Opinion
J-S43022-18 No. 1888 WDA 2017
11-02-2018
COMMONWEALTH OF PENNSYLVANIA v. BRYAN JOSEPH SEDLAK, JR. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order November 14, 2017
In the Court of Common Pleas of Crawford County Criminal Division at No(s): CP-20-CR-0000605-2014 BEFORE: STABILE, J., DUBOW, J., and NICHOLS, J. MEMORANDUM BY DUBOW, J.:
Appellant, Bryan Joseph Sedlak, Jr., appeals from the November 14, 2017 Order entered in the Crawford County Court of Common Pleas dismissing his first Petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. Counsel for Appellant has filed with this Court an Anders Brief and a Petition to Withdraw as Counsel. We grant counsel's Petition to Withdraw, and we affirm the PCRA court's Order.
See Anders v. California , 386 U.S. 738 (1967). Counsel filed an Anders brief. However, the proper mechanism when seeking to withdraw in PCRA proceedings is a Turner/Finley brief. See Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988). Because an Anders brief provides greater protection to a criminal appellant, we may accept an Anders brief in lieu of a Turner/Finley no-merit brief. Commonwealth v. Widgens , 29 A.3d 816, 817 n.2 (Pa. Super. 2011); Commonwealth v. Fusselman , 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004).
The relevant facts and procedural history, as gleaned from the certified record and the PCRA court's October 13, 2017 Memorandum and Order, are as follows. The Commonwealth charged Appellant with two counts of Aggravated Assault, four counts of Recklessly Endangering Another Person ("REAP"), and one count each of Simple Assault and Discharging Firearms Prohibited, arising from the May 3, 2014 shooting of Jeremy Araujo.
18 Pa.C.S. §§ 2702(a)(1); 2702(a)(4); 2705; 2701; and Meadville Municipal Code § 749.02, respectively.
On April 7, 2015, Appellant entered a negotiated guilty plea to felony Aggravated Assault. That same day, the court sentenced Appellant to a standard-range term of 44 to 120 months' incarceration. At the time he entered his guilty plea, Appellant acknowledged his understanding of his right to file a post-sentence motion and a direct appeal by signing a form entitled "Appellate Rights of Defendant After Sentencing." Appellant did not, however, file a post-sentence motion or a direct appeal. Appellant's Judgment of Sentence, thus, became final on May 7, 2015.
The Commonwealth dismissed one of the charges of REAP and nolle prossed the remaining charges.
On April 11, 2016, Appellant filed a timely pro se PCRA Petition, in which he claimed, inter alia, that his plea counsel was ineffective for failing to file a post-sentence motion challenging the discretionary aspects of his sentence and for failing to file a direct appeal. The PCRA court appointed counsel who filed an Amended PCRA Petition on October 4, 2016, raising these issues again.
On August 18, 2017, the PCRA court held an evidentiary hearing on Appellant's Petition, limited to whether Appellant requested his plea counsel file a motion for reconsideration and/or a direct appeal. Appellant testified that his plea counsel, Joseph J. Ferguson, Esquire, failed to communicate with him after his sentencing. Appellant claimed that he asked Attorney Ferguson to file a post-sentence motion or an appeal, but that Attorney Ferguson neglected to do so. Attorney Ferguson testified that he communicated with Appellant on multiple occasions after his sentencing and that Appellant did not want Attorney Ferguson to file a post-sentence motion or appeal on his behalf.
The Commonwealth presented documentary evidence in support of Attorney Ferguson's testimony, including: (1) an internal memo dated April 10, 2015, memorializing Attorney Ferguson's visit with Appellant after his sentencing; (2) multiple letters exchanged between Appellant and Attorney Ferguson, including one dated April 16, 2015, from Attorney Ferguson to Appellant, referencing their meeting and confirming that Appellant had said that he did not want Attorney Ferguson to file any post-sentence motions or appeal any aspect of his sentence; and (3) two letters sent to Attorney Ferguson from Appellant. The first, dated May 26, 2015, mentioned nothing about filing a post-sentence motion or a direct appeal, nor did it raise any questions about Appellant's sentence. The second, dated October 13, 2015—more than 5 months after Appellant's sentencing—is the first correspondence of record in which the Petitioner mentioned seeking a reduction in his sentence.
The PCRA court credited the Commonwealth's evidence over that of Appellant. Accordingly, on November 14, 2017, it dismissed Appellant's Petition. This appeal followed. Appellant complied with Pa.R.A.P. 1925. The PCRA court did not file a Rule 1925 Opinion to supplement its October 13, 2017 Memorandum and Order.
