Com. v. Johnson, D.

J-S37038-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

DARRYL JOHNSON :

:

Appellant : No. 3586 EDA 2017

Appeal from the PCRA Order September 29, 2017

In the Court of Common Pleas of Delaware County Criminal Division at

No(s): CP-23-CR-0000835-2013

BEFORE: OLSON, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 24, 2018

Appellant Darryl Johnson appeals from the order of the Court of

Common Pleas of Delaware County dismissing his petition pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Defense counsel

has filed a petition to withdraw his representation. After careful review, we

grant counsel’s request to withdraw and affirm the PCRA court’s order.

On October 19, 2012, Appellant and his co-defendant, Phillip Freeman,

were arrested in connection with the armed robbery of the victim, David Davis.

After a jury trial on February 4-6, 2014, the jury convicted Appellant of

conspiracy to commit robbery (threaten serious bodily injury) and firearms

not to be carried without a license. The trial court convicted Appellant of

persons not to possess a firearm.

On April 24, 2014, Appellant received an aggregate sentence of 54-120

months’ incarceration to be followed by ten years’ probation. After Appellant

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* Former Justice specially assigned to the Superior Court.

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filed a timely appeal, this Court affirmed the judgment of sentence on

February 2, 2015.

On December 14, 2015, Appellant filed a pro se PCRA petition. The

PCRA court appointed Scott D. Galloway, Esq. to represent Appellant. After

receiving several time extensions, counsel filed an amended PCRA petition on

March 15, 2017, claiming Appellant’s trial counsel was ineffective for failing to

make a purported plea deal known to Appellant. The Commonwealth lodged

an answer in which it cited to notes of testimony from the April 1, 2013 hearing

during which Appellant was informed on the record of the Commonwealth’s

negotiated guilty plea offer.

On May 11, 2017, the PCRA court entered an order notifying Appellant

of its intent to dismiss his petition without a hearing pursuant to Pa.R.Crim.P.

907. On June 1, 2017, Appellant filed a response to the Rule 907 notice,

arguing, inter alia, that PCRA counsel was ineffective for failing to raise several

other allegations of trial counsel’s ineffectiveness. On July 20, 2017, the PCRA

court held a hearing that focused on Appellant’s assertions of PCRA counsel’s

ineffectiveness for not raising certain issues.1

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1 As Appellant was represented by counsel, the PCRA court was not required

to consider the issues that Appellant raised in his pro se Petition. It is well-

established that a criminal defendant “represented by counsel is not entitled

to ‘hybrid representation’— i.e., he cannot litigate certain issues pro se while

counsel forwards other claims.” Commonwealth v. Tedford, 598 Pa. 639,

960 A.2d 1, 10 n. 4 (2008). See Commonwealth v. Pursell, 555 Pa. 233,

724 A.2d 293, 302 (1999) (holding that “the decision whether to allow such

hybrid representation is within the sound discretion of the trial court … [w]e

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On July 26, 2017, the PCRA court entered an order notifying Appellant

of its intent to dismiss the claims raised in his pro se response. The PCRA

court granted Appellant’s request for additional time to respond to the more

recent notice of dismissal. On September 21, 2017, Appellant filed a response

to this more recent Rule 907 notice. On September 29, 2017, the PCRA court

filed an order dismissing Appellant’s amended PCRA petition filed by counsel

and his pro se responses to the Rule 907 notice.

On October 27, 2017, Appellant filed a timely, counseled appeal through

Atty. Galloway, who complied with the PCRA court’s direction to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Thereafter, however, Atty. Galloway filed a petition to withdraw his

representation and a brief relying on Anders v. California, 386 U.S. 738, 87

S.Ct. 1396, 18 L.Ed. 493 (1967). Appellant did not submit a filing to respond

to counsel’s request to withdraw his representation.

As an initial matter, we must evaluate counsel’s petition to withdraw his

representation:

Counsel petitioning to withdraw from PCRA representation must

proceed ... under [Commonwealth v. Turner, 518 Pa. 491, 544

A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213

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will not require courts considering PCRA petitions to struggle through the pro

se filings of defendants when qualified counsel represents those defendants”);

see also Commonwealth v. Williams, 151 A.3d 621, 623 (Pa.Super. 2016)

(indicating “[i]n this Commonwealth, hybrid representation is not permitted....

indeed, pro se motions have no legal effect and, therefore, are legal nullities);

Commonwealth v. Willis, 29 A.3d 393, 400 (Pa.Super. 2011) (finding the

PCRA court erred by allowing permitting dual representation during the

disposition of the petitioner's PCRA petition).

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(Pa.Super. 1988)] 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.

Where 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) (quoting

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007)).

