J. S72019/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

GARY LEE HALL :

APPELLANT :

:

: No. 118 MDA 2016

Appeal from the PCRA Order December 22, 2015

In the Court of Common Pleas of Luzerne County 

Criminal Division at No(s): CP-40-CR-0003408-2013

BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.: FILED DECEMBER 02, 2016

Appellant, Gary Lee Hall, appeals from the December 22, 2015 Order, 

entered in the Luzerne County Court of Common Pleas, denying his first 

Petition pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 

9541-9546. Additionally, Appellant’s appointed counsel, Matthew P. Kelly, 

Esquire, has filed a Petition to Withdraw as Counsel and an accompanying 

“no merit” letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 

1988), Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en 

banc), and their progeny. We affirm the Order of the PCRA court and grant 

counsel’s Petition to Withdraw as Counsel.

 

* Retired Senior Judge assigned to the Superior Court.
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The relevant facts and procedural history are as follows. On April 4, 

2014, Appellant, while represented by Nandukumar Palissery, Esquire, 

entered a guilty plea to one count of Indecent Assault Complainant Less than 

13 Years of Age. 18 Pa.C.S. § 3126(a)(7). 

On September 10, 2014, the court permitted Attorney Palissery to 

withdraw as counsel. The court ordered Appellant to apply to the Luzerne 

County Public Defender’s Officer for new counsel. By September 17, 2014, 

James Barr, Esquire, of the Luzerne County Public Defender’s Office 

represented Appellant. 

On October 24, 2014, the court sentenced Appellant to a term of 18 to 

36 months’ incarceration, followed by four years’ probation. Following an 

assessment by the Sexual Offender Assessment Board, the court determined 

that Appellant is a Sexually Violent Predator. The Court ordered Appellant to 

register as a sex offender for his lifetime pursuant to the Sex Offender 

Registration and Notification Act (“SORNA”), 42 Pa.C.S. § 9799, et seq. At 

the time of sentencing, James Barr, Esquire, represented Appellant.

Appellant did not file a direct appeal from his Judgment of Sentence. 

On March 23, 2015, Appellant filed a timely pro se PCRA Petition in which he 

alleged that: (1) his plea counsel was ineffective because he threatened to 

withdraw as counsel if Appellant did not enter into a plea agreement or 

provide additional funds to represent him at trial; (2) his plea counsel was 

ineffective because he did not advise Appellant that he could obtain new 
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counsel or seek to have counsel appointed; (3) his sentencing counsel was 

ineffective for failing to advise Appellant that he had the right to withdraw 

his guilty plea; (4) his sentencing counsel was ineffective because Appellant 

told him his plea counsel had threatened him into pleading guilty but did not 

advise Appellant of his options; and (5) his sentencing counsel was 

ineffective for failing to file a direct appeal at Appellant’s request. 

On June 15, 2015, the PCRA court appointed Jeffrey A. Yellen, Esquire, 

to represent Appellant. Attorney Yellen did not file an amended PCRA 

Petition. Following an evidentiary hearing, on December 23, 2015, the PCRA 

court denied Appellant’s PCRA Petition. This timely appeal followed. 

On January 20, 2016, the PCRA court appointed Matthew Kelly, 

Esquire, to represent Appellant on appeal. Appellant complied with the trial 

court’s Order pursuant to Pa.R.A.P. 1925. 

On July 13, 2016, Attorney Kelly filed in this Court a Petition to 

Withdraw as Counsel along with a Turner/Finley “no merit” letter. Attorney 

Kelly concluded that there were no non-frivolous issues to be raised on 

appeal after addressing each of the issues raised by Appellant in his Rule 

1925(b) statement. Appellant did not respond to Attorney Kelly’s Petition to 

Withdraw as Counsel. 

Before we consider Appellant’s arguments, we must review Attorney 

Kelly’s request to withdraw from representation. Pursuant to 

Turner/Finley, independent review of the record by competent counsel is 
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required before withdrawal on collateral appeal is permitted. 

Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009). Counsel is 

then required to submit a “no merit” letter (1) detailing the nature and 

extent of his or her review; (2) listing each issue the petitioner wished to 

have reviewed; and (3) providing an explanation of why the petitioner’s 

issues were meritless. Id. The court then conducts its own independent 

review of the record to determine if the Petition is meritless. Id. 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.” 

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

Our review of the record discloses that Attorney Kelly has complied 

with each of the above requirements. In addition, Attorney Kelly sent 

Appellant copies of the Turner/Finley no-merit letter and his Petition to 

Withdraw, and advised him of his rights in lieu of representation in the event 

that the court granted Attorney Kelly permission to withdraw. See 

Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011). Since 

Attorney Kelly has complied with the Turner/Finley requirements, we will 

proceed with our independent review of the record and the merits of 

Appellant’s claims.

In the Turner/Finley letter, Attorney Kelly indicated Appellant wished 

to raise the following two issues on appeal:
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1. Whether the trial court erred in failing to allow 

[Appellant] to withdraw his guilty plea which was coerced 

by his trial counsel and subsequent Public Defender, thus 

resulting in an involuntary plea.

2. Whether trial counsel was ineffective in failing to file an 

appeal to the [J]udgment of [S]entence issued on October 

24, 2014. 

Appellant’s Brief at 1.

This Court’s “standard of review for an order denying post-conviction 

relief is limited to whether the trial court's determination is supported by 

evidence of record and whether it is free of legal error.” Commonwealth v. 

Allen, 732 A.2d 582, 586 (Pa. 1999). Further, “[t]he PCRA court’s findings 

“will not be disturbed unless there is no support for the findings in the 

certified record.” Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa. 

