J-A15015-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JONATHAN ALVAREZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 53 MDA 2018

Appeal from the PCRA Order December 5, 2017

In the Court of Common Pleas of Luzerne County 

Criminal Division at No(s): CP-40-CR-0000433-2015

BEFORE: PANELLA, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J. FILED FEBRUARY 11, 2019

Jonathan Alvarez appeals from the order entered in the Luzerne County 

Court of Common Pleas dismissing his petition filed pursuant to the Post 

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Further, Matthew 

P. Kelly, Esquire, has filed an application to withdraw from representation and 

a Turner/Finley1 “no-merit” letter. We affirm and grant Attorney Kelly leave 

to withdraw.

The relevant facts and procedural history are as follows. In October of 

2014, Alvarez was charged with fleeing or attempting to elude a police officer, 

accidents involving damage to attended vehicles or property, two counts of 

driving while under the influence of alcohol or controlled substance (“DUI”), 

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1 See 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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driving while operating privilege is suspended or revoked (“DUS”), and several 

summary traffic offenses.

2 These charges alleged that Alvarez, under the 

influence of marijuana, fled from the police at a high rate of speed, crashed 

his girlfriend’s vehicle into a residence, and was later apprehended walking 

near the scene of the crash.

Despite the Commonwealth’s offer of a plea deal, Alvarez proceeded to 

a jury trial. At trial, Alvarez denied driving his girlfriend’s vehicle on the night 

of the crash. Instead, Alvarez’s trial strategy was to claim he was at home 

asleep and that his friend, Jayo, had been the one to flee police and crash his

girlfriend’s vehicle. Despite initial indications she would not appear at trial, 

Alvarez’s girlfriend testified that he confessed to driving her car and causing 

the accident. Alvarez was convicted on all but one DUI count, and the court 

sentenced him to an aggregate term of 45 to 84 months’ imprisonment.3

Alvarez did not file a direct appeal. 

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2 See 75 Pa.C.S.A. §§ 3733(a), 3743(a), 3802(d)(2) and 1543(b)(1.1)(i), 

respectively. Alvarez’s summary charges included; (1) driving without lights 

to avoid identification or arrest, 75 Pa.C.S.A. § 3734; (2) reckless driving, 75 

Pa.C.S.A. § 3736(a): (3) traffic-control signals, 75 Pa.C.S.A. § 3112(a)(3)(i); 

(4) duties at stop signs, 75 Pa.C.S.A. § 3323(b); and (5) driving on one-way 

roadway, 75 Pa.C.S.A. § 3308(b).

3 Specifically, the trial court sentenced Alvarez to consecutive terms of 36 to 

72 months’ imprisonment for fleeing, 6 to 12 months’ imprisonment for 

accidents involving damage, and 90 days for DUS. The trial court also imposed 

a concurrent term of 24 to 48 months’ imprisonment for Alvarez’s DUI 

conviction. 
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Instead, Alvarez filed a timely pro se PCRA petition. Through his petition, 

Alvarez alleged trial counsel’s ineffectiveness for failing to file a direct appeal, 

failing to file a motion to suppress the results of the blood test utilized at trial,

failing to challenge the blood test at trial, and for failing to properly advise 

Alvarez regarding the Commonwealth’s plea offer. The PCRA court appointed 

PCRA counsel, and this matter proceeded to an evidentiary hearing. Following 

the denial of Alvarez’s petition and the filing of his notice of appeal, the trial 

court appointed Attorney Kelly to replace initial PCRA counsel. 

In lieu of an advocate’s brief, Attorney Kelly has filed a Turner/Finley

no-merit letter and application to withdraw as counsel. Thus, we must assess 

counsel’s assertion that the issues Alvarez wishes to raise have no merit 

pursuant to the following standards. 

The Turner/Finley decisions provide the manner for post[-] 

conviction counsel to withdraw from representation. The holdings 

of those cases mandate an independent review of the record by 

competent counsel before a PCRA court or [an] appellate court 

can authorize an attorney’s withdrawal. The necessary 

independent review requires counsel to file a “no-merit” letter 

detailing the nature and extent of his [or her] review and list each 

issue the petitioner wishes to have examined, explaining why 

those issues are meritless. The PCRA court, or an appellate court 

if the no-merit letter is filed before it, see Turner, supra, then 

must conduct its own independent evaluation of the record and 

agree with counsel that the petition is without merit[.]

[T]his Court [has] imposed additional requirements on counsel 

that closely track the procedure for withdrawing on direct appeal. 

. . . [C]ounsel is required to contemporaneously serve upon his 

[or her] client his [or her] no merit letter and application to 

withdraw along with a statement that if the court granted 

counsel’s withdraw request, the client may proceed pro se or with 

a privately retained attorney[.]
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Commonwealth v. Reed, 107 A.3d 137, 140 (Pa. Super. 2014) (citation 

omitted) (some brackets in original). Attorney Kelly has served Alvarez with a 

copy of his no-merit letter, and the letter informs Alvarez of his right to retain 

private counsel or proceed pro se, and that he did not need to wait for this 

Court to rule on counsel’s petition to act. Alvarez has not filed a response. We 

therefore turn to the merits of the issues Alvarez wishes to raise on appeal.

