J-S58008-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ERIC MOORE (AKA) RUSSELL JOHNSON,
Appellant No. 984 WDA 2013
Appeal from the PCRA Order May 23, 2013
in the Court of Common Pleas of Fayette County
Criminal Division at No.: CP-26-CR-0000636-2006
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED OCTOBER 02, 2014
Appellant, Eric Moore (AKA) Russell Johnson, appeals from the order
dismissing his first petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely. Counsel has filed a
petition to withdraw as counsel.1 We affirm the court’s order and grant
counsel’s petition.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), in support of his petition to withdraw. However, a Turner/Finley
no-merit letter is the appropriate filing in an appeal from a PCRA court’s
order. See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
Because an Anders brief provides greater protection to an appellant, this
Court may accept it in lieu of a Turner/Finley letter. See Commonwealth
v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011).
(Footnote Continued Next Page)
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On February 4, 2006, the Commonwealth charged Appellant with
possession with intent to deliver a controlled substance, possession of a
controlled substance, possession of drug paraphernalia, and criminal
conspiracy.2 The charges related to Appellant’s involvement in a multi-
person drug operation. On June 10, 2011, Appellant filed a motion to
dismiss on the basis of the Commonwealth’s alleged violation of his speedy
trial rights. See Pa.R.Crim.P. 600. The court denied the motion after a
hearing, on July 21, 2011. On July 29, 2011, Appellant pleaded guilty to the
charge of possession with intent to deliver a controlled substance pursuant
to a negotiated plea agreement. On August 2, 2011, the trial court
sentenced Appellant consistent with the agreement’s terms to a period of
incarceration of not less than three and one-half nor more than seven years,
to be served concurrently to a federal sentence he was then serving.
Appellant did not file a post-sentence motion or a direct appeal.
On March 5, 2013, Appellant filed a pro se first PCRA petition and a
supplement to it on May 3, 2013. The court appointed counsel and, after a
hearing, denied Appellant’s petition as untimely on May 23, 2013. Appellant
_______________________
(Footnote Continued)
2
35 P.S. §§ 780-113(a)(30), (16), and (32); and 18 Pa.C.S.A. 903(a),
respectively.
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timely appealed3 and appointed counsel filed a petition to withdraw.
Appellant has not filed a response.
Before considering the issue counsel asserts Appellant wants to raise,
we first must consider whether counsel has complied with the requirements
that our courts have established in order for counsel to withdraw pursuant to
Turner and Finley. We have explained this procedure as follows:
. . . Turner/Finley counsel must review the case zealously.
Turner/Finley counsel must then submit a “no-merit” letter to
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3
The court did not order Appellant to file a statement of errors complained
of on appeal, but it filed an opinion on July 1, 2013. See Pa.R.A.P. 1925.
We observe that Appellant filed his notice of appeal pro se while
represented by counsel. However, based on our review of the confusing and
incomplete certified record and docket, it appears that the trial court
prothonotary’s office failed to forward a copy of Appellant’s pro se notice to
counsel pursuant to Criminal Rule 576(A)(4). See Pa.R.Crim.P. 576(A)(4)
(directing that, where represented defendant files document pro se, “[a]
copy of the time stamped document shall be forwarded to the defendant’s
attorney . . . within 10 days of receipt.”). Instead, counsel was not made
aware of the appeal until the PCRA court forwarded him a copy of its Rule
1925(a) opinion on July 1, 2013. (See PCRA Court Opinion, 7/01/13, at
unnumbered page 7). Therefore, he could not “have taken action within the
thirty day appeal period to eliminate the complication caused by the pro se
appeal, such as withdrawing it.” Commonwealth v. Cooper, 27 A.3d 994,
1006 (Pa. 2011).
Accordingly, because of all of the procedural irregularities, we treat
Appellant’s notice of appeal as premature, rather than quashing it pursuant
to Commonwealth v. Jette, 23 A.3d 1032, 1035 (Pa. 2011) (applying the
rule announced in Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa.
1993), that “there is no right to hybrid representation either at trial or on
appeal.”). See Cooper, supra at 1006 (concluding that dismissal of appeal
was not appropriate where “the prescribed procedure, designed to avoid the
confusing result of pro se filings by represented criminal defendants, was not
followed.”) (footnote omitted).
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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 the 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.
* * *
. . . [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. By contrast, if the claims appear to
have merit, the court will deny counsel’s request and grant
relief, or at least instruct counsel to file an advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007)
(citations omitted).
