Commonwealth v. Rogers

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COMMONWEALTH OF PENNSYLVANIA v. LANCE ROGERS Appellant

No. 1210 WDA 2023

No. J-A13044-24

Superior Court of Pennsylvania

June 11, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the PCRA Order Entered September 6, 2023 In the Court of Common Pleas of Washington County Criminal Division at No(s) CP-63-CR-0002599-2018

BEFORE: OLSON, J., SULLIVAN, J., and BENDER, P.J.E.

MEMORANDUM

BENDER, P.J.E.

Appellant Lance Rogers, appeals from the post-conviction court's September 6, 2023 order denying his timely-filed petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant argues that the court erred by dismissing his petition, where his plea counsel acted ineffectively by failing to adequately advise him regarding two, negotiated plea offers made by the Commonwealth, resulting in Appellant's rejecting those offers to his detriment. Additionally, Appellant's counsel, Corrie Woods, Esq., has filed a Turner/Finley^[1] 'no-merit' brief and a petition to withdraw from representing Appellant. After careful review, we grant counsel's petition to withdraw and affirm the order denying Appellant's PCRA petition.

The PCRA court summarized the pertinent facts and procedural history of Appellant's case, which we adopt herein. See PCRA Court Opinion (PCO), 9/6/23, at 1-5. We need only briefly note that, in October of 2018, Appellant was arrested and charged with numerous drug and firearm offenses. Ultimately, Appellant filed and litigated an unsuccessful, pretrial motion to suppress. He was then offered two, separate plea deals - first, for "a negotiated term of 10[½] to 22 years['] imprisonment," and, second, for "a negotiated term of 13 to [2]6 years['] imprisonment." No-Merit Brief at 6. Appellant rejected both offers and proceeded to a jury trial in October of 2019. At the close thereof, he was convicted of ten counts of possession of a firearm by a person prohibited (18 Pa.C.S. § 6105(a)(1)), and single counts of possession with intent to deliver a controlled substance (35 P.S. § 780-113(a)(30)), possession of a controlled substance (35 P.S. § 780-113(a)(16)), and possession of drug paraphernalia (35 P.S. § 780-113(a)(32)). On January 31, 2020, the court sentenced Appellant to an aggregate term of 20 to 40 years' incarceration. This Court affirmed his judgment of sentence on direct appeal, and he did not file a petition for permission to appeal with our Supreme Court. See Commonwealth v. Rogers, 260 A.3d 175 (Pa. Super. 2021) (unpublished memorandum).

Instead, Appellant timely filed a PCRA petition. Attorney Woods was appointed to represent Appellant, and filed an amended petition on Appellant's behalf. Therein, Appellant alleged that his trial counsel "provided ineffective counsel due to his failure to[] adequately communicate to [Appellant] the strength of the Commonwealth's case, the risks and potential outcomes of trial, and … the risks and potential outcomes that trial would give rise to at sentencing." PCO at 8 (citation to the record and internal quotation marks omitted). Appellant "further aver[red] that had [trial counsel] adequately apprised [him] of the aforementioned information, [Appellant] would have foregone proceeding to trial and[,] instead, would have opted to accept the Commonwealth's plea offer." Id. (citation to the record omitted). The PCRA court conducted an evidentiary hearing on June 22, 2023. Thereafter, the court issued an order and opinion on September 6, 2023, denying Appellant's petition.

Appellant filed a timely notice of appeal. In response to the PCRA court's order for Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, Attorney Woods filed a Rule 1925(c)(4) statement of his intent to file a petition to withdraw. On October 19, 2023, the PCRA court issued a statement indicating that it was relying on its September 6, 2023 opinion to support its decision to deny Appellant's petition.

On December 4, 2023, Attorney Woods filed an application to withdraw as counsel and a no-merit letter. However, counsel's no-merit letter did not satisfy the briefing requirements of this Court. Accordingly, on December 15, 2023, this Court issued an order denying the application to withdraw without prejudice for Attorney Woods to file a Turner/Finley brief that complied with the necessary procedural requirements or an advocate's brief on or before January 16, 2024. On January 16, 2024, counsel filed a Turner/Finley brief and a new application to withdraw. Appellant filed a pro se response on May 13, 2024, which we will address infra.

We must begin by determining if Attorney Woods has satisfied the requirements for withdrawal.

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.

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[W]here counsel submits a petition and no-merit letter that ... satisfy the technical demands of Turner/Finley, the court-trial court or this Court-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, Attorney Woods has filed a petition to withdraw and a no-merit brief. Therein, counsel sets forth the ineffectiveness claim that Appellant wishes to raise on appeal, and he indicates the nature and extent of his review of that claim. Attorney Woods also explains why Appellant's issue is meritless. Attached to his petition to withdraw, Attorney Woods included a letter addressed to Appellant informing him that counsel is withdrawing, stating that counsel has enclosed his no-merit brief, and advising Appellant that he has the right to retain private counsel or proceed pro se. Accordingly, Attorney Woods has satisfied the first four requirements for withdrawal under Turner/Finley. Next, we will conduct our own independent assessment of the record to determine if the issue presented in Appellant's petition is meritless.

This Court's standard of review regarding an order denying a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). Where, as here, a petitioner claims that he or she received ineffective assistance of counsel, our Supreme Court has directed that the following standards apply:

[A] PCRA petitioner will be granted relief only when he proves, by a preponderance of the evidence, that his conviction or sentence resulted from the "[i]neffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S. § 9543(a)(2)(ii). "Counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel's performance was deficient and that such deficiency prejudiced him." [Commonwealth v.] Colavita, … 993 A.2d [874,] 886 [(Pa. 2010)] (citing Strickland [v. Washington, 466 U.S. 668 ... (1984)]). In Pennsylvania, we have refined the Strickland performance and prejudice test into a three-part inquiry. See [Commonwealth v.] Pierce, [527 A.2d 973 (Pa. 1987)]. Thus, to prove counsel ineffective, the petitioner must show that: (1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result. Commonwealth v. Ali, … 10 A.3d 282, 291 (Pa. 2010). "If a petitioner fails to prove any of these prongs, his claim fails." Commonwealth v. Simpson, … 66 A.3d 253, 260 ([Pa.] 2013) (citation omitted). Generally, counsel's assistance is deemed constitutionally effective if he chose a particular course of conduct that had some reasonable basis designed to effectuate his client's interests. See Ali, supra. Where matters of strategy and tactics are concerned, "a finding that a chosen strategy lacked a reasonable basis is not warranted unless it can be concluded that an alternative not chosen offered a potential for success substantially greater than the course actually pursued." Colavita, … 993 A.2d at 887 (quotation and quotation marks omitted). To demonstrate prejudice, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Commonwealth v. King, … 57 A.3d 607, 613 ([Pa.] 2012) (quotation, quotation marks, and citation omitted). "'[A] reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the proceeding.'" Ali, … 10 A.3d at 291 (quoting Commonwealth v. Collins, … 957 A.2d 237, 244 ([Pa.] 2008) (citing Strickland, 466 U.S. at 694….)).

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).

Presently Appellant contends that his trial counsel was ineffective for not adequately advising him regarding two plea offers by the Commonwealth. Specifically, Appellant claims that counsel failed to adequately communicate the strength of the

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