Super. 2008).

Appellant alleges that his plea and sentencing counsel provided 

ineffective assistance by coercing him into entering a guilty plea and not 

filing a direct appeal from his Judgment of Sentence. In order to establish 

eligibility for PCRA relief, a petitioner must prove by a preponderance of the 

evidence that the conviction resulted from “[i]neffective assistance of 

counsel, which in the circumstances of the particular case, so undermined 

the truth-determining process that no reliable adjudication of guilt or 

innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii).
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In analyzing claims of ineffective assistance of counsel, we presume 

that trial counsel was effective unless the PCRA petitioner proves otherwise. 

Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa. 1999). 

In order to succeed on a claim of ineffective assistance of counsel, 

Appellant must demonstrate (1) that the underlying claim is of arguable 

merit; (2) that counsel’s performance lacked a reasonable basis; and (3) 

that the ineffectiveness of counsel caused the appellant prejudice. 

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Appellant bears 

the burden of proving each of these elements, and his “failure to satisfy any 

prong of the ineffectiveness test requires rejection of the claim of 

ineffectiveness.” Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 

2009).

Appellant first claims that his plea counsel coerced him into entering a 

guilty plea and his sentencing counsel, although aware of the alleged 

coercion, failed to advise Appellant to withdraw his guilty plea. The record 

belies this claim. 

At Appellant’s PCRA Hearing, Appellant testified that, at his plea 

hearing, he and the plea judge engaged in a lengthy guilty plea colloquy. 

N.T. PCRA Hr’g, 10/9/15, at 17. Appellant agreed that he had reviewed his 

plea agreement and had indicated to the court that he was satisfied with the 

services provided by Attorney Palissery. Id. Appellant further testified that 

he had informed the plea judge that it was his decision to plead guilty and 
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that he had not been forced or coerced into entering the plea agreement. 

Id. at 17-18. Appellant testified that he did not inform sentencing counsel 

Attorney Barr that Appellant thought he had been coerced into pleading 

guilty or that he wanted to withdraw his guilty plea. Id. at 19-20. 

Appellant also testified at the PCRA Hearing that he testified at his 

Sentencing Hearing that he entered his guilty plea knowingly and voluntarily. 

Id. at 21; see also N.T. Sentencing H’rg, 10/24/14, at 8-9. He further 

testified that, at the time of sentencing, he told the court he understood that 

he could withdraw his plea and go to trial, but that he did not wish to do 

that. N.T. PCRA H’rg at 22; see also N.T. Sentencing H’rg at 9. Rather, he 

testified at his sentencing hearing that, “I’m guilty, ma’am.” N.T. PCRA H’rg 

at 22; see also N.T. Sentencing H’rg at 9. Moreover, Appellant affirmed at 

his sentencing hearing that he was satisfied with the services provided by his 

counsel. Id. at 10. 

Attorney Barr also testified at Appellant’s PCRA hearing. Attorney Barr 

testified that he represented Appellant following Appellant’s request to be 

appointed a public defender. Id. at 24. He testified that he took notes 

during his meeting with Appellant on October 8, 2014, and that his notes 

reflected that “defendant admits guilt. Defendant just doesn’t want the SVP 

designation.” Id. at 27. Attorney Barr testified that Appellant never 

indicated to him that Appellant felt coerced into entering a guilty plea or that 

he felt he had no choice but to plead guilty because he could not afford to 
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pay Attorney Palissery any more money. Id. at 27-28. He testified that he 

would have discussed with Appellant the possibility of withdrawing his guilty 

plea, and that Appellant never requested to withdraw his guilty plea during 

his sentencing hearing. Id. at 28. He confirmed that, in fact, Appellant 

admitted his guilt at his sentencing hearing. Id. at 29. 

 In light of the foregoing, the record supports the PCRA court’s 

conclusion that Appellant knowingly and voluntarily entered his guilty plea. 

His claim, thus, lacks merit and Appellant is not entitled to relief on this 

issue.

Appellant next claims that Attorney Barr was ineffective in failing to file 

a direct appeal on Appellant’s behalf. Appellant’s Brief at 7. 

Appellant testified at his PCRA hearing that the sentencing judge 

informed him of his appeal rights. N.T. PCRA H’rg at 10. Appellant also 

testified that he did not verbally tell Attorney Barr that he wanted to appeal 

his Judgment of Sentence. Id. Appellant testified that he instead sent 

Attorney Barr a letter after his sentencing informing counsel that he wanted 

to appeal his sentence, but that he did not recall when exactly he sent it and 

he did not keep a copy. Id. at 11-12. 

Attorney Barr testified that, while he did not specifically recall 

discussing Appellant’s appeal rights with Appellant, he recalled the 

sentencing judge informing Appellant of his rights, and that Appellant did not 

indicate to him that he wished to appeal any part of his sentence. Id. at 29-
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30. He also testified that he never received any correspondence from 

Appellant in which he indicated that he wished to appeal. Id.

Our review of the record indicates that the PCRA court did not err in 

denying Appellant relief on this issue. It is undisputed that Appellant did not 

verbally ask Attorney Barr to file an appeal from his Judgment of Sentence 

following his sentencing hearing and Appellant’s unsubstantiated claim that 

he sent a written request for Attorney Barr to do so is unpersuasive. 

Accordingly, this issue lacks merit, and we affirm the denial of PCRA relief 

and grant counsel’s Petition to Withdraw.

Order affirmed. Petition to Withdraw granted. Jurisdiction 

relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/2/2016

 
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