J-S34032-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DENNIS EUGENE LANE

Appellant No. 1720 MDA 2014

Appeal from the PCRA Order entered June 4, 2014

In the Court of Common Pleas for the 39th Judicial District,

 Fulton County Branch

Criminal Division at No: CP-29-CR-0000001-2011

BEFORE: BOWES, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.: FILED JULY 10, 2015

Appellant, Dennis Eugene Lane, appeals from an order denying relief 

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. 

PCRA counsel has filed a no-merit brief and petitioned to withdraw under 

Turner/Finley.

1

 We affirm and grant the petition to withdraw.

On July 12, 2011, Appellant entered a negotiated guilty plea to rape 

and other sex crimes and crimes of child abuse. Appellant, who was in his 

sixties, had engaged in sexual intercourse and other sex acts with a child 

under the age of 16 over a three-year period. See N.T. Guilty Plea, 

7/12/11, at 12-17. On March 22, 2012, the trial court determined Appellant 

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

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 
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to be a sexually violent predator and imposed the agreed-upon sentence of 

11 to 22 years in prison. Appellant did not appeal.

On March 23, 2012, Appellant filed a pro se, timely first PCRA petition. 

The PCRA court appointed counsel. In an amended petition, Appellant 

contended that guilty plea counsel was ineffective for failing to file a direct 

appeal. The PCRA court denied relief after an evidentiary hearing, and this 

appeal followed.2

On appeal, PCRA counsel directs this Court’s attention to one issue of 

possible merit: whether Appellant’s guilty plea counsel rendered ineffective 

assistance by failing to file a direct appeal. Before we may consider this 

issue, we must address whether PCRA counsel has met the requirements of 

Turner/Finley. For PCRA counsel to withdraw under Turner/Finley in this 

Court: 

(1) PCRA counsel must file a no-merit letter that details the 

nature and extent of counsel’s review of the record; lists 

the appellate issues; and explains why those issues are 

meritless. 

(2) PCRA counsel must file an application to withdraw; serve 

the PCRA petitioner with the application and the no-merit 

letter; and advise the petitioner that if the Court grants 

the motion to withdraw, the petitioner can proceed pro se

or hire his own lawyer. 

(3) This Court must independently review the record and 

agree that the appeal is meritless.

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2 The PCRA court appointed current PCRA counsel after this Court ordered 

the removal of former PCRA counsel, who abandoned Appellant. 
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See Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super. 2011) 

(citing or quoting Turner, Finley, Commonwealth v. Pitts, 981 A.2d 875 

(Pa. 2009), and Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 

2008), overruled in part by, Pitts).

We find that PCRA counsel has complied with Turner/Finley. PCRA 

counsel has petitioned for leave to withdraw and filed an Anders brief, 

which we accept in lieu of a Turner/Finley no-merit letter.3 Finally, PCRA 

counsel informed Appellant of his right to hire a new lawyer or file a pro se 

response. Appellant has filed a pro se response, which we will consider in 

due course.

We now turn to this appeal to determine whether it is indeed 

meritless. “On appeal from the denial of PCRA relief, our standard of review 

requires us to determine whether the ruling of the PCRA court is supported 

by the record and free of legal error.” Widgins, 29 A.3d at 819.

We first address the issue raised in PCRA counsel’s Anders brief. A 

PCRA petitioner is entitled to relief by showing that his conviction is a result 

of ineffective assistance of counsel. 42 Pa.C.S.A. § 9543(a)(2)(ii). 

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3 Anders v. California, 386 U.S. 738 (1967), sets forth the requirements to 

withdraw on direct appeal, which are more stringent than the Turner/Finley

requirements that apply on collateral appeal. See Widgins, 29 A.3d at 817 

n.2. “Because an Anders brief provides greater protection to a defendant, 

this Court may accept an Anders brief in lieu of a Turner/Finley letter.” 

Id.
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Generally, ineffective assistance of counsel entails proof that (1) the 

underlying claim is of arguable merit; (2) counsel had no reasonable basis 

for his or her chosen course of action; and (3) resulting prejudice. See 

Widgins, 29 A.3d at 819. The failure to file a requested direct appeal (or 

petition for allowance of appeal) is ineffectiveness per se, meaning that 

proof of prejudice is not required. Commonwealth v. Haun, 32 A.3d 697, 

700 (Pa. 2011) (quoting Commonwealth v. Lantzy, 736 A.2d 564, 570-71 

(Pa. 1999)). 

