J-A12039-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDY BUXTON :
:
Appellant : No. 793 WDA 2019
Appeal from the PCRA Order Entered April 2, 2019,
in the Court of Common Pleas of Allegheny County,
Criminal Division at No(s): CP-02-CR-0008697-2012.
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED AUGUST 05, 2020
Andy Buxton appeals from the order denying his first petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.
We affirm.
The pertinent facts and protracted procedural history are as follows: At
the conclusion of a bench trial held on May 20, 2013, at which Buxton was
represented by privately-retained counsel, the trial court found Buxton guilty
of two counts of driving under the influence (“DUI”) and related summary
charges. Immediately thereafter, the trial court sentenced Buxton to an
aggregate term of seven days of house arrest and a consecutive six-month
term of probation.
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* Retired Senior Judge assigned to the Superior Court.
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On June 25, 2013, Buxton filed an untimely pro se notice of appeal,
which this Court docketed at No. 1173 WDA 2013. Because trial counsel
remained as Buxton’s attorney of record, this Court entered an order directing
trial counsel to file an application to withdraw if he believed he no longer
represented Buxton. On August 12, 2013, Buxton filed a motion with this
Court in which he requested the appointment of counsel. We forwarded this
motion to trial counsel because he was still listed as Buxton’s attorney of
record.
On August 15, 2013, trial counsel filed an application to withdraw. In
this application, trial counsel averred that he was only retained to represent
Buxton through sentencing and his services did not include the filing of an
appeal. In addition, trial counsel opined that there were no meritorious issues
to raise on appeal. On August 21, 2013, this Court granted trial counsel’s
withdrawal application, and advised Buxton that he was now proceeding pro
se but was “free to employ substitute counsel to represent him.” Thereafter,
Buxton filed several more applications with this Court for the appointment of
counsel, which were denied, and although this Court quashed the appeal sua
sponte, we later reinstated it.
Ultimately, on July 10, 2014, the trial court appointed the county public
defenders’ office to represent Buxton on appeal and granted him in forma
pauperis status. On July 14, 2014, a county public defender entered his
appearance with this Court. The next day the public defender filed an
application to amend the appeal, which we granted on August 5, 2014. An
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amended appeal was filed on September 11, 2014. In his subsequent brief,
Buxton challenged the sufficiency of the evidence supporting his DUI
convictions. On July 9, 2015, Buxton filed an application for permission to
proceed nunc pro tunc, which we deferred to the assigned panel for
disposition.
On February 1, 2016, this Court ultimately quashed Buxton’s direct
appeal for lack of jurisdiction since the appeal was untimely filed and the
record did not “indicate that there was a breakdown in the processes of the
court or that [Buxton] filed any post-sentence motion.” Commonwealth v.
Buxton, 2016 WL 398338 (Pa. Super. 2016), unpublished memorandum at
4. We also denied Buxton’s application for permission to appeal nunc pro
tunc. On June 13, 2016, our Supreme Court denied Buxton’s petition for
allowance of appeal. Commonwealth v. Buxton, 141 A.3d 477 (Pa. 2016).
On July 28, 2016, Buxton filed the pro se PCRA petition at issue.
Thereafter, the PCRA court appointed a different county public defender as
counsel. On February 7, 2017, PCRA counsel filed 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).
According to PCRA counsel, she learned that Buxton’s six-month probationary
period had ended and his case was closed on January 28, 2014. Thus, counsel
determined that the PCRA court was without jurisdiction to grant post-
conviction relief, pursuant to 42 Pa.C.S.A. section 9543(a)(1)(i), because
Buxton was no longer serving a sentence for his DUI conviction. PCRA
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counsel, however, did not file a motion to withdraw. Buxton filed a pro se
response.
On May 16, 2017, the PCRA court issued a Pa.R.Crim.P. 907 notice of
its intention to dismiss Buxton’s petition without a hearing. In this notice, the
PCRA court explained that Buxton was no longer eligible for relief under the
PCRA because his maximum sentence had expired. Buxton did not file a
response. By order entered April 2, 2019, the PCRA court denied Buxton’s
PCRA petition.1 This timely appeal follows.2 Both Buxton and the PCRA court
have complied with Pa.R.A.P. 1925.
