Com. v. Robinson, W. (memorandum)

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J-S53025-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. WILBERT TORILLO ROBINSON Appellant No. 132 MDA 2013 Appeal from the Order Entered August 28, 2012 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0001502-2006 CP-36-CR-0005141-2005 BEFORE: BENDER, P.J., LAZARUS, J., and FITZGERALD, J.* MEMORANDUM BY LAZARUS, J. FILED DECEMBER 17, 2013 Wilbert Torillo Robinson appeals from the order of the Court of Common Pleas of Lancaster County denying his petition filed pursuant to the Post Conviction Relief Act (PCRA).1 Robinson tendered a guilty plea to four counts of robbery (F1), two counts of robbery (F2), two counts of criminal conspiracy to commit robbery (F1) and one count of aggravated assault. Robinson was sentenced on August 2, 2007, to an aggregate term of 12½ to 25 years incarceration. After his appellate rights were reinstated nunc pro tunc through PCRA proceedings, this Court affirmed his judgment of ____________________________________________ * Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S.A. §§ 9541-9546. J-S53025-13 sentence on April 14, 2011. Robinson filed the instant PCRA petition on May 5, 2012; counsel was appointed and filed an amended petition on July 23, 2012. The PCRA court dismissed Robinson s petition without a hearing by order dated September 8, 2012. This timely appeal followed, for which new counsel was appointed. On appeal, Robinson s counsel seeks to withdraw. Thus, before we can address the merits of the case, we must first determine if counsel satisfied the technical requirements of Turner/Finley.2 Commonwealth v. Mosteller, 633 A.2d 615, 617 (Pa. Super. 1993). In order to withdraw from an appeal pursuant to Turner/Finley, counsel must submit a nomerit letter/brief that includes a description of the nature and extent of counsel s review, a list of the issues the petitioner wished to raise, and an explanation of why those issues lack merit. See Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa. Super. 2003). Counsel must also send to the appellant: (1) a copy of counsel s no-merit letter/brief; and (2) a statement advising the appellant that, in the event the court grants counsel s application to withdraw, he has the right to proceed pro se or with privately retained counsel. Commonwealth v. Friend, 896 A.2d 607, 615 (Pa. Super. 2006). If counsel fails to satisfy the foregoing technical ____________________________________________ 2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). -2- J-S53025-13 requirements, this Court will not reach the merits of the underlying claims but, rather, will deny counsel s request to withdraw and remand the case with appropriate instructions. Mosteller, supra at 617. Here, counsel s amended Turner/Finley brief includes a description of the nature and extent of counsel s review, a list of the issues the petitioner wished to raise, and an explanation of why those issues lack merit. In addition, counsel sent Robinson a copy of counsel s no-merit brief and a statement advising Robinson, in the event the court grants counsel s application to withdraw, he has the right to proceed pro se or with privately retained counsel. Accordingly, counsel has complied with the requirements of Turner/Finley. As such, we proceed to our own independent review of Robinson s issues to determine whether they are truly meritless. In his amended Turner/Finley brief, counsel states that Robinson wished to raise the following issues for our review, which we have restated for the sake of clarity: 1. Trial counsel was ineffective for failing to file a motion to suppress Robinson s post-arrest statements to police. 2. Appellate counsel was ineffective for failing to challenge the discretionary aspects of Robinson s sentence where the trial court imposed upon Robinson a sentence identical to those imposed upon his co-defendants. We have reviewed the transcripts, the briefs, the relevant law, and the record as a whole and conclude that the excellent opinion of the Honorable David L. Ashworth thoroughly, comprehensively and correctly disposes of the issues Robinson raises on appeal. -3- First, Judge Ashworth correctly J-S53025-13 determined that Robinson cannot demonstrate that he was prejudiced by trial counsel s failure to file a motion to suppress, as the remainder of the Commonwealth s evidence, including [t]he physical evidence, the eyewitness evidence of Officer Hagen, and the incriminating statements of [Robinson s] co-defendants was more than sufficient evidence to tie [Robinson] to these robberies. PCRA Court Opinion, 8/28/12, at 15. Second, with respect to Robinson s sentence, Judge Ashworth engaged in an on-the-record sidebar discussion with counsel memorializing an earlier discussion in chambers regarding the individualization of the sentences of Robinson and his co-defendants. Judge See N.T. Sentencing, 8/2/07, at 17-27. Ashworth emphasized that, despite the similarity of the co- defendants sentences, he had considered the age, rehabilitative needs, presentence reports and involvement in the offenses of each individual defendant. See N.T. Sentencing, 8/2/07, at 18. He made his sentencing determination based upon those factors, as well as the nature and severity of the offenses and the combined efforts of everyone involved. Id. fashioning Robinson s sentence, the court took into account the following factors: [Robinson s] age (19); his family history; his educational background, having completed the 11th grade prior to his arrest on these charges and having obtained his GED diploma while incarcerated; his substance abuse history, starting with his use of marijuana and alcohol at age 16; his lack of employment history; his prior juvenile record; his character; his lack of remorse; and his rehabilitative needs and potential. PCRA Court Opinion, 8/28/12, at 18-19. -4- In J-S53025-13 As Judge Ashworth correctly concludes in his opinion, Robinson suffered no prejudice as a result of appellate counsel s failure to challenge the discretionary aspects of his sentence, as any such challenge would have garnered him no relief. Accordingly, we affirm based on Judge Ashworth s opinion. Counsel is directed to attach a copy of that opinion in the event of further proceedings in this matter. Order affirmed. FITZGERALD J., Concurs in the result. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/17/2013 -5-

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