Com. v. Neely, K. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEVIN JAMES NEELY
Appellant No. 1631 MDA 2014
Appeal from the PCRA Order entered August 12, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division at No: CP-22-CR-0001329-2010
BEFORE: BOWES, OTT, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 20, 2015
Kevin James Neely appeals pro se from an order dismissing his PCRA1
petition as meritless. We affirm.
A jury convicted Appellant of attempted murder and other crimes for
beating, pistol-whipping, and shooting a Harrisburg nightclub bouncer on
December 18, 2009. Because of the serious nature of the crimes and
Appellant’s extensive criminal history, the trial court sentenced Appellant to
25 to 50 years in prison. On direct appeal, this Court affirmed in part and
vacated in part the judgment of sentence.2 Commonwealth v. Neely, 55
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1
Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46.
2
We vacated in part to correct a sentencing error that did not affect
Appellant’s aggregate sentence.
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A.3d 130 (Pa. Super. 2012) (unpublished memorandum). Appellant filed a
timely PCRA petition, and the PCRA court appointed counsel. PCRA counsel
concluded that no meritorious issues existed and moved to withdraw under
Turner/Finley.3 Because of an oversight, PCRA counsel did not attach his
no-merit letter, but later corrected the error by filing the no-merit letter of
record. Thereafter, the PCRA court issued a notice of intention to dismiss
without a hearing Appellant’s PCRA petition under Pa.R.Crim.P. 907 (Rule
907 notice). After Appellant responded, the PCRA court issued a final order
dismissing the petition, from which Appellant appeals.
Appellant raises five claims of error, which we reproduce verbatim:
1. Whether the Dauphin County Court Erred in denying the
petitioner’s PCRA petition without a hearing, and granting
Counsel Bryan E. DePowell’s Motion to Withdraw without filing
the Statutorily Required Motion in support of the “No Merit”
Finley/Turner letter/request to Withdraw.
2. Whether Counsel Bryan E. DePowell, provided ineffective
assistance of counsel to this petitioner, and denied this
petitioner’s United States Constitutional Rights under the
Sixth (6) and Fourteenth (14) Amendments: Effective
Assistance of Counsel; Due Process; and Equal Protection.
Also Pa. State Constitution Art 1 § 9.
3. Whether Counsel Bryan E. DePowell, was ineffective for failing
to follow mandatory appellate rules, pursuant to: ANDERS v
California,Supra; COMM. v. FINLEY,Supra; COMM. v.
TURNER,supra; and EVITTS V. LUCEY,Supra.
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3
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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4. Whether the Dauphin County Court abused its discretion, for
failing to consider this petitioner’s Motion to Withdraw
Counsel ‘INTER ALIA’ Ineffective Assistance of Counsel, and
Appointing New Counsel on behalf of this petitioner Pursuant
to Pa. R. of Crim. Proc., Rule 122(c)(2); Also, creating a
substantial Conflict of Interest between petitioner and
Counsel.
5. Whether this petitioner is entitled to an Evidentiary Hearing
and the Appointment of New Counsel, due to the Dauphin
County Court’s abuse of discretion/error, and Counsel’s
ineffective representation.
Appellant’s Brief at 3.4
On appeal from an order dismissing without a hearing a PCRA petition,
our standard and scope of review are as follows:
We review an order dismissing a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of record. We will not disturb a PCRA court’s ruling if it
is supported by evidence of record and is free of legal error.
This Court may affirm a PCRA court’s decision on any grounds if
the record supports it. Further, we grant great deference to the
factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. However, we
afford no such deference to its legal conclusions. Where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (internal
citations omitted).
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4
Appellant asserts that the PCRA court answered in the negative all of his
questions in its Pa.R.A.P. 1925(a) opinion, but the PCRA court did not issue
a Rule 1925 opinion. Instead, the PCRA court issued its opinion concomitant
with the Rule 907 notice.
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In his first issue, Appellant contends the PCRA court erred in granting
PCRA counsel’s motion to withdraw. Appellant raises two specific errors:
PCRA counsel failed to file his no-merit letter at the same time as his motion
to withdraw, and PCRA counsel failed to satisfy the requirements of Anders
and McClendon.5
Preliminarily, though Appellant couches his argument in terms of
ineffective assistance of counsel, a claim that a PCRA court erroneously
allowed counsel to withdraw under Turner/Finley is not an ineffectiveness
claim. Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super. 2012).
We will address Appellant’s ineffectiveness claim separately.
Withdrawal under Turner/Finley in the PCRA court contemplates the
following steps, as developed by our courts in a series of cases:
(1) PCRA counsel must file a no-merit letter that details the
nature and extent of counsel’s review of the record; lists
the PCRA petitioner’s issues; and explains why those
issues are meritless.
(2) PCRA counsel must file a motion to withdraw; serve the
PCRA petitioner with the motion and the no-merit letter;
and advise the petitioner that if the court grants the
motion to withdraw, the petitioner can proceed pro se or
hire his own lawyer.
