court in Pitts did not expressly overrule the additional requirement imposed by this Court in Commonwealth v. Friend , 896 A.2d 607, 615 (Pa. Super. 2006), stating
2. The "no-merit" letter by PC[R]A counsel listing each issue the petitioner wished to have reviewed;
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.
that PCRA counsel seeking to withdraw contemporaneously forward to the petitioner a copy of the application to withdraw that includes (i) a copy of both the "no-merit" letter, and (ii) a statement advising the PCRA petitioner that, in the event the trial court grants the application of counsel to withdraw, the petitioner has the right to proceed pro se, or with the assistance of privately retained counsel.Commonwealth v. Widgins , 29 A.3d 816, 818 (Pa. Super. 2011).
Here, in the Turner / Finley "no-merit" letter, Attorney Heinrichs described the extent of her review, identified the issues that Mackenzie sought to raise, and explained why the issues lacked merit. In addition, Attorney Heinrichs provided Mackenzie with notice of her intention to seek permission to withdraw from representation, a copy of the Turner / Finley brief, and advised Mackenzie of his rights in lieu of representation. Thus, we conclude that Attorney Heinrichs has substantially complied with the requirements necessary to withdraw as counsel. 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 Mackenzie's claims to ascertain whether they entitle him to relief.
As Mackenzie's claims are related, we will address them together. Initially, Mackenzie claims that he directed his plea counsel to file a motion for reconsideration of his sentence. No-Merit Letter at 3. However, Attorney Heinrichs indicates that there is no support in the record for such claim. Id. at 3-4. Attorney Heinrichs points to Mackenzie's comments at the sentencing hearing, wherein he declined the sentencing court's offer to be placed temporarily in the Bucks County Correctional Facility so that he could confer with his counsel about his post-sentence options. Id. at 4. Specifically, Mackenzie stated "I'll keep my sentence the way it is. I will be home in three years. That's fine, Judge." Id. at 4 (citing N.T., 9/27/12, at 34). Attorney Heinrichs also points to plea counsel's testimony that he never received a "green slip" or any other communication from Mackenzie directing counsel to file a post-sentence motion, or to take any further action in the case. No-Merit Letter at 4 (citing N.T., 9/27/12, at 20-21).
Additionally, Attorney Heinrichs states that Mackenzie's sole purpose in seeking modification of his sentence was to ask the sentencing court to place him in a drug treatment facility in lieu of prison, so that "his addiction and medical condition [could be] treated outside of the state correctional system." Id. However, Attorney Heinrichs states that plea counsel could not have been ineffective because this issue was, in fact, addressed by the sentencing court, and that Mackenzie conceded this point at the PCRA hearing. Id.
Here, the PCRA court addressed Makenzie's claims, set forth the relevant law, and concluded that they lack merit. See PCRA Court Opinion, 5/3/16, at 4-7. We agree with the reasoning of the PCRA court, which is supported by the record and free of legal error, and affirm on this basis as to the denial of PCRA relief. See id.
Attorney Heinrichs further asserts that Mackenzie is no longer serving a term of incarceration, parole or probation for three of the four dockets on which he was convicted. Id. at 5. Attorney Heinrichs points out that Mackenzie is only eligible for PCRA relief on Docket 2393 of 2012, for which he is currently serving a probationary term. Id. Attorney Heinrichs contends that, because Mackenzie does not seek reconsideration of the probationary term imposed (and only seeks reconsideration of the prison terms imposed), the issues he seeks to raise on appeal are not cognizable under the PCRA. Id. Based on our disposition, we need not address this issue.
Application for leave to withdraw granted. Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/27/2017
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