J-S07028-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MATTHEW JOSEPH BIRD 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 943 MDA 2018

Appeal from the PCRA Order Entered May 1, 2018

In the Court of Common Pleas of Northumberland County Criminal 

Division at No(s): CP-49-CR-0000972-2013

BEFORE: OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED: MAY 22, 2019

Matthew Bird appeals from the order denying his Petition filed under the 

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Bird’s PCRA 

counsel has filed a Petition to Withdraw and an Anders1 brief. We affirm the 

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

In September 2013, Bird was on state parole for a conviction for which 

the trial court had originally sentenced him approximately 1 to 7 years’ 

imprisonment, when he was charged with six new drug-related offenses.

Melissa Norton, Esquire of the Public Defender’s office, represented Bird and 

engaged in plea negotiations on his behalf with the Commonwealth. Prior to 

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* Retired Senior Judge assigned to the Superior Court.

1 See Anders v. California, 386 U.S. 738 (1967). 
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the entry of a plea, Attorney Norton sent a letter to Bird, dated October 21, 

2013, wherein she wrote:

In response to your recent correspondence I will request that the 

district attorney consider recommending that your sentence on 

the above case run concurrent to the sentences you are now 

serving. However, please be aware that the Court of Common 

Pleas cannot, by law, run a sentence concurrent to a state 

revocation sentence. The dockets do not indicate that you are 

serving a revocation sentence, but the dockets are not always 

current and reliable sources of information. I am sure you know if 

you are currently serving a revocation sentence. 

Attorney Norton’s Letter to Bird, 10/21/13 (emphasis in original); Tr. Ct. Op., 

5/1/18, at 2. 

Prior to a plea, the record reflects that Bird discussed his eligibility and 

desire for the Recidivism Risk Reduction Incentive (“RRRI”) program and Boot 

Camp. Guilty Plea Hearing, 11/4/13, at 2. Ultimately, Bird entered a guilty 

plea agreement where he agreed to plead guilty to one count of possession 

with intent to deliver a controlled substance, with the remaining counts to be 

nolle prossed and with his sentence to fall within the bottom section of the 

standard range of the Sentencing Guidelines. Id. Bird executed a written plea 

colloquy, on October 25, 2013, and on November 4, 2013, he entered his 

guilty plea before the trial court. During a January 13, 2014 sentencing 

hearing, Attorney Norton indicated that Bird was seeking eligibility for the 

RRRI program and for boot camp. Sentencing Hearing, 1/13/14 at 2. The trial 

court also inquired about whether a concurrent sentence was part of Bird’s 
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plea agreement and both the Commonwealth and Attorney Norton indicated 

that it was not. Id. 

Ultimately, the trial court sentenced Bird to 15 to 60 months’ 

incarceration. Id. at 4. However, the court determined that Bird was eligible 

for boot camp and the RRRI program, thereby reducing his minimum 

incarceration term to slightly under a year. Id. The court attempted to make 

Bird’s new sentence concurrent but to no avail because his former sentence 

was a state revocation sentence Id.2

Although he did not file a direct appeal, Bird filed a timely, pro se PCRA 

petition in October 2014. We note with disapproval that Bird’s petition 

languished for some time due to a lack of action by the Public Defender’s 

office. Finally, PCRA counsel filed a motion for a hearing in June 2016, and 

an initial hearing was held in October 2016. However, a full hearing was not 

conducted until April 30, 2018,

3 and the PCRA court finally denied Bird’s 

petition on May 1, 2018.

Bird filed the instant timely appeal and a Pa.R.A.P. 1925(b) statement. 

However, in this Court, Bird’s PCRA counsel filed a Petition to Withdraw as 

counsel as well as an Anders brief stating that Bird’s appeal is frivolous. We 

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2 Pursuant to 61 Pa.C.S.A. 6138(a)(5.1), when a defendant’s state parole is 

revoked as a result of a new conviction, the defendant must serve the balance 

of his original term before serving a new sentence. 

3 At his PCRA hearing, Bird indicated that he is still serving parole in connection 

with the instant case. PCRA hearing, 4/30/18, at 10.
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review the Petition to Withdraw prior to reaching the merits of Bird’s claims. 

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

Counsel requesting to withdraw from PCRA representation must file a 

“no merit” brief that conforms to the requirements of Commonwealth v. 

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 

213 (Pa.Super. 1988) (en banc). See Commonwealth v. Muzzy, 141 A.3d 

509, 510-11 (Pa.Super. 2016). A Turner/Finley brief must detail “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.” Id. Counsel must send the 

petitioner a copy of the brief, a copy of counsel’s petition to withdraw, and “a 

statement advising petitioner of the right to proceed pro se or by new 

counsel.” Id. at 511. If counsel fulfills these requirements, then this Court 

must conduct its own review of the case, and, if the claims are without merit, 

permit counsel to withdraw. Id.