However:

Where a defendant does not ask his attorney to file a direct 

appeal, counsel still may be held ineffective if he does not 

consult with his client about the client’s appellate rights. Such 

ineffectiveness, however, will only be found where a duty to 

consult arises either because there were issues of merit to raise 

on direct appeal or the defendant, in some manner, displayed 

signs of desiring an appeal.

Commonwealth v. Markowitz, 32 A.3d 706, 714 (Pa. Super. 2011). In 

other words, counsel is ineffective per se if he or she fails to file a 

requested appeal, whereas counsel is ineffective for failing to consult with 

a defendant about appealing only if the defendant can show prejudice. 

In finding this issue meritless, the PCRA court first found that 

Appellant failed to request plea counsel to file a direct appeal, invalidating 

any claim of ineffectiveness per se. PCRA Court Opinion, 6/5/14, at 4-5. 

Regarding plea counsel’s duty to confer with Appellant, it stated:

Here, there is no evidence to suggest that [plea counsel] did not 

consult with [Appellant] about his appellate rights. In fact, there 

is evidence to support the opposite conclusion. [Plea counsel] 
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testified that he remembered explaining to the [Appellant] his 

post-sentence appellate rights after he pled guilty. He also 

testified that he was “absolutely sure” the [Appellant] 

“understood what was going on.” Specifically, the Fulton County 

colloquy was much longer than [plea counsel] was accustomed 

to[,] and whenever he had a “colloquy that’s different than the 

one that we use in Cumberland County—I make some notes to 

discuss with my client to make sure that he understands what 

his standing was with the [c]ourt what his options would have 

been.” The transcript of the guilty plea proceedings confirms 

this testimony as [plea counsel] responded in the affirmative 

when asked by the [c]ourt if he had sufficient time to discuss the 

entry of the guilty pleas with the [Appellant]. Additionally, the 

sentencing transcript shows that [Appellant] was read his postsentence and appellate rights and the timeliness associated with 

each on the record by the [c]ourt. Regarding an appeal, [plea 

counsel] testified that because [Appellant] had pled guilty[,] he 

explained to him that he only had a small number of rights on 

appeal in terms of issues he could raise after pleading guilty.[4]

Id. at 7 (citation of notes of testimony omitted).

We are bound by the PCRA court’s credibility determinations and we 

agree with its sound analysis. Furthermore, PCRA counsel has thoroughly 

explained why he believes this issue lacks merit. Appellant’s claim is 

meritless because he did not request plea counsel to file an appeal, and plea 

counsel did not unreasonably fail to confer with Appellant regarding his 

appellate rights. 

We now address Appellant’s pro se response to PCRA counsel’s 

Anders brief and petition to withdraw. Appellant raises ineffectiveness of 

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4 Because Appellant entered into a negotiated guilty plea, on appeal he could 

challenge only the legality of his sentence, the jurisdiction of the trial court, 

and the validity of the guilty plea. See Commonwealth v. Jones, 929 

A.2d 205, 212 (Pa. 2007).
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PCRA counsel, ineffectiveness of plea counsel, and claims his sentence is 

illegal. Appellant did not raise the first item before the PCRA court, which 

means we cannot address it. See Commonwealth v. Henkel, 90 A.3d 16, 

20 (Pa. Super. 2014) (en banc) (“[C]laims of PCRA counsel’s ineffectiveness 

may not be raised for the first time on appeal.”). Appellant presents the 

second two items in conclusory fashion, without cogent analysis or 

explanation. We find those conclusory arguments unpersuasive. See 

Commonwealth v. Walter, 966 A.2d 560, 566 (Pa. 2009) (finding 

arguments waived for “failure to develop them in any meaningful fashion 

capable of review”). Rather, Appellant appears to be using his PCRA petition 

as an attempt to reduce his bargained-for sentence because of 

dissatisfaction with its length. The PCRA does not provide a remedy for such 

buyer’s remorse.

PCRA counsel has complied with Turner/Finley. We have reviewed 

the record, and we are convinced that no meritorious appellate issues exist. 

Accordingly, we affirm the denial of PCRA relief and grant the petition to 

withdraw.
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Order affirmed. Petition to withdraw granted. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/10/2015