J-S46005-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RICHARD W. GIBBS, :
:
Appellant : No. 1808 MDA 2013
Appeal from the Order Entered September 12, 2013,
In the Court of Common Pleas of Cumberland County,
Criminal Division, at No. CP-21-CR-0002421-2007.
BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 22, 2014
Appellant, Richard W. Gibbs, appeals from the order denying his
petition for relief filed pursuant to the Post Conviction Relie
42 Pa.C.S.A. §§ 9541-9546. In addition, counsel has filed a petition seeking
the PCRA court.
The PCRA court summarized the history of this case as follows:
On March 13, 2008 [Appellant] pleaded guilty to 14 counts of
possessing sexually explicit computer images of children under
the age of 18. On July 22, 2008 [Appellant] was sentenced to
undergo imprisonment in a state correctional institution for 1 to
7 years on each count. The sentences were made to run
concurrent to each other but consecutive to any other sentence
he was serving. No direct appeal was filed.
On June 13, 2012 [Appellant] filed a nineteen page pro se
petition asking for relief under the Post Conviction Relief Act.
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We appointed the public defender to represent him; granted
counsel 90 days to file an amended petition, and scheduled an
evidentiary hearing for November 5, 2012.
While counsel did not file an amended petition, the
evidentiary hearing took place as scheduled. At the outset we
asked counsel to summarize the issues which entitled his client
to relief. While there were several issues, they all revolved
around the alleged ineffectiveness of prior counsel.
[Appellant] was the only witness to testify in support of his
representation. Chief among them was the failure to file a
motion to dismiss. [Appellant] contended that dismissal was
required because the pictures were obtained from a website
that he might have his own expert review the computer images.
We continued the hearing to January 7, 2013.
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assigned to another attorney in the office. On December 6,
2012 she requested that the November 5, 2012 hearing be
transcribed and that the January hearing be continued generally.
We granted both requests.
to compel discovery. Specifically she requested that she be
given a
been seized by the Commonwealth. The Commonwealth
opposed the request. On March 8, 2013 after reviewing the
briefs filed by the parties in support of their respective positions
and having heard argumen
motion. We directed the Commonwealth to provide a copy of
the hard drive to be reviewed by the defense expert.
On April 3, 2013 the Commonwealth appealed from our
order compelling discovery. On September 5, 2013 the
Commonwealth withdrew its appeal. Immediately thereafter it
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Based upon the above procedural and factual background, we
granted the motion.
PCRA Court Opinion, 1/17/14, at 1-3 (footnotes omitted). This timely appeal
followed.
filed a motion to withdraw
as counsel; she also filed with this Court a sufficient Turner/Finley
document.1, 2 When counsel seeks to withdraw representation in a collateral
appeal, the following conditions must be met:
1) As part of an application to withdraw as counsel, PCRA
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2) -
the petitioner wishes to have reviewed, and detail the nature
claims,
3) -
4) PCRA counsel must contemporaneously forward to the
petitioner a copy of the application to withdraw, which must
1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
2
Counsel has requested leave to withdraw and filed a brief under Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. McClendon, 434
A.2d 1185 (Pa. 1981), apparently in the mistaken belief that an appeal from
the denial of a PCRA petition required that filing. However, because counsel
is requesting leave to withdraw from her position as PCRA counsel, the
less stringent requirements set forth in Turner and Finley. See
Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super.
2004) (noting that because an Anders brief provides greater protection to
the defendant, we may accept an Anders brief in lieu of a Turner/Finley
letter).
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statement advising the PCRA petitioner that, in the event the
trial court grants the application of counsel to withdraw, the
petitioner has the right to proceed pro se, or with the assistance
of privately retained counsel;
5) The court must conduct its own independent review of the
record in light of the PCRA petition and the issues set forth
therein, as well as of the contents of the petition of PCRA
counsel to withdraw; and
6) The court must agree with counsel that the petition is
meritless.
Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa. Super. 2008) (internal
punctuation marks omitted) (citing Commonwealth v. Friend, 896 A.2d
607, 615 (Pa. Super. 2006)).
