Opinion
J-A05011-19 No. 1492 WDA 2017
02-28-2019
COMMONWEALTH OF PENNSYLVANIA Appellee v. JOHN HARVARD Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order October 12, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0007041-2010, CP-02-CR-0013557-2008, CP-02-CR-0013729-2008, CP-02-CR-0013730-2008, CP-02-CR-0014215-2008, CP-02-CR-0014687-2008 BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J. MEMORANDUM BY GANTMAN, P.J.E.:
Appellant, John Harvard, appeals from the order entered in the Allegheny County Court of Common Pleas, which denied his first petition filed pursuant to the Post Conviction Relief Act ("PCRA"). We affirm and grant counsel's petition to withdraw.
The relevant facts and procedural history of this case are as follows. On September 13, 2010, a jury convicted Appellant of multiple counts of robbery and related offenses, in connection with a string of armed robberies that took place in the summer of 2008. The court also convicted Appellant of two counts of persons not to possess firearms. The court sentenced Appellant on December 8, 2010, to an aggregate term of 65 to 280 years' imprisonment. Two of Appellant's robbery convictions included mandatory minimum sentences under 42 Pa.C.S.A. § 9714(a)(2) (providing for mandatory minimum 25-year sentence for defendant convicted of crime of violence, if at time of commission of current offense, defendant had previously been convicted of two or more crimes of violence). This Court affirmed the judgment of sentence on March 25, 2013, and our Supreme Court denied allowance of appeal on October 10, 2013. See Commonwealth v. Harvard , 64 A.3d 690 (Pa.Super. 2013), appeal denied, 621 Pa. 687, 77 A.3d 636 (2013).
On October 9, 2014, Appellant timely filed a pro se PCRA petition challenging imposition of the mandatory minimum sentences under Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (holding any fact increasing mandatory minimum sentence for crime is considered element of crime to be submitted to fact-finder and found beyond reasonable doubt). The court appointed counsel, who filed an amended PCRA petition on March 13, 2017. On September 12, 2017, the court issued notice of its intent to dismiss the petition without a hearing per Pa.R.Crim.P. 907. Appellant did not respond. The court denied PCRA relief on October 12, 2017. On October 16, 2017, Appellant timely filed a notice of appeal and concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Preliminarily, appellate counsel has filed a motion to withdraw as counsel and an accompanying brief pursuant to Commonwealth v. Turner , 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley , 550 A.2d 213 (Pa.Super. 1988) (en banc). Before counsel can be permitted to withdraw from representing a petitioner under the PCRA, Pennsylvania law requires counsel to file a "no-merit" brief or letter pursuant to Turner and Finley. Commonwealth v. Karanicolas , 836 A.2d 940 (Pa.Super. 2003).
[C]ounsel must...submit a "no-merit" letter to the [PCRA] 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 motion to withdraw and advise petitioner of his right to proceed pro se or with privately retained counsel. Id. "Substantial compliance with these requirements will satisfy the criteria." Karanicolas , supra at 947.
Instantly, appellate counsel filed a motion to withdraw as counsel and a Turner/Finley brief detailing the nature of counsel's review and explaining why Appellant's issues lack merit. Counsel's brief also demonstrates he reviewed the certified record and found no meritorious issues for appeal. Counsel notified Appellant of counsel's request to withdraw and advised Appellant regarding his rights. Thus, counsel substantially complied with the Turner/Finley requirements. See Wrecks , supra ; Karanicolas , supra.
Counsel raises the following issues on Appellant's behalf:
WHETHER [APPELLANT'S] SENTENCE IS ILLEGAL—IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND/OR ARTICLE I, SECTION 9 OF THE PENNSYLVANIA CONSTITUTION—WHERE THE FACTS TRIGGERING APPLICATION OF THE MANDATORY MINIMUM SENTENCE UNDER 42 PA.C.S. § 9714 WERE FOUND BY THE COURT, RATHER THAN A JURY, AND FOUND BY A PREPONDERANCE OF THE EVIDENCE, RATHER THAN BEYOND A REASONABLE DOUBT?( Turner/Finley Brief at 2).
WHETHER [APPELLANT'S] SENTENCE IS ILLEGAL—IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND/OR ARTICLE I, SECTION 9 OF THE PENNSYLVANIA CONSTITUTION—WHERE THE FACTS AUTHORIZING INCREASE OF THE MAXIMUM SENTENCE BEYOND THE STATUTORY MAXIMUM OF 20 YEARS WERE, [THROUGH] APPLICATION OF 42 PA.C.S. § 9714, FOUND BY THE COURT, RATHER THAN A JURY, AND FOUND BY A PREPONDERANCE OF THE EVIDENCE, RATHER THAN BEYOND A REASONABLE DOUBT?
Appellant has not responded to the Turner/Finley brief pro se or with newly retained private counsel.
Our standard of review of the denial of a PCRA petition is limited to examining whether the record evidence supports the court's determination and whether the court's decision is free of legal error. Commonwealth v. Harold F. Ford , 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d 319 (2008). 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 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such deference, however, to the court's legal conclusions. Commonwealth v. Junius Maurice Ford , 44 A.3d 1190 (Pa.Super. 2012). Further, a petitioner is not entitled to a PCRA hearing as a matter of right; the PCRA court can decline to hold a hearing if there is no genuine issue concerning any material fact, the petitioner is not entitled to PCRA relief, and no purpose would be served by any further proceedings. Commonwealth v. Wah , 42 A.3d 335 (Pa.Super. 2012).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable David R. Cashman, 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 October 23, 2018, at 5-14) (finding: relevant legal precedent has already rejected Appellant's claims; fact of prior conviction is not element of crime requiring proof beyond reasonable doubt; Alleyne decision made clear that fact of prior conviction constituted exception to Alleyne Court's holding; mandatory minimum sentences for recidivists in these circumstances are not illegal under Alleyne ). Accordingly, we affirm based on the PCRA court's opinion. Following an independent review of the record, we grant counsel's petition to withdraw.
Order affirmed; counsel's petition to withdraw is granted. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/28/2019
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