The opinion
J-S46034-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ALBERTO MELLON ROSEMBERT, :
:
Appellant : No. 2002 MDA 2013
Appeal from the PCRA Order entered on October 2, 2013
in the Court of Common Pleas of Luzerne County,
Criminal Division, No. CP-40-CR-0001198-2011
BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ.
JUDGMENT ORDER BY MUSMANNO, J.: FILED AUGUST 18, 2014
Alberto Mellon Rosembert (“Rosembert”) appeals from the Order
denying his first Petition for relief pursuant to the Post Conviction Relief Act
(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. Rosembert’s counsel, Matthew
P. Kelly, Esquire (“Kelly”), has filed a Turner/Finley1 Brief and a Petition to
Withdraw as Counsel. We deny the Petition to Withdraw and direct Kelly to
either file a proper Turner/Finley “no-merit” letter and petition to withdraw,
or file an advocate’s brief.
The procedure for withdrawal by PCRA counsel pursuant to
Turner/Finley is as follows:
1) A “no-merit” letter by PCRA counsel detailing the nature and
extent of his review;
1
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
J-S46034-14
2) The “no-merit” letter by PCRA counsel listing each issue the
petitioner wished to have reviewed;
3) The PCRA counsel’s “explanation,” in the “no-merit” letter, of
why the petitioner’s issues were meritless;
4) The PCRA court conducting its own independent review of the
record; and
5) The PCRA court agreeing with counsel that the petition was
meritless.
Commonwealth v. Pitts, 981 A.2d 875, 876, n.1 (Pa. 2009) (citation and
brackets omitted). Further, PCRA counsel seeking to withdraw must
contemporaneously forward to the petitioner a copy of the petition to
withdraw that includes “(i) a copy of both the “no-merit” letter, and (ii) a
statement advising the PCRA petitioner that, in the event the trial court
grants the application of counsel to withdraw, the petitioner has the right to
proceed pro se, or with the assistance of privately retained counsel.”
Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011).
Here, Kelly provided Rosembert with notice of his intention to seek
permission to withdraw from representation, a copy of the Turner/Finley
Brief filed on his behalf, and advised Rosembert of his rights in lieu of
representation. However, while Kelly identified the issues that Rosembert
sought to raise in the Turner/Finley Brief, Kelly failed to detail the nature
and extent of his review, or explain why the issues lack merit. See Pitts,
981 A.2d at 876 n.1.
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J-S46034-14
Thus, within thirty (30) days of the date this Order is filed, we order
Kelly to file a proper Turner/Finley “no-merit” letter and fulfill the
additional requirements to withdraw under Turner/Finley, or file an
advocate’s brief. In the event Kelly files an advocate’s brief, the
Commonwealth will be permitted thirty (30) days to respond from the filing
of the brief.
Petition to Withdraw denied; panel jurisdiction retained.
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COMMONWEALTH OF PENNSYLVANIA: IN THE COURT OF COMMON PLEAS
OF LUZERNE COUNTY
v.
CRIMINAL DIVISION
ALBERTO MELLON ROSEMBERT
alkla "SMURK",
Defendant No. 1198 CR 2011
OPINION
PROCEDURAL HISTORY
The Defendant, Alberto Mellon;Rosemb6It,:wl1s'arrestecl on October 14,
2010 for the following charges: CorniptOigahi:zati()rts, lR Pa.C.S.A.'91 1 (b) (3);
Corrupt Organizatioris; 18 Pa;C.S.A.~11(b}(1-4); Manufactu~e,Delivery and
Possession with the Intent to Deliver a Controlled Substance, 35 Pa.C.S.A. 780 -
113 (a) (3), 7 counts; Criminal Use of a Communication Facility; 18 Pa. C.S.A.
7512 (a).
On January 3, 2012, Attorney David Lampman was appointed to represent
the Defendant. Thereafter, on April 23, 2012, the Defendant, Alberto Mellon
Rosembert, plead guilty to the following offenses before the Honorable Senior
Judge Kenneth Brown; Corrupt Organizations, (Count 1); Delivery of a
Controlled Substance, (Count 4) (Heroin); Delivery of a Controlled Substance,
(Count 6) (Heroin). The Defendant, Alberto Mellon Rosembert, waived his right to
a presentence investigation and agreed on the record to proceed to immediate
sentencing.
Subsequent thereto, the Honorable Senior Judge Kenneth Brown, sentenced
the Defendant as follows:
1. Delivery of a Controlled Substance, Count 6: 3-6 years state
confinement;
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2. Delivery of a Controlled Substance, Count 4: 2-4 years state
confinement, consecutive to Count 6;
3. Corrupt Organizations, Count 1: 21 months to 4 years state'
confinement, consecutive to Count 6 and Count 4.
