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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
HAAMIR BROWN, :
:
Appellant : No. 1742 EDA 2013
Appeal from the PCRA Order May 17, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-0011354-2009
BEFORE: BENDER, P.J., SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 10, 2014
Appellant, Haamir Brown, takes this appeal pro se from the order of
the Philadelphia County Court of Common Pleas dismissing, as untimely, his
first Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, petition.
Appellant claims he is entitled to relief based on the ineffective assistance of
plea counsel and appointed PCRA counsel. We are constrained to affirm.
On October 18, 2010, Appellant pleaded guilty to one count each of
conspiracy and possession with intent to deliver cocaine.1 At that time,
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 903(a)(1); 35 P.S. § 780-113(a)(30). Appellant was arrested
ator, the coconspirator exchanged the
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Appellant was represented by Robert
the terms of the plea agreement, the Commonwealth agreed not to pursue a
mandatory minimum sentence of three years and recommended an
See N.T.,
10/18/10, at 3-4; Written Guilty Plea Colloquy, 10/18/10, at 1. On the
agree with the plea bargain or agreement, I can withdraw my guilty plea and
have a trial before a judge and jury or before
Plea Colloquy at 1.
When entering his plea, Appellant requested a delay in his surrender
date. The trial court accepted the plea, imposed the negotiated aggregate
sentence, and allowed Appellant to surrender on November 16, 2010. The
court warned him:
[I]t is very, very important you show up. I have this
discussion with everybody. I have now given two people
these maximum sentences, and this [plea agreement] is a
wa
am going to vacate your sentence, resentence you, and
money for a package of crack cocaine from Appellant, and the coconspirator
delivered the cocaine to the confidential informant. At the time of his arrest,
Appellant was in possession of $452, including the buy money, 15 packets of
prior convictions for possession with intent to deliver controlled substances,
and prior convictions for simple assault, terroristic threat, and possessing an
instrument of crime.
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probably give you the maximum. So it is very, very
important you show up.
N.T. at 23-24.
Appellant failed to appear on his surrender date. The trial court
-51-CR-0011354-2009, at 8. The court, on November
17, 2010, issued a bench warrant for Appellant, vacated the negotiated
Id. at 8-9. Appellant was not present at this
resentencing proceeding,2 and plea counsel did not file post-sentence
motions or a direct appeal on his behalf. Appellant was taken into custody
more than five months later. On April 27, 2011, the court lifted its bench
warrant with a notation that Appellant was serving the November 17th
sentence imposed in absentia. Id. at 9.
On January 6, 2012, Appellant filed the pro se PCRA petition giving
rise to this appeal.3 Appellant asserted: (1) the November 17, 2010
sentence constituted a separate, illegal conviction for escape; (2) the trial
court improperly resentenced him in absentia without considering his
2
A record of the November 17, 2010 resentencing proceeding was not
ordered to be transcribed nor placed in the certified record.
3
A stamp bearing a mailing date of January 6, 2012, was attached to
pro se PCRA petition. Therefore, we use that mailing date as the
See Commonwealth v. Little, 716 A.2d
1287, 1288-
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explanations for his failure to surrender; and (3) he was entitled to
enforcement of his previously negotiated two to four year sentence based on
regarding the November 17th resentencing proceeding.4
represent Appellant. On August 29, 2012, PCRA counsel filed a
Turner/Finley5 letter indicating Appellant was not entitled to relief because
the sentence was within the statutory maximum for the offenses and the
PCRA petition was untimely filed. Letter, John P. Cotter, Esq., to Hon. Glenn
B. Bronson, 8/29/12, at 2. On November 16, 2012, PCRA counsel filed a
supplemental Turner/Finley letter a pro se
filings, but reaching the same conclusion. Letter, John P. Cotter, Esq., to
Hon. Glenn B. Bronson, 11/16/12, at 2.
On December 7, 2012, the PCRA court issued a Pa.R.Crim.P. 907
notice of its intent to dismiss App
Appellant filed a pro se response to the Rule 907 notice, alleging, inter alia,
supplemental pro se objection asserting the discovery of new evidence,
4
Appellant did not request a withdrawal of his guilty plea to the underlying
drug charges or a reinstatement of his direct appeal rights.
