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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DECARLO EUGENE PINCKNEY
Appellant No. 1444 MDA 2015
Appeal from the PCRA Order July 31, 2015
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0007073-2009
BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY MUNDY, J.: FILED MARCH 08, 2016
Appellant, DeCarlo Eugene Pinckney, appeals from the July 31, 2015
order dismissing, as untimely, his petition for relief filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.
Contemporaneous with this appeal, Appellant’s counsel has filed with this
Court a petition to withdraw, together with an Anders1 brief, averring the
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*
Retired Senior Judge assigned to the Superior Court.
1
Anders v. California, 386 U.S. 738 (1967). Although counsel has
submitted an Anders brief to this Court, we note that in the PCRA context,
counsel should have filed a no-merit letter in accordance with
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and their progeny.
Commonwealth v. Widgins, 29 A.3d 816, 817 n.1 (Pa. Super. 2011).
However, “[b]ecause an Anders brief provides greater protection to a
defendant, this Court may accept an Anders brief in lieu of a Turner/Finley
letter.” Id. (citation omitted).
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appeal is frivolous.2 After careful review, we affirm and grant counsel’s
petition to withdraw.
We summarize the procedural history of this case as follows. On
March 11, 2010, Appellant pled guilty to one count each of possession of a
firearm prohibited, prohibited offensive weapons, and intentional possession
of a controlled substance.3 That same day, the trial court imposed an
aggregate sentence of five to ten years’ imprisonment, to be followed by six
years’ probation. Appellant did not file a direct appeal with this Court.
Appellant filed his first pro se PCRA petition on October 23, 2014,
which was denied by the PCRA court on October 31, 2014 without a
hearing.4 No notice of appeal was docketed in this Court.5 On February 17,
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2
The Commonwealth elected not to file a brief in this matter.
3
18 Pa.C.S.A. §§ 6105(a), 908(a), and 35 P.S. § 780-113(a)(16),
respectively.
4
Although Appellant’s petition is file-stamped October 27, 2014, we note
that the certified record contains a copy of the envelope Appellant used for
mailing, which shows a postmark of October 23, 2014. Under the prisoner
mailbox rule, “a pro se prisoner’s document is deemed filed on the date he
delivers it to prison authorities for mailing.” Commonwealth v.
Chambers, 35 A.3d 34, 38 (Pa. Super. 2011) (citation omitted), appeal
denied, 46 A.3d 715 (Pa. 2012). As a result, we deem Appellant’s petition
filed on October 23, 2014. Further, for the remainder of Appellant’s pro se
filings we use the date of the postmarks as the corresponding filing dates in
this memorandum pursuant to the prisoner mailbox rule.
5
Despite this being Appellant’s first petition, it appears that counsel was not
appointed to represent him. See generally Pa.R.Crim.P. 904(C). Appellant
filed a pro se notice of appeal in the trial court on December 2, 2014. The
(Footnote Continued Next Page)
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2015, Appellant filed his second pro se PCRA petition, which Appellant
amended pro se on March 9, 2015. The PCRA court denied Appellant’s
petition on March 11, 2015 without prejudice to refile, due to it being over
265 pages in length and the PCRA court’s inability to understand the issues
contained therein. Appellant did not file a notice of appeal to this Court. On
March 23, 2015, Appellant filed a petition for reconsideration, which the
PCRA court construed as Appellant’s third pro se PCRA petition. Counsel was
appointed for Appellant on June 12, 2015. On July 15, 2015, the
Commonwealth filed a motion to dismiss Appellant’s petition as untimely.
The PCRA court conducted a hearing limited to arguments from counsel as to
the issue of timeliness on July 31, 2015. That same day, the PCRA court
entered an order dismissing Appellant’s PCRA petition as untimely filed. On
August 19, 2015, Appellant filed a timely notice of appeal.6
On appeal, counsel raises the following issue on Appellant’s behalf.
Whether [] Appellant’s PCRA petition is wholly
frivolous and without arguable merit within the
meaning of Anders …; Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981); and
Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009)?
_______________________
(Footnote Continued)
trial court notified Appellant that it would be forwarding said notice of appeal
to the public defender under Pennsylvania Rule of Criminal Procedure
576(A)(4). However, no further action was taken on the notice of appeal.
6
Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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Anders Brief at 4.
Prior to considering Appellant’s issue, we must review PCRA counsel’s
request to withdraw from representation. Our Supreme Court has
articulated the requirements PCRA counsel must adhere to when requesting
to withdraw, which include the following.
1) A “no-merit” letter by PC[R]A counsel detailing
the nature and extent of his review;
2) The “no-merit” letter by PC[R]A counsel listing
each issue the petitioner wished to have reviewed;
3) The PC[R]A counsel’s “explanation”, in the “no-
merit” letter, of why the petitioner’s issues were
meritless[.]
Commonwealth v. Pitts, 981 A.2d 875, 876 (Pa. 2009), quoting Finley,
supra at 215. “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.” Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super.
2007) (citation omitted).
[W]here 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.
Id. (citation omitted).
