Com. v. Gonzalez, J.

J-S50032-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

JAVIER GONZALEZ

Appellant No. 2544 EDA 2014

Appeal from the PCRA Order July 21, 2014
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004027-2007

BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED OCTOBER 15, 2015

Javier Gonzalez (“Appellant”), appeals from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. After careful review, we affirm.

The pertinent facts and procedural posture of this matter are as

follows. On May 5, 2009, a jury convicted Appellant of robbery, threat of

immediate serious bodily injury1 and criminal conspiracy2 for his

participation in a gunpoint robbery committed on October 23, 2006. The

trial court sentenced Appellant to an aggregate period of 14 years 9 months

to 37 years of imprisonment. After the trial court denied Appellant’s motion

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1
18 Pa.C.S. § 3701(a)(1)(ii).
2
18 Pa.C.S. § 903.
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for reconsideration of sentence, Appellant filed a direct appeal. This Court

dismissed the appeal on September 9, 2009, after Appellant’s counsel failed

to file a docketing statement.

On July 25, 2011, Appellant filed a pro se PCRA petition alleging

ineffective assistance of appellate counsel for failing to keep him apprised of

the status of his direct appeal. The PCRA court appointed counsel, who filed

an amended PCRA petition and memorandum of law in support of the

amended PCRA petition on November 14, 2012.3 On April 22, 2014,

Appellant, proceeding pro se, filed another amended PCRA petition. On June

20, 2014, the PCRA court filed its Pa.R.Crim.P. 907 notice of intent to

dismiss the PCRA petition without a hearing. On July 7, 2014, again

proceeding pro se, Appellant filed a response to the PCRA court’s Rule 907

notice. On July 21, 2014, the PCRA court entered an order dismissing the

PCRA petition.

Appellant filed a timely pro se notice of appeal on August 19, 2014.4

On September 16, 2014, appointed PCRA counsel filed a Pa.R.A.P. 1925(b)
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3
The certified record contains only the memorandum of law in support of
the amended PCRA petition, not the amended petition itself.
4
Strictly speaking, Appellant’s pro se notice of appeal was a nullity because
Appellant filed it when he was represented by counsel. See
Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa.1993) (“[T]here is no
constitutional right to hybrid representation.”); see also Commonwealth
v. Nischan, 928 A.2d 349, 355 (Pa.Super.2007) (describing counseled
defendant’s pro se post-sentence motion as “a nullity, having no legal
effect”). In the interest of judicial economy, and in consideration of our
(Footnote Continued Next Page)

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statement.5 The PCRA court filed its Pa.R.A.P. 1925(a) opinion on October

21, 2014.

On March 19, 2015, despite having filed an amended PCRA petition in

the lower court, Appellant’s court-appointed PCRA counsel filed a

Turner6/Finley7 “no-merit” letter (“no-merit letter”) with this Court in lieu

of an advocate’s brief, together with an application to withdraw as counsel.

The no-merit letter provides a factual summary and procedural history of the

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(Footnote Continued)

disposition of this matter as discussed infra, we will overlook this technical
deficiency.
5
Appellant’s Pa.R.A.P. 1925(b) statement, filed by court-appointed counsel,
states as follows:

[Appellant] filed a pro se Notice of Appeal on August 21,
2014 and counsel is obligated to represent him on appeal.
These are the issues [Appellant] wishes that counsel raise:

1. The court was in error in denying [Appellant’s] PCRA
[petition] without an evidentiary hearing.

2. The court was in error in denying the amended PCRA
[petition] filed by counsel on November 14, 2012. The issues to
be raised before the Superior Court in this appeal are fully set
forth in the amended PCRA filed by Appellant’s counsel on
November 14, 2012.

[3.] The PCRA [petition] was not untimely filed as set
forth in the amended PCRA [petition] filed by counsel as an
exception applies to untimeliness.

1925(b) Statement.
6
Commonwealth v. Turner, 544 A.2d 927 (Pa.1988).
7
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988) (en banc).

