Opinion
J-S23034-17 No. 1518 EDA 2016
05-19-2017
COMMONWEALTH OF PENNSYLVANIA v. TYSON HERNANDEZ, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order February 5, 2016 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0800861-2006 BEFORE: OLSON, SOLANO and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Tyson Hernandez ("Hernandez") appeals from the Order dismissing his first Petition filed pursuant to the Post Conviction Relief Act. ("PCRA") Additionally, Hernandez's counsel, Todd Mosser, Esquire ("Attorney Mosser"), has filed a Petition for Leave to Withdraw as Counsel. We grant Attorney Mosser's Petition, and affirm the PCRA court's Order.
On August 29, 2006, Hernandez entered a nolo contendere plea to possession with intent to deliver a controlled substance, and was sentenced to a one-year probationary term. Hernandez did not file a post-sentence motion or a direct appeal; consequently, his judgment of sentence became final on September 28, 2006. On September 26, 2014, Hernandez filed a "Motion for New Trial Based Upon After-Discovered Evidence; Alternatively, for Post Conviction Collateral Relief; or Alternatively, for a Writ of Habeas Corpus." The PCRA court appointed Hernandez counsel. The PCRA court determined that, although Hernandez's claim was subsumed under the PCRA, he was no longer eligible for PCRA relief because he was no longer serving a sentence. Accordingly, the PCRA court issued a Pa.R.Crim.P. 907 Notice of its intent to dismiss the Petition without a hearing. Hernandez did not respond to the Rule 907 Notice, and on February 5, 2016, the PCRA court dismissed the Petition. Hernandez filed a timely Notice of Appeal. The PCRA court appointed appellate PCRA counsel, Attorney Mosser, who filed a Concise Statement of matters complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Attorney Mosser subsequently determined that Hernandez had no meritorious claims to advance, and filed a Petition to withdraw, along with a "no-merit letter" pursuant to Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc).
As Hernandez's claim was subsumed under the PCRA, the PCRA court treated his Motion as a Petition filed pursuant to the PCRA.
The PCRA court also permitted PCRA counsel to withdraw from representation. --------
Prior to addressing Hernandez's claims on appeal, we must address Attorney Mosser's Petition to withdraw as counsel. Pursuant to Turner / Finley , independent review of the record by competent counsel is required before withdrawal on collateral appeal is permitted. See Commonwealth v. Pitts , 981 A.2d 875, 876 n.1 (Pa. 2009). In Pitts , our Supreme Court explained that such independent review requires proof of:
1. A "no-merit" letter by PC[R]A counsel detailing the nature and extent of his review;Id. (citation and brackets omitted). Further, our Court has held that the Supreme Court in Pitts did not expressly overrule the additional requirement imposed by this Court in Commonwealth v. Friend , 896 A.2d 607, 615 (Pa. Super. 2006), stating
2. The "no-merit" letter by PC[R]A counsel listing each issue the petitioner wished to have reviewed;
3. The PC[R]A counsel's "explanation," in the "no-merit" letter, of why the petitioner's issues were meritless;
4. The PC[R]A court conducting its own independent review of the record; and
5. The PC[R]A court agreeing with counsel that the petition was meritless.
that PCRA counsel seeking to withdraw contemporaneously forward to the petitioner a copy of the application to withdraw that includes (i) a copy of both the "no-merit" letter, and (ii) a statement advising the PCRA petitioner that, in the event the trial court grants the application of counsel to withdraw, the petitioner has the right to proceed pro se, or with the assistance of privately retained counsel.Commonwealth v. Widgins , 29 A.3d 816, 818 (Pa. Super. 2011).
Here, in the Turner / Finley "no merit" letter, Attorney Mosser described the extent of his review, identified the issues that Hernandez sought to raise, and explained why the issues lacked merit. In addition, Attorney Mosser provided Hernandez with a notice of his intention to seek permission to withdraw from representation, a copy of the Turner / Finley "no-merit" letter, and advised Hernandez of his rights in lieu of representation. Thus, we conclude that Attorney Mosser 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 requirements to withdraw as counsel will satisfy the Turner / Finley criteria). We now independently review Hernandez's claims to ascertain whether they entitle him to relief.
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. 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. Further, where the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary.Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations omitted).
To be eligible for relief under the PCRA, the petitioner must plead and prove by a preponderance of the evidence that he has been convicted of a crime under the laws of this Commonwealth, "and is at the time relief is granted ... currently serving a sentence of imprisonment, probation or parole for the crime." 42 Pa.C.S.A. § 9543(a)(1).
Here, Hernandez was not eligible for relief under the PCRA because, at the time he filed his Petition, he was no longer serving a sentence of imprisonment, probation or parole. See id.; see also PCRA Court Opinion, 6/6/16, at 4. Thus, the PCRA court's ruling is supported by the evidence of record and is free of legal error. We therefore affirm the dismissal of Hernandez's Petition.
Petition to withdraw granted; Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/19/2017