Opinion
1436 MDA 2023 J-S19010-24
07-16-2024
COMMONWEALTH OF PENNSYLVANIA v. YASSIN MOHAMAD Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered October 6, 2023 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0000846-2020
BEFORE: DUBOW, J., BECK, J., and COLINS, J. [*]
MEMORANDUM
DUBOW, J.
Appellant, Yassin Mohamad, appeals from the October 6, 2023 order entered in the Luzerne County Court of Common Pleas dismissing his first petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-46, as meritless. Counsel for Appellant has filed a Turner/Finley "no-merit" brief and a petition to withdraw as counsel. After review, we grant counsel's request to withdraw and affirm the order denying Appellant's petition.
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
The relevant facts and procedural history are as follows. On September 27, 2021, Appellant entered a counselled, open, no-contest plea to one count of Aggravated Harassment by Prisoner after the Commonwealth charged him with throwing a mixture of feces and urine at a corrections officer while Appellant was incarcerated at SCI Dallas. Max Lubin, Esquire, represented Appellant at the plea hearing. The court conducted an on-the-record guilty plea colloquy in which Appellant acknowledged, inter alia, that he reviewed the terms of his plea with Attorney Lubin, that he understood the statutory maximum penalty he faced if he proceeded to trial, and that he was not forced or promised anything to enter into the plea. That same day, the court sentenced Appellant to a term of 27 to 54 months of incarceration, a sentence at the low end of the standard range. The court ordered the sentence to run concurrently with the sentence Appellant was already serving. There was no discussion at the hearing regarding the award of any credit for time served. Appellant did not file a post-sentence motion or direct appeal from his judgment of sentence.
The statutory maximum sentence for Aggravated Harassment by Prisoner, graded as a third-degree felony, is 84 months of incarceration.
On January 7, 2023, Appellant pro se filed a PCRA petition asserting that he was promised, but did not receive, credit for time served and that his plea counsel was ineffective. Appellant attached to his petition an October 14, 2021 letter from John Donovan, Jr., Esquire, of the Luzerne County Office of the Public Defender informing Appellant that Attorney Lubin no longer worked for the Public Defender's Office, but indicating that Attorney Donovan would investigate Appellant's claim that he should have been given credit for time served. Appellant also attached a January 10, 2022 letter from him to Attorney Donovan following up on his time-credit issue.
The PCRA court appointed Leonard M. Gryskewicz, Jr., Esquire, to represent Appellant. Attorney Gryskewicz filed a supplemental PCRA petition. With respect to the facial untimeliness of Appellant's petition, Appellant averred that Attorney Donovan abandoned him by failing to respond to Appellant's inquiries and that Appellant exercised due diligence by writing letters to Attorney Donovan asking for an update and then by filing the instant petition.
The Commonwealth disputed Appellant's characterization of Attorney Donovan's conduct as abandonment and argued that Appellant's petition was untimely.
With respect to Appellant's ineffective assistance of counsel claims, Appellant asserted that Attorney Lubin was ineffective for advising Appellant that the trial court would credit him with time-served from the date of his arrest, which advice was "central to [Appellant] accepting the plea agreement in this case." Amended PCRA Pet., 3/20/23, at 5. Appellant argued that this advice was incorrect because the court was required to credit any time Appellant served between the time of his arrest and the time of sentencing to the sentence Appellant was already serving at the time of his arrest. Appellant claimed that that this issue has arguable merit because Appellant would not have accepted the plea had Attorney Lubin not misinformed him regarding time credit. He also claimed that Attorney Lubin lacked a reasonable strategy in advising Appellant that he would receive time credit and that Appellant suffered prejudice as a result of Attorney Lubin's ineffectiveness.
On October 6, 2023, the PCRA court held a hearing on Appellant's petition at which the Commonwealth presented the testimony of Attorney Lubin. Attorney Lubin testified that he did not tell Appellant that "he would have credit for the time period he was arrested until he was sentenced." N.T. PCRA Hr'g, 10/6/23, at 17, 19-21. He testified that he did tell Appellant that he would receive a concurrent sentence, and that Appellant did, in fact, receive a concurrent sentence. Id.
Attorney Donovan also testified for the Commonwealth and Appellant testified on his own behalf.
Following the presentation of evidence, Appellant argued that his plea was involuntary because Attorney Lubin "misadvised [him] about what would happen to the time credit of his plea," which "was the reason he accepted the guilty plea." Id. at 27. The Commonwealth argued that Attorney Lubin's testimony that he did not tell Appellant that he would receive credit for time served from the date of Appellant's arrest speaks for itself. It also argued that, even if the court did not believe Attorney Lubin's testimony, Appellant was not prejudiced by his guilty plea because he could have received a consecutive sentence of up to 7 years if convicted at trial.
The PCRA court determined that Attorney Donovan had abandoned Appellant and deemed Appellant's PCRA petition timely but determined that his claim that Attorney Lubin was ineffective lacked merit. Accordingly, the PCRA court denied Appellant's petition.