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matter, and discusses the general requirements of PCRA relief, including the

PCRA’s timeliness requirements. See No Merit Letter, pp. 1-10. The no-

merit letter then discusses the timeliness of Appellant’s PCRA petition, and

concludes (1) that the petition was untimely, and (2) that none of the

PCRA’s time bar exceptions applied. See id. at 10. Accordingly, the no-

merit letter asserts that Appellant’s appeal is wholly frivolous because the

underlying PCRA petition was untimely. See id. at 11.8

Our Supreme Court has explained the procedure required for court-

appointed counsel to withdraw from PCRA representation:

[Turner and Finley] establish the procedure for
withdrawal of court-appointed counsel in collateral attacks on
criminal convictions. Independent review of the record by
competent counsel is required before withdrawal is permitted.
Such independent review requires proof of:

1) A “no-merit” letter by PCRA counsel detailing the nature and
extent of his [or her] review;

2) A “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 PCRA court conducting its own independent review of the
record; and

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8
Both the no-merit letter and the Petition to Withdraw explain that counsel
sent Appellant copies of these documents, and each advises Appellant he
has 30 days to respond to the no-merit letter either pro se or through
privately retained counsel. See No Merit Letter, p. 11; Motion to Withdraw,
p. 2 (unnumbered).

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5) The PCRA court agreeing with counsel that the petition was
meritless.

Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa.2009) (citations

omitted). In addition, this Court has required that PCRA counsel who seeks

to withdraw must:

contemporaneously serve a copy on the petitioner of counsel’s
application to withdraw as counsel, and must supply the
petitioner both a copy of the “no-merit” letter and a statement
advising the petitioner that, in the event the court grants the
application of counsel to withdraw, he or she has the right to
proceed pro se or with the assistance of privately retained
counsel.

Commonwealth v. Friend, 896 A.2d 607, 614 (Pa.Super.2006) (emphasis

deleted).

If counsel fails to satisfy the foregoing technical prerequisites of
Turner/Finley, the court will not reach the merits of the
underlying claims but, rather, will merely deny counsel’s request
to withdraw. Upon doing so, the court will then take appropriate
steps, such as directing counsel to file a proper Turner/Finley
request or an advocate’s brief.

However, where counsel submits a petition and no-merit letter
that do 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).

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The instant procedural posture differs from normal practice in that

appointed PCRA counsel filed an amended PCRA petition in the PCRA court,

but then filed a no-merit letter with this Court on appeal. This procedural

posture presents a problem in that, because the no-merit letter was filed

with this Court after the lower court had already dismissed his petition,

Appellant was divested of the opportunity to respond to the no-merit letter,

either proceeding pro se or with privately retained counsel, before the PCRA

court dismissed his petition. Additionally, the no-merit letter suffers from

numerous drafting deficiencies.9 In another case, these shortcomings and

errors might occasion remand of the matter to the PCRA court with direction

that counsel file an adequate no-merit letter in the proper forum. However,

because Appellant’s PCRA petition is untimely without excuse for the reasons

discussed infra, Appellant suffered no actual prejudice by counsel’s

missteps.10 Therefore, in the interest of judicial economy, we will not

remand and instead proceed to decide this appeal.11
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9
The no-merit letter only summarily details the nature and extent of
counsel’s review. See No-Merit Letter, p. 11 (“. . . current counsel engaged
in a careful and exhaustive review of the Appellant’s claims and the available
record.”). Further, the no-merit letter fails to list or discuss Appellant’s
underlying ineffective assistance of trial counsel issue, and discusses only
the timeliness of Appellant’s petition, not whether counsel believes the
underlying issue lacks merit. See id. at 3-11.
10
Because Appellant’s PCRA petition is untimely without excuse, as
discussed infra, no amount of argument, whether pro se or counseled,
would have provided the PCRA court with jurisdiction to determine the
merits of Appellant’s PCRA petition. Accordingly, Appellant has suffered no
(Footnote Continued Next Page)

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In reviewing an order denying PCRA relief, our well-settled standard of

review is “to determine whether the determination of the PCRA court is

supported by the evidence of record and is free of legal error. The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record.” Commonwealth v. Barndt, 74 A.3d 185,

191-192 (Pa.Super.2013) (internal quotations and citations omitted).

