Com. v. Santucci, E. ( 2022 )

J-S07006-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EVAN C. SANTUCCI :
:
Appellant : No. 509 WDA 2021
Appeal from the PCRA Order Entered March 29, 2021
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0002460-2017
BEFORE: OLSON, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED: MARCH 21, 2022
Appellant, Evan C. Santucci, appeals from the order entered on March
29, 2021, which dismissed his petition filed under the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. In this appeal from the denial of
PCRA relief, Appellant’s counsel filed a petition to withdraw and a no-merit
brief pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).1 As
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Although counsel styled his brief as having been filed pursuant to Anders v.
California, 386 U.S. 738 (1967), we note that an Anders brief governs the
withdrawal of counsel from direct appeal. Nevertheless, as Anders imposes
stricter requirements for withdrawal than those set forth in Turner/Finley,
this Court accepts Anders-compliant briefs in the context of collateral review.
Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004).
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we conclude that counsel fulfilled the procedural requirements of
Turner/Finley and that this appeal is without merit, we grant counsel’s
petition to withdraw and affirm the PCRA court’s order denying Appellant
post-conviction relief.
On April 4, 2019, Appellant entered a negotiated guilty plea to criminal
conspiracy, burglary, criminal trespass, possession of a firearm by a prohibited
person, theft by unlawful taking, and receiving stolen property.2 On April 8,
2019, the trial court sentenced Appellant to serve the aggregate, negotiated
term of two-and-one-half to 15 years in prison for his convictions. N.T.
Sentencing, 4/8/19, at 1-7. Appellant did not file a direct appeal from his
judgment of sentence.
On July 5, 2019, Appellant filed a timely, pro se PCRA petition. The
PCRA court appointed counsel to represent Appellant during the proceedings
and counsel filed an amended petition on Appellant’s behalf. Within the
amended petition, Appellant claimed that, on the day he entered his plea:
[Appellant] was told by [his trial counsel (hereinafter “Trial
Counsel”)] that jury selection was scheduled very soon and
that [Trial Counsel] was not prepared to go to trial. [Trial
Counsel] further informed [Appellant] that if he did not enter
a plea of guilty he would surely be convicted and would face
more time in prison than the amount of time offered in the
plea. [Appellant] believed he had no [other] choice [but to]
enter the guilty plea.
Amended PCRA Petition, 6/25/20, at 1 (paragraphing omitted).
____________________________________________
218 Pa.C.S.A. §§ 903, 3502(a)(2), 3503(a)(1)(ii), 6105(a)(1), 3921(a), and
3925(a), respectively.
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Appellant also claimed that Trial Counsel induced his plea by falsely
telling him that his sentence would “run concurrent to a sentence he had in
Somerset County.” See id. at 2; Appellant’s Brief at 5.
Appellant requested that the PCRA court allow him to withdraw his plea
and proceed to trial. Amended PCRA Petition, 6/25/20, at 2.
On March 15, 2021, the PCRA court held a hearing on Appellant’s
petition, during which both Appellant and Trial Counsel testified. As the PCRA
court explained:
During his testimony, [Appellant] acknowledged completing
the written guilty plea colloquy (of which [the PCRA court]
took judicial notice and which [the court] incorporated into
the record during [the] March 15, 2021 evidentiary hearing).
Within such written colloquy, [Appellant] confirmed that he
understood the charges to which he was pleading guilty and
the potential maximum sentences for each. [Appellant] also
confirmed that [Trial Counsel] explained the nature and
elements of the criminal offenses to which he was pleading
guilty. Throughout the written guilty plea colloquy,
[Appellant] acknowledged that he understood that he had a
right to a jury trial and all constitutional rights attached
thereto, that he was giving up his right to a trial by judge or
jury, i.e., the right to present or pursue any pretrial motions,
etc., and that if his guilty plea was accepted, his rights to
appeal to a higher court would be limited to four grounds. .
..
Within the colloquy, [Appellant] also confirmed that he was
entering his guilty plea of his own free will, that no one could
force him to do so, and that no force or threat had been used
against him in entering his plea. [Appellant] additionally
noted that he understood the plea agreement called for a
sentence of [two-and-one-half] to 15 years. Finally,
[Appellant] indicated that he was satisfied with [Trial
Counsel’s] representation[,] that he had sufficient time to
discuss his case with [Trial Counsel], and that he had
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considered the advantages and disadvantages of entering a
plea of guilty instead of going to trial.
Of particular significance to this case, [Appellant]
acknowledged that he was on probation and parole, that he
understood that his guilty plea could mean a violation of his
probation and parole, and that he may be sentenced to return
to prison as a result of that violation. He also confirmed that
he understood that the prison sentence for the charges
before the court could be made to run consecutively to, or in
addition to, any other jail or prison sentences on any other
charges. The written guilty plea colloquy was signed by
[Appellant] and [Trial Counsel].
At the time of entry of his guilty plea, [Appellant] also
underwent an additional verbal colloquy by the [trial] court
to further confirm that his guilty plea was entered knowingly,
intelligently and voluntarily. [The PCRA court notes] that
[Trial Counsel] entered the standard stipulation that the
averments of the criminal complaint and affidavit of probable
cause formed a factual basis for [Appellant’s] plea.
During the March 15, 2021 evidentiary hearing, [Appellant]
verified that he received a sentence consistent with his plea
agreement. He also acknowledged that he understood that
his sentence would be consecutive to his subsequent parole
hit. His only real claim of error [was] that he thought the
sentence would be concurrent to a [one-to-three] year
sentence previously imposed in Somerset County, PA.
