J-S30026-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
FRANK ERIC FRANKLIN
Appellant No. 1662 WDA 2017
Appeal from the PCRA Order Entered October 24, 2017
In the Court of Common Pleas of Fayette County
Criminal Division at Nos.: CP-26-CR-0000275-2000; CP-26-CR-0000276-
2000
BEFORE: BENDER, P.J.E., STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 21, 2018
Appellant Frank Eric Franklin pro se appeals from the October 24, 2017
order of the Court of Common Pleas of Fayette County, which dismissed as
untimely his most recent request for collateral relief under the Post Conviction
Relief Act (the “PCRA”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.
The facts and procedural history underlying this case are undisputed.
As recounted by a prior panel of this Court:
In 2000, Appellant was convicted and sentenced to 19 to 38
years in prison for rape, attempted rape, and other charges
related to his serial abuse of his daughters. His direct appeal was
quashed; his appeal rights were reinstated via the PCRA; his
judgment of sentence was affirmed by this Court; and our
Supreme Court denied his petition for allowance of appeal on
September 1, 2004. Commonwealth v. Franklin, 850 A.2d 7
(Pa. Super. 2004) (unpublished memorandum), appeal denied,
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* Retired Senior Judge assigned to the Superior Court.
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858 A.2d 108 (Pa. 2004). Subsequent PCRA petitions merited
Appellant no relief.
Commonwealth v. Franklin, No. 894 WDA 2016, unpublished
memorandum, at 1 (Pa. Super. filed February 16, 2017).
On September 6, 2017, Appellant pro se filed the instant PCRA petition,
alleging, inter alia, ineffective assistance of counsel claims. On September
27, 2017, the PCRA court issued a notice of its intention to dismiss Appellant’s
petition without a hearing under Pa.R.Crim.P. 907. On October 24, 2017, the
PCRA dismissed as untimely Appellant’s PCRA petition, which the court
described as his sixth petition. Appellant pro se timely appealed. The PCRA
court directed Appellant to file a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal. Appellant complied. In response, the PCRA court
issued a statement in lieu of opinion.
On appeal,1 Appellant raises three issues for our review:
I. Should the court appointed counsel have filed a “no-merit”
without ever communicating with Appellant since counsel’s
appointment, and especially where a meritorious issue was
clearly present after direct appeal to Superior Court was
dismissed due to direct counsel’s failure to file a timely brief:
to comply with Pa.R.A.P. 2119(a), and failure to include a
Pa.R.A.P. 2119(f) statement in his brief?
II. Did the trial court error by dismissing the post-conviction
relief act petition pursuant to counsel’s “no-merit” letter that
failed to comport with appellate standard’s governing
withdrawal of counsel’s representation in post conviction
relief act/direct appeal?
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1“In PCRA proceedings, an appellate court’s scope of review is limited by the
PCRA’s parameters; since most PCRA appeals involve mixed questions of fact
and law, the standard of review is whether the PCRA court’s findings are
supported by the record and free of legal error.” Commonwealth v. Pitts,
981 A.2d 875, 878 (Pa. 2009) (citation omitted).
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III. Did the trial court error in denying indigent defendant
representation during appeal process, after the Superior
Court ordered of the court below is vacated. The case is
remanded for an order granting an appeal nunc pro tunc,
with assistance of counsel (4/29/03), as to the first appeal
as of right: direct appeal is “critical stage” for purposes of
rule that indigent defendant must be afforded assistance of
legal counsel at every critical stage throughout criminal
process, the lower court leaving his counsel withdraw
(9/17/04), without appointing new counsel: the defendant
lacked representation during decision making process.
Appellant’s Brief at 3 (unnecessary capitalization omitted) (sic).
As a threshold matter, we must determine whether the court erred in
dismissing as untimely Appellant’s PCRA petition. A court cannot entertain a
PCRA petition unless the petitioner has first satisfied the applicable filing
deadline. The PCRA contains the following restrictions governing the
timeliness of any PCRA petition.
(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.
(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.
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(3) For purposes of this subchapter, 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.
42 Pa.C.S.A. § 9545(b). Section 9545’s timeliness provisions are
jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).
Additionally, we have emphasized repeatedly that “the PCRA confers no
authority upon this Court to fashion ad hoc equitable exceptions to the PCRA
time-bar in addition to those exceptions expressly delineated in the Act.”
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations
omitted).
Here, the record reflects Appellant’s judgment of sentence became final
on November 30, 2004. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a).
Because Appellant had one year from November 30, 2004, to file his PCRA
petition, the current filing is facially untimely given it was filed on September
6, 2017, more than a decade later.
The one-year time limitation, however, can be overcome if a petitioner
alleges and proves one of the three exceptions set forth in Section
9545(b)(1)(i)-(iii) of the PCRA. Here, Appellant has failed to allege, let alone
prove, any exceptions to the one-year time bar. The PCRA court, therefore,
correctly concluded that it lacked jurisdiction to entertain Appellant’s instant
PCRA petition. Accordingly, we affirm the PCRA court’s decision to dismiss as
untimely Appellant’s petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2018
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Com. v. Franklin, F.
Combined Opinion