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

v.

MATTHEW JOSEPH BIRD

Appellant : : : : : : : : : 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 f rom 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 Anders 1 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 origin ally sentenced him approximatel y 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 negotiation s on his behalf with the Commonwealth. Prior to

_________________ __________ ______ ____ _______ * Retired Senior Judge assigned to the Superior Court.

1 See Anders v. California , 386 U. S. 738 (1967).J

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the entry of a plea, Attorney Norton sent a letter to Bird, dated October 21, 2013 , wherein s he 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 an d 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 d iscussed 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 p ossession 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 G uidelines

. Id

. Bird executed a written ple a colloquy, on October 2 5, 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
R RRI program and for boot camp. Sentencing Hearing, 1/13/14 at 2. T he trial
court also inquired about whether a concurrent sentence was part of Bird’sJ

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plea agreement and both the Commonwealth and Attorney Norton indicated that it was not. Id

. Ultimately, t h e trial court sentenced B ird to 15 to 60 months’
incarcerati on . 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 s entence 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 languis hed for some time due to a lack of action by the P ublic D efender’s office. Finally, PCRA counsel filed a motion for a hearing in June 2016 , and an initial hearing was held in October 2016. Howev er, 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 stati ng that Bird’s appeal is frivolous. We

_________________ __________ ______ ____ _______ 2 Pursu ant 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.J

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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 me rit” 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 mu st 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 petitio ner 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 th e case, and, if the claims are without merit, permit counsel to withdraw. Id. Here, the b rief 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 i nstant Anders brief details PCRA counsel’s review of the cas e, describes the issues Bird desires to raise on appeal, and explains why counselJ

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believes those issues are frivolous (which presupposes that the issues are meritless); thus, it meets the Turner/F inley requirements. Furthermore, PCRA counsel has filed a c opy 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 “hir e 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 W ithdraw to the letter. Id. As counsel has met the preliminary , procedural requirements of Turner/Finley , we turn to whether ou r review indicates that Bird ’ s issues have merit. In his Anders brief, PCRA counsel identifies two issues for appeal: (1) “W hether 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) W hether 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 senten ce?” Anders brief at 7. 4 We begin by noting that, o ur review of a de nial of PCRA relief “ is limited to the findings of the PCRA court and the evidence of record, viewed in the

_________________ __________ ______ ____ _______ 4 At his PCRA hearing, Bird indicated that he was surprised to learn, upon his incarceration, that he would have to serv e “a two year back hit” in connection with the revocation of his state parole. PCRA hearing at 10.J

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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
P a.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 un derlying 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 satisf y 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 de pends on whether counsel’s advic e was within the range of competence demanded of attorneys in criminal cases.” Commonwealth v. Wa h , 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 provi ded false or misleading advice. Commonwealth v. Brandt , 74 A.3d 185 , 195

- 97 (Pa.Super. 2013).J

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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 Nort on, 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, B ird’s claim that his guilty plea was involuntary due to th e ineffective assistance of his trial counsel must fail. See Wa h , 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 sente nce 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, o u r own review of the record has uncove red no other
meritorious issues for appeal. Accordingly, we affirm the order of the PCRA court and grant PCRA c ounsel’s Petition to Withdraw. Order affirmed. Petition to Withdraw Granted.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5 /22/2019