We note that defense counsel has filed his petition to withdraw on the

basis of frivolity pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed.2d 493 (1967). Although Anders briefs are filed by counsel

who wish to withdraw on direct review, we will accept counsel’s Anders brief

in lieu of a Turner-Finley letter, as an Anders brief provides greater

protection to criminal defendants. See Commonwealth v. Fusselman, 866

A.2d 1109, 1111 n.3 (Pa.Super. 2004).

After reviewing the record and counsel’s petition to withdraw, we find

that PCRA counsel has complied with the technical requirements of Turner

and Finley, supra. In his appellate brief, PCRA counsel detailed the nature

and extent of his review, listed an issue of arguable merit, and explained why

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he believed the claim was frivolous. Counsel indicated that after his own

independent review of the record, he could not identify any meritorious issues

that he could raise on Appellant’s behalf. Moreover, counsel attached his letter

to Appellant specifically indicating that he believed that the appeal was wholly

frivolous for the reasons set forth in his brief and notifying him of his right to

raise additional points for consideration by proceeding pro se or with the

assistance of privately retained counsel. See Commonwealth v. Muzzy,

141 A.3d 509, 511 (Pa.Super. 2016) (citing Commonwealth v. Friend, 896

A.2d 607 (Pa.Super. 2006)).

We now consider the issue of arguable merit PCRA counsel presents in

his brief to ascertain whether it entitles Appellant to relief. In reviewing the

lower court’s decision to deny Appellant’s PCRA petition, we examine whether

the PCRA court's determination “is supported by the record and free of legal

error.” Commonwealth v. Mitchell, 636 Pa. 233, 244, 141 A.3d 1277,

1283–84 (2016) (citations omitted). In order to be eligible for PCRA relief,

the petitioner must prove by a preponderance of the evidence that his

conviction or sentence resulted from one or more of the enumerated

circumstances found in 42 Pa.C.S. § 9543(a)(2), which includes the ineffective

assistance of counsel.

“It is well-established that counsel is presumed effective, and to rebut

that presumption, the PCRA petitioner must demonstrate that counsel's

performance was deficient and that such deficiency prejudiced him.”

Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 132 (2012) (citing

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Strickland v. Washington, 466 U.S. 688, 687-91 (1984)). To prevail on an

ineffectiveness claim, the petitioner has the burden to prove that “(1) the

underlying substantive claim has arguable merit; (2) counsel whose

effectiveness is being challenged did not have a reasonable basis for his or

her actions or failure to act; and (3) the petitioner suffered prejudice as a

result of counsel's deficient performance.” Commonwealth v. Sneed, 616

Pa. 1, 17, 45 A.3d 1096, 1106 (2012) (quoting Commonwealth v. Pierce,

567 Pa. 186, 786 A.2d 203, 213 (2001)). “A petitioner establishes prejudice

when he demonstrates “that there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different.” Commonwealth v. Johnson, 600 Pa. 329, 345–46, 966 A.2d

523, 532–33 (2009) (quoting Strickland, 466 U.S. at 694). The failure to

satisfy any one of the three prongs will cause the entire claim to fail. Sneed,

616 Pa. at 18, 45 A.3d at 1106 (citation omitted).

In the amended petition, PCRA counsel contended that trial counsel was

ineffective in failing to communicate to Appellant a plea offer conveyed by the

Commonwealth prior to trial. This Court has held that a defendant may

establish a claim of ineffectiveness of counsel when defense counsel does not

fulfill the “duty to communicate formal offers from the prosecution to accept

a plea on terms and conditions that may be favorable to the defendant.”

Commonwealth v. Hernandez, 79 A.3d 649, 653 (Pa.Super. 2013) (quoting

Missouri v. Frye, 566 U.S. 134, 145, 132 S.Ct. 1399, 1408 (2012)).

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However, our review of the record clearly refutes any claim that

Appellant was not fully advised of the prosecution’s plea offer. At a hearing

held on April 1, 2013, the prosecution placed the specific terms of its plea

offer on the record in open court, along with its intent to pursue an additional

charge under the Uniform Firearms Act (persons not to possess firearms; 18

Pa.C.S.A. § 6105) if Appellant chose to decline the plea offer. Thereafter,

both the trial court and trial counsel discussed this plea agreement with

Appellant in open court to ensure that Appellant understood its terms and the

potential consequences of rejecting the agreement, proceeding to trial, and

facing sentencing upon conviction of the proposed charges. The following

exchange occurred at the April 1, 2013 hearing:

[Prosecutor:] … [T]he Commonwealth would like to place the

offers on the record … As regards to [Appellant], we would ask

that he plead guilty to Information number five, conspiracy to

commit robbery, a felony of the first degree. The recommended

sentence would be three and a half to seven years concurrent with

Information number eight. Restitution in the amount of $41 to

Mr. Davis, again joint and several with Mr. Freeman. And we

would ask that he submit a DNA sample. As indicated we would

ask [Appellant] to plead guilty to Information number eight, which

is firearms not to be carried without a license. It is a felony of the

third degree. The recommended sentence would be three and a

half to seven years. As I have indicated to defense counsel if

[Appellant] were not to accept this offer, the Commonwealth

would seek leave to amend the information. [Appellant] is a

person not to possess. And his guidelines for that offense would

be 60 to 60, he would be starting at five years there. That

concludes the two offers made to [Appellant], Your Honor. And

the Commonwealth would leave them both open until the next

listing.