On December 1, 2017, Appellant's PCRA counsel filed a Petition for Leave to Withdraw as Counsel and Appoint New Counsel. The PCRA court granted counsel's Petition on December 5, 2017. Appellate counsel entered her appearance and filed Appellant's Notice of Appeal on December 12, 2017.
Before we consider Appellant's arguments, we must review appellate counsel's request to withdraw from representation. Pursuant to Turner/Finley , counsel must conduct an independent review of the record before withdrawal on collateral appeal is permitted. Commonwealth v. Pitts , 981 A.2d 875, 876 n.1 (Pa. 2009). Counsel is then required to submit a "no merit" letter (1) detailing the nature and extent of his or her review; (2) listing each issue the petitioner wished to have reviewed; and (3) providing an explanation of 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." Commonwealth v. Wrecks , 931 A.2d 717, 721 (Pa. Super. 2007).
Our review of the record discloses that counsel has complied with each of the above requirements. Additionally, counsel served Appellant with a copy of the Petition to Withdraw and Turner/Finley Brief, advising him that he had the right to proceed pro se or with privately retained counsel. Since counsel has complied with the Turner/Finley requirements, we will proceed with our independent review of the record and the merits of Appellant's claims.
In her Anders Brief, counsel indicated Appellant wished to raise the following issue on appeal:
Whether the PCRA [c]ourt committed an error of law when it denied [] Appellant's [P]etition for [Post-[C]onviction [R]elief?Anders Brief at 4.
This Court's "standard of review for an order denying post-conviction relief is limited to whether the trial court's determination is supported by evidence of record and whether it is free of legal error." Commonwealth v. Allen , 732 A.2d 582, 586 (Pa. 1999). Further, "[t]he PCRA court's findings "will not be disturbed unless there is no support for the findings in the certified record." Commonwealth v. Johnson , 945 A.2d 185, 188 (Pa. Super. 2008).
Appellant alleges that his plea counsel provided ineffective assistance. In order to establish eligibility for PCRA relief, a petitioner must prove by a preponderance of the evidence that the conviction resulted from "[i]neffective assistance of counsel, which in the circumstances of the particular case, 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).
In analyzing claims of ineffective assistance of counsel, we presume that trial counsel was effective unless the PCRA petitioner proves otherwise. Commonwealth v. Williams , 732 A.2d 1167, 1177 (Pa. 1999).
In order to succeed on a claim of ineffective assistance of counsel, Appellant must demonstrate (1) that the underlying claim is of arguable merit; (2) that counsel's performance lacked a reasonable basis; and (3) that the ineffectiveness of counsel caused the appellant prejudice. Commonwealth v. Fulton , 830 A.2d 567, 572 (Pa. 2003). Appellant bears the burden of proving each of these elements, and his "failure to satisfy any prong of the ineffectiveness test requires rejection of the claim of ineffectiveness." Commonwealth v. Daniels , 963 A.2d 409, 419 (Pa. 2009).
Appellant claims that his plea counsel was ineffective for failing to "object to and/or challenge the discretionary aspects of his sentence" by filing a post-sentence motion or direct appeal. Anders Brief at 8.
Appellant also claims, for the first time, that he did not enter his guilty plea knowingly and voluntarily because his plea counsel failed to inform him of the possible range of sentence he faced. However, Appellant never filed a motion to withdraw his guilty plea. See Commonwealth v. Lincoln , 72 A.3d 606, 609-10 (explaining that a defendant who wishes to challenge the voluntariness of his guilty plea must object during the plea colloquy or file a motion to withdraw his plea within ten days of sentencing). Further, issues not raised in the trial court are waived on appeal. Pa.R.A.P. 302(a). Accordingly, Appellant has waived this argument.
The Honorable Mark D. Stevens, who presided over all of the proceedings in this case, has authored a comprehensive, thorough, and well-reasoned Opinion, citing to the record and relevant case law in addressing Appellant's challenge to his counsel's representation. After a careful review of the parties' arguments and the record, we adopt the PCRA court's Opinion as our own and conclude that Appellant's issue warrants no relief. See PCRA Ct. Op., 10/13/17, at 2-4 (concluding that Appellant's ineffectiveness claim fails because the credible evidence demonstrated that: (1) Appellant's plea counsel took action to follow up with Appellant after sentencing; (2) Appellant made it clear to counsel did that he did not wish to file a post-sentence motion or direct appeal; (3) despite being informed of his post-sentence rights and obligations, Appellant waited months before asking counsel about the possibility of a reduced sentence; and (4) the court imposed a sentence on the low end of the standard range despite the existence of multiple aggravating circumstances). Accordingly, we affirm the denial of PCRA relief and grant counsel's Petition to Withdraw.
Order affirmed. Petition to Withdraw granted. Judgment Entered. /s/
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/2/2018
Image materials not available for display.