The Defendant filed the instant Post-Conviction Collateral Relief Petition
(hereinafter Petition) claiming ineffective assistance of counsel seeking to be
allowed to withdraw his guilty plea or to have his appellate rights reinstated.
ISSUES PRESENTED
, ..~. " . . . . . :. . . .>.,
Whether Counsel· wasineffecti\ie:"
(1) In preparation for trial?
(2) In failing to challenge the prior record score used or the weight of the heroin?
(3)In failing to file an appeal to the Superior Court on Defendant's behalf?
DISCUSSION:
Ineffective Assistance of Counsel
Pursuant to the Post Conviction relief Act, 42 Pa. C.S.A. Section 9543, to be
eligible for relief, the Petitioner must plead and prove by a preponderance of the
evidence his conviction or sentence resulted from one or more of the enumerated
errors in Section 9543 (a)(2). The burden of properly pleading and proving claims
or errors falls upon the Defendant. Commonwealth vs. Thomas, 44 A. 3rd 12 (pa.
2012).
To obtain relief on a claim of ineffective assistance of counsel, the Petitioner
must show (1) the underlying claim is of arguable merit; (2) no reasonable basis
existed for Counsel's action or inaction; and (3) counsel's error caused prejudice
such that there is a reasonable probability that the proceeding would have been
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different absent such error. Commonwealth vs. Dennis, 17 A 3 rd 297, 301 (Pa.
2011), citing Commonwealth vs. Pierce, 527 A 2 nd 973,975 (Pa. 1987).
In reviewing any particular claim of ineffectiveness, the Court need not
determine whether the first two prongs of this standard are met if the record shows
the Petitioner has not met the prejudice prong. Commonwealth vs. Travaglia. 541
Pa. 108,661 A. 2 nd 352, 357 (1995) cert. denied 516 U.S. 1121, 116 S.Ct. 931;
Commonwealth vs. Collins, 888A. 2 nd 564 (Pa. 2005). Further, it is clear that the
burden ofproying ineffe6tivellessofcounsel rests with the Petitioner because
counsel' sstewardshipoiJhetri~tispresumptivelyeffective. CommonwealthVs.·., •....
. .· · · · · · < a ' . '....... ". ". . ". .' .... . . . . . . . . .
Wilson, 54}Pa.. 429, 672A.2n 29J, cert. denied 519 U.S. 951,117 S. Ct. 364
(1996).
To sustain a claim of ineffectiveness, the Petitioner must prove that the
strategy employed by trial counsel "was so unreasonable that no competent lawyer
would have chosen that course of conduct." Commonwealth vs. Williams, 640 A.
2nd 1251, 1265 (pa. 1994).
The first issue raised by the Defendant asserts that trial counsel was
ineffective in preparation for trial. The Defendant alleges that trial counsel was
unprepared to proceed to trial.
The record is clear that trial counsel did request continuances of the April
23, 2012 trial date by motion on April 17, 2012 and April 18, 2012. In counsel's
motions, he contended that due to his heavy case load as a conflict counse~ he
required more time to prepare. Both requests were denied by the Court.
In the instant matter, Defendant's position is that, because trial counsel was
unprepared for trial and did not adequately consult with him to prepare possible
defenses, he felt coerced at the time of his plea hearing to enter a guilty plea.
However, at that hearing, the Defendant testified that it was his decision to plead
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guilty and that he was satisfied with the representation provided by counsel.
Consequently, the Defendant is bound by the statements made during the plea
colloquy and cannot now offer contradictory reasons for withdrawing his plea. A
defendant may not be pleased with the results of entering a guilty plea, but he
cannot now obtain relief by claiming he felt pressured by counsel to plead guilty.
Commonwealth v. Brown, 48 A.3 rd 1275 (Pa. Super. 2012).
However, the record is also clear, that on numerous occasions, trial counsel
met y{iththeDef~ndarir (NT 3 7) and that there were discussions al;>o.lltthecase, ,<
includii}g,th~ pr0r>,?sed'plea .offers. 'Further, trial counsel testifiea;:th.(;l~/in)iis
opihion,triar'was<not ih the Defehdant 's best interest and that Defendarit~nform~cr
. '. . ,".. . .". ."
him that he did not want to go to trial, but rather) wanted a better plea offer (NT 41,
54). In line therewith, the Defendant forwarded a letter to trial counsel indicating
that a guilty plea was in his best interest and requesting that the plea be
accomplished as quickly as possible (NT 41). (Hereinafter all designations "NT"
refer to the PCRA hearing of August 28,2013, and all references to "4/23/12" refer
to the guilty plea/sentencing hearing of April 23, 2012).