In review of the transcript from the April 8, 2019 [sentencing]
hearing, there was absolutely no representation made by the
[trial] court, [the assistant district attorney, or Trial Counsel]
that the sentence imposed on such date would run concurrent
to the [one-to-three] year Somerset County sentence. In
fact, quite the opposite is true. During the guilty plea
sentencing hearing, [Trial Counsel] specifically stated the
following:
[Appellant] is going to plead to all counts in the
information for a period of [two-and-a-half to 15] years.
[Two-and-a-half to 15]. That would be consecutive to all
other time he is serving in other jurisdictions.
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During [the] PCRA evidentiary hearing, the Commonwealth
presented the testimony of [Trial Counsel]. [Trial Counsel]
confirmed that he has been a licensed attorney within the
Commonwealth of Pennsylvania for approximately 25 years
and has handled criminal defense cases. He confirmed that
the original plea offer from the Commonwealth was [five] to
15 years; however, in part due to the criminal matters in
other jurisdictions (which would include Somerset County),
as well as the fact that [Appellant] was facing a potential
state parole hit, he was able to negotiate the plea offer from
the Commonwealth downward to [two-and-one-half] to 15
years. [Trial Counsel] confirmed that he never told
[Appellant] that he had to accept a plea offer; never told him
that he could not exercise his constitutional right to a trial;
and explained to him that his [two-and-one-half] to 15 year
sentence would be consecutive to any and all other
sentences. [Trial Counsel] merely told [Appellant] that this
was the best plea offer the Commonwealth would offer under
the circumstances. It is worth noting that the bottom of the
standard range for [Appellant] was 60 months for possession
of firearm prohibited and 27 months for burglary. In all
respects, [the PCRA court found Trial Counsel’s] testimony to
be credible.
PCRA Court Opinion, 3/29/21, at 6-10 (citations and some capitalization
omitted).
Following the evidentiary hearing, the PCRA court denied Appellant relief
and Appellant filed a timely notice of appeal. In this appeal, Appellant’s
counsel filed a petition to withdraw as counsel and a no-merit brief pursuant
to Turner/Finley. Counsel presents the following issue in the Turner/Finley
brief:
[Appellant] maintain[s] that his guilty plea[] was unlawfully
induced because [Trial Counsel] told him that he was not
prepared for trial and that if [Appellant] did not enter a guilty
plea he would be convicted and face more time in prison than
if he entered a plea. [Appellant] also maintain[s] that [Trial
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Counsel] told him his sentence . . . would be run concurrent
to a sentence he had in Somerset County.
Appellant’s Brief at 5.
Prior to addressing the merits of the issues raised in the Turner/Finley
brief, we must determine whether counsel met the procedural requirements
necessary 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.
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 —
[the PCRA] 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. Muzzy, 141 A.3d 509, 510–511 (Pa. Super. 2016)
(citations and corrections omitted).
Here, counsel fulfilled the procedural requirements necessary for
withdrawing as PCRA counsel. We thus turn to the claims raised in the
Turner/Finley brief. As our Supreme Court has explained:
In reviewing the grant or denial of PCRA relief, an appellate
court considers whether the PCRA court's conclusions are
supported by the record and free of legal error. Moreover,
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the factual findings of a post-conviction court, which hears
evidence and passes on the credibility of witnesses, should
be given deference. A PCRA court passes on witness
credibility at PCRA hearings, and its credibility determinations
should be provided great deference by reviewing courts.
Indeed, one of the primary reasons PCRA hearings are held
in the first place is so that credibility determinations can be
made.
...
We will not disturb the findings of the PCRA court if they are
supported by the record, even where the record could
support a contrary holding. [An appellate court’s] scope of
review is limited to the findings of the PCRA court and the
evidence on the record of the PCRA court's hearing, viewed
in the light most favorable to the prevailing party.
Commonwealth v. Flor, 259 A.3d 891, 910-911 (Pa. 2021) (quotation
marks, citations, and corrections omitted).
On appeal, Appellant claims that: 1) “his guilty plea[] was unlawfully
induced because [Trial Counsel] told him that he was not prepared for trial
and that if [Appellant] did not enter a guilty plea he would be convicted and
face more time in prison than if he entered a plea” and 2) “[Trial Counsel] told
him his sentence . . . would be run concurrent to a sentence he had in
Somerset County.” Appellant’s Brief at 5. However, in this case, the PCRA
court held an evidentiary hearing where Trial Counsel testified that: 1) he
never told Appellant that “[Appellant] had to plead guilty and could not go to
trial” and, prior to the entry of the plea, he “discuss[ed Appellant’s] options
with [Appellant] and “suggested that [the plea] was the best arrangement
that could be made” and 2) he “explain[ed] to [Appellant] that his
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[two-and-a-half] to 15 year sentence would be in addition or consecutive to
other matters that he had pending.” N.T. PCRA Hearing, 3/15/21, at 15-16.
Further, the PCRA court expressly found that Trial Counsel’s testimony was
credible. See PCRA Court Opinion, 3/29/21, at 10.
The PCRA court’s credibility determinations render Appellant’s claims on
appeal meritless. Therefore, since the issues Appellant wished to pursue on
appeal have no merit and since counsel complied with the procedural
requirements for withdrawing as counsel, we grant counsel's petition to
withdraw and affirm the order denying Appellant post-conviction collateral
relief.
Petition to withdraw as counsel granted. Order affirmed. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/21/2022
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