J-S66044-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ANTHONY MICHAEL BALLARD

Appellant No. 309 MDA 2016

Appeal from the PCRA Order January 22, 2016

In the Court of Common Pleas of Schuylkill County

Criminal Division at No(s): CP-54-CR-0001234-2013

BEFORE: BOWES, J., PANELLA, J., and JENKINS, J. 

MEMORANDUM BY JENKINS, J.: FILED SEPTEMBER 23, 2016

Anthony Michael Ballard (“Appellant”) appeals from the order entered 

in the Schuylkill County Court of Common Pleas, which dismissed his petition 

filed for relief pursuant to the Post Conviction Relief Act (“PCRA”).1 We 

affirm and grant counsel’s petition to withdraw.

The PCRA court set forth the relevant facts and procedural history of 

this appeal as follows:

[A]ppellant was charged with first degree murder and 

conspiracy in the shooting death of an unarmed young 

man. He and his counsel negotiated a plea agreement with

the [Commonwealth] which was submitted to the [c]ourt 

on September 19, 2014. The agreement provided that the 

first degree murder charge would be nol prossed and that

a charge of third degree murder would be amended to the 

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1 42 Pa.C.S. §§ 9541-9546.
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information. [Appellant] was to plead guilty to the third 

degree murder charge and receive a sentence of 15 to 30 

years. He was also to plead to conspiracy and receive a 

concurrent sentence of 91⁄2 to 19 years.

The [c]ourt advised the parties that the recommended 

sentence was unacceptable, and [Appellant] advised the 

[c]ourt that he did not want to go forward with an open 

plea and withdrew his petition to enter a plea of guilty.

On October 16, 2014, [Appellant] presented the [c]ourt 

with a new petition to enter a plea of guilty. This was also 

a negotiated plea. The plea was accepted after conducting 

a plea colloquy which included informing [Appellant] that 

he was pleading guilty to third degree murder and 

conspiracy to commit that crime. The plea agreement was 

also reviewed with [Appellant], and he acknowledged his 

understanding that the agreement called for him to receive 

a sentence of 15 to 30 years for third degree murder and a 

consecutive sentence of 91⁄2 to 19 years for conspiracy. It 

was further explained that his total sentence would be 

241⁄2 to 49 years.

No [direct] appeal was taken, but on September 15, 2015, 

[Appellant] filed a petition for post-conviction relief. 

Counsel was appointed and an extension of time was 

allowed for filing an amended petition. Counsel filed an 

amended petition stating five general “theories” with no 

specific allegations.

At the PCRA hearing on January 21, 2016, when counsel 

for the Commonwealth objected to the lack of specificity in 

[Appellant’s] petition, PCRA counsel stated that [A]ppellant 

was advised by trial counsel at the time of his plea that the 

conspiracy charge would merge into the third degree 

murder charge so there would be no additional sentence to 

be served for conspiracy. The Commonwealth indicated no 

prejudice should [A]ppellant be allowed to make an oral 

amendment to his petition, and the amendment was 

allowed.

Appellant testified that the original plea agreement calling 

for a sentence of 15 to 30 years was rejected by the 

[c]ourt, and then the Commonwealth made a new offer of 
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15 to 30 years “plus the 9 and a half to 19”. (PCRA hearing 

1/21/16[,] p. 11). He went on to claim that he did not 

understand the difference between consecutive and 

concurrent and that he believed that his total sentence was 

to be 15 to 30 years. He also acknowledged that, after the 

first plea agreement was rejected, his trial counsel told 

him that the Commonwealth wanted more time than the 

15 to 30 years. (PCRA hearing[,] 1/21/16[,] p. 16). 

Appellant further insisted in his testimony that trial counsel 

and the [c]ourt told him that his total sentence would be 

15 to 30 years.

These claims were refuted both by trial counsel’s testimony 

and [A]ppellant’s guilty plea colloquy wherein the [c]ourt 

specifically explained to [A]ppellant that his total sentence 

would be 241⁄2 to 49 years. (Guilty plea[,] p. 1). This 

[c]ourt found [A]ppellant’s claims to be meritless and 

denied his petition for relief. An order was filed the same 

day, January 21, 2016.