Instantly, counsel’s petition to withdraw and Anders brief indicate that
he examined the record, case law, and all relevant statutes; and that, after
examining whether any claims were available to Appellant, he explained why
he believes Appellant’s issue lacks merit. (See Petition to Withdraw as
Counsel, 7/07/14, at unnumbered page 2; Anders Brief, at 3-8). Counsel
mailed copies of the Anders brief and petition to withdraw to Appellant, and
advised Appellant that he may proceed pro se or through privately-retained
counsel. (See Petition to Withdraw as Counsel, 7/07/14, at unnumbered
page 4, Notice; id. at unnumbered page five, Certificate of Service; Anders
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Brief, at iv, Notice; id. at 16, Certificate of Service). Therefore, we conclude
counsel has substantially complied with the mandates of Turner and Finley;
thus, we proceed with our own review of Appellant’s claims.
On appeal, the Anders brief raises one question for our review:
I.
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judgment becomes final at the conclusion of direct review by this
Court or the United States Supreme Court, or at the expiration
of the time for seeking such review. 42 Pa.C.S.[A.] §
9545(b)(3). The PCRA’s timeliness requirements are
jurisdictional; therefore, a court may not address the merits of
the issues raised if the petition was not timely filed. The
timeliness requirements apply to all PCRA petitions, regardless of
the nature of the individual claims raised therein. The PCRA
squarely places upon the petitioner the burden of proving an
untimely petition fits within one of the three exceptions.
Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations
and footnote omitted).
In the case sub judice, Appellant’s judgment of sentence became final
on September 2, 2011, at the expiration of the time for him to seek review
of his judgment of sentence in this Court. See Pa.R.A.P. 903(a);
Pa.R.Crim.P. 42 Pa.C.S.A. § 9545(b)(3). Therefore, he had one year from
that date to file a petition for collateral relief unless he pleaded and proved
that a timing exception applied. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
Hence, Appellant’s current petition, filed on March 5, 2013, is untimely on its
face unless he pleads and proves one of the statutory exceptions to the
time-bar.
Section 9545 of the PCRA provides only three exceptions that allow for
review of an untimely PCRA petition:
(i) the failure to raise the 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;
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(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
(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.
Id.
A PCRA petition invoking one of these statutory exceptions must “be
filed within 60 days of the date the claim could have been presented.” 42
Pa.C.S.A. § 9545(b)(2).
Here, Appellant attempts to argue the applicability of the after-
discovered facts exception to his claim of ineffective assistance of counsel.
See id. at §§ 9543, 9545(b)(1)(ii). Specifically, Appellant argues that he
became aware in September 2012 that the court had not granted him credit
for time-served, and that counsel was ineffective in not challenging the
sentence by either a motion to modify or a direct appeal.4 (See PCRA
Petition, 3/05/13, at 3; see also id. at 7; Supplemental PCRA Petition,
5/03/13, at 3-4 ¶¶13, 14, 17; N.T. PCRA Hearing, 5/23/13, at 5, 10, 14,
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4
Appellant also argues that counsel was ineffective for failing to appeal the
June 10, 2011 denial of his Rule 600 motion. (See PCRA Petition, 3/05/13,
at 3; see also id. at 7; Supplemental PCRA Petition, 5/03/13, at 3 ¶ 8; N.T.
PCRA Hearing, 5/23/13, at 4-5, 14, 16, 19-20). However, not only does he
not acknowledge the untimeliness of this issue, he does not argue the
applicability of an exception as applied to this claim. (See PCRA Petition,
3/05/13, at 7; Supplemental PCRA Petition, 5/03/13, at 3 ¶ 8). Therefore,
we conclude that the PCRA court properly denied this issue as time-barred.
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22). This argument fails to establish an exception to the statutory time bar,
or Appellant’s compliance with the sixty day filing rule.
Even assuming Appellant was unaware until September 2012 that
counsel had not filed either a motion to modify his sentence or a direct
appeal on the basis that the court had not granted him credit for time-
served, he was required to file his petition “within sixty days of the date the
claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2); see also
Commonwealth v. Geer, 936 A.2d 1075, 1078 (Pa. Super. 2007), appeal
denied, 948 A.2d 803 (Pa. 2008) (noting that “before a petitioner may
benefit from Subsection 9545(b)(1)(ii)’s exception, the petitioner must plead
he filed his PCRA petition within sixty days of the date it could have been
presented[.]”). Therefore, even if we assume Appellant’s claim of belated
discovery, he still was required to file a petition and claim the benefit of the
after-discovered facts exception to the PCRA timeliness requirement by
November, 2012; however he failed to do so. See § 9545(b)(2); Geer,
supra at 1078.
Accordingly, because Appellant’s March 5, 2013 petition was untimely
on its face, and he has failed to plead and prove the applicability of a
timeliness exception, or compliance with the sixty day filing rule, we agree
with counsel that the PCRA court properly found that it lacked jurisdiction to
consider the petition’s merits, and that Appellant is not entitled to relief.
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See Jones, supra at 16-17; Rykard, supra at 1183; Wrecks, supra at
721.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/2/2014
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Com. v. Moore, E.
Combined Opinion