J-S34033-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KEVIN JAMES NEELY

Appellant No. 1631 MDA 2014

Appeal from the PCRA Order entered August 12, 2014

In the Court of Common Pleas of Dauphin County

Criminal Division at No: CP-22-CR-0001329-2010

BEFORE: BOWES, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.: FILED JULY 20, 2015

Kevin James Neely appeals pro se from an order dismissing his PCRA1

petition as meritless. We affirm.

A jury convicted Appellant of attempted murder and other crimes for 

beating, pistol-whipping, and shooting a Harrisburg nightclub bouncer on 

December 18, 2009. Because of the serious nature of the crimes and 

Appellant’s extensive criminal history, the trial court sentenced Appellant to 

25 to 50 years in prison. On direct appeal, this Court affirmed in part and 

vacated in part the judgment of sentence.2 Commonwealth v. Neely, 55 

____________________________________________

1

Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46.

2 We vacated in part to correct a sentencing error that did not affect 

Appellant’s aggregate sentence.
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A.3d 130 (Pa. Super. 2012) (unpublished memorandum). Appellant filed a 

timely PCRA petition, and the PCRA court appointed counsel. PCRA counsel 

concluded that no meritorious issues existed and moved to withdraw under 

Turner/Finley.

3

 Because of an oversight, PCRA counsel did not attach his 

no-merit letter, but later corrected the error by filing the no-merit letter of 

record. Thereafter, the PCRA court issued a notice of intention to dismiss 

without a hearing Appellant’s PCRA petition under Pa.R.Crim.P. 907 (Rule 

907 notice). After Appellant responded, the PCRA court issued a final order 

dismissing the petition, from which Appellant appeals. 

Appellant raises five claims of error, which we reproduce verbatim:

1. Whether the Dauphin County Court Erred in denying the 

petitioner’s PCRA petition without a hearing, and granting 

Counsel Bryan E. DePowell’s Motion to Withdraw without filing 

the Statutorily Required Motion in support of the “No Merit” 

Finley/Turner letter/request to Withdraw.

2. Whether Counsel Bryan E. DePowell, provided ineffective 

assistance of counsel to this petitioner, and denied this 

petitioner’s United States Constitutional Rights under the 

Sixth (6) and Fourteenth (14) Amendments: Effective 

Assistance of Counsel; Due Process; and Equal Protection. 

Also Pa. State Constitution Art 1 § 9.

3. Whether Counsel Bryan E. DePowell, was ineffective for failing 

to follow mandatory appellate rules, pursuant to: ANDERS v 

California,Supra; COMM. v. FINLEY,Supra; COMM. v. 

TURNER,supra; and EVITTS V. LUCEY,Supra.

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3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 
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4. Whether the Dauphin County Court abused its discretion, for 

failing to consider this petitioner’s Motion to Withdraw 

Counsel ‘INTER ALIA’ Ineffective Assistance of Counsel, and 

Appointing New Counsel on behalf of this petitioner Pursuant 

to Pa. R. of Crim. Proc., Rule 122(c)(2); Also, creating a 

substantial Conflict of Interest between petitioner and 

Counsel.

5. Whether this petitioner is entitled to an Evidentiary Hearing 

and the Appointment of New Counsel, due to the Dauphin 

County Court’s abuse of discretion/error, and Counsel’s 

ineffective representation.

Appellant’s Brief at 3.4

On appeal from an order dismissing without a hearing a PCRA petition, 

our standard and scope of review are as follows:

We review an order dismissing a petition under the PCRA in the 

light most favorable to the prevailing party at the PCRA level. 

This review is limited to the findings of the PCRA court and the 

evidence of record. We will not disturb a PCRA court’s ruling if it 

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

This Court may affirm a PCRA court’s decision on any grounds if 

the record supports it. Further, we grant great deference to the 

factual findings of the PCRA court and will not disturb those 

findings unless they have no support in the record. However, we 

afford no such deference to its legal conclusions. Where the 

petitioner raises questions of law, our standard of review is de 

novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (internal 

citations omitted).

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4 Appellant asserts that the PCRA court answered in the negative all of his 

questions in its Pa.R.A.P. 1925(a) opinion, but the PCRA court did not issue 

a Rule 1925 opinion. Instead, the PCRA court issued its opinion concomitant 

with the Rule 907 notice.
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In his first issue, Appellant contends the PCRA court erred in granting 

PCRA counsel’s motion to withdraw. Appellant raises two specific errors: 

PCRA counsel failed to file his no-merit letter at the same time as his motion 

to withdraw, and PCRA counsel failed to satisfy the requirements of Anders 

and McClendon.

5

Preliminarily, though Appellant couches his argument in terms of 

ineffective assistance of counsel, a claim that a PCRA court erroneously 

allowed counsel to withdraw under Turner/Finley is not an ineffectiveness 

claim. Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super. 2012). 

We will address Appellant’s ineffectiveness claim separately.

Withdrawal under Turner/Finley in the PCRA court contemplates the 

following steps, as developed by our courts in a series of cases: 

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

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

the PCRA petitioner’s issues; and explains why those 

issues are meritless. 