(3) The PCRA court must conduct its own independent review
of the record and agree that the petition is meritless.
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5
Anders v. California, 386 U.S. 738 (1968), and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981), modified in part by,
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
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See Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super. 2011)
(citing or quoting Turner, Finley, Commonwealth v. Pitts, 981 A.2d 875
(Pa. 2009), and Commonwealth v. Friend, 896 A.2d 607 (Pa. Super.
2008), overruled in part by, Pitts).
We find that PCRA counsel substantially complied with the
Turner/Finley procedure. As noted above, PCRA counsel moved to
withdraw on December 17, 2013, without attaching the required no-merit
letter. PCRA counsel later corrected this oversight on January 17, 2014.
The PCRA court granted the motion to withdraw and issued its Rule 907
notice on June 3, 2014—months later. In fact, the record shows that
Appellant filed a response to PCRA counsel’s no-merit letter, as well as a
response to the Rule 907 notice. Thus, PCRA counsel’s oversight was
immaterial, and did not prejudice Appellant.
We also reject Appellant’s contention that PCRA counsel failed to follow
the requirements of Anders and McClendon. Those cases address the
procedure for appointed counsel to withdraw on direct appeal—not in a PCRA
proceeding. See Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa.
Super. 2003) (“Briefs filed pursuant to Anders and [McClendon] are
procedurally appropriate on direct appeal; they are inappropriate on appeals
involving PCRA petitions.”). Appellant also cites Evitts v. Lucey, 469 U.S.
387 (1985) (holding a criminal defendant is entitled to effective assistance of
counsel on a first direct appeal of right), which is inapplicable.
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Appellant does not challenge the PCRA court’s independent conclusion
that his PCRA petition was meritless. In any event, our review of the record
confirms that the PCRA court adequately reviewed the record and did not err
in finding the petition meritless. Therefore, Appellant is not entitled to relief
on his first argument.
In his second argument, Appellant contends that PCRA counsel
rendered ineffective assistance of counsel under the Sixth and Fourteenth
Amendments.6 This argument is without merit. There is no federal
constitutional right to court-appointed post-conviction counsel.
Commonwealth v. Holmes, 79 A.3d 562, 580 (Pa. 2013); see also
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (declining to hold that
post-conviction petitioners have a right to counsel when mounting collateral
attacks on their convictions).
To the extent Appellant challenges PCRA counsel’s effectiveness under
his rules-based right to counsel, see Pa.R.Crim.P. 904(C), we reject his
argument. We already have held that the PCRA court did not err in allowing
PCRA counsel to withdraw under Turner/Finley. On appeal, Appellant fails
to mention, let alone discuss, any ineffective assistance of trial counsel,
constitutional errors, or any other cognizable PCRA claims. See 42
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6
Appellant repeatedly raised PCRA counsel’s ineffectiveness before the PCRA
court. Cf. Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)
(en banc) (holding PCRA petitioners may not challenge the effectiveness for
the first time on appeal).
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Pa.C.S.A. §§ 9542, 9543(a)(2). In providing its Rule 907 notice, the PCRA
court determined that any cognizable PCRA claims were meritless—a finding
Appellant fails to challenge. See supra. Thus, PCRA counsel cannot be
deemed ineffective, because any underlying issues are meritless. See
Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (“[C]ounsel
cannot be deemed ineffective for failing to raise a meritless claim.”).
In his third argument, Appellant combines and repeats his first two
arguments. We already have explained why those claims do not entitle him
to relief.
In his fourth argument, Appellant contends the PCRA court erred in
denying his motion to remove PCRA counsel and appoint new counsel. This
argument, too, is meritless. The PCRA court denied as moot Appellant’s
motion to remove PCRA counsel, because it granted PCRA counsel’s motion
to withdraw. Moreover, a petitioner whose counsel is granted leave to
withdraw under Turner/Finley is no longer entitled to appointed counsel:
[W]hen counsel has been appointed to represent a petitioner in
post-conviction proceedings as a matter of right under the
[R]ules of [C]riminal [P]rocedure and when that right has been
fully vindicated by counsel being permitted to withdraw under
the procedure authorized in Turner, new counsel shall not be
appointed and the petitioner, or appellant, must thereafter look
to his or her own resources for whatever further proceedings
there might be.
Commonwealth v. Maple, 559 A.2d 953, 956 (Pa. Super. 1989) (footnote
omitted) (emphasis added).
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Finally, Appellant contends the PCRA court erred in denying a hearing
on his claims. To be entitled to a hearing, a PCRA petitioner must raise an
issue of fact that would entitled him to relief. Commonwealth v.
Simpson, 66 A.3d 253, 260-61 (Pa. 2013). Here, the PCRA court
conducted an independent review under Turner/Finley, and concluded that
Appellant’s PCRA petition was meritless. On appeal, Appellant does not set
forth a cogent basis to conclude that the PCRA court erred. Therefore, he is
not entitled to relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2015
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