Com. v. Johnson, E.

J-S71026-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDWARD JOHNSON :
:
Appellant : No. 985 EDA 2019

Appeal from the PCRA Order Entered February 22, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0807241-2002

BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 21, 2020

Edward Johnson (Appellant) appeals from the order denying his petition

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. In this appeal, Appellant’s court-appointed counsel (PCRA Counsel)

filed a petition to withdraw as counsel and a no-merit letter pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Because we conclude

that PCRA Counsel fulfilled the procedural requirements of Turner/Finley,

and this appeal is without merit, we affirm the PCRA court’s order denying

Appellant’s PCRA petition and grant PCRA Counsel’s petition to withdraw.

On July 29, 2003, Appellant pled guilty to kidnapping, interference with

custody of children, criminal conspiracy, attempted theft by extortion, and
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criminal use of a communications facility.1 On September 23, 2003, the trial

court sentenced Appellant to an aggregate term of 10½ to 37 years of

incarceration. Appellant did not file a direct appeal.

Nearly 14 years later, on September 13, 2017, Appellant filed a pro se

PCRA petition in which he alleged that trial counsel rendered ineffective

assistance. The PCRA court appointed PCRA Counsel, who filed a

Turner/Finley no-merit letter on May 24, 2018. On October 25, 2018, the

PCRA court issued notice of its intent to dismiss Appellant’s PCRA petition

without a hearing pursuant to Rule 907 of the Pennsylvania Rules of Criminal

Procedure. Appellant did not file a response to the PCRA court’s Rule 907

notice, and on February 22, 2019, the PCRA court denied Appellant’s petition.

Notably, in a footnote in the order denying Appellant’s petition, the PCRA court

added, “Petitioner may proceed pro se or with retained counsel; no counsel is

to be appointed.” PCRA Court Order, 2/22/19 at n.1.

____________________________________________

1 18 Pa.C.S.A. §§ 2901, 2904, 903, 3923, and 7512.

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On March 25, 2019,2 Appellant filed a pro se notice of appeal.3 The

PCRA court issued an order pursuant to Pa.R.A.P. 1925(b), however neither

Appellant nor PCRA Counsel filed a concise statement. On June 18, 2018,

PCRA Counsel filed a petition to withdraw with this Court, attaching a

Turner/Finley no-merit letter, with notice to Appellant that he had the right

to proceed pro se or retain private counsel. Appellant did not respond to PCRA

Counsel’s no-merit letter.

As a prefatory matter, we observe the failure to file a court-ordered Rule

1925(b) statement generally constitutes waiver of all issues.

Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998). “[T]o preserve their

claims for appellate review, [a]ppellants must comply whenever the trial court

orders them to file a Statement of [Errors] Complained of on Appeal pursuant

____________________________________________

2 The thirtieth day after the PCRA court’s February 22, 2019 dismissal order
fell on Sunday, March 24, 2019. Thus, Appellant had until Monday, March 25,
2019 to file a timely appeal. See 1 Pa.C.S.A. § 1908 (“Whenever the last day
of any such period shall fall on Saturday or Sunday, or on any day made a
legal holiday by the laws of this Commonwealth or of the United States, such
day shall be omitted from the computation.”).

3 The filing of pro se pleadings while represented by counsel is considered
“hybrid” and is prohibited within the Commonwealth. See Commonwealth
v. Staton, 184 A.3d 949, 958 (Pa. 2018) (no defendant has a constitutional
right to self-representation together with counseled representation “either at
trial or on appeal”); see also Commonwealth v. Jette, 23 A.3d 1032, 1036
(Pa. 2011) (citing Pennsylvania’s long-standing policy precluding hybrid
representation). We recognize, however, that when an appellant is
represented by counsel at the time he files a pro se notice of appeal, the
appeal has effect and is not a nullity. See Commonwealth v. Cooper, 27
A.3d 994, 1007 (Pa. 2011) (holding that a pro se notice of appeal from a final
judgment filed by a represented appellant is not automatically void).

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to Pa.R.A.P. 1925. Any issues not raised in a Pa.R.A.P. 1925(b) statement

will be deemed waived.” Commonwealth v. Castillo, 888 A.2d 775, 780

(Pa. 2005) (citations omitted).

Our Supreme Court revised Rule 1925 to provide a remedy when a

criminal appellant’s counsel fails to file a court-ordered Rule 1925(b)

statement. See Pa.R.A.P. 1925(c)(3); Commonwealth v. McBride, 957

A.2d 752, 755 (Pa. Super. 2008). Rule 1925(c)(3) permits the appellate Court

to remand “for the filing of a Statement nunc pro tunc and for the preparation

and filing of an opinion by the judge,” if the court ordered an appellant in a

criminal case to file a Rule 1925(b) statement and appellant failed to do so,

and the appellate court is convinced that counsel has been per se ineffective.

