J-S82031-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

VANCE DAWSON,

Appellant No. 258 MDA 2016

Appeal from the PCRA Order December 21, 2015

in the Court of Common Pleas of Luzerne County

Criminal Division at No.: CP-40-CR-0001236-2013

BEFORE: OTT, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED DECEMBER 28, 2016

Appellant, Vance Dawson, appeals from the order of December 21, 

2015,1 which dismissed, following a hearing, his first petition brought under 

the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Counsel 

has filed a petition to withdraw.

2

 For the reasons discussed below, we grant 

counsel’s request to withdraw and affirm the dismissal of the PCRA petition.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Appellant filed his pro se notice of appeal on February 1, 2016. At that 

time, the PCRA court had not entered the December 21, 2015 order 

disposing of the petition on the docket. By order of March 4, 2016, this 

Court directed the PCRA court to enter the December 21, 2015 order on the 

docket. The PCRA court complied.

2 Counsel mistakenly filed a “ No Merit/Turner Finley Brief” comparable to a 

brief pursuant to Anders v. California, 386 U.S. 738 (1967). However, a 

(Footnote Continued Next Page)
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On January 13, 2014, Appellant entered a counseled negotiated guilty 

plea to two counts each of possession with intent to deliver a controlled 

substance (PWID)3and criminal conspiracy,4and one count of criminal use 

of a communication facility.5 In return for the plea, the Commonwealth 

agreed to withdraw the remaining eleven charges and the parties agreed to 

an aggregate, concurrent standard-range sentence of not less than two nor 

more than four years of imprisonment. (See N.T. Guilty Plea Hearing, 

1/13/14, at 8-9). The parties agreed that the sentence included a 

mandatory minimum sentence on one count of PWID. (See id. at 9). 

On February 28, 2014, the trial court sentenced Appellant in 

accordance with the terms of the negotiated guilty plea. (See N.T. 

Sentencing, 2/28/14, at 10). At sentencing, the Commonwealth stated the 

mandatory minimum sentence made no difference in the sentencing scheme 

because Appellant’s prior record score put him in the two-year sentence 

(Footnote Continued) _______________________

Turner/Finley no-merit letter is the correct filing. See Commonwealth v. 

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

213 (Pa. Super. 1988) (en banc). Because an Anders brief provides greater 

protection to a defendant, this Court may accept an Anders brief instead of 

a Turner/Finley letter. See Commonwealth v. Widgins, 29 A.3d 816, 

817 n.2 (Pa. Super. 2011). 

3 35 P.S. § 780-113(a)(30).

4 18 Pa.C.S.A. § 903.

5 18 Pa.C.S.A. § 7512(a).
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range. (See id. at 6). Appellant did not file any post-sentence motions, 

never sought to withdraw his guilty plea, and did not file a direct appeal.

On December 4, 2014, Appellant, acting pro se, filed a PCRA petition 

alleging ineffective assistance of plea counsel and that his sentence was 

illegal pursuant to the United States Supreme Court’s decision in Alleyne v. 

United States, 133 S. Ct. 2151 (2013). (See Petition for Post Conviction 

Relief, 12/04/14, at 5-8). The PCRA court subsequently appointed counsel.

On December 21, 2015, the PCRA court held an evidentiary hearing. 

At the hearing, the parties agreed that Appellant “has an absolute right to be 

fully resentenced” under Alleyne. (N.T. PCRA Hearing, 12/21/15, at 3). 

However, PCRA counsel noted that, because of his prior record score, 

resentencing would not “really help him.” (Id. at 2). Moreover, counsel 

stated that Appellant was concerned that a resentencing might have a 

negative impact because of a pending hearing on a parole violation, the 

possible loss of credit for some time served, and a disruption of some his 

programming in prison. (See id. at 2-3). 

Because of this, Appellant agreed, on the record, that he wished to 

drop all other issues raised in the PCRA petition and just have the original 

sentencing order amended to remove the world “mandatory.” (Id. 4; see 

id. at 4-5). The Commonwealth also agreed, noting that because of 

Appellant’s prior record score, the original minimum guideline sentence was 

the same as the mandatory minimum sentence he had received. (See id. at 
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5). Thus, in accordance with the agreement of the parties, the PCRA court 

issued an order amending the original sentencing order to remove any 

reference to the term “mandatory,” and otherwise dismissed the PCRA 

petition. (See id. at 6-7; see Order, 12/21/15).

