Opinion
J-S47034-19 No. 473 MDA 2019
10-15-2019
COMMONWEALTH OF PENNSYLVANIA v. JOSE M. GERMAN SANTOS, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered March 12, 2019 in the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0000197-2017 BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
Jose M. German Santos ("Santos") appeals from the Order denying his Petition for Relief filed pursuant to the Post Conviction Relief Act ("PCRA"). Counsel for Santos has filed a Petition to Withdraw from representation, and a No-Merit/ Turner Finley Brief. We grant counsel's Petition to Withdraw, and affirm the Order of the PCRA court.
42 Pa.C.S.A. §§ 9541-9546.
See Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc). See also Commonwealth v. Widgins , 29 A.3d 816, 817 n.2 (Pa. Super. 2011) (recognizing that filing a no-merit brief may fulfill counsel's obligation to file a no-merit letter, provided that the brief contains all the information that must be included in a no-merit letter).
In its Opinion, the PCRA court summarized the relevant history underlying this appeal as follows:
On October 16, 2017[, Santos] pled guilty to Count 1 - Possession with Intent to Deliver (PWID) Marijuana; Count 6 - Driving Under the Influence, Controlled Substance, and Count 7 - Driving Under the Influence [], Controlled Substance Impaired Ability. On November 20, 2017, [Santos] was sentenced to undergo a period of incarceration of seventy-two hours to six months in the Luzerne County Correctional Facility, Alcohol Highway Safety School, a twelve[-]month license suspension, and a $1,000.00 fine. [Santos] was also sentenced to two years [of] probation for Count 1[,] to run consecutive to Count 6.[FN] [Santos] did not file any post-sentence motions or appeals. On October 12, 2018, [Santos] filed a PCRA Petition. On January 24, 2019[, Santos,] through appointed counsel, filed a supplemental PCRA Petition.... [T]he issue [Santos] pursued at the PCRA hearing[,] held on February 28, 2019[,] was trial counsel's alleged ineffectiveness for failing to advise him of the deportation consequences of his guilty plea.PCRA Court Opinion, 3/12/19, at 1-2 (one footnote added, one footnote in original).
[FN] Counts 6 and 7 merged for sentencing purposes.
See 35 P.S. § 780-113(a)(30); 75 Pa.C.S.A. § 3802(d)(1), (2). --------
Following a hearing, the PCRA court denied Santos's Petition. Thereafter, Santos flied the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
Prior to addressing the merits of the issue raised in counsel's No-Merit Brief, we must determine whether counsel met the procedural requirements to withdraw. Counsel seeking to withdraw in PCRA proceedings
must review the case zealously. Turner/Finley counsel must then 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 petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.Commonwealth v. Muzzy , 141 A.3d 509, 510-11 (Pa. Super. 2016) (corrections and some quotations and citations omitted).
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.
Where counsel submits a petition and no-merit letter that satisfy the technical demands of Turner/Finley , the court ... must then conduct its own review of the merits of the case. If the court agrees with counsel that the claims are without merit, the court will permit counsel to withdraw and deny relief.
Here, counsel has complied with the procedural requirements for withdrawing as PCRA counsel. Counsel has provided Santos with a copy of the Petition and the No-Merit Brief, and advised Santos of his right to proceed pro se or with private counsel. See Petition to Withdraw at 1. Santos has neither retained private counsel nor submitted any pro se filings to this Court. Accordingly, we next address Santos's substantive claims to determine whether they lack merit.
In the No-Merit Brief, Santos claims that his guilty plea counsel rendered ineffective assistance by permitting him to plead guilty, "without informing him of the potential for deportation." No-Merit Brief at 5. Santos argues that his plea counsel was aware that Santos was not a United States citizen, and that he could be deported for pleading guilty. Id.
As this Court has explained,
[w]hen reviewing the denial of a PCRA petition, we must determine whether the PCRA court's order is supported by the record and free of legal error. Generally, we are bound by a PCRA court's credibility determinations. However, with regard to a court's legal conclusions, we apply a de novo standard.Commonwealth v. Lee , 206 A.3d 1, 6 (Pa. Super. 2019) (citations omitted).
To be eligible for relief based on a claim of ineffective assistance of counsel, a PCRA petitioner must demonstrate, by a preponderance of the evidence, that (1) the underlying claim is of arguable merit; (2) no reasonable basis existed for counsel's action or omission; and (3) there is a reasonable probability that the result of the proceeding would have been different absent such error. Commonwealth v. Steele , 961 A.2d 786, 796 (Pa. 2008). With regard to the second, i.e., the "reasonable basis" prong, this Court will conclude that counsel's chosen strategy lacked a reasonable basis only if the appellant proves that "an alternative not chosen offered a potential for success substantially greater than the course actually pursued." Commonwealth v. Williams , 899 A.2d 1060, 1064 (Pa. 2006) (citation omitted). To establish the third prong, i.e., prejudice, the appellant must show that there is a reasonable probability that the outcome of the proceedings would have been different but for counsel's action or inaction. Commonwealth v. Dennis , 950 A.2d 945, 954 (Pa. 2008).
In its Opinion, the PCRA court set forth the relevant law regarding an ineffectiveness claim relating to advice to a non-citizen about the risks of deportation, addressed Santos's claim and concluded that it lacks merit. See PCRA Court Opinion, 3/12/19, at 3-5. The PCRA court's findings are supported in the record, and its legal conclusions are sound. See id. We therefore affirm on the basis of the PCRA court's Opinion, with regard to Santos's claim of ineffective assistance of plea counsel. See id.
We further agree with counsel's assessment that the appeal lacks merit and is frivolous. Consequently, we grant counsel's Petition to Withdraw from representation.
Petition to Withdraw granted. Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/15/2019
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