Pa.R.A.P. 1925(c)(3).

Interpreting Rule 1925(c)(3), this Court has held that counsel’s failure

to file a court-ordered Rule 1925(b) statement is per se ineffectiveness.

Commonwealth v. Burton, 973 A.2d 428, 431–32 (Pa. Super. 2009) (en

banc). Generally, when waiver occurs due to counsel’s complete failure to file

a Rule 1925(b) statement, remand is proper. Commonwealth v. Mitchell,

986 A.2d 1241, 1244 n.4 (Pa. Super. 2009) (noting counsel’s failure to file

court-ordered Rule 1925(b) statement required remand for filing of concise

statement nunc pro tunc under revised Rule 1925(c)(3)).

Nevertheless, this Court may decline to remand, where we have an

adequate record for review. Commonwealth v. Oliver, 128 A.3d 1275, 1279

(Pa. Super. 2015) (declining to apply Lord to deem PCRA appellant’s issues

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waived, where PCRA counsel was still counsel of record when the PCRA court

ordered Rule 1925(b) statement, counsel failed to file statement on

appellant’s behalf, and the record revealed irregularities surrounding PCRA

counsel’s Turner/Finley letter and petition to withdraw); see also Burton,

973 A.2d at 433 (stating choice to review appeal and not remand for filing of

concise statement, under certain circumstances, is consistent with our

Supreme Court’s “intent to avoid unnecessary delay in the disposition on the

merits of cases which results from per se ineffectiveness of appellant’s

counsel”). The Oliver Court explained it would not remand if the record and

the PCRA court opinion addressed any claim an appellant could raise on

appeal. Oliver, 128 A.3d at 1279–80.

Instantly, Appellant filed his PCRA petition and raised two issues: (1)

whether trial counsel was ineffective for failing to challenge the legality of his

sentence pursuant to 18 Pa.C.S.A. § 9756; and (2) whether trial counsel was

ineffective for failing to object at sentencing to his illegal sentence pursuant

to 18 Pa.C.S.A. § 906 and 42 Pa.C.S.A. § 9765. Pro Se PCRA Petition,

9/13/17, at 1-2 (unpaginated). After Appellant filed a pro se notice of appeal,

the PCRA court ordered a Rule 1925(b) statement and served it on Appellant

(not PCRA Counsel). Neither Appellant nor PCRA Counsel filed the court-

ordered Rule 1925(b) statement or a Rule 1925(c)(4) statement of intent to

file a Turner/Finley brief, which is considered per se ineffectiveness. See

Oliver, 128 A.3d at 1279–80.

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The PCRA court denied Appellant’s petition because it was untimely.

Therefore, PCRA Counsel could have raised only the two issues raised in

Appellant’s PCRA petition and challenged the PCRA court’s dismissal of his

petition as untimely in a Rule 1925(b) statement. See generally

Commonwealth v. Bond, 819 A.2d 33 (Pa. 2002) (reiterating that only

claims properly presented to the PCRA court are preserved for appellate

review); Pa.R.A.P. 302(a) (governing requisites for reviewable issue on

appeal). Further, the PCRA court’s Rule 1925(a) opinion and counsel’s

Turner/Finley brief on appeal both address the timeliness of Appellant’s

petition and the merits of Appellant’s two issues. Additionally, we have an

adequate record to review the appeal. Under these circumstances, and in the

interest of judicial economy, we decline to remand because: (a) remand

would serve no practical purpose, particularly if PCRA Counsel decided to file

a Rule 1925(c)(4) statement; (b) remand would cause unnecessary and

needless delay in the resolution of the appeal; and (c) the record is adequate

for appellate review. See Burton, 973 A.2d at 433; Oliver, 128 A.3d at

1279–80. We thus proceed to review this appeal.4

____________________________________________

4 Much of the procedural irregularity of this case stems from the confusion
regarding PCRA Counsel’s role in Appellant’s appeal. The PCRA Court did not
issue a formal order either granting or denying PCRA Counsel’s petition to
withdraw that was filed in the PCRA court on May 24, 2018. Instead, the only
reference ostensibly made to PCRA Counsel’s obligation of representation
came in the form of a footnote included in the order denying Appellant’s PCRA
petition. This Court notes its disapproval of utilizing a footnote to address a
petitioner’s right to counsel. The PCRA court should have issued a separate
order directly addressing PCRA Counsel’s Turner/Finley no-merit letter.

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PCRA Counsel’s no-merit letter presents two issues for our review:

1. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
CHALLENGE THE ILLEGALITY OF HIS SENTENCE PURSUANT TO
18 Pa.C.S.A. § 9756.