On February 1, 2016, Appellant filed a pro se notice of appeal, which 

the PCRA court deemed timely filed under the prisoner mailbox rule.6 On 

March 16, 2016, the PCRA court scheduled a hearing pursuant to 

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), to determine if the 

Appellant wished to waive his right to counsel on appeal. On April 4, 2016, 

the PCRA court appointed new counsel. On April 8, 2016, the court directed 

Appellant to file a concise statement of errors complained of on appeal. See 

Pa.R.A.P. 1925(b). On April 26, 2016, appellate counsel requested an 

extension of time, which the PCRA court granted. On May 10, 2016, 

Appellant filed a timely Rule 1925(b) statement. See id. On June 28, 2016, 

the PCRA court issued an opinion. See Pa.R.A.P. 1925(a).

On August 15, 2016, counsel filed a petition to withdraw in this Court. 

On August 22, 2016, Appellant filed a pro se response.

____________________________________________

6

“[T]he prisoner mailbox rule provides that a pro se prisoner’s document is 

deemed filed on the date he delivers it to prison authorities for mailing.” 

Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011) (citation 

omitted).
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On appeal, the Turner/Finley brief raises the following question for 

our review.

I. Whether the [PCRA] court abused its discretion in 

resentencing the Appellant to a mandatory sentence when he 

believed he had entered into an agreement for a sentence of 

[not less than eighteen nor more than thirty-six months of 

incarceration?]

(Turner/Finley Brief, at 1).

In his pro se filing, Appellant appears to argue that his guilty plea was 

unlawfully induced because he had a meritorious suppression issue. (See 

Motion for Leave to Amend Appellant’s Brief, 8/22/16, at 1-4).

Appellant’s court-appointed counsel has petitioned this Court for 

permission to withdraw and has submitted a Turner/Finley-compliant brief, 

as is required for counsel seeking to withdraw on appeal of the denial of a 

PCRA petition. Court-appointed counsel who seek to withdraw from 

representing an appellant on appeal of a denial of a PCRA petition on the 

basis that the appeal lacks merit must review the case zealously. See 

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

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 the 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. 
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Id. (citations omitted). Here, counsel has substantially complied with the 

dictates of Turner/Finley.

When this Court receives a Turner/Finley brief, we conduct an 

independent review of the record in light of the PCRA petition and the issues 

set forth within it, as well as of the contents of the petition of counsel to 

withdraw. See id. We will grant the petition to withdraw if we agree with 

counsel that the petition is meritless. See id. 

Appellant appeals from the dismissal of his PCRA petition. Our 

standard of review for an order denying PCRA relief is well settled:

This Court’s standard of review regarding a PCRA court’s 

order is whether the determination of the PCRA court is 

supported by the evidence of record and is free of legal error. 

Great deference is granted to the findings of the PCRA court, and 

these findings will not be disturbed unless they have no support 

in the certified record. 

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations 

and quotation marks omitted). Moreover, to be eligible for relief pursuant to 

the PCRA, Appellant must establish that his conviction or sentence resulted 

from one or more of the enumerated errors or defects found in 42 Pa.C.S.A. 

§ 9543(a)(2). He must also establish that the issues raised in the PCRA 

petition have not been previously litigated or waived. See 42 Pa.C.S.A. § 

9543(a)(3). An allegation of error is waived “if the petitioner could have 

raised it but failed to do so before trial, during unitary review, on appeal or 

in a prior state post-conviction proceeding.” 42 Pa.C.S.A. § 9544(b). 
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In the Turner/Finley brief, counsel challenges the discretionary 

aspects of sentence,

7

claiming that Appellant was not sentenced in 

accordance to the terms of the plea agreement, which he believed was for 

an aggregate sentence of not less than eighteen nor more than thirty-six 

months of incarceration. (See Turner/Finley brief, at 7). In his pro se 

response, Appellant claims that his guilty plea was coerced because he had a 

meritorious suppression issue. (See Motion for Leave to Amend Appellant’s 

Brief, 8/22/16, at 4).