On February 24, 2016, appellant filed a pro se notice of 

appeal. On March 2, 2016, [A]ppellant was ordered to file 

a concise statement of matters complained of on appeal. 

Appellant was provided with transcripts of the PCRA and 

sentencing proceedings and granted an extension to 

provide his concise statement. A second extension was 

also allowed.

On April 27, 2016, the Superior Court entered an order 

discharging a previous show cause order dated March 30, 

2016, which was directed to Appellant and PCRA counsel. 

The April 27 order also reminded PCRA counsel that he was 

still counsel of record and Appellant that he may only act 

through counsel. On May 3, 2016, PCRA counsel filed a 

motion to withdraw as counsel. This Court ordered PCRA 

counsel to file a Finley[2] letter and include an explanation 

of his compliance with Pa.R.Crim.P. 904(F)(2). On May 13, 

2016, PCRA counsel filed a copy of what he designated as 

a “Finley letter” and had sent to [A]ppellant.

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2 Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988) (en banc).
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P.C.R.A. Court Pa.R.A.P. 1925(a) Opinion, filed June 7, 2016, at 1-4. 

In the Finley letter, counsel advised Appellant that he had filed a 

motion to withdraw and that “[i]f the Court were to permit [him] to 

withdraw as counsel, [Appellant] would have the right to proceed pro se or 

to hire private counsel to represent [him].” The PCRA court then ordered 

counsel to file an “Anders3” brief with this Court. Counsel then sent 

Appellant an additional letter requesting him to send proof to the PCRA court 

to show when his appeal was placed into the hands of the prison authorities, 

and, pursuant to the prisoner mailbox rule, timely filed. The letter asked 

Appellant to “respond to this letter with a detailed description of what issues 

you feel are appropriate for [a]ppeal.” On July 7, 2016, Appellant filed a 

time stamped copy of a cash slip requesting postage from the Department of 

Corrections to prove when he mailed the notice of appeal along with a 

response to counsel’s letter. Appellant’s response indicated that he was not 

pleased with counsel’s decision to withdraw or his opinion that his claims 

were meritless. He continued to assert in this letter that his sentence was 

illegal.

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3 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 

(1967). Prior to withdrawing as counsel on a direct appeal under Anders, 

counsel must file a brief that meets the requirements established by our 

Supreme Court in Commonwealth v. Santiago, 978 A.2d 349 (Pa.2009). 

Counsel seeking to withdraw representation on a collateral appeal must 

follow the mandates of Commonwealth v. Turner, 544 A.2d 927 (Pa.1988) 

and Finley, supra.
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Before we address Appellant’s claims on appeal, we must determine 

whether we have jurisdiction to hear this appeal. 

The timeliness of an appeal and compliance with the 

statutory provisions granting the right to appeal implicate 

an appellate court’s jurisdiction and its competency to act. 

Absent extraordinary circumstances, an appellate court 

lacks the power to enlarge or extend the time provided by 

statute for taking an appeal. Thus, an appellant’s failure to 

appeal timely an order generally divests the appellate 

court of its jurisdiction to hear the appeal. 

Commonwealth v. Williams, 106 A.3d 583, 587 (Pa.2014) (internal 

citations omitted).

The Rules of Appellate Procedure provide, in relevant part:

Rule 3304. Hybrid Representation

Where a litigant is represented by an attorney before the

Court and the litigant submits for filing a petition, motion, 

brief or any other type of pleading in the matter, it shall 

not be docketed but forwarded to counsel of record.

Pa.R.A.P. 3304.

The Published Internal Operating Procedures of the Superior Court 

provide:

§ 65.24. Hybrid Representation.

Where a litigant is represented by an attorney before 

the Court and the litigant submits for filing a petition, 

motion, brief or other type of pleading in the matter, it 

shall not be accepted for filing, but noted on the docket 

and forwarded to counsel of record.

Exceptions:
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1. A pro se notice of appeal received from the trial court 

shall be docketed, even in instances where the pro se was 

represented by counsel in the trial court.

