Opinion
J-S65043-17 No. 851 EDA 2016
11-16-2017
COMMONWEALTH OF PENNSYLVANIA v. DAVID SHEPPARD, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order February 19, 2016 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0104702-1993 BEFORE: OLSON, OTT and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
David Sheppard ("Sheppard") appeals from the Order dismissing his third Petition filed pursuant to the Post Conviction Relief Act ("PCRA"). See 42 Pa.C.S.A. §§ 9541-9546. Additionally, Earl G. Kauffman, Esquire ("Attorney Kauffman"), has filed an Application to Withdraw as counsel, and an accompanying brief. We grant Attorney Kauffman's Application to Withdraw and affirm the PCRA court's Order.
Attorney Kauffman's appellate brief appears to be in the nature of a brief filed pursuant to Anders v. California , 386 U.S. 738 (1967), which applies when counsel seeks to withdraw from representation on direct appeal. When, as in this case, counsel seeks to withdraw from representation on collateral appeal, the dictates of Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc), are applicable. 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. See Commonwealth v. Reed , 107 A.3d 137, 139 n.5 (Pa. Super. 2014).
The PCRA court aptly summarized the relevant factual and procedural history, which we adopt for the purpose of this appeal. See PCRA Court Opinion, 12/13/16, at 1-3.
On May 9, 2017, Attorney Kauffman filed an Application to Withdraw as counsel.
Before addressing Sheppard's claims, we must determine whether Attorney Kauffman complied with the requirements of Turner/Finley in petitioning 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). Such independent review requires proof of
1) A "no-merit" letter by PCRA counsel detailing the nature and extent of his review;Id. (citation and brackets omitted).
2) The "no-merit" letter by PCRA counsel listing each issue the petitioner wished to have reviewed;
3) The PCRA counsel's "explanation", in the "no-merit" letter, of why the petitioner's issues were meritless;
4) The [] court conducting its own independent review of the record; and
5) The [] court agreeing with counsel that the petition was meritless.
Here, Attorney Kauffman indicated that he had reviewed the record, identified the issues that Sheppard seeks to raise, and explained why the issues lack merit. In addition, Attorney Kauffman sent Sheppard copies of the Turner/Finley brief and Application to Withdraw, and advised him of his rights to retain alternate counsel or to proceed pro se in the event that the court granted Attorney Kauffman permission to withdraw. See Commonwealth v. Widgins , 29 A.3d 816, 818 (Pa. Super. 2011). Thus, we conclude that Attorney Kauffman has substantially complied with the procedural requirements necessary to withdraw as counsel. See Commonwealth v. Karanicolas , 836 A.2d 940, 947 (Pa. Super. 2003) (holding that substantial compliance with the procedural requirements to withdraw as counsel will satisfy the Turner/Finley criteria).
We now independently review Sheppard's claims to ascertain whether they entitle him to relief.
In the Turner/Finley brief, Attorney Kauffman raises the following issues for our review:
1. Whether trial counsel was ineffective for failing to communicate [the] Commonwealth's offer to [Sheppard], and then telling the prosecutor that [Sheppard] declined the offer[?]Turner/Finley Brief at 4 (some capitalization omitted).
2. Whether [Sheppard's] mandatory minimum sentence for murder of the second degree is unconstitutional[,] and therefore[,] his sentence of life without the possibility of parole is illegal[?]
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.Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations omitted).
Sheppard did not file a separate pro se brief, nor did he retain alternate counsel.
As an initial matter, we observe that the PCRA court set forth the relevant law regarding the PCRA's timeliness requirements, which we incorporate as though fully set forth herein, and properly determined that Sheppard's third Petition is patently untimely. See PCRA Court Opinion, 12/13/16, at 3-6.
In his first claim, Sheppard attempts to invoke the newly-recognized constitutional right exception based on the United States Supreme Court's decisions in Lafler v. Cooper , 566 U.S. 156 (2012), and Missouri v. Frye , 566 U.S. 134 (2012), and asserts that his trial counsel was ineffective for failing to communicate the Commonwealth's offer for a plea deal before declining the offer. Turner/Finley Brief at 4, 8.