Prior to addressing the merits of the claims, we must decide if they are 

properly before us. As we stated above, in order to be eligible for PCRA 

relief, a petitioner must demonstrate that the issues raised in his PCRA 

petition have not been previously litigated or waived. See 42 Pa.C.S.A. § 

9543(a)(3). An issue has been previously litigated if “the highest appellate 

court in which the petitioner could have had review as a matter of right has 

ruled on the merits of the issue[.]” 42 Pa.C.S.A. § 9544(a)(2); see also 

Commonwealth v. Ligons, 971 A.2d 1125, 1137 (Pa. 2009). A claim is 

waived if “the petitioner could have raised it but failed to do so before trial, 

____________________________________________

7 We note that counsel mischaracterizes the nature of Appellant’s complaint. 

A claim of a breach of a plea agreement does not implicate the discretionary 

aspects of sentence. See Commonwealth v. Parsons, 969 A.2d 1259, 

1270 (Pa. Super. 2009) (en banc), appeal denied, 982 A.2d 1228 (Pa. 

2009).
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at trial, during unitary review, on appeal or in a prior state post-conviction 

proceeding.” 42 Pa.C.S.A. § 9544(b) (emphasis added).

The record in the case sub judice establishes that Appellant did not file 

a direct appeal. Appellant should have raised the issues herein on direct 

appeal. Thus, Appellant’s claims are waived. See Ligons, supra, at 1137. 

Moreover, it is long settled that issues not raised in a PCRA or 

amended PCRA petition are waived on appeal. See Commonwealth v. 

Lauro, 819 A.2d 100, 103 (Pa. Super. 2003), appeal denied, 830 A.2d 975 

(Pa. 2003) (finding five issues not in original or amended PCRA petition 

waived). Also, as amended in 2007, Rule 1925 provides that issues that are 

not included in the Rule 1925(b) statement or raised in accordance with Rule 

1925(b)(4) are waived. See Pa.R.A.P. 1925(b)(4)(vii); see also 

Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998), superseded by 

rule on other grounds as stated in Commonwealth v. Burton, 973 A.2d 

428, 430 (Pa. Super. 2009). Further, an appellant cannot raise issues for 

the first time in a Rule 1925(b) statement. See Commonwealth v. 

Coleman, 19 A.3d 1111, 1118 (Pa. Super. 2011) (issues raised for first time 

in Rule 1925(b) statement are waived). Lastly, an appellant cannot raise a 

subject for the first time on appeal. See Commonwealth v. Hanford, 937 

A.2d 1094, 1098 n.3 (Pa. Super. 2007), appeal denied, 956 A.2d 432 (Pa. 

2008) (new legal theories cannot be raised for first time on appeal); 

Pa.R.A.P. 302(a).
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In the instant matter, the only issues raised in Appellant’s PCRA 

petition were a claim of an illegal sentence and a claim of ineffective 

assistance of counsel. (See Petition for Post Conviction Relief, 12/04/14, at 

1-8). Appellant based both claims upon the United States Supreme Court’s 

decision in Alleyne, supra. (See id.). Appellant first raised the claim that 

he was not sentenced in accordance with the terms of the plea agreement in 

his Rule 1925(b) statement. (See Statement of [Errors] Complained of on 

Appeal Pursuant to Pa.R.A.P. 1925(b), 5/10/16, at 1). Appellant did not 

raise the claim that his guilty plea was unlawfully coerced until he filed his 

pro se response to counsel’s Turner/Finley brief. (See Motion for Leave to 

Amend Appellant’s Brief, 8/22/16, at 4). Thus, Appellant waived all his 

claims on appeal for these reasons as well and we therefore affirm the trial 

court’s dismissal of his PCRA petition. 

Appellant’s issues are waived. Further, this Court has conducted an 

independent review of the record as required by Turner/Finley and finds 

that no meritorious issues exist. 

Motion to withdraw as counsel granted. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/28/2016