Before addressing the merits of Appellant’s claims, we must first

consider the timeliness of his PCRA petition because it implicates the

jurisdiction of both this Court and the PCRA court. Commonwealth v.

Williams, 35 A.3d 44, 52 (Pa.Super.2011) (citation omitted), appeal

denied, 50 A.3d 121 (Pa.2012). “Pennsylvania law makes clear that no

court has jurisdiction to hear an untimely PCRA petition.” Id. To “accord

finality to the collateral review process[,]” the PCRA “confers no authority

upon this Court to fashion ad hoc equitable exceptions to the PCRA time-

bar[.]” Commonwealth v. Watts, 23 A.3d 980, 983 (Pa.2011).

_______________________
(Footnote Continued)

prejudice by being divested of the opportunity to respond to the no-merit
letter.
11
We note that we cannot remand for counsel to file an advocate’s brief that
would require counsel to argue a position contrary to established law, to wit,
require argument that a timeliness exception applies to Appellant’s petition.
Further, a remand to the PCRA court to allow counsel to adequately re-draft
and then file the no-merit letter and application to withdraw in the
procedurally proper forum, thereby affording Appellant the opportunity to
respond, would not change the result of this matter. Therefore, such a
remand would only serve to waste judicial resources.

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“It is undisputed that a PCRA petition must be filed within one year of

the date that the judgment of sentence becomes final.” Commonwealth v.

Hernandez, 79 A.3d 649, 651 (Pa.Super.2013); 42 Pa.C.S. § 9545(b)(1).

“This time requirement is mandatory and jurisdictional in nature, and the

court may not ignore it in order to reach the merits of a petition.”

Hernandez, 79 A.3d at 651 (citing Commonwealth v. Murray, 753 A.2d

201, 203 (Pa.2000)). “Without jurisdiction, we simply do not have the legal

authority to address the substantive claims.” Commonwealth v. Seskey,

86 A.3d 237, 241 (Pa.Super.2014) (quoting Commonwealth v. Albrecht,

994 A.2d 1091, 1093 (Pa.2010)).

A judgment of sentence “becomes final at the conclusion of direct

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 review.” 42 Pa.C.S. § 9545(b)(3). However, a facially

untimely petition may be received where any of the PCRA’s three limited

exceptions to the PCRA time bar are met. Hernandez, 79 A.3d at 651

(footnote omitted). These exceptions include:

(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;

(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

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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)-(iii). As our Supreme Court has repeatedly

stated, the petitioner maintains the burden of pleading and proving that one

of these exceptions applies. Commonwealth v. Abu-Jamal, 941 A.2d

1263, 1268 (Pa.2008), cert. denied, 555 U.S. 916 (2008); see also

Commonwealth v. Leggett, 16 A.3d 1144, 1146 (Pa.Super.2011) (“The

petitioner bears the burden to allege and prove [that] one of the timeliness

exceptions applies.”). Further,

[a] petition invoking one of these exceptions must be filed within
sixty days of the date the claim could first have been presented.
42 Pa.C.S. § 9545(b)(2). In order to be entitled to the
exceptions to the PCRA’s one-year filing deadline, the petitioner
must plead and prove specific facts that demonstrate his claim
was raised within the sixty-day time frame under section
9545(b)(2).

Hernandez, 79 A.3d at 651-652 (internal quotations omitted).

Here, Appellant’s judgment of sentence became final on October 9,

2009, thirty days after this Court dismissed his direct appeal. Appellant filed

the instant petition over one and a half years later, on July 25, 2011.

Accordingly, the instant petition is facially untimely. Thus, Appellant must

plead and prove that his petition falls under one of the Section 9545

exceptions set forth in the PCRA. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).