2. TRIAL COUNSEL WAS INEFFECTIVE WHEN FAILING TO
PROPERLY OBJECT TO AN ILLEGAL SENTENCE PURSUANT TO
18 Pa.C.S.A. § 906 AND 42 Pa.C.S.A. § 9765.

Turner/Finley Letter at 2-3.

We review the denial of PCRA relief by “examining whether the PCRA

court’s findings of fact are supported by the record, and whether its

conclusions of law are free from legal error.” Commonwealth v. Busanet,

54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of

the PCRA court and the evidence of record, viewed in the light most favorable

to the party who prevailed in the PCRA court proceeding.” Id.

As noted, PCRA Counsel filed in this Court a petition for leave to

withdraw as counsel and no-merit letter. Before we may review the merits of

Appellant’s claim, we must determine if PCRA Counsel has satisfied the

requirements to be permitted to withdraw from further representation.

Pursuant to Turner/Finley, an “[i]ndependent review of the record by

competent counsel is required before withdrawal [on collateral review] is

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

Pitts, our Supreme Court explained that independent review requires proof

of:

1. A “no merit” letter by PC[R]A counsel detailing the nature and
extent of his review;

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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;

4. The PC[R]A court conducting its own independent review of the
record; and

5. The PC[R]A court agreeing with counsel that the petition was
meritless.

Id. (citation and brackets omitted).

Additionally:

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.

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] 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. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (citations

omitted).

Here, PCRA Counsel filed a “no-merit” letter and petition to withdraw

which states the nature and extent of his review of the case, listed the issues

for which Appellant sought review, explained why and how the issues lack

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merit, and requested permission to withdraw. See Turner/Finley Letter,

6/18/19; Motion to Withdraw as Counsel, 6/18/19. PCRA Counsel also sent

Appellant a copy of the “no-merit” letter, a copy of the petition to withdraw,

and a statement advising Appellant of the right to proceed pro se or by

privately retained counsel. Thus, the record reflects that PCRA Counsel

submitted a petition to withdraw and “no-merit” letter that satisfy the

technical demands of Turner/Finley. We now turn to our review of

Appellant’s claims to ascertain whether he is entitled to relief.

Pennsylvania law makes clear that no court has jurisdiction to hear an

untimely PCRA petition. Commonwealth v. Monaco, 996 A.2d 1076, 1079

(Pa. Super. 2010) (quoting Commonwealth v. Robinson, 837 A.2d 1157,

1161 (Pa. 2003)). A petitioner must file a PCRA petition within one year of

the date on which the petitioner’s judgment of sentence became final, unless

one of the three statutory 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). A petitioner must file a petition invoking one of

these exceptions “within one year of the date the claim could have been

presented.” 42 Pa.C.S.A. § 9545(b)(2).5 If a petition is untimely, and the

petitioner has not pled and proven any exception, “neither this Court nor the

trial court has jurisdiction over the petition. Without jurisdiction, we simply

do not have the legal authority to address the substantive claims.”

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

Appellant’s PCRA petition is facially untimely. “A judgment is deemed

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.’” Monaco, 996 A.2d at

1079 (quoting 42 Pa.C.S.A. § 9545(b)(3)).

Here, the trial court entered Appellant’s judgment of sentence on

September 23, 2003. Appellant did not file a direct appeal. Therefore,

Appellant’s judgment of sentence became final 30 days later, or October 23,

2003. See 42 Pa.C.S.A. § 9545(b)(3). Under Section 9545(b)(1), Appellant

had to file his PCRA petition within one year of his judgment of sentence

becoming final – or October 23, 2004. Appellant did not file the instant
____________________________________________

5 Act 146 of 2018 amended 42 Pa.C.S.A. § 9545(b)(2), effective December
2018. Previously, a petitioner had 60 days from when the claim could have
been presented. See Act 2018, Oct. 24, P.L. 894, No. 146, § 2 and § 3. This
change does not impact our analysis.

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petition until September 13, 2017 – nearly 13 years later. Accordingly, we

are without jurisdiction to decide Appellant’s appeal unless he pled and proved

one of the three timeliness exceptions of Section 9545(b)(1). See

Derrickson, 923 A.2d at 468.

Critically, Appellant fails to allege the applicability of any exception to

the PCRA’s time-bar. Because Appellant does not allege any exception to the

time-bar, we conclude that he has failed to meet his burden under the PCRA.

Id.; see also Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa. Super.

2001) (holding that “claim[s] that counsel was ineffective will not save an

untimely PCRA petition”).

In light of the foregoing, the PCRA court properly denied Appellant’s

PCRA petition.

Order affirmed. Petition to withdraw granted.

Judge Bowes joins the memorandum.

Judge McLaughlin concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/21/20

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