Opinion
J-S51020-19 No. 1886 MDA 2018
12-24-2019
COMMONWEALTH OF PENNSYLVANIA Appellee v. FIKRI APTILIASIMOU Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered October 18, 2018
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0002876-2014 BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J. MEMORANDUM BY GANTMAN, P.J.E.:
Appellant, Fikri Aptiliasimou, appeals from the order entered in the Luzerne County Court of Common Pleas, which denied his first petition brought pursuant to the Post-Conviction Relief Act ("PCRA"), at 42 Pa.C.S.A. §§ 9541-9546. We affirm and grant counsel's petition to withdraw.
Appellant's last name appears variously throughout the certified record as "Aptiliasimou" and "Aptiliasimov."
In its opinion, the PCRA court correctly set forth the relevant facts and most of the procedural history of this case. Therefore, we have no reason to restate them. We add that on June 23, 2019, counsel filed in this Court a petition to withdraw and a brief pursuant to Anders v. California ,386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). On August 2, 2019, Appellant filed pro se in this Court an application for writ of mandamus. This Court initially entered an order that deferred disposition of Appellant's mandamus application to the merits panel but subsequently vacated that order on August 21, 2019, and forwarded the mandamus application to counsel pursuant to Commonwealth v. Jette , 611 Pa. 166, 23 A.3d 1032 (2011). On August 28, 2019, Appellant filed a pro se response to counsel's Anders brief.
PCRA counsel filed a timely notice of appeal on November 2, 2018, which this Court docketed at No. 1816 MDA 2018. Appellant filed a pro se notice of appeal on Monday, November 5, 2018, which this Court docketed at No. 1886 MDA 2018. The PCRA court appointed new appellate counsel on November 6, 2018, who proceeded at No. 1886 MDA 2018, and this Court, on January 4, 2019, dismissed the appeal at No. 1816 MDA 2018. --------
Initially, in the context of a PCRA petition and request to withdraw, the appropriate filing is a "no-merit" letter/brief. Commonwealth v. Turner ,518 Pa. 491, 544 A.2d 927 (1988); Commonwealth v. Finley ,550 A.2d 213 (Pa.Super. 1988) (en banc). But see Commonwealth v . Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super. 2004), appeal denied, 584 Pa. 691, 882 A.2d 477 (2005) (stating Superior Court can accept Anders brief in lieu of Turner/Finley letter, where PCRA counsel seeks to withdraw on PCRA appeal).
"Before an attorney can be permitted to withdraw from representing a petitioner under the PCRA, Pennsylvania law requires counsel to file and obtain approval of a 'no-merit' letter pursuant to the mandates of Turner/Finley ." Commonwealth v. Karanicolas , 836 A.2d 940, 947 (Pa.Super. 2003) (emphasis in original).
[C]ounsel must...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 the petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.Commonwealth v. Wrecks ,931 A.2d 717, 721 (Pa.Super. 2007). Counsel must also send to the petitioner a copy of the "no-merit" letter or brief and petition to withdraw and advise the petitioner of his right to proceed immediately either pro se or with new counsel. Id. To withdraw, counsel must assure this Court of the substantial compliance with these technical requirements. Commonwealth v. Muzzy ,141 A.3d 509, 510-11 (Pa.Super. 2016).
Instantly, counsel filed an Anders brief on appeal and a petition to withdraw as counsel. Although designated as an Anders brief, counsel's brief is a Turner/Finley brief in the context of the PCRA. Counsel listed the issues Appellant wished to raise and explained why Appellant's claims merit no relief. In counsel's petition to withdraw, counsel states that she sent Appellant another copy of the brief, a copy of the petition to withdraw, and a letter advising Appellant of his right to proceed immediately pro se or with private counsel to raise additional points he deems worthy of review. Thus, appellate counsel has now substantially complied with the Turner/Finley requirements. See Karanicolas , supra .Appellant responded pro se to counsel's Turner/Finley brief on August 28, 2019. Appellant's response, however, did not raise additional issues. Accordingly, we proceed to an independent evaluation. See Turner , supra at 494-95, 544 A.2d at 928-29 (stating appellate court must conduct independent analysis and agree with counsel that appeal is frivolous).
Appellant raises three issues in the Turner/Finley brief:
WHETHER...APPELLANT'S GUILTY PLEA WAS KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY ENTERED AS ENGLISH IS NOT [APPELLANT'S] FIRST LANGUAGE AND A BULGARIAN INTERPRETER HAD BEEN PREVIOUSLY REQUESTED AND WAS NOT PRESENT AT THE TIME OF THE PLEA?( Turner/Finley Brief at 3).
WHETHER APPELLANT'S TRIAL COUNSEL WAS INEFFECTIVE FOR [FAILING] TO ENSURE AN INTERPRETER WAS PRESENT AT THE TIME OF THE PLEA TO ENSURE [APPELLANT] UNDERSTOOD THE PROCEEDINGS?
WHETHER [APPELLANT'S] APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THE ISSUE OF [APPELLANT'S] PLEA NOT BEING KNOWINGLY AND INTELLIGENTLY ENTERED AS HE DID NOT HAVE A BULGARIAN INTERPRETER?
Our standard of review of the denial of a PCRA petition is limited to examining whether the evidence of record supports the court's determination and whether its decision is free of legal error. Commonwealth v. Conway ,14 A.3d 101, 109 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd , 923 A.2d 513, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no similar deference, however, to the court's legal conclusions. Commonwealth v. Ford ,44 A.3d 1190, 1194 (Pa.Super. 2012). Traditionally, credibility issues are resolved by the trier of fact who had the opportunity to observe the witnesses' demeanor. Commonwealth v. Abu-Jamal ,553 Pa. 485, 527, 720 A.2d 79, 99 (1998), cert. denied, 528 U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 38 (1999). Where the record supports the PCRA court's credibility resolutions, they are binding on this Court. Id.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable David W. Lupas, we conclude Appellant's issues merit no relief. The PCRA court opinion comprehensively discusses and properly disposes of the questions presented. ( See PCRA Court Opinion, filed March 4, 2019, at 4-12) (finding: (1) before sentencing, Appellant moved to withdraw his plea, but not based on absence of interpreter; on direct appeal from judgment of sentence, Appellant did not challenge his guilty plea; as presented, this issue is waived; (2-3) both claims of ineffectiveness fail, because underlying allegation that Appellant needed interpreter at plea stage lacks arguable merit; record shows Appellant specifically indicated he understood guilty plea proceedings without interpreter; throughout proceedings in trial and PCRA courts, Appellant wrote to court in English and answered questions with cogent responses in English; further, during January 2016 guilty plea hearing, Appellant responded in English throughout guilty plea colloquy, specifically denied needing interpreter for hearing, and indicated he understood English; at sentencing, Appellant did not indicate his English ability prevented him from entering valid guilty plea agreement; record shows Appellant did not need interpreter, and trial and appellate counsel did not render ineffective assistance in relation to Appellant's alleged need for language assistance). The record supports the reasoning of the PCRA court. After an independent examination of the record, we conclude the appeal is frivolous. See Turner , supra .Accordingly, we affirm based on the PCRA court's opinion and grant counsel's petition to withdraw.
Order affirmed; counsel's petition to withdraw is granted. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/24/2019
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