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Initially, neither Appellant’s pro se PCRA petition, nor the counseled

amended PCRA petition,12 nor Appellant’s pro se amended PCRA petition, nor

Appellant’s pro se response to the PCRA court’s Rule 907 notice of intent to

dismiss without a hearing expressly claim entitlement to any of the PCRA’s

enumerated PCRA time-bar exceptions. See Pro Se PCRA Petition; Amended

PCRA Petition; Pro Se Amended PCRA Petition; Rule 907 Response. To the

extent this Court can discern a pleaded timeliness exception, the PCRA

petition claims Appellant is entitled to the Section 9545(b)(1)(ii) newly

discovered facts exception because his direct appeal counsel did not inform

him of the outcome of his direct appeal. See PCRA Petition, p. 3. He is

incorrect.

The PCRA petition fails to explain how his counsel’s failure to inform

him of the status of his appeal rendered the date he discovered the dismissal

of his direct appeal a “new fact”. The disposition of Appellant’s direct appeal

was and is a fact of public record. Our Supreme Court has explained that

information that is part of the public record does not constitute a newly

discovered fact for PCRA time-bar exception purposes. See
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12
As previously explained, the certified record contains only the
Memorandum of Law in Support of Amended Petition for Relief Pursuant to
Post Conviction Relief Act. See Footnote 3, supra. We can deduce from
this memorandum, however, that appointed PCRA counsel did not raise a
time-bar exception in the amended PCRA petition. See Memorandum of Law
in Support of Amended Petition for Relief Pursuant to Post Conviction Relief
Act, p. 7 (“On July 26, 2011 [sic], Petitioner filed a timely, pro se petition
pursuant to procedures under the Post Conviction Relief Act.”).

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Commonwealth v. Edmiston, 65 A.3d 339, 352, (Pa.2013), cert. denied,

134 S. Ct. 639 (U.S. 2013) (“to constitute facts which were unknown to a

petitioner and could not have been ascertained by the exercise of due

diligence, the information must not be of public record and must not be facts

that were previously known but are now presented through a newly

discovered source.”). Further, the PCRA petitions fail to specify the date

when Appellant learned of his direct appeal’s disposition. Accordingly,

Appellant has insufficiently pleaded the exception. See Commonwealth v.

Breakiron, 781 A.2d 94, 98 (Pa.2001) (holding time bar exception not

properly pleaded where Appellant failed to provide the date on which he

learned information allegedly entitling him to exception); see also

Commonwealth v. Williams, 35 A.3d 44, 53 (Pa.Super.2011) (“A

petitioner must explain when he first learned of the facts underlying his

PCRA claims and show that he brought his claim within sixty (60) days

thereafter.”). Accordingly, the petition remains time-barred.

Because the PCRA petition is patently untimely and Appellant did not

avail himself of any of the PCRA’s time bar exceptions, the PCRA court did

not err in denying this petition as untimely.13

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13
While we appreciate the dissent’s concerns regarding the deficiencies in
PCRA counsel’s performance, we note that the PCRA court did not appoint
counsel until after Appellant filed his pro se PCRA petition. While PCRA
counsel may have provided inadequate representation, the fact remains that
no amount of adequate representation could or would have transformed
(Footnote Continued Next Page)

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Order affirmed. Counsel’s petition to withdraw granted.14

Judge Mundy concurs in the result.

Judge Panella files a dissenting statement.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/15/2015

_______________________
(Footnote Continued)

Appellant’s initial, untimely-filed pro se PRCA petition into a timely-filed
PCRA petition. See Note 10, supra.
14
We acknowledge the dissent’s suggestion that the remedies set forth in
Commonwealth v. Williamson, 21 A.3d 236 (Pa.Super.2011), are
appropriate for the instant matter. However, we note that Williamson,
which concerned counsel’s failure to timely file a petition for allowance of
appeal to the Supreme Court of Pennsylvania, is inapposite to the instant
matter, which involves an untimely PCRA.

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