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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RANDALL A. DAVIS
Appellant No. 1541 WDA 2015
Appeal from the PCRA Order September 9, 2015
In the Court of Common Pleas of Crawford County
Criminal Division at No(s): CP-20-CR-0000558-2013
BEFORE: GANTMAN, P.J., OLSON and FITZGERALD,* JJ.
MEMORANDUM BY OLSON, J.: FILED MAY 18, 2016
Appellant, Randall A. Davis, appeals from the order entered on
September 9, 2015 dismissing his first petition filed pursuant to the Post-
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. On this appeal
from the denial of PCRA relief, Appellant’s court-appointed counsel filed a
motion to withdraw as counsel and a no-merit brief pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). As
we conclude that counsel fulfilled the procedural requirements of
Turner/Finley, and this appeal is without merit, we grant counsel’s motion
to withdraw as counsel and affirm the PCRA court’s order dismissing
Appellant’s PCRA petition.
* Former Justice specially assigned to the Superior Court
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The relevant factual and procedural history of this case is as follows.
On June 14, 2013, Appellant was arrested while in possession of three bags
of cocaine totaling 23.5 grams. On October 28, 2013, Appellant pled guilty
to possession with intent to deliver a controlled substance.1 On December
18, 2013, the trial court sentenced Appellant to three to six years’
imprisonment. Appellant did not file a direct appeal. On May 26, 2015,
Appellant filed a pro se PCRA petition. Counsel was appointed and an
amended PCRA petition was filed. On August 18, 2015, the PCRA Court
issued notice of its intent to dismiss the petition without an evidentiary
hearing. See Pa.R.Crim.P. 907. On September 9, 2015, the PCRA court
dismissed Appellant’s PCRA petition. This timely appeal followed.2
Counsel presents one issue for our review in his Turner/Finley brief:
Should the Appellant [be] entitled to relief under the [PCRA] for
a sentence now determined to be illegal after the time for filing a
petition under the [PCRA] has expired[?]
Turner/Finley Brief at 4 (complete capitalization removed).
Prior to addressing the merits of the issues raised in counsel’s
Turner/Finley brief, we must determine whether he met the procedural
requirements to withdraw as counsel. Counsel seeking to withdraw in PCRA
proceedings
1
35 P.S. § 780-113(a)(30).
2
Appellant and the PCRA court complied with Pennsylvania Rule of Appellate
Procedure 1925.
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must review the case zealously. [C]ounsel must then submit a
“no-merit” letter to the [PCRA] court . . . detailing the nature
and extent of counsel’s diligent review of the case, listing the
issues which 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.
Where counsel submits a petition and no-merit letter that satisfy
the technical demands of Turner/Finley, the 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.
Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (internal
alteration, ellipses, and citation omitted). If counsel fulfills these procedural
requirements, we must then independently review the record and determine
whether the issues raised are indeed non-meritorious. In this case, counsel
fulfilled the procedural requirements for withdrawing as PCRA counsel.3
Therefore, we turn to the lone issue raised in counsel’s Turner/Finley brief.
The lone issue raised in counsel’s Turner/Finley brief is whether
Appellant satisfied one of the PCRA’s timeliness exceptions. The timeliness
requirement for PCRA petitions “is mandatory and jurisdictional in nature,
and the court may not ignore it in order to reach the merits of the petition.”
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013)
(citation omitted). “The question of whether a petition is timely raises a
3
Appellant did not file a response to PCRA counsel’s Turner/Finley brief.
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question of law. Where the petitioner raises questions of law, our standard
of review is de novo and our scope of review plenary.” Commonwealth v.
Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citations omitted).
A PCRA petition is timely if it is “filed within one year of the date the
judgment [of sentence] becomes final.” 42 Pa.C.S.A. § 9545(b)(1). “[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.A. § 9545(b)(3). As Appellant did not file a direct
appeal, his judgment of sentence became final on January 17, 2014.
Appellant’s petition was filed in May 2015. Thus, the petition was patently
untimely.
An untimely PCRA petition may be considered if one of the following
three exceptions applies:
(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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42 Pa.C.S.A. § 9545(b)(1)(i-iii). If an exception applies, a PCRA petition
may be considered if it is filed “within 60 days of the date the claim could
have been presented.” 42 Pa.C.S.A. § 9545(b)(2).
After Appellant’s judgment of sentence became final, this Court found
that sentences imposed pursuant to 18 Pa.C.S.A. § 7508, such as
Appellant’s, violated the defendants’ Sixth Amendment right to a trial by jury
as interpreted by Alleyne v. United States, 133 S.Ct. 2151 (2013).
Commonwealth v. Vargas, 108 A.3d 858, 876-877 (Pa. Super. 2014) (en
banc), appeal denied, 121 A.3d 496 (Pa. 2015). Appellant argues,
therefore, that Alleyne was a newly announced constitutional rule which
conferred jurisdiction on the PCRA court to reach the merits of his petition.
The newly announced constitutional rule exception applies when the
Supreme Court of the United States or our Supreme Court announces a new
rule of constitutional law after the time for filing a PCRA petition has expired
and makes that rule retroactive to petitioners seeking collateral review. 42
Pa.C.S.A. § 9454(b)(1)(iii).
Appellant’s argument fails as this Court held that Alleyne is not
retroactive. Commonwealth v. Miller, 102 A.3d 988, 994-995 (Pa. Super.
2014). Appellant also failed to present his claim within 60 days of when the
claim could have been raised. See 42 Pa.C.S.A. § 9545(b)(2). Appellant
was sentenced after Alleyne was issued, thus he could have raised an illegal
sentencing claim or an ineffective assistance of counsel claim in a timely
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PCRA petition. He did neither. Instead, his May 2015 petition was filed
approximately 750 days after Alleyne was decided.4 Accordingly, Appellant
failed to satisfy the newly announced constitutional rule timeliness
exception.
Appellant also argues that he satisfied the governmental interference
timeliness exception because the PCRA court and prosecutor informed him
that he was subject to a three-year mandatory minimum sentence. This
argument is without merit as it is based on a misunderstanding of the
governmental interference timeliness exception. This exception applies
when a governmental agent prevents a petitioner from filing a petition or
learning of the facts necessary to file a petition. See Commonwealth v.
Barrett, 761 A.2d 145, 148 (Pa. Super. 2000). Appellant does not aver that
he was denied access to the prison library. Instead, he only avers that the
trial court and prosecutor incorrectly stated the law. The trial court and
prosecutor did not prevent Appellant from using the prison library in order to
discover Alleyne and/or Vargas. Thus, the trial court and prosecutor’s
actions do not satisfy the governmental interference exception.
After independently reviewing the record, we conclude that Appellant
failed to plead and prove the applicability of any of the three statutory
timeliness exceptions. As such, the PCRA court properly dismissed the PCRA
4
Even Vargas, in which this Court held section 7508 to be unconstitutional,
was issued approximately 140 days prior to the filing of Appellant’s PCRA
petition.
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petition for lack of jurisdiction. Therefore, the present appeal lacks merit.
Accordingly, we grant counsel’s motion to withdraw as counsel and affirm
the PCRA court’s order dismissing Appellant’s PCRA petition.
Motion to withdraw as counsel granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2016
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Com. v. Davis, R.
Combined Opinion