While trial counsel indicated he would have preferred to have more time to
prepare for trial, he testified that he could have tried the case, that the Defendant
did not want to go to trial, and further, that he did not pressure the Defendant, nor
threaten the Defendant, to take a plea. (NT 46-47). The record reveals that trial
counsel consulted with the Defendant on numerous occasions, discussed discovery,
potential witnesses, and the damaging testimony which could be anticipated at time
of trial. (NT 38-40). Defendant intelligently and knowingly entered the plea after
thorough consultation with trial counsel.
During the PCRA hearing, the Defendant testified in response to questions
from the Commonwealth's attorney concerning his guilty plea as follows:
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Q. Okay. You can't recall. But you remember entering a plea of guilty
that day, right?
A. Yes, I do, sir. (NT 27)
Q. As a matter of fact, do you remember during the course of that
guilty plea hearing that Judge Kenneth Brown had asked you whether or not
you had delivered heroin on certain dates, October 4th , 2010 being one of
those dates?
A. Right.
Q. And do you remember telling Judge Brown, yes?
A: Right . .. . . .• .... •
. .Q.;¥nd dd you remember Judge Brownaskirig YOllFh6therornbt you·
·.• deliv~redhetoin()notherdates? . ..
·A.(Notesponse.)
Q:'Anddoyouremember Judge Brownasking y()u?
A. Right.
Q. And do youremember telling Judge Brown, yes?
A. Right.
Q. Now, do you remember Judge Brown going through and
explaining to you what the elements of a corrupt organization were?
A. Yes.
Q. And do you remember Judge Brown telling you what the
Commonwealth is required to prove?
A. Right.
Q. And do you remember my colloquy saying this Defendant had
transported controlled substances from New Jersey to Luzerne County for
the purposes of distribution?
A. Right.
Q. And do you remember telling Judge Brown yes, I did that?
A. Yes.
(NT 28-29)
Q. Now did you ever during this time---during this time, did you ever
tell Judge Brown during the course of this guilty plea colloquy that you were
ever dissatisfied with your lawyer?
A.No.
(NT 30)
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The guilty plea colloquy in the instant matter inquired into the following
required areas:
1. The Defendant understood the nature of the charges to which he was
pleading guilty (NT 18-19,4/23112);
2. Therewas a factual basis for the plea (NT 19-29, 4/23/12);
3. The Defendant understood that he had the right to trial by jury (NT 8-10,
4/23112);
4. The Defendant was informed that he was presmned innocent until he was
found guilty (NT 8, 4/23112); . ' ..• ' ....... ....: ....• ..•.. . . .
5; The Defendant was aware of the permissibleial1geofsentences and!or -fines
for theoffenses charged (NT 10-12, 4/23/12); '" . .
.. .
. A Defendant is bound by the statements mad~ dJring-the ple~ colloquy, and
defendant may not later offer reasons for withdrawing the plea that contradict
statements made when he pled. Commonwealth v. McCauley, 797 A.2d 920, 922
(Pa. Super. 2001). Claims of counsel's ineffectiveness in connection with a guilty
plea will provide a basis for relief only if the ineffectiveness actually caused an
involuntary or unlmowing plea. Id.
The law does not require that a. defendant be pleased with the results of the
decision to enter a guilty plea; rather "[a]ll that is required is that [appellant's]
decision to plead guilty be knowingly, voluntarily, and intelligently made."
Commonwealth v. Moser, 921 A.2d 526, 528-29 (Pa. Super. 2007).
In his next issue, Defendant alleges that trial counsel was ineffective III
failing to challenge the prior record score used or the weight of the heroin at the
time of sentencing. This Court would merely note that the Defendant's sentencing
was a matter of agreement pursuant to the plea agreement entered into between the
Defendant and the Commonwealth. (NT 3-7, 04/23/12)(NT 72). Consequently in
that the Defendant received a sentence, including the RRRI minimum, negotiated
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between the parties, and further taking into consideration the guilty plea colloquy
before the trial judge, this Court finds that the Defendant's claim of ineffectiveness
based upon prior record score and weight to be without merit. Commonwealth v.
Brown, 982 A.2nd 1017 (Pa. Super 2009), Commonwealth v. Dalberto, 648 A2nd
16 (Pa. Super 1994).