210 Pa. Code § 65.24.

Here, the PCRA court denied Appellant’s petition for relief on January 

21, 2016. He was, at that time, represented by counsel. On February 18, 

2016, Appellant filed a pro se notice of appeal.4 The clerk of courts docketed 

the appeal, but failed to forward Appellant’s pro se filing to his attorney. 

The PCRA court then ordered Appellant to file a concise statement of errors 

pursuant to Pa.R.A.P. 1925(b), instead of directing counsel to file such a 

statement. Appellant did not file a concise statement.

Although Appellant did not file a Pa.R.A.P. 1925(b) statement, we 

decline to quash this appeal because we find there has been a breakdown in 

the court’s operation, specifically, the court’s failure to forward Appellant’s 

pro se notice of appeal to counsel and its failure to direct counsel to file a 

Rule 1925(b) statement. See Commonwealth v. Leatherby, 116 A.3d 73, 

79 (Pa.Super.2015) (“[An appellant] should not be precluded from appellate 

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4 Although Appellant’s notice of appeal was not stamped as filed until 

February 24, 2016, pursuant to the prisoner mailbox rule, Appellant’s pro se 

filing would be considered filed February 18, 2016, the day he placed it in 

the hands of the prison authorities. See Commonwealth v. Patterson, 

931 A.2d 710, 714 (Pa.Super.2007) (“Pursuant to the prisoner mailbox rule, 

we deem a document filed on the day it is placed in the hands of prison 

authorities for mailing.”). 
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review based on what was, in effect, an administrative breakdown on the 

part of the trial court.”). 

Next, we must determine whether PCRA counsel has complied with the 

technical requirements of Turner and Finley. See Commonwealth v. 

Freeland, 106 A.3d 768, 774 (Pa.Super.2014).

Counsel petitioning to withdraw from PCRA representation 

must proceed under [Turner/Finley 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) (citations 

omitted). 

Here, counsel filed a petition to withdraw and submitted a “no merit” 

brief5to this Court in which he stated that he had conducted a review of the 

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5 Technically, counsel filed a “no merit” brief pursuant to Anders and

Santiago instead of filing a brief pursuant to Turner and Finley. “Because 

an Anders brief provides greater protection to a defendant, this Court may 

(Footnote Continued Next Page)
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record and applicable law and concluded that the appeal was wholly 

frivolous. See No Merit Brief at 7. In his brief, counsel stated: “legal 

research and extensive criminal trial practice experience revealed that it was 

permissible for the [c]ourt to sentence [Appellant] to consecutive sentences 

under the circumstances of the case. Counsel in its examination of the case 

was unable to substantiate any foundation for any of the five theories 

outlined in [Appellant’s] PCRA [p]etition.”. Id. at 5. Counsel supplied a copy 

of the letter to Appellant along with his petition to withdraw. Although 

counsel erroneously advised Appellant of his right to proceed pro se or with 

privately retained counsel if the court granted his petition to withdraw,6

counsel then remedied the error by sending Appellant another letter 

requesting that he detail the description of issues he wished to raise on 

appeal, and Appellant complied. This constitutes substantial compliance 

with the mandates of Turner/Finley, and we will now address the merits of 

Appellant’s claims.

Our standard of review is well-settled. “In reviewing the denial of 

PCRA relief, we examine whether the PCRA court’s determination is 

supported by the record and free of legal error.” Commonwealth v. Fears, 

(Footnote Continued) _______________________

accept an Anders brief in lieu of a Turner/Finley letter.” Commonwealth 

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

6 Counsel should have informed Appellant that he enjoyed these rights 

whether or not the court granted counsel’s petition to withdraw.
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86 A.3d 795, 803 (Pa.2014) (internal quotation marks and citation omitted). 

“The scope of review is limited to the findings of the PCRA court and the 

evidence of record, viewed in the light most favorable to the prevailing party 

at the trial level.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.2014) 

(citation omitted). “It is well-settled that a PCRA court’s credibility 

determinations are binding upon an appellate court so long as they are 

supported by the record.” Commonwealth v. Robinson, 82 A.3d 998, 

1013 (Pa.2013) (citation omitted). However, this Court reviews the PCRA 

court’s legal conclusions de novo. Commonwealth v. Rigg, 84 A.3d 1080, 

1084 (Pa.Super.2014) (citation omitted). 