Buxton now raises the following issue on appeal:
Should the Pennsylvania Supreme Court’s exception to the
rules of jurisdiction in the [PCRA recognized] in
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1 The certified record offers no explanation for the almost two-year delay
between the PCRA court’s filing of its Rule 907 notice and its dismissal of
Buxton’s PCRA petition. Our Supreme Court has made clear that “[t]he PCRA
court [has] the ability and responsibility to manage its docket and caseload
and thus has an essential role in ensuring the timely resolution of PCRA
matters.” Commonwealth v. Renchenski, 52 A.3d 251, 260 (Pa. 2012)
(citation omitted).
2 Buxton timely filed a pro se notice of appeal and timely complied with the
PCRA court’s request for him to file a Rule 1925(b) statement of errors
complained of on appeal. Thereafter, PCRA counsel unsuccessfully filed
motions to withdraw with both the trial court and this Court. Because we were
unsure if a Grazier hearing had ever been held in this case, see generally
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), we denied counsel’s
request without prejudice to seek relief with the PCRA court. Although no
transcript appears in the certified record, PCRA counsel avers that the PCRA
court held a Grazier hearing on September 4, 2019, wherein “[Buxton] and
the [PCRA] court wanted [PCRA] counsel to perfect the appeal despite the
Turner/Finley letter.” Buxton’s Brief at 7.
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Commonwealth v. Delgros, 183 A.3d 352 (Pa. 2018), be
extended to first offense driving under the influence convicts
whose 6-month maximum sentence precludes PCRA review
after a direct appeal?
Buxton’s Brief at 4 (excess capitalization omitted).
Before reaching the merits of Buxton’s issue, we must first determine
whether his PCRA petition was timely filed. This Court’s standard of review
regarding an order dismissing a petition under the PCRA is to ascertain
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, 191-92 (Pa. Super. 2013)
(citations omitted).
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
is final unless the petition alleges, and the petitioner proves, that an exception
to the time for filing the petition, set forth at 42 Pa.C.S.A. sections
9545(b)(1)(i), (ii), and (iii), is met.3 A PCRA petition invoking one of these
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3 The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference of 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.
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statutory exceptions must “be filed within 60 days of the date the claims could
have been presented.” See Commonwealth v. Hernandez, 79 A.3d 649,
651-52 (Pa. Super. 2013) (citations omitted); see also 42 Pa.C.S.A. §
9545(b)(2).4 Asserted exceptions to the time restrictions for a PCRA petition
must be included in the petition, and may not be raised for the first time on
appeal. Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super. 2016).
Here, the time period allowed for Buxton’s filing of a PCRA petition
commenced upon expiration of the time period allowed for seeking direct
review; the time period did not begin to run upon the disposition of his
untimely-filed notice of appeal. Commonwealth v. Brown, 943 A.2d 264,
268 (Pa. 2008). The trial court sentenced Buxton for his DUI convictions on
May 20, 2013. Because Buxton did not file a timely appeal, his judgment of
sentence became final thirty days thereafter, on June 19, 2013. Thus, to be
timely, Buxton had to file his PCRA petition by June 19, 2014. Because Buxton
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(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.
42 Pa.C.S.A. §§ 9545(b)(1)(i), (ii), and (iii).
4Section 9545(b)(2) has since been amended to enlarge this period from sixty
days to one year. See Act of 2018, October 24, P.L. 894, No. 146, §§ 2 and
3. The sixty-day time period applies in this appeal.
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did not file the pro se PCRA petition at issue until July 28, 2016, it is untimely
unless Buxton establishes that one or more of the PCRA’s time bar exceptions
applies.
Buxton failed to plead and prove any exception to the PCRA’s time bar.
Indeed, Buxton’s petition and brief provide no timeliness analysis. Instead,
Buxton solely challenges the PCRA court’s finding that, because he completed
serving his DUI sentence, he was no longer eligible for post-conviction relief.
See PCRA Court Opinion, 10/2/19, at 4.
Given that Buxton’s PCRA petition was untimely and no time-bar
exceptions applies, this Court lacks jurisdiction to consider his claim. See
Commonwealth v. Pew, 189 A.3d 486, 489 (Pa. Super. 2018) (reiterating
that Pennsylvania courts are without jurisdiction to consider the merits of an
untimely PCRA petition). On this basis, we must affirm the order of the PCRA
court denying him post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/2020
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