The final issued raised by the Defendant is whether Counsel was ineffective
in failing to file an appeal on Defendant' s behalf.· The relief requested by the
Defendant is a reinstatement ofhis··direcr~ppealrights.:
," ' . .
Generally, failure to file a. requeste4dir~ct,a'ppealdeniesthe accused the
assistande of counsel and the tight to~clire~t.app~al~.andjn that instance, the
accused is entitled to reinstatement of direct appeal rights. Commonwealth v.
Mikell, 968 A.2d 779 (Pa. Super 2009); Commonwealth v. Lantzy, 736 A.2d 564
(Pa. 1999). In the instant matter, the Defendant testified that he instructed his trial
counsel to appeaL(NT 14-15). In response to that allegation, trial counsel testified
that the Defendant did not ask him to file an appeal. (NT 69). Trial counsel
testified that "usually before someone takes a plea, I explain to them their post
sentence rights. It is something I always explain. It's just standard practice." (NT
68-69) Further, in response to questioning from the. court, trial counsel testified
that he did not feel there was a meritorious basis for an appeal and again reiterated
that the Defendant never asked that an appeal be taken. (NT 76)
Before a court will find ineffectiveness of trial counsel for failing to file a
direct appeal, the appellant must prove that he requested an appeal and that counsel
disregarded this request. Commonwealth v. Harmon, 738 A.2d 1023 (Pa. Super
1999), appeal denied 753 A.2d 815 (Pa. 2000).
The Court finds that trial counsel was credible in his testimony that he was
never requested to file an appeal and further, that the Defendant has failed to
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' ..
convincingly support the contention that a request for an appeal was actually made
in this case. This Court holds that there was not an unjustified failure to file a
requested direct appeal and therefore the conduct of counsel did not fall beneath
the range of competence demanded of attorneys in criminal cases. Commonwealth
v. Lantzy, Supra.
As noted above, trial counsel testified that he explains to defendants their
post sentence rights prior to taking a plea. It is also noteworthy that the sentencing
court specifically setforth,theDefendaIlt,~:.post·sentencerights as follows:
THE COtJRT:bkay'.'Mr.l{6semberl,I'm obligated to go over your
appeal rights at thispointintirne; •... . . . .'
You have arigliftofileii±i()tionto this Court within ten days seeking
to convince the Court to change or modifY the sentence. That will be filed,
again, to this Court by your attorney seeking the change of sentence in some
way.
You have a right to file what's called a Post Sentence Motion to this
Court within ten days. That would raise any errors you feel were made in the
case, specifically sentencing since you plead guilty; and you would have a
right to file an appeal to the Pennsylvania Superior Court within 30 days.
Now, if you filed any niotion to this Court and they're denied, the 30
days starts to fun from the denial. If you decide to go directly to the Superior
Court, which you can do, you don't have to file any motion with this Court.
That 30-day period starts running from today.
The reason I stress that to you is that once the time deadlines go by,
you're giving up your right to further appeal the case.
Do you understand your Rights?
THE DEFENDANT: How can I still appeal a sentence if this is what
is written on a piece of paper?
THE COURT: Well, I didn't say it would be a good appeal.
THE DEFENDANT: Oh.
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THE COURT: A defendant can always raise an issue if you feel
there's some error. Obviously, if it's a plea agreement, you would be in a
tough position to claim, there is some abusive discretion of the Court.
If there is some issue that you or your attorney feels exist, then you
cart raise it. Okay? Do you understand?
THE DEFENDANT: I understand.
(NT 56-57, 4/23/12)
It.should also be .rioted that trial counsel testified that he did~off~eLther~
···was·ahy:me~itoriouSbasisforan appeal after the gUi1typle~inthatthe~Oli~hkd .
. juriscli6~ion, trial counsel was effective, the Defendant· had~6t rec6ive an" ill~gal
sentence, but rather had received the sentence that was agreed upon. (NT 76).
Commonwealth v. Boyd, 835 A.2nd 812 (Pa. Super 2003); Commonwealth v.
Brown, Supra. The Court finds that a rational Defendant would not want to appeal
as there were no non-frivolous grounds for appeal and this particular Defendant did
not reasonably demonstrate to counsel that he was interested in appealing.
Commonwealth v. Touw, 781 A.2d 1250 (Pa. Super 2001) citing Roe v. Flores-
Ortega, 528 U.S. 470 (2000).
Therefore, the Court finds that the Defendant's final contention that trial
counsel was ineffective in failing to file an appeal is without merit.
F or the reasons set forth above, the Defen9c
. /
/&( Petition is DENIED AND
/'L----_
DISMISSED.
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