Alvarez raises four challenges to trial counsel’s stewardship. We address 

each under the following standard of review. “[O]ur standard and scope of 

review is limited to determining whether the PCRA court’s findings are 

supported by the record and without legal error.” Commonwealth v. 

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). “The PCRA court’s 

credibility determinations, when supported by the record, are binding on this 

Court; however, we apply a de novo standard of review to the PCRA court’s 

legal conclusions.” Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015) 

(citation omitted).

We presume counsel’s effectiveness, and a PCRA petitioner bears the 

burden of proving otherwise. See Commonwealth v. Brown, 161 A.3d 960, 

965 (Pa. Super. 2017). To establish ineffectiveness of counsel, a PCRA 

petitioner must plead and prove: his underlying legal claim has arguable 

merit; counsel’s actions lacked any reasonable basis; and counsel’s actions 

prejudiced the petitioner. See Commonwealth v. Spotz, 18 A.3d 244, 260 

(Pa. 2011). Failure to satisfy any prong of the ineffectiveness test requires 
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dismissal of the claim. See Commonwealth v. O’Bidos, 849 A.2d 243, 249 

(Pa. Super. 2004). ). To establish counsel’s ineffectiveness, a petitioner must 

demonstrate, by a preponderance of the evidence, that counsel’s performance

so undermined the truth-determining process that no reliable adjudication of 

guilt or innocence could have taken place.” Commonwealth v. Johnson, 868 

A.2d 1278, 1281 (Pa. Super. 2005) (citation omitted). 

“Arguable merit exists when the factual statements are accurate and 

could establish cause for relief. Whether the facts rise to the level of arguable 

merit is a legal determination.” Commonwealth v. Barnett, 121 A.3d 534, 

540 (Pa. Super. 2015) (citations and internal quotation marks omitted). “With 

regard to the [reasonable basis] prong, we will conclude that counsel’s chosen 

strategy lacked a reasonable basis only if Appellant proves that an alternative 

not chosen offered a potential for success substantially greater than the course 

actually pursued.” Spotz, 18 A.3d at 260 (citation and internal quotation 

marks omitted). Further, “[p]rejudice is established if there is a reasonable 

probability that, but for counsel’s errors, the result of the proceedings would 

have been different. A reasonable probability is a probability sufficient to 

undermine confidence in the outcome.” Commonwealth v. Stewart, 84 A.3d 

701, 707 (Pa. Super. 2013) (en banc) (citations and internal quotation marks 

omitted).

Alvarez first claims Charles G. Ross, Esq., who served as trial counsel,

rendered ineffective assistance when he failed to file Alvarez’s requested 
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appeal. “Generally, if counsel ignores a defendant’s request to file a direct 

appeal, the defendant is entitled to have his appellate rights restored.” 

Commonwealth v. Spencer, 892 A.2d 840, 842 (Pa. Super. 2006) (citing 

Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999)). This is because 

“where there is an unjustified failure to file a requested direct appeal, the 

conduct of counsel falls beneath the range of competence demanded of 

attorneys in criminal cases” and such failing constitutes prejudice per se. 

Lantzy, 736 A.2d at 572 (footnote omitted). However, “relief is only 

appropriate where the petitioner pleads and proves that a timely appeal was 

in fact requested and that counsel ignored that request.” Spencer, 892 A.2d 

at 842 (citation omitted). 

Here, Alvarez pled his claim in his PCRA petition and attempted to prove 

this claim by testifying that he requested Attorney Ross to file a direct appeal 

on his behalf. See N.T., PCRA Hearing, 11/7/17, at 5. However, Attorney Ross 

adamantly denied this assertion. See id., at 27. In ruling against Alvarez, the 

PCRA court accepted Attorney Ross‘s recollection as credible and accurate –

and squarely rejected Alvarez’s version of events. See PCRA Opinion, 3/2/18, 

at 4 (unpaginated). The record support this credibility determination. Thus, 

we are bound by the court’s finding that Alvarez did not request a direct 

appeal. See Mason, 130 A.3d at 617. Alvarez’s first claim of ineffectiveness 

fails. 
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Next, Alvarez raises two claims of ineffectiveness in relation to the 

Commonwealth’s introduction of his blood test results. At trial, the 

Commonwealth presented evidence that Alvarez had marijuana in his blood 

stream shortly after the car accident. Alvarez argues trial counsel was 

ineffective for failing to either file a motion to suppress the blood test and/or 

cross-examine the Commonwealth’s expert about the significance of the blood 

test results. 

During the PCRA hearing, both Alvarez and Attorney Ross indicated that 

their only strategy for trial was to argue that Alvarez had not been driving the 

vehicle that fled police and crashed into a residence. See N.T., PCRA Hearing, 

11/7/17, at 11, 24. Attorney Ross confirmed that Alvarez was in complete 

agreement with this strategy because no one other than Alvarez’s girlfriend 

was able to identify Alvarez as the driver of the vehicle. See id., at 24-25. 

