Opinion
J-S67035-17 No. 489 EDA 2017
11-30-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. MARQWISE STRATTON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order January 25, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008646-2008 BEFORE: GANTMAN, P.J., MUSMANNO, J., and STEVENS, P.J.E. MEMORANDUM BY GANTMAN, P.J.:
Former Justice specially assigned to the Superior Court.
Appellant, Marqwise Stratton, appeals from the order entered in the Philadelphia County Court of Common Pleas, which denied his first petition filed pursuant to the Post Conviction Relief Act. We affirm.
In its opinion, the PCRA court fully and accurately sets forth the relevant facts and procedural history of this case. Therefore, we have no need to restate them. We add that the PCRA court initially dismissed Appellant's PCRA petition as untimely on January 6, 2017; and on January 25, 2017, Appellant filed a timely notice of appeal. On the same day, the PCRA court vacated its January 6th order and entered a new order denying Appellant's PCRA petition on the merits. Therefore, Appellant's notice of appeal related forward to January 25, 2017, the date the PCRA court entered its amended order denying PCRA relief. The court ordered a concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b) on January 27, 2017. The record indicates a copy of the court's January 27thorder was sent to PCRA counsel, who failed to file the court-ordered statement. On May 25, 2017, PCRA counsel, who is also appellate counsel, filed in this Court an application to withdraw as counsel and an accompanying appellate 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).
Hence, no appellate jurisdictional defects impede our review.
As a prefatory matter, we observe the failure to file a court-ordered Rule 1925(b) statement generally constitutes a waiver of all issues. Commonwealth v. Lord , 553 Pa. 415, 719 A.2d 306 (1998). "[T]o preserve their claims for appellate review, [a]ppellants must comply whenever the trial court orders them to file a Statement of [Errors] Complained of on Appeal pursuant to Pa.R.A.P. 1925. Any issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed waived." Commonwealth v. Castillo , 585 Pa. 395, 403, 888 A.2d 775, 780 (2005) (citing Lord , supra at 420, 719 A.2d at 309).
Our Supreme Court revised Rule 1925 to provide a remedy when a criminal appellant's counsel fails to file a court-ordered Rule 1925(b) statement. See Pa.R.A.P. 1925(c)(3); Commonwealth v. McBride , 957 A.2d 752, 755 (Pa.Super. 2008). Rule 1925(c)(3) allows the appellate Court to remand "for the filing of a Statement nunc pro tunc and for the preparation and filing of an opinion by the judge," if the court ordered an appellant in a criminal case to file a Rule 1925(b) statement and appellant failed to do so, and the appellate court is convinced that counsel has been per se ineffective. Pa.R.A.P. 1925(c)(3).
Rule 1925 was amended on May 10, 2007, and again on January 13, 2009.
Interpreting the revised Rule 1925(c)(3), this Court has held that counsel's failure to file a court-ordered Rule 1925(b) statement is per se ineffectiveness. Commonwealth v. Burton , 973 A.2d 428, 431-32 (Pa.Super. 2009) (en banc). Generally, when waiver occurs due to counsel's complete failure to file a Rule 1925(b) statement, remand is proper. Commonwealth v. Mitchell , 986 A.2d 1241, 1244 n.4 (Pa.Super. 2009) (noting counsel's failure to file court-ordered Rule 1925(b) statement required remand for filing of concise statement nunc pro tunc under revised Rule 1925(c)(3)); Commonwealth v. Scott , 952 A.2d 1190, 1192 (Pa.Super. 2008) (recognizing recent amendment to Rule 1925 relaxed strict application of Lord and stating, "pursuant to the amended version of Rule 1925, the complete failure by counsel to file a Rule 1925(b) statement, as ordered, is presumptively prejudicial and clear ineffectiveness"). Upon remand, counsel must file a Rule 1925(b) statement nunc pro tunc; thereafter, the trial court should prepare an opinion, file it, and forward it to this Court within 30 days. Scott , supra at 1192-93. See also McBride , supra (remanding for filing of Rule 1925(b) statement or statement of intent to file no-merit brief per Rule 1925(c)(4), where appellate counsel failed to file court-ordered concise statement, but later filed no-merit brief and petition to withdraw as counsel on appeal). Nevertheless, this Court may decline to remand, where we have an adequate record for review. Burton , supra at 433 (stating choice to review appeal and not remand for filing of concise statement, under certain circumstances, is consistent with our Supreme Court's "intent to avoid unnecessary delay in the disposition on the merits of cases which results from per se ineffectiveness of appellant's counsel").
In the past, our Supreme Court proposed that Rule 1925(c)(3) might not even be available in a PCRA appeal. Commonwealth v. Hill , 609 Pa. 410, 428 n.14, 16 A.3d 484, 495 n.14 (2011) (interpreting prior version of Rule 1925, which had no subsection (c)(3); suggesting Rule 1925(c)(3) would not apply in PCRA cases, because language of Rule 1925(c)(3) specifies application in "criminal cases" and PCRA is "civil" in nature). On the other hand, this Court has observed that Rule 1925(c)(3) might apply in PCRA cases under certain circumstances. Commonwealth v. Oliver , 128 A.3d 1275, 1279 (Pa.Super. 2015) (declining to apply Lord to deem PCRA appellant's issues waived, where PCRA counsel is still counsel of record when the PCRA court orders Rule 1925(b) statement, counsel failed to file statement on appellant's behalf, and the record reveals irregularities surrounding PCRA counsel's Turner/Finley letter and petition to withdraw). Rather, the Oliver Court explained it would not remand if the record and the PCRA court opinion addressed any claim an appellant could raise on appeal. Id. at 1279-80.