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Instantly, we determine that PCRA counsel has complied with the
requirements of Turner/Finley. Specifically, PCRA counsel’s Anders brief
and petition to withdraw detail the nature and extent of PCRA counsel’s
review, address the claims Appellant raised in his pro se PCRA petition and
at the PCRA hearing, and determine that the issues lack merit. PCRA
counsel provides a discussion of Appellant’s claims, explaining why the
issues are without merit. Additionally, PCRA counsel served Appellant with a
copy of the petition to withdraw and Anders brief, advising Appellant that, if
PCRA counsel was permitted to withdraw, Appellant had the right to proceed
pro se or with privately retained counsel. Appellant filed his pro se response
on January 15, 2016 titled as a “Motion in Objection to Anders brief and
Withdrawal of Counsel.”7 We proceed, therefore, to conduct an independent
merits review of Appellant’s issue, as well as his pro se response.
We begin by noting our well-settled standard of review. “In reviewing
the denial of PCRA relief, we examine whether the PCRA court’s
determination is supported by the record and free of legal error.”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation
marks and citation omitted). “The scope of review is limited to the findings
of the PCRA court and the evidence of record, viewed in the light most
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7
Appellant’s motion is granted to the extent that we accept the same as
Appellant’s timely filed response to counsel’s petition to withdraw.
Appellant’s motion is denied in all other respects.
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favorable to the prevailing party at the trial level.” Commonwealth v.
Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). “It is well-settled
that a PCRA court’s credibility determinations are binding upon an appellate
court so long as they are supported by the record.” Commonwealth v.
Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this
Court reviews the PCRA court’s legal conclusions de novo. Commonwealth
v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).
Before we may address the arguments raised in the Anders brief, we
must first address the timeliness of Appellant’s PCRA petition, as it
implicates the jurisdiction of this Court and the PCRA court.
Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. Super. 2014) (citation
omitted). Pennsylvania law makes clear that when “a PCRA petition is
untimely, neither this Court nor the trial court has jurisdiction over the
petition.” Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super. 2014)
(citation omitted), appeal denied, 101 A.3d 103 (Pa. 2014). The “period for
filing a PCRA petition is not subject to the doctrine of equitable tolling;
instead, the time for filing a PCRA petition can be extended only if the PCRA
permits it to be extended[.]” Commonwealth v. Ali, 86 A.3d 173, 177 (Pa.
2014) (internal quotation marks and citation omitted), cert. denied, Ali v.
Pennsylvania, 135 S. Ct. 707 (2014). This is to “accord finality to the
collateral review process.” Commonwealth v. Watts, 23 A.3d 980, 983
(Pa. 2011) (citation omitted). “However, an untimely petition may be
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received when the petition alleges, and the petitioner proves, that any of the
three limited exceptions to the time for filing the petition, set forth at 42
Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are met.” Commonwealth v.
Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (citation omitted). The PCRA
provides, in relevant part, as follows.
§ 9545. Jurisdiction and proceedings
…
(b) Time for filing petition.—
(1) Any petition under this subchapter,
including a second or subsequent petition, shall
be filed within one year of the date the
judgment becomes final, unless the petition
alleges and the petitioner proves that:
(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 Supreme Court of Pennsylvania after
the time period provided in this section
and has been held by that court to apply
retroactively.
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(2) Any petition invoking an exception
provided in paragraph (1) shall be filed within
60 days of the date the claim could have been
presented.
…
42 Pa.C.S.A. § 9545(b).
In the instant case, Appellant was sentenced on March 11, 2010, and
Appellant did not file a direct appeal with this Court. Therefore, Appellant’s
judgment of sentence became final on April 12, 2010, when the filing period
for filing a notice of appeal with this Court expired.8 See 42 Pa.C.S.A.
§ 9545(b)(3) (stating, “a judgment 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[]”); Pa.R.A.P. 903(c)(3) (stating, “[i]n a criminal case
in which no post-sentence motion has been filed, the notice of appeal shall
be filed within 30 days of the imposition of the judgment of sentence in open
court[]”). Appellant filed the instant petition on March 31, 2015, and it is
therefore patently untimely. See 42 Pa.C.S.A. § 9545(b)(1) (stating, “[a]ny
petition under this subchapter, including a second or subsequent petition,
shall be filed within one year of the date the judgment becomes final[]”).
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8
We observe that the 30th day fell on Saturday, April 10, 2010. When
computing the 30-day filing period “[if] the last day of any such period shall
fall on Saturday or Sunday … such day shall be omitted from the
computation.” 1 Pa.C.S.A. § 1908. Therefore, the 30th day for Appellant to
file a timely notice of appeal was on Monday, April 12, 2010.
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Furthermore, neither counsel nor Appellant in his pro se response has
argued that any of the three enumerated time-bar exceptions applies.
Therefore, Appellant’s PCRA petition was untimely, and the PCRA court
lacked jurisdiction to address the merits of any of Appellant’s claims on the
merits.9 See Lawson, supra.
Based on the foregoing, we conclude the PCRA court properly
dismissed Appellant’s PCRA petition as untimely. Accordingly, we affirm the
PCRA court’s July 31, 2015 order and grant counsel’s petition to withdraw.
Order affirmed. Petition to withdraw as counsel granted. Motion in
Objection to Anders Brief granted in part and denied in part. Application for
removal of counsel denied. Application for writ of mandamus denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/8/2016
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9
In light of our conclusion, Appellant’s motion to remove counsel is denied
as moot. In addition, Appellant’s petition for a writ of mandamus is denied.
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