Attorney Ross indicated that he believed it was unlikely that Alvarez’s 

girlfriend would testify. See id., at 30. Once she did, Attorney Ross decided 

not to abandon the strategy of denying Alvarez drove the vehicle because he 

believed changing strategy mid-trial would prove fatal to the case. See id., at 

25. Further, because they both agreed on this strategy, Attorney Ross denied 

Alvarez ever asked him to file a suppression motion or do anything to 

challenge the DUI. See id., at 24. Attorney Ross indicated that filing a 

suppression motion or challenging the blood test at trial would have been 

contrary to their long-held strategy. See id., at 27. 
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After reviewing this testimony from the evidentiary hearing, the PCRA 

court rejected Alvarez’s ineffective assistance claims in relation to the blood 

test because it found that the strategy employed by trial counsel was 

reasonable. Specifically, the PCRA court noted that

the defense pursued by [Alvarez] was that he wasn’t the operator 

of the vehicle. There was no reason for trial counsel to challenge 

the DUI if [Alvarez wasn’t driving]. Even though [Alvarez] never 

told trial counsel he smoked marijuana after driving, that defense 

to the DUI charge would also be unreasonable based upon the 

defense strategy. ...

[Further, t]rial counsel testified that he did not believe 

suppression of the blood test results was warranted. If [Alvarez] 

wasn’t operating the vehicle, the results of the blood test would 

be of no consequence... Trial counsel had a reasonable basis for 

failing to pursue suppression of the blood test results. 

PCRA Court Opinion, 3/2/18, at 6 (unpaginated). After reviewing the record, 

we conclude the PCRA court’s findings are well supported by the record. 

Alvarez agreed to a trial strategy that did not require challenging the 

admissibility of the blood test. Therefore, Alvarez has failed to prove the 

second prong of his ineffectiveness analysis, and his second and third claims 

on appeal, fail.

Finally, Alvarez challenges trial counsel’s advice regarding the 

Commonwealth’s plea offer. Alvarez claims Attorney Ross’s miscalculation of 

his prior record score, and therefore possible sentence, coupled with his 

assertion that Alvarez could “beat the case,” led Alvarez to erroneously reject 

the Commonwealth’s offer of 9 – 23 months imprisonment. See N.T., PCRA 

Hearing, 11/7/17, at 8-10. 
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In order for a petitioner to establish that counsel’s ineffectiveness 

caused the petitioner to reject a guilty plea, the petitioner must show that, 

but for the ineffective assistance of counsel, (1) there is a reasonable 

probability that the petitioner would have accepted the plea; (2) the 

prosecution would not have withdrawn the plea offer; (3) the court would have 

accepted its terms; and (4) that the conviction or sentence under the terms 

of the offer would have been less severe that the conviction and sentence that 

was actually imposed. See Commonwealth v. Steckley, 128 A.3d 826, 832 

(Pa. Super. 2015). 

At the PCRA hearing, Alvarez testified that Attorney Ross failed to advise 

him of his possible sentences if he opted for trial. See N.T., PCRA Hearing, 

11/7/17, at 9. The only information Alvarez claimed he received from Attorney 

Ross concerning his potential sentence was that the court could only give him 

“twenty something to whatever,” based on Alvarez’s prior record score of 4. 

See id. Additionally, Alvarez claimed Attorney Ross assured him they could 

“beat the case,” and therefore should go to trial. See id. 

Attorney Ross confirmed he initially operated under the mistaken belief 

that Alvarez had a lower prior record score. See id., at 23. However, while his 

mistaken belief led him to inform Alvarez that his standard range sentences 

would be lower than they actually were, Attorney Ross testified that he 

thoroughly discussed all of the maximum sentences possible with Alvarez prior 

to proceeding to trial and believed Alvarez understood these maximums. See 
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id., at 23. Further, despite Alvarez’s claim, Attorney Ross denied convincing 

Alvarez that he should take the case to trial and instead testified that he 

repeatedly recommended that Alvarez take the Commonwealth’s plea offer. 

See id., at 18-22. However, this advice was rebuked by Alvarez every time. 

See id. 

Here, the PCRA court concluded Alvarez failed to establish that there 

was a reasonable probability that he would have accepted the plea offer if 

counsel had properly advised him of his possible sentences based on his prior 

record score. In reaching this conclusion, the PCRA credited Attorney Ross’s 

testimony that he repeatedly advised Alvarez to take the plea deal, but that 

Alvarez refused. Once again, the record supports this credibility finding and 

we are bound by it. See Mason, 130 A.3d at 617. As the PCRA court 

determined the facts upon which Alvarez’s claim rests are untrue –that Alvarez 

rejected the plea deal on the advice of counsel - Alvarez’s claim lacks arguable 

merit. Alvarez’s final issue on appeal is meritless. Our independent review of 

the certified record does not reveal any other meritorious issues. Accordingly, 

we affirm the PCRA court’s order denying Alvarez’s petition and grant Attorney 

Kelly’s application to withdraw as counsel. 

Order affirmed. Application to withdraw as counsel granted. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/11/2019