Appellant alleged, in his PCRA petition and in his response to counsel’s 

letter, that his sentence was illegal. In his PCRA petition, he argues that, 

because his plea agreement with the Commonwealth called for his sentences 

to run concurrently, the court violated the terms of his agreement by 

imposing his sentences consecutively to the sentence he was already 

serving, resulting in an illegal sentence. 

First, we must determine whether Appellant’s claim challenges the 

legality of his sentence.

[O]ur case law draws a careful distinction between truly 

“illegal” sentences, and sentences which may have been 

the product of some type of legal error...The term “illegal 

sentence” is a term of art that our Courts apply narrowly, 

to a relatively small class of cases.

Commonwealth v. Jacobs, 900 A.2d 368, 373 (Pa.Super.2006).
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This class of cases includes: (1) claims that the sentence 

fell “outside of the legal parameters prescribed by the 

applicable statute”; (2) claims involving merger/double 

jeopardy; and (3) claims implicating the rule in Apprendi 

v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 

L.Ed.2d 435 (2000). These claims implicate the 

fundamental legal authority of the court to impose the 

sentence that it did. 

Commonwealth v. Robinson, 931 A.2d 15, 21 (Pa.Super.2007).

Following the acceptance of a negotiated plea, the trial 

court is not required to sentence a defendant in 

accordance with the plea agreement. Such a sentence is 

legal, so long as it does not exceed the statutory 

maximum. However, a criminal defendant who is 

sentenced to more than was agreed upon in a negotiated 

plea may withdraw his guilty plea upon being deprived of 

the benefit of his bargain.

Commonwealth v. Tann, 79 A.3d 1130, 1133 (Pa.Super.2013), 

reargument denied (Dec. 19, 2013), appeal denied, 94 A.3d 1009 (Pa.2014).

Here, Appellant does not allege that his sentence exceeded the 

statutory maximum, or that the court imposed a sentence greater than the 

negotiated plea provided. He argues, rather, that his sentence is illegal 

because the court imposed his sentences for conspiracy and third degree 

murder consecutively. This is a challenge to the discretionary aspects of his 

sentence, which is not cognizable upon collateral review.7 See 

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7 Moreover, at the guilty plea colloquy, the court specifically stated: 

“sentences could be imposed consecutively, which means one added on top 

of the other so that the maximum possible sentence that could be imposed 

for the two crimes that I’ve described to you is 80 years in jail.” N.T., 

10/16/2014, at 4. 
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Commonwealth v. Taylor, 65 A.3d 462, 467 (Pa.Super.2013). Thus, we 

agree with counsel that this issue is frivolous. 

The other claims Appellant presented in his PCRA petition, which were 

cognizable under the PCRA, were that (1) his guilty plea was unlawfully 

induced; and (2) his counsel was ineffective for allowing him to enter into 

the guilty plea. His claims are belied by the record. See Written Plea 

Agreement, filed October 20, 2014 (indicating district attorney would 

recommend 15-30 years’ incarceration for third degree murder and 91⁄2-19 

years’ incarceration “consecutive” to the third degree murder, resulting in 

“241⁄2-49 years” total); N.T. 10/16/2014, at 2-6 (full oral colloquy 

conducted, specifying recommended sentence of “241⁄2-49 years”); N.T. 

9/19/14, at 6 (court rejects first guilty plea because recommended sentence, 

with periods of incarceration being imposed concurrently, is not appropriate 

and guilty plea would only be accepted without a sentencing 

recommendation); Attorney’s Certification (indicating counsel thoroughly 

explained written guilty plea colloquy to Appellant); N.T., 10/16/2014, at 2-

3 (Appellant indicated that he discussed guilty plea with attorney and did not 

have any questions that had not been answered by counsel).

Further, after conducting an independent review of the record, we

agree with counsel that there are no non-frivolous issues to be raised on 

appeal.
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Order affirmed. Petition to withdraw as counsel granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/23/2016