5
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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namely, newspaper articles regarding alleged malfeasance in the
Philadelphia Police Narcotics Unit.6 On January 23, 2013, PCRA counsel filed
discovered evidence. However, on March 13, 2013, PCRA counsel filed
another Turner/Finley
implicated in the reported malfeasance. Letter, John P. Cotter, Esq., to Hon.
Glenn B. Bronson, dated 3/12/13, at 2.
The PCRA court, on March 28, 2013, again issued a Rule 907 notice of
Appellant filed a pro se
ineffectiveness and requesting an evidentiary hearing to consider whether he
was entitled to a two to four year sentence. The court, on May 17, 2013,
entered an order permitting PCRA counsel to withdraw and dismissing
appeal followed.7
Appellant presents the following question in his pro se brief:
Did the PCRA Court abuse its discretion and err[ ] when
the court failed to conduct a cause hearing to determine if
absentia was warranted; and further err in (1) sentencing
6
Appellant, in his pro se brief in this Court, does not argue his discovery of
these newspaper articles entitles him to substantive relief or relief from the
PCRA time-bar. Therefore, any claim based on these articles has been
abandoned.
7
The PCRA court did not order the filing of a Pa.R.A.P. 1925(b) statement,
but prepared an opinion in support of its decision.
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Appellant to . . . 10 to 20 years for escape a distinct crime
that was not proven; (2) not finding plea counsel
ineffective in advising Appellant he had an extension to
surrender; and PCRA counsel was ineffective for failing to
raise this claim?
Appellan
first hold a hearing to determine when the one year [PCRA time bar] actually
started because he has been charged and convicted of a new Charge of
Id. at 12 (emphasis in original). He
insists he had a reasonable explanation for his failure to surrender on
November 16, 2010, i.e. he was caring for his daughter. Id. at 11. He also
claims plea counsel led him to believe the trial court extended his surrender
date past November 16, 2010. Id. Additionally, Appellant alleged he was
unaware that the trial court resentenced him to a ten to twenty year
sentence until November 1, 2011, approximately seven months after he was
taken into custody and nearly one year after the sentence was imposed.
See id.
that PCRA counsel was ineffective for failing to investigate his claims. We
time-
alleged ineffectiveness.
is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal
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unless there is no support for the findings in the certified
record.
Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)
ay affirm the decision of the [PCRA] court if
Commonwealth v. Blackwell, 936 A.2d 497, 499 (Pa. Super. 2007)
(citation omitted).
It is well settled that
no court has jurisdiction to hear an untimely PCRA petition.
The most recent amendments to the PCRA, effective
January 16, 1996, provide that a PCRA petition, including a
second or subsequent petition, shall be filed within one
year of the date the underlying judgment becomes final. A
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 three statutory exceptions to the timeliness
provisions in the PCRA allow for very limited circumstances
under which the late filing of a petition will be excused. 42
Pa.C.S.[ ] § 9545(b)(1). To invoke an exception, a
petition must allege and the petitioner must prove:
(i) the failure to raise a 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
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(iii) the right asserted is a constitutional right that
was recognized by the Supreme Court of the United
States or the Supreme Court of Pennsylvania after the
time period provided in this section and has been held
by that court to apply retroactively.
42 Pa.C.S.[ ] § 9545(b)(1)(i)-
petition is not filed within one year of the expiration of
direct review, or not eligible for one of the three limited
exceptions, or entitled to one of the exceptions, but not
filed within 60 days of the date that the claim could have
been first brought, the trial court has no power to address
Commonwealth v. Pollard, 911 A.2d 1005, 1007 (Pa. Super. 2006) (some
citations omitted). The Pennsylvania Supreme Court has emphasized that
ad hoc equitable
exceptions to the PCRA time-bar in addition to those exceptions expressly
Commonwealth v. Robinson, 837 A.2d 1157,
1162 (Pa. 2003) (citations omitted).
However, this Court has observed,
indigent petitioner is entitled to appointment of counsel on
his first PCRA petition, even where the petition appears
untimely on its face. In such cases, counsel is appointed
principally to determine whether the petition is indeed
untimely, and if so, whether any exception to the
timeliness requirements of 42 Pa.C.S.[ ] § 9545(b) applies.