In its Opinion, the PCRA court set forth the relevant law, considered Sheppard's first claim, and concluded that Sheppard failed to plead and prove the newly-recognized constitutional right exception to the PCRA's timeliness requirement. See PCRA Court Opinion, 12/13/16, at 6-10. We agree with the PCRA court's conclusion that Sheppard is not entitled to relief, and affirm on this basis as to Sheppard's first claim. See id.
In his second claim, Sheppard attempts to invoke the newly-recognized constitutional right exception based on the United States Supreme Court's decision in Alleyne v. United States , 133 S. Ct. 2151 (2013), and argues that his sentence is illegal because he was subject to a mandatory minimum sentence for his second-degree murder conviction. Turner/Finley Brief at 4, 8.
In Alleyne , the Supreme Court held that any fact that increases the sentence for a given crime must be submitted to the jury and found beyond a reasonable doubt. Alleyne , 133 S. Ct. 2155. The Supreme Court reasoned that a Sixth Amendment violation occurs where these sentence-determinative facts are not submitted to a jury. Id. at 2156.
We observe that Sheppard filed the instant pro se Petition in 2012, before the date of the Alleyne decision (June 17, 2013), and the counseled Amended Petition, which was filed in 2015, did not contain an Alleyne claim. Sheppard, pro se, responded to the PCRA court's Pa.R.Crim.P. 907 Notice of its intention to dismiss Sheppard's Petition with two additional filings, in which he challenged the legality of his sentence pursuant to Alleyne . The PCRA court observed that "petitioners may not automatically 'amend' their PCRA petitions via responsive pleadings." PCRA Court Opinion, 12/13/16, at 10 n.8 (quoting Commonwealth v. Baumhammers , 92 A.3d 708, 730 (Pa. 2014)). Additionally, on November 28, 2016, approximately nine months after filing a direct appeal from the dismissal his third Petition, Sheppard, pro se, filed a fourth PCRA Petition, again arguing that his sentence is illegal pursuant to Alleyne. "[W]hen an appellant's PCRA appeal is pending before a court, a subsequent PCRA petition cannot be filed until the resolution of review of the pending PCRA petition by the highest state court in which review is sought, or upon the expiration of the time for seeking such review." Commonwealth v. Lark , 746 A.2d 585, 588 (Pa. 2000). However, because Attorney Kauffman raised the Alleyne claim in the Turner/Finley brief, we will consider Sheppard's second claim. --------
Initially, Alleyne is not applicable to the instant case. Sheppard received a mandatory sentence pursuant to 18 Pa.C.S.A. § 1102(b), which provides that "a person who has been convicted of murder of the second degree ... shall be sentenced to a term of life imprisonment." Thus, the "fact" that led to Sheppard's life sentence was his jury conviction of second-degree murder, and the trial court engaged in no fact-finding at sentencing.
Moreover, the rule established in Alleyne does not apply retroactively where, as here, the judgment of sentence is final. See Commonwealth v. Washington , 142 A.3d 810, 820 (Pa. 2016) (holding that " Alleyne does not apply retroactively to cases pending on collateral review"); see also Commonwealth v. Miller , 102 A.3d 988, 995 (Pa. Super. 2014) (stating that while Alleyne claims go to the legality of the sentence, a court cannot review a legality claim where it does not have jurisdiction). Thus, Sheppard is not entitled to relief on his second claim.
Finally, our independent review of the record has revealed no meritorious claims that Sheppard could have raised on appeal, and we agree with Attorney Kauffman that this appeal lacks merit. Accordingly, we grant Attorney Kauffman's Application to Withdraw and affirm the PCRA court's Order denying Sheppard's third PCRA Petition.
Application to Withdraw granted. Order affirmed. Judgment Entered. /s/ _________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/16/2017
Image materials not available for display.