Com. v. Odom, J. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEFFREY EDWARD ODOM :
:
Appellant : No. 1391 MDA 2019
Appeal from the PCRA Order Entered July 1, 2019
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001516-2017
BEFORE: SHOGAN, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED APRIL 15, 2021
Appellant, Jeffrey Edward Odom, appeals from the July 1, 2019 order
dismissing his petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546. Appellant’s PCRA counsel has filed an
application for leave to withdraw as counsel. After review, we grant counsel’s
application to withdraw and affirm the order of the PCRA court.
On March 12, 2018, Appellant pled guilty to persons not to possess a
firearm, simple assault, and recklessly endangering another person (“REAP”).1
On June 18, 2018, the trial court sentenced Appellant to serve a term of four
to ten years of incarceration for persons not to possess a firearm, one to two
years of incarceration for simple assault, and one to two years of incarceration
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1 18 Pa.C.S. §§ 6105(a)(1), 2701(a)(3), and 2705, respectively
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for REAP. Appellant was sentenced to an aggregate sentence of five to twelve
years of incarceration. Appellant did not file a direct appeal.
Appellant filed a counseled PCRA petition on December 28, 2018.
Following a hearing, the PCRA court denied the petition on July 1, 2019. Prior
to filing his appeal, Appellant’s private counsel filed a motion to withdraw as
counsel. The PCRA court granted counsel’s motion to withdraw on July 31,
2019, without holding a hearing. Appellant filed a pro se appeal with this
Court on December 6, 2019.
Initially, we were unable to reach the merits of the appeal because the
PCRA court allowed Appellant’s counsel to withdraw without conducting a
hearing as required by Commonwealth v. Grazier, 713 A.2d 81 (Pa. Super.
1998). Thus, we remanded the case for a Grazier hearing. Commonwealth
v. Odom, 239 A.3d 55, 1391 MDA 2019 (Pa. Super. filed July 8, 2020) (non-
precedential decision). Following remand and a Grazier hearing, the trial
court appointed counsel to represent Appellant. Order, 8/4/20.
After seeking and receiving several extensions of time in which to file a
brief, Appellant’s counsel filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), and an application to withdraw as counsel with this Court on
March 3, 2021 and March 4, 2021, respectively.2 Before we review the merits
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2 Counsel has requested leave to withdraw and erroneously filed a brief under
Anders. However, because counsel is seeking to withdraw as PCRA counsel,
the dictates of Commonwealth v. Turner, 544 A.3d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), are
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of the instant appeal, we must first decide whether counsel has fulfilled the
procedural requirements for withdrawing as counsel. Commonwealth v.
Daniels, 947 A.2d 795, 797 (Pa. Super. 2008). As we have explained:
Counsel petitioning to withdraw from PCRA representation must
proceed ... under [Turner, supra and Finley, supra and] ... must
review the case zealously. Turner/Finley counsel must then
submit a “no-merit” letter to the trial 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.
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.
* * *
[W]here counsel submits a petition and no-merit letter that ...
satisfy the technical demands of Turner/Finley, the court—trial
court or this 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.
Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citing
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007)).
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applicable. Because an Anders brief provides greater protection to Appellant,
we may accept an Anders brief in lieu of a Turner/Finley “no merit” letter.
Commonwealth v. Reed, 107 A.3d 137, 139 n.5 (Pa. Super. 2014). For
purposes of this appeal, we will refer to the brief filed by counsel as a “No-
Merit Letter.”
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In the present case, counsel complied with the requirements for
withdrawal from a collateral appeal. In the application to withdraw as counsel,
counsel alleged that he thoroughly reviewed the record and all applicable law
and determined that an appeal would be frivolous. Application for Leave to
Withdraw as Counsel, 3/4/21, at unnumbered 2. He also set forth the issues
relevant to the appeal and explained why the appeal is without merit. No-
Merit Letter at 10-12. Finally, counsel sent Appellant a letter in which he
advised Appellant he would seek permission to withdraw and informed
Appellant of his rights. Counsel served a copy of the No-Merit Letter and the
application for leave to withdraw as counsel upon Appellant as well. Thus, we
will allow counsel to withdraw if, after our review, we conclude that the issues
relevant to this appeal are without merit.
Appellant presents the following questions for our review:
1. Whether the [PCRA] court abused its discretion when it
[failed to find] trial counsel ineffective for unlawfully
inducing Appellant to plead open?
2. Whether the [PCRA] court erred when it denied Appellant’s
claim that trial counsel was ineffective for failing to present
mitigating evidence at sentencing?
No-Merit Letter at 7.
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)
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(en banc)). This Court is limited to determining whether the evidence of
record supports the conclusions of the PCRA court and whether the ruling is
free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.
Super. 2012). We grant great deference to the PCRA court’s findings that are
supported in the record and will not disturb them unless they have no support
in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.
Super. 2014).
Appellant’s claims challenge the effective assistance of his plea counsel.
Our Supreme Court has long stated that in order to succeed on a claim of
ineffective assistance of counsel, an 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. Pierce, 786 A.2d 203, 213 (Pa.
2001).
We have explained that counsel cannot be deemed ineffective for failing
to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132
(Pa. Super. 2003) (en banc). Moreover, an appellant’s counsel is presumed to
be effective unless an appellant proves otherwise. Commonwealth v.
