Commonwealth v. Johnson

COMMONWEALTH OF PENNSYLVANIA v. MICHAEL ROLAND JOHNSON Appellant

J-S07006-21

No. 919 WDA 2020

SUPERIOR COURT OF PENNSYLVANIA

April 13, 2021

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered August 5, 2020

In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0001370-2018

BEFORE: SHOGAN, J., DUBOW, J., and KING, J.

MEMORANDUM BY SHOGAN, J.:

Appellant, Michael Roland Johnson, appeals from the order entered on August 5, 2020, denying his second petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. In addition, Appellant's counsel has filed a petition to withdraw. After review, we grant counsel's petition to withdraw and affirm the order of the PCRA court.

A prior panel of our Court summarized the factual background in this matter as follows:

On July 10, 2017, [Appellant] was charged with recklessly endangering another person, firearms not to be carried without a license, and possessing instruments of crime, related to the discharge of a gun inside of a bar in Erie, Pennsylvania.¹ [Appellant] filed a pre-trial Motion to suppress, challenging the photo array used to identify [Appellant] as the suspect. On February 4, 2019, following a jury trial, [Appellant] was convicted of the above-described charges. The trial court sentenced [Appellant] to an aggregate term of 42 to 84 months in prison and 3 years of probation. [Appellant] did not file a direct appeal.¹

¹See 18 Pa.C.S.A. §§ 2705, 6106(a)(1), 907(b).

On April 3, 2019, [Appellant] filed the instant, pro se, PCRA Petition. The PCRA court appointed [Appellant] counsel, [William Hathaway, Esquire,] who filed an Amended PCRA Petition. On August 12, 2019, the trial court denied [Appellant's PCRA] Petition without a hearing.² [Appellant] filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal.

² We note that the PCRA court did not provide notice to [Appellant] of its intent to dismiss his Petition without a hearing, as required by Pa.R.Crim.P. 907. However, because the PCRA court ordered the appointment of counsel, the filing of an amended petition, and the briefing of the legal issues presented, the PCRA court did not violate Rule 907 by summarily dismissing the PCRA Petition without notice. See Commonwealth v. Albrecht, 720 A.2d 693, 709-10 (Pa. 1998) (stating that where counsel was appointed, and was provided the opportunity to file an amended petition and a brief of the legal issues presented, the PCRA court did not violate Pa.R.Crim.P. 1507(a), predecessor to Rule 907, by dismissing the petitioner's PCRA petition without notice).

Commonwealth v. Johnson, 237 A.3d 428, 1392 WDA 2019 (Pa. Super. filed May 1, 2020) (non-precedential decision at *1-2). After review, weaffirmed the order denying Appellant's first PCRA petition. Id. at *4. Appellant did not seek allowance of appeal in our Supreme Court.

On May 26, 2020, Appellant filed his second PCRA petition, which underlies the current appeal. In the petition, Appellant asserted that prior PCRA counsel, William Hathaway, Esquire, was ineffective. On June 29, 2020, the PCRA court removed Attorney Hathaway and appointed current counsel, Keith Clelland, Esquire, to represent Appellant. On August 3, 2020, the PCRA court held a hearing on Appellant's second PCRA petition, at which only Appellant and trial counsel testified. N.T., 8/3/20, at 9-55. The PCRA court denied the instant petition in an order filed on August 5, 2020. This timely appeal followed.

The PCRA court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Order, 9/8/20. On September 15, 2020, Appellant field a counseled Rule 1925(b) statement, in which counsel concluded there were no meritorious issues. That same day, the PCRA court directed counsel to file a Pa.R.A.P. 1925(c)(4) statement. Order, 9/15/20. Counsel filed the statement, concluding that there were no meritorious issues, and he stated his intention to file a brief pursuant to Anders v. California, 386 U.S. 738 (1967). Pa.R.A.P. 1925(c)(4) Statement 10/2/20.² The PCRA court filed an order pursuant to Pa.R.A.P. 1925(a),explaining that the reasons for its denial of Appellant's second PCRA petition were set forth in its August 5, 2020 order. Order, 10/8/20.

On November 23, 2020, Appellant's counsel filed in this Court an Anders brief and petition to withdraw. We denied the petition because the brief failed to meet the requirements for counsel to withdraw. Order, 11/25/20. Appellant's Anders brief was stricken. Id. On December 11, 2020, Appellant's counsel filed a second Anders brief in our Court, and on December 14, 2020, counsel filed a petition to withdraw. Appellant has not filed a response.

We first point out that counsel erroneously attempts to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), which applies when counsel seeks to withdraw from representation on direct appeal. When, as here, counsel seeks to withdraw from representation on collateral appeal, the requirements set forth in Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), are applicable. Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (counsel petitioning to withdraw from PCRA representation must proceed not under Anders, but under Turner and Finley). However, because an Anders brief provides greater protection to a defendant, this Court may accept an Anders brief in lieu of a Turner/Finley "no merit" letter. Commonwealth v. Reed, 107 A.3d 137, 139 n.5 (Pa. Super. 2014).Accordingly, we proceed with our discussion and will refer to the brief as a Turner/Finley letter.

Before we reach the merits of the appeal, we must address counsel's petition to withdraw as counsel. Commonwealth v. Daniels, 947 A.2d 795, 797 (Pa. Super. 2008). When counsel seeks to withdraw representation in a collateral appeal, the following conditions must be met:

Counsel petitioning to withdraw from PCRA representation must proceed ... under Turner, supra and Finley, supra and ... must review the case zealously. 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 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.

* * *

[W]here counsel submits a petition and no-merit letter that ... satisfy the technical demands of Turner/Finley, the [court in which the application was filed] must then conduct its own review of the merits of the case. If the court agrees with counsel that the claims are without merit, the court will permit counsel to withdraw and deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation omitted).

Here, counsel described the extent of his review, evaluated the issues, and concluded that the appeal is meritless. Counsel has also listed issues relevant to this appeal and explained why, in his opinion, the issues arewithout merit. In addition, counsel has included a letter that he sent to Appellant containing a copy of the petition to withdraw and a statement advising Appellant of his right to proceed pro se or through privately retained counsel. We conclude that counsel has substantially complied with the requirements necessary to withdraw as counsel. See Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa. Super. 2003) (holding that substantial compliance with the requirements to withdraw as counsel will satisfy the Turner/Finley criteria). Thus, we will permit counsel to withdraw if, after our independent review, we conclude that the claims relevant to this appeal lack merit.

Counsel identifies the following issues in the Turner/Finley letter:

1. Did Attorney Hathaway err in failing to appeal the Superior Court's May 1, 2020 affirmance of this Court's denial of PCRA Petition to the Pennsylvania Supreme Court?

2. Did Attorney Hathaway's failure to demand an evidentiary hearing on PCRA Petition 1 result in denial?

3. Did Attorney Hathaway's failure to preserve the ineffective assistance of Trial counsel [claim] raised in PCRA Petition 1 [by] failing to adequately develop the argument on appeal?

4. Did the [PCRA] Court commit abuse of discretion by failing to find ineffectiveness of post-sentence counsel's failure to file a direct appeal?

Turner/Finley letter at 6.

Prior to addressing the issues presented, we must determine if Appellant's second PCRA petition was timely, as it impacts our jurisdiction. Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). APCRA petition, "including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final[.]" 42 Pa.C.S. § 9545(b)(1). A judgment of sentence becomes final "at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review." Id. at § 9545(b)(3).

Beyond the one-year limit, a petitioner must plead and prove at least one of the following exceptions:

(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;

(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or

(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United

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