(2) PCRA counsel must file a motion to withdraw; serve the 

PCRA petitioner with the motion 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) The PCRA court must conduct its own independent review 

of the record and agree that the petition is meritless.

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5 Anders v. California, 386 U.S. 738 (1968), and Commonwealth v. 

McClendon, 434 A.2d 1185 (Pa. 1981), modified in part by, 

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
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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 substantially complied with the 

Turner/Finley procedure. As noted above, PCRA counsel moved to 

withdraw on December 17, 2013, without attaching the required no-merit 

letter. PCRA counsel later corrected this oversight on January 17, 2014. 

The PCRA court granted the motion to withdraw and issued its Rule 907 

notice on June 3, 2014—months later. In fact, the record shows that 

Appellant filed a response to PCRA counsel’s no-merit letter, as well as a 

response to the Rule 907 notice. Thus, PCRA counsel’s oversight was 

immaterial, and did not prejudice Appellant.

We also reject Appellant’s contention that PCRA counsel failed to follow 

the requirements of Anders and McClendon. Those cases address the 

procedure for appointed counsel to withdraw on direct appeal—not in a PCRA 

proceeding. See Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa. 

Super. 2003) (“Briefs filed pursuant to Anders and [McClendon] are 

procedurally appropriate on direct appeal; they are inappropriate on appeals 

involving PCRA petitions.”). Appellant also cites Evitts v. Lucey, 469 U.S. 

387 (1985) (holding a criminal defendant is entitled to effective assistance of 

counsel on a first direct appeal of right), which is inapplicable.
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Appellant does not challenge the PCRA court’s independent conclusion 

that his PCRA petition was meritless. In any event, our review of the record 

confirms that the PCRA court adequately reviewed the record and did not err 

in finding the petition meritless. Therefore, Appellant is not entitled to relief 

on his first argument.

In his second argument, Appellant contends that PCRA counsel 

rendered ineffective assistance of counsel under the Sixth and Fourteenth 

Amendments.6 This argument is without merit. There is no federal 

constitutional right to court-appointed post-conviction counsel. 

Commonwealth v. Holmes, 79 A.3d 562, 580 (Pa. 2013); see also 

Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (declining to hold that 

post-conviction petitioners have a right to counsel when mounting collateral 

attacks on their convictions). 

To the extent Appellant challenges PCRA counsel’s effectiveness under 

his rules-based right to counsel, see Pa.R.Crim.P. 904(C), we reject his 

argument. We already have held that the PCRA court did not err in allowing 

PCRA counsel to withdraw under Turner/Finley. On appeal, Appellant fails 

to mention, let alone discuss, any ineffective assistance of trial counsel, 

constitutional errors, or any other cognizable PCRA claims. See 42 

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6 Appellant repeatedly raised PCRA counsel’s ineffectiveness before the PCRA 

court. Cf. Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) 

(en banc) (holding PCRA petitioners may not challenge the effectiveness for 

the first time on appeal).
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Pa.C.S.A. §§ 9542, 9543(a)(2). In providing its Rule 907 notice, the PCRA 

court determined that any cognizable PCRA claims were meritless—a finding 

Appellant fails to challenge. See supra. Thus, PCRA counsel cannot be 

deemed ineffective, because any underlying issues are meritless. See 

Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (“[C]ounsel 

cannot be deemed ineffective for failing to raise a meritless claim.”).

In his third argument, Appellant combines and repeats his first two 

arguments. We already have explained why those claims do not entitle him 

to relief.

In his fourth argument, Appellant contends the PCRA court erred in 

denying his motion to remove PCRA counsel and appoint new counsel. This 

argument, too, is meritless. The PCRA court denied as moot Appellant’s 

motion to remove PCRA counsel, because it granted PCRA counsel’s motion 

to withdraw. Moreover, a petitioner whose counsel is granted leave to 

withdraw under Turner/Finley is no longer entitled to appointed counsel: 

[W]hen counsel has been appointed to represent a petitioner in 

post-conviction proceedings as a matter of right under the 

[R]ules of [C]riminal [P]rocedure and when that right has been 

fully vindicated by counsel being permitted to withdraw under 

the procedure authorized in Turner, new counsel shall not be 

appointed and the petitioner, or appellant, must thereafter look 

to his or her own resources for whatever further proceedings 

there might be.

Commonwealth v. Maple, 559 A.2d 953, 956 (Pa. Super. 1989) (footnote 

omitted) (emphasis added).
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Finally, Appellant contends the PCRA court erred in denying a hearing 

on his claims. To be entitled to a hearing, a PCRA petitioner must raise an 

issue of fact that would entitled him to relief. Commonwealth v. 

Simpson, 66 A.3d 253, 260-61 (Pa. 2013). Here, the PCRA court 

conducted an independent review under Turner/Finley, and concluded that 

Appellant’s PCRA petition was meritless. On appeal, Appellant does not set 

forth a cogent basis to conclude that the PCRA court erred. Therefore, he is 

not entitled to relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/20/2015