Here, the brief that PCRA counsel filed is styled as an Anders brief, 

which is proper in a direct appeal, rather than a Turner/Finley brief. 

However, because an Anders brief, which alleges that the issues are frivolous, 

rather than meritless, affords greater protection to a defendant, we may 

accept an Anders brief in lieu of a Turner/Finley brief. See 

Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa.Super. 2011).

The instant Anders brief details PCRA counsel’s review of the case, 

describes the issues Bird desires to raise on appeal, and explains why counsel 
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believes those issues are frivolous (which presupposes that the issues are 

meritless); thus, it meets the Turner/Finley requirements. Furthermore, 

PCRA counsel has filed a copy of a letter he sent to Bird wherein he explains 

that he finds Bird’s issues lack merit but advised him that he could proceed 

pro se, or “hire an attorney at your own expense,” to file a brief on his behalf. 

Letter to Bird, dated January 16, 2019. PCRA counsel indicated that he 

attached a copy of his Anders brief and Petition to Withdraw to the letter. Id. 

As counsel has met the preliminary, procedural requirements of 

Turner/Finley, we turn to whether our review indicates that Bird’s issues 

have merit. 

In his Anders brief, PCRA counsel identifies two issues for appeal: (1) 

“Whether counsel for [Bird] at the time of the entry of the plea was ineffective 

in failing to advise him that his negotiated sentence could not be served 

concurrently with his state revocation sentence? and (2) Whether the [PCRA]

court erred in determining that [Bird’s] plea was not unlawfully induced when 

[Bird] entered a plea with the erroneous but good faith expectation that his 

sentence would be served concurrently with his state parole sentence?” 

Anders brief at 7.4

We begin by noting that, our review of a denial of PCRA relief “is limited 

to the findings of the PCRA court and the evidence of record, viewed in the 

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4 At his PCRA hearing, Bird indicated that he was surprised to learn, upon his 

incarceration, that he would have to serve “a two year back hit” in 

connection with the revocation of his state parole. PCRA hearing at 10.
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light most favorable to the prevailing party at the PCRA court level.” 

Commonwealth v. Medina, 92 A.3d 1210, 1214 (Pa.Super. 2014) (en 

banc). We are bound by any credibility determinations made by the PCRA 

court and supported by the record, but apply a de novo standard of review to 

the PCRA court’s legal conclusions. Id. at 1214-15.

Ineffective assistance is a cognizable claim under the PCRA. See 42 

Pa.C.S.A. § 9543(a)(2)(ii). “Counsel is presumed effective, and [a petitioner] 

has the burden of proving otherwise.” Commonwealth v. Brown, 161 A.3d 

960, 965 (Pa.Super. 2017). To overcome this presumption, a petitioner must 

plead and prove that: “(1) the underlying claim has arguable merit; (2) 

counsel had no reasonable basis for his or her action or inaction; and (3) the 

petitioner suffered prejudice because of counsel’s ineffectiveness.” 

Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011). Failing to satisfy 

even one of these factors requires this Court to reject the claim. 

Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa. 2008).

Where a defendant enters a guilty plea on advice of counsel, “the 

voluntariness of the plea 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, 338-39 (Pa.Super. 2012). Further, a 

defendant’s lack of understanding of the collateral consequences of a guilty 

plea does not render such plea involuntary unless counsel provided false or 

misleading advice. Commonwealth v. Brandt, 74 A.3d 185, 195-97

(Pa.Super. 2013). 
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In the case sub judice, the crux of both of Bird’s potential issues lies in 

his contention that his trial counsel, Attorney Norton, improperly led him to 

believe that the trial court could impose a sentence to be served concurrently 

with the state parole he was then serving. However, as noted above, Attorney 

Norton clearly informed Bird, in writing, that a state revocation sentence could 

not be served concurrently with his new sentence. Thus, there is no arguable 

merit to the claim that trial counsel was ineffective for failing to impart this 

information to Bird. Therefore, Bird’s claim that his guilty plea was involuntary

due to the ineffective assistance of his trial counsel must fail. See Wah, 42 

A.3d at 338-39; Brandt, 74 A.3d at 195-97. 

Likewise, Bird’s claim that he entered a plea only in anticipation of a 

concurrent sentence is also belied by the record because the terms of his 

written guilty plea colloquy did not contain any mention of a concurrent 

sentence, nor did Bird’s trial counsel require as much during Bird’s sentencing 

hearing. Thus, Bird’s second issue also does not merit relief. 

Further, our own review of the record has uncovered no other 

meritorious issues for appeal. Accordingly, we affirm the order of the PCRA 

court and grant PCRA counsel’s Petition to Withdraw. 

Order affirmed. Petition to Withdraw Granted. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/22/2019