PCRA petition is not limited to the mere naming of an
attorney. To have any meaning, the rule also requires
appointed counsel to provide meaningful representation.
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Commonwealth v. Perez, 799 A.2d 848 (Pa. Super. 2002) (citations
omitted).
Instantly, the trial court sentenced Appellant on October 16, 2010, to
to
appear for his surrender date, the court, on November 17, 2010, vacated
the October 16th sentence and resentenced Appellant in absentia to ten to
five times the length of the original sentence.
The conviction challenged by Appellant thus became final on December 17,
2010, when the time for taking an appeal to this Court expired.8 See 42
Pa.C.S. § 9545(b)(1), (3). Consequently, Appellant had until Monday,
December 19, 2011, to file a PCRA petition within the one-year time
requirement. See 1 Pa.C.S. 1908 (setting rules for calculation of time); 42
Pa.C.S. § 9545(b)(1). Appellant, however, filed his first pro se PCRA
-
year period expired. Therefore, his petition was untimely on its face.
responses, his brief, and the record, we are compelled to conclude that the
instant petition is untimely. Assuming arguendo, Appellant did not discover
8
Both PCRA counsel and the PCRA court appeared to have used the October
petition.
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that he had been resentenced in absentia to a ten to twenty year sentence
until November 1, 2011, see PCRA Pet., 1/6/12, at 3, he had sixty days
from the time of the discovery of that fact to file a timely petition. See 42
Pa.C.S. § 9545(b)(1)(ii), (2); Commonwealth v. Wilson, 824 A.2d 331,
336 n.9 (Pa. Super. 2003) (noting sixty day period in subsection 9545(b)(2)
begins to run from moment previously unknown fact was discovered).
Therefore, even if Appellant alleged the discovery of previously unknown
fact i.e.
proceeding he was required to file a PCRA petition by December 31, 2011.
pro se petition, filed on January 6, 2012,
did not fall within the exception created by Section 9545(b)(1)(ii). See 42
Pa.C.S. § 9545(b)(1)(ii), (2); Wilson, 824 A.2d at 336 n.9.
Moreover, because the timeliness of a PCRA petition is jurisdictional,
ailed
to protect his interests and rights at the resentencing hearing. 9 See
Pollard, 911 A.2d at 1007. Similarly, we cannot, under the PCRA, consider
whether the trial court possessed the authority to resentence Appellant to a
9
ovember 17, 2010 resentencing
proceeding constituted a separate, uncharged conviction for escape is belied
by the record. Appellant, when entering his plea to the underlying drug
offenses, sought an extension of time to surrender and begin service of his
two to four year sentence. The trial court, after accepting the plea and
request but warned him that he could be resentenced up to the maximum
sentence if he did not comply with the surrender date. Appellant
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ten to twenty year sentence after it previously accepted and sentenced him
to the negotiated two to four year sentence. See id.; see also
Commonwealth v. Baroni
that structural errors can never be deemed harmless does not serve to
create Commonwealth
v. Fahy
always subject to review within the PCRA, claims must still first satisfy the
that Appellant did not establish an exception to the PCRA time-bar.
Lastly, Appellant contends that PCRA counsel was ineffective because
he failed to interview plea counsel. Appellant preserved this claim of PCRA
cou
them in this appeal. See Commonwealth v. Pitts, 981 A.2d 875, 880 n.4
(Pa. 2009).
only be entitled to relief if he can show: (1) that his claim has arguable
reasonable strategic decision; and, (3) that he suffered prejudice because of
Commonwealth v. Pursell, 724 A.2d 293,
304 (Pa. 1999). Prejudice, for the purposes of a claim of ineffectiveness,
requires a petitioner to demonstrate a reasonable possibility that the
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outcome of the proceeding instantly, the PCRA proceeding would be
different. See id.
As noted above, our review reveals no basis in the record to assert an
exception to the PCRA time-
counsel should have investigated the merits of his claim by contacting plea
counsel fails to establish any prejudice.10
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/10/2014
10
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