Williams, 732 A.2d 1167, 1177 (Pa. 1999). The right to effective assistance
of counsel extends to the plea process. Commonwealth v. Hickman, 799
A.2d 136, 141 (Pa. Super. 2002). We have clarified, however, that:
allegations of ineffectiveness with the entry of a guilty plea will
serve as a basis for relief only if the ineffectiveness caused the
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defendant to enter an involuntary or unknowing plea. Where the
defendant enters his plea on the advice of counsel, the
voluntariness depends on whether counsel’s advice was within the
range of competence demanded of attorneys in criminal cases.
Commonwealth v. Wah, 42 A.3d 335, 338-339 (Pa. Super. 2012) (citations,
brackets, and quotation marks omitted).
The PCRA court set forth the following analysis in its opinion:
[Appellant] testified that he entered a guilty plea to
possession of a firearm prohibited, simple assault, and REAP, and
that his plea counsel advised that his best offer would be to take
an open plea. He acknowledged that at the time he entered his
plea it was understood that the sentencing would be left to the
discretion of the judge. [Appellant] specified that he had
previously been sentenced in Lancaster on a case that was very
similar to this case, and was told by counsel that the outcome here
would be “more than likely” or “more or less” the same if he took
an open plea. He also understood that the choice was his as to
whether or not to go to trial. [Appellant] testified that, at
sentencing, he was hoping for a concurrent sentence of no more
than 4 to 8 years total, much like his Lancaster sentence. He also
acknowledged that he was never promised a concurrent sentence
by either the Commonwealth or by this [c]ourt, but said he was
“led to believe” this “in a way” by his attorney. [PCRA Hearing,
February 21, 2019, Notes of Testimony, pp. 4-8, 14]. [Appellant]
also recognized that he entered a written guilty plea colloquy, and
that the sentence he was hoping for was not part of the written
colloquy. There was nothing in the paperwork that stated that the
prosecution and [Appellant] had agreed that he would receive a
particular sentence. [PCRA Hearing, 2-21-19, N.T., pp. 15-16].
Here, the record reflects that [Appellant’s] plea was made
knowingly, voluntarily, and intelligently. The colloquy reveals that
he understood the plea and its consequences, and was not
promised any particular sentence. See Commonwealth v.
Pollard, 832 A.2d 517, 523 (Pa. Super. 2003) (A person who
elects to plead guilty is bound by the statements he makes in open
court while under oath and he may not later assert grounds for
withdrawing the plea which contradict the statements he made at
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his plea colloquy). In offering his own testimony that he was “led
to believe” a certain sentence, “more or less,” would be imposed,
[Appellant] falls far short of proving that his plea was involuntary.
There is no arguable merit to this ineffectiveness claim, and
“counsel cannot be held ineffective for failing to pursue a meritless
claim[.]” Commonwealth v. Hall, 867 A.2d 619, 632 (Pa. Super.
2005), appeal denied, 895 A.2d 549 (Pa. 2006).
PCRA Court Opinion, 7/1/19, at 3-4 (some citations and footnote omitted).
The PCRA properly found no merit to Appellant’s claim. A review of the
written plea colloquy makes clear that Appellant was aware of the maximum
sentences he faced, and he had not entered into any agreements with the
Commonwealth regarding sentencing. Guilty Plea Colloquy, 3/12/18, at 1, 4.
We discern no error on the part of the PCRA court, and Appellant is due no
relief on this claim.
In his second issue, Appellant asserts his counsel was ineffective for
failing to present mitigation evidence regarding Appellant’s mental-health
diagnosis at sentencing. No-Merit Letter at 11. Appellant failed to include the
specific issue in his Pa.R.A.P. 1925 concise statement of matters raised on
appeal. Indeed, at no point in his concise statement, PCRA petition, at the
PCRA hearing, or in his appellate PCRA brief did Appellant posit that his
counsel was ineffective for failing to present evidence regarding Appellant’s
mental health. Instead, Appellant argued that his counsel was ineffective for
failing to call any witnesses at his sentencing, specifically, his wife, Tiffany
Odom. Even if we liberally construe this issue as an assertion that his wife
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would have presented mitigation testimony, we conclude this issue lacks
merit.
The trial court noted that it had received and considered the letter from
Ms. Odom. PCRA Court Opinion, 7/1/19, at 5 (citing N.T. (sentencing),
6/8/18, at 11)). Appellant has not identified any other evidence his plea
counsel neglected to present at sentencing, and therefore, he cannot show
that the counsel was ineffective in failing to present that evidence. “Moreover,
prejudice in the context of ineffective assistance of counsel means
demonstrating that there is a reasonable probability that, but for counsel’s
error, the outcome of the proceeding would have been different.”
Commonwealth v. Spotz, 896 A.2d 1191, 1226 (Pa. 2006). As our Supreme
Court has long stated, claims of ineffective assistance of counsel are not self-
proving. Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002). A
PCRA petitioner must present appropriate argumentation relative to all three
prongs of the ineffectiveness standard. Commonwealth v. D’Amato, 856
A.2d 806, 812 (Pa. 2004). Appellant has failed to make appropriate
argumentation; therefore, he cannot show the PCRA court erred and is due no
relief.
Furthermore, after our independent review, we conclude no relief is due
because the PCRA court’s determinations are supported by the record and free
of legal error. Having determined that Appellant is not entitled to PCRA relief,
we allow counsel to withdraw under the precepts of Turner/Finley.
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Application for leave to withdraw as counsel granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/15/2021
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