This timely appeal followed. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925. On October 12, 2023, Attorney Gryskewicz filed a motion to appoint substitute counsel. The PCRA court granted the motion and appointed current counsel, Matthew Kelly, Esquire, to represent Appellant.
In this Court, Attorney Kelly filed a Turner/Finley brief raising the following issue:
Whether [Attorney Lubin] was ineffective in permitting Appellant to enter his guilty plea[?]Turner/Finley Brief at 1.
A.
Before we consider Appellant's issue, we must review counsel's request to withdraw. Pursuant to Turner/Finley, "counsel must review the case zealously." Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007). Counsel is then required to submit a "no merit" brief (1) detailing the nature and extent of his review; (2) listing each issue the petitioner wishes to have raised on review; and (3) explaining why the petitioner's issues are meritless. Id. The Court then conducts its own independent review of the record to determine if the petition is meritless. Id. "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." Id.
Our review of the record discloses that Appellant's counsel has complied with each of the above requirements. Counsel has presented a comprehensive review of the issue Appellant seeks to raise on appeal and addressed the PCRA court's analysis where appropriate. Turner/Finley Brief at 3, 5-7. Based on this analysis, counsel concludes that Appellant's claim lacks merit. Id. at 8.
In addition, counsel sent Appellant copies of the Turner/Finley brief and his petition to withdraw and advised Appellant of his rights in lieu of representation. Letter from Counsel, 2/5/24; Application to Withdraw as Counsel, 2/6/24. Because counsel has complied with the Turner/Finley requirements, we will proceed with our analysis of Appellant's claim and independent review of the record.
Appellant has not responded to the Turner/Finley brief filed in this Court.
B.
We review the denial of a PCRA petition to determine whether the record supports the PCRA court's findings and whether its order is otherwise free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This Court grants great deference to the findings of the PCRA court if they are supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super. 2007). "We give no such deference, however, to the court's legal conclusions." Commonwealth v. Smith, 167 A.3d 782, 787 (Pa. Super. 2017).
To prevail on a petition for PCRA relief, a petitioner must plead and prove, by a preponderance of the evidence, that his conviction or sentence resulted from one or more of the circumstances enumerated in 42 Pa.C.S. § 9543(a)(2). These circumstances include ineffective assistance of counsel, which "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S. § 9543(a)(2)(ii).
The law presumes counsel has rendered effective assistance. Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). "[T]he burden of demonstrating ineffectiveness rests on [the] appellant." Id. To satisfy this burden, the appellant must plead and prove by a preponderance of the evidence that: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or failure to act; and (3) "there is a reasonable probability that the outcome of the challenged proceeding would have been different" absent counsel's error. Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the test will result in rejection of the appellant's claim. Id.
When a defendant pleads guilty, it is well-settled that that decision results in the waiver of all defenses other than those challenging the jurisdiction of the court, the legality of the sentence, or the validity of the plea. Commonwealth v. Jones, 929 A.2d 205, 212 (Pa. 2007). In attempting to challenge a guilty plea, a defendant is "bound by the statements" he made under oath during the plea colloquy and "may not later assert grounds for withdrawing the plea which contradict [those] statements[.]" Commonwealth v. Pier, 182 A.3d 476, 480 (Pa. Super. 2018) (citation omitted).
Under the PCRA, a petitioner may obtain relief by proving that his guilty plea was "unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent." 42 Pa.C.S. § 9543(a)(2)(iii). When claiming ineffectiveness of counsel "in connection with the entry of a guilty plea[,]" a defendant has the burden of demonstrating that the alleged ineffectiveness "caused the defendant to enter an involuntary or unknowing plea." Pier, 182 A.3d at 478 (citation omitted).
Appellant asserts that trial counsel was ineffective "in allowing him to enter his no contest plea without understanding all credit for time served would run from the date of arrest, rather than the date of sentence." Turner/Finley Brief at 5.
The Honorable David W. Lupas has authored a well-reasoned analysis addressing Appellant's ineffective assistance of counsel claim. After a thorough, independent review of the certified record, Appellant's Turner/Finley brief, the applicable law, and the PCRA court's opinion, we conclude that there is no merit to Appellant's claim. Accordingly, we adopt that opinion in part as our own and affirm the court's denial of relief. See PCRA Ct. Op., 12/15/23, at 7-8 (concluding the written plea agreement and the record from the plea hearing indicate that no promise was made to Appellant regarding credit for time served); 8 (concluding that, because Appellant was already serving a state sentence when he was arrested for the instant offense, he was not entitled to credit for time served from the date of his arrest); 8-9 (concluding that Attorney Lubin's testimony that he did not advise Appellant he would receive credit for time served from the date of his arrest was credible).
The Commonwealth did not file a brief as appellee.
C.
Based on the foregoing, we affirm the PCRA court's denial of relief. The parties are instructed to annex the PCRA court's December 15, 2023 opinion to any future filings.
Order affirmed.
(Image Omitted)
[*]Retired Senior Judge assigned to the Superior Court.