[Trial Court:] [Defense counsel,] have you explained the offer to

your client?

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[Trial counsel:] Your Honor[,] earlier this afternoon there was no

offer, so this is the first time [Appellant] is hearing of the offer.

But just to clarify, [Appellant] one thing that the Commonwealth

stated was that this offer will remain open until the next – until

your trial date. Should you choose not accept this offer, they will

[amend the information] to add a charge. The charge of person

not to possess a firearm. The guidelines for that offer start at 60

months or five years. So this is certainly a material thing that you

and I had not discussed. So I just wanted to make sure you

understood what the DA is referring to when he provided that

offer. Do you understand that?

[Appellant:] Yes.

[Trial counsel:] And you understand that the offer is three and a

half to seven years on the firearms not to be carried without a

license charge?

[Appellant:] Yes.

[Trial counsel:] And a concurrent three and a half to seven years

on a conspiracy to robbery charge?

[Appellant:] Yes.

[Trial counsel:] And those charges are concurrent, so they would

be running at the same time. Do you understand that?

[Appellant:] Yes. I ain’t taking it though.

[Trial counsel:] Okay.

[Trial court:] And if the offer is rejected and we proceed to trial[,]

is the Commonwealth going to be seeking consecutive, rather than

concurrent sentences?

[Prosecutor:] Most likely, Your honor. Yes.

[Trial court:] So [Appellant,] to have an idea where you stand. If

you go to trial and you are convicted, I am required to consider

not only mandatory minimum sentences, but also sentencing

guidelines. I don’t know what your guidelines are. On the charges

where there is no mandatory minimum, the guidelines would be

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computed based on the seriousness of the offenses, and these are

serious offenses, they are felonies. One of them being a felony of

the first degree and your prior record. I don’t know your prior

record, but that would have a bearing. In any event, if you decide

to reject the offer, the Commonwealth will be seeking at least one

mandatory minimum sentence, and that would be five to ten

years. And then the Commonwealth has indicated that it will in

all likelihood be seeking separate and consecutive sentences on

the other offenses. Do you understand that?

[Appellant:] Yes.

[Trial counsel:] Do you have any questions about it?

[Appellant:] No.

[Prosecutor:] And your Honor just to follow up on what you said,

I have made a copy of his guidelines. For counts three, five, and

eight just for illustration. And I have given a copy to [trial

counsel]. As you indicated [Appellant] does have a prior record

score of five, so that has contributed to the inflated guideline

ranges.

[Trial court:] What are the guidelines on count five and eight?

[Prosecutor:] Well on count five the standard range is 66 to 78

months, Your Honor. On count eight his standard range is 42 to

42.

[Trial Court:] So the Commonwealth’s offer to you, [Appellant],

is considerably below your standard range guidelines. Do you

understand that?

[Appellant:] Yes.

[Trial court:] Do you have any questions about the guidelines?

[Appellant:] No.

***

[Trial court:] The offers will remain open until the trial date which

will be April 22nd.

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[Trial counsel:] Your Honor, may I just explain to [Appellant] what

the charge of person not to possess a firearm is? I don’t think he

understands.

[Trial court:] Yes.

[Trial counsel:] The charge that the Commonwealth is

threatening to add at the next listing is a charge called persons

not possess a firearm. Meaning that if you have a prior conviction

-- if you have a certain prior conviction in this case a prior felony

conviction, you cannot possess a firearm. The guidelines for that

charge along start at five years, five to ten years. You are

currently not charged with that, however they are going to seek

to amend to add that charge. Do you understand?

[Appellant:] Yes.

N.T. Hearing, 4/1/13, at 3-9, 13-14.

After the terms of the agreement were clearly explained to Appellant on

the record, Appellant confirmed that he understood the agreement and

indicated that he had no questions regarding the offer. Thereafter, Appellant

rejected the plea agreement and proceeded to trial.

Accordingly, based on our review of the record, there is no basis to claim

that trial counsel was ineffective in failing to advise Appellant of the plea

agreement offered by the Commonwealth that had terms favorable to

Appellant.

As a result, our own review of the case to consider whether the PCRA

court erred in dismissing Appellant’s petition reveals no non-frivolous issues

of arguable merit. We, therefore, grant counsel’s Petition to Withdraw and

affirm the PCRA court’s order dismissing Appellant’s petition.

Petition to Withdraw as Counsel granted. Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/24/18

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