Instantly, Appellant filed his first PCRA petition while his petition for permission to file for allowance of appeal from his judgment of sentence nunc pro tunc was still pending before the state Supreme Court. The Supreme Court allowed Appellant to file a petition for allowance of appeal nunc pro tunc but ultimately denied further review on March 13, 2013. Once Appellant had exhausted his direct appeal rights, the court appointed counsel for Appellant's previously filed PCRA petition. In the PCRA petition, Appellant raised one issue: Whether trial counsel was ineffective for failing to communicate a plea offer to Appellant, which Appellant would have accepted but for counsel's omission and which would have meant doing less time in prison than the sentenced imposed. ( See Appellant's PCRA Petition at ¶9). After Appellant filed a notice of appeal, the court ordered a Rule 1925(b) statement and served it on counsel. Counsel failed to file the court-ordered Rule 1925(b) statement or a Rule 1925(c)(4) statement of intent to file a Turner/Finley brief, which is considered per se ineffectiveness. See Oliver , supra ; Scott , supra. Appellant, however, raised only one issue in his amended PCRA petition, and the PCRA court denied Appellant relief on the merits, without a hearing, after complying with Pa.R.Crim.P. 907 notice. Therefore, counsel could have raised only that one claim in a Rule 1925(b) statement. See generally Commonwealth v. Bond , 572 Pa. 588, 819 A.2d 33 (2002) (reiterating that only claims properly presented to PCRA court are preserved for appellate review); Pa.R.A.P. 302(a) (governing requisites for reviewable issue on appeal). Further, the PCRA court's Rule 1925(a) opinion and counsel's Turner/Finley brief on appeal both address only that one issue. Additionally, we have an adequate record to review the appeal. Under these circumstances, and in the interest of judicial economy, we decline to remand because: (a) a remand would serve no practical purpose, particularly if counsel decided to file a Rule 1925(c)(4) statement; (b) a remand would cause unnecessary and needless delay in the resolution of the appeal; and (c) we have an adequate record for review. See Burton , supra ; Oliver , supra.
Any waiver that could result on this basis would fall squarely on Appellant's current counsel for failure to comply with the PCRA court's directive. --------
As a second prefatory matter, before counsel can withdraw representation 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) (internal citations omitted). "Substantial compliance with these requirements will satisfy the criteria." Karanicolas , supra at 947.
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.
If counsel fails to satisfy the foregoing technical prerequisites of Turner/Finley , the court will not reach the merits of the underlying claims but, rather, will merely deny counsel's request to withdraw. Upon doing so, the court will then take appropriate steps, such as directing counsel to file a proper Turner/Finley request or an advocate's brief.
Instantly, counsel's application to withdraw as counsel and Turner/Finley brief detail the nature of counsel's review and explain why Appellant's issue lacks 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 technical requirements. See Wrecks , supra ; Karanicolas , supra. Appellant filed no response to counsel's petition to withdraw.
Counsel raises one issue on appeal:
[WHETHER] THE PCRA COURT COMMITTED AN ABUSE OF DISCRETION BY DENYING APPELLANT AN EVIDENTIARY HEARING AND RELIEF ON HIS CLAIM ASSERTING THAT TRIAL COUNSEL WAS INEFFECTIVE FOR NOT COMMUNICATING A PLEA OFFER TO APPELLANT[?]( Turner/Finley Brief at 5).
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 (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 (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. Ford , 44 A.3d 1190, 1194 (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, 338 (Pa.Super. 2012); Commonwealth v. Jones , 942 A.2d 903, 906 (Pa.Super. 2008), appeal denied, 598 Pa. 764, 956 A.2d 433 (2008).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Glenn B. Bronson, we conclude Appellant's issue merits no relief. The PCRA court opinion properly disposes of the question presented. ( See PCRA Court Opinion, filed March 29, 2017, at 2-3, 6) (finding: sole issue presented in Appellant's pro se and amended PCRA petitions was trial counsel's alleged ineffectiveness for failing to relay plea offer to Appellant; Appellant did not specify what terms of alleged plea offer were not conveyed to him; in its response to Appellant's amended PCRA petition, Commonwealth attached copy of Major Trials Unit Case Identification Sheet that indicated Commonwealth had offered Appellant sentence of 6 to 20 years' incarceration in exchange for guilty plea to aggravated assault, possession of prohibited, PIC, and resisting arrest; Appellant elected to go to trial; after trial, jury convicted Appellant of carrying firearm without license, possession of firearm by prohibited person, and carrying firearm on streets of Philadelphia, but acquitted him of aggravated assault and resisting arrest; court sentenced Appellant to aggregate term of 5 to 10 years' imprisonment; sentence Appellant received was far less than Commonwealth's pretrial offer; trial counsel's alleged failure to relate Commonwealth's plea offer to Appellant could not have prejudiced him). The record supports the PCRA court's reasoning and decision to deny PCRA relief without an evidentiary hearing. See Wah , supra. After an independent examination of the record, we conclude the appeal is frivolous. 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: 11/30/2017
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