In the present case, counsel has complied with the requirements for
withdrawal from a collateral appeal. In the motion filed with this Court,
counsel alleged that she has reviewed the case, evaluated the issues, and
concluded that the appeal is frivolous. Counsel has also listed the issues
relevant to this appeal, and explained why, in her opinion, they are without
merit. In addition, counsel has included a letter sent to Appellant containing
a copy of her motion to withdraw and a statement advising Appellant of his
right to proceed pro se or through privately retained counsel. Thus, we will
allow counsel to withdraw if, after our review, we conclude that the issue
relevant to this appeal lacks merit.
We have discerned the following issue, which is presented by PCRA
counsel on behalf of Appellant:
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1.
motion to dismiss due to timeliness.
Our standard of review of an order denying PCRA relief is whether the
Commonwealth v. Phillips, 31
A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877
A.2d 479, 482 (Pa. Super. 200
disturbed unless there is no support for the findings in the certified record.
Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
2001)).
Initially, we must determine whether this matter is properly before us.
We begin by considering whether the PCRA court accurately considered
The scope of the PCRA is explicitly defined as follows:
This subchapter provides for an action by which persons
convicted of crimes they did not commit and persons serving
illegal sentences may obtain collateral relief. The action
established in this subchapter shall be the sole means of
obtaining collateral relief and encompasses all other
common law and statutory remedies for the same purpose
that exist when this subchapter takes effect, including
habeas corpus and coram nobis. This subchapter is not
intended to limit the availability of remedies in the trial court or
on direct appeal from the judgment of sentence, to provide a
means for raising issues waived in prior proceedings or to
provide relief from collateral consequences of a criminal
conviction.
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42 Pa.C.S.A. § 9542 (emphasis added).
The plain language of the statute above demonstrates that the General
Assembly intended that claims that could be brought under the PCRA must
be brought under that Act. Commonwealth v. Hall, 771 A.2d 1232, 1235
(Pa. 2001) (emphasis in original).
cognizable under the PCRA, the common law and statutory remedies now
Id.
at 1235 (citations omitted). By its own language, and by judicial decisions
interpreting such language, the PCRA provides the sole means for obtaining
state collateral relief. Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa.
1999) (citations omitted). Thus, it is well settled that any collateral petition
raising issues with respect to remedies offered under the PCRA will be
considered to be a PCRA petition. Commonwealth v. Deaner, 779 A.2d
578, 580 (Pa. Super. 2001).
The question then is whether the particular claims at issue in
i.e.
ere
available to him under the PCRA. Writ of Habeas Corpus (Post Conviction
Relief), 6/13/12. The relevant portion of the PCRA provides as follows:
(a) General rule.--To be eligible for relief under this
subchapter, the petitioner must plead and prove by a
preponderance of the evidence all of the following:
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* * *
(2) That the conviction or sentence resulted from
one or more of the following:
* * *
(ii) Ineffective assistance of counsel
which, in the circumstances of the
particular case, so undermined the truth-
determining process that no reliable
adjudication of guilt or innocence could
have taken place.
(iii) A plea of guilty unlawfully induced
where the circumstances make it likely
that the inducement caused the
petitioner to plead guilty and the
petitioner is innocent.
42 Pa.C.S.A. § 9543(a)(2)(ii-iii). The statute in this matter indicates that
claims of ineffective assistance of counsel and claims which challenge the
lawfulness of a guilty plea are cognizable under the PCRA. Id.
Because such claims are cognizable under the PCRA, Appellant is
the PCRA court had no authority to entertain the claims except under the
strictures of the PCRA.
A PCRA petition must be filed within one year of the date that the
judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). This time
requirement is mandatory and jurisdictional in nature and the court may not
ignore it in order to reach the merits of the petition. Commonwealth v.
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Murray
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 ti
9545(b)(3).
However, an untimely petition may be 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), is met.3 A petition invoking one of these exceptions must be filed
within sixty days of the date the claim could first have been presented. 42
Pa.C.S.A. § 9545(b)(2). In order to be entitled to the exceptions to the
3
The exceptions to the timeliness requirement are:
(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.
42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii).
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specific facts that demonstrate his claim was raised within the sixty-day time
Carr, 768 A.2d at 1167.
Our review of the record reflects that Appellan
became final on August 21, 2008, thirty days after the trial court imposed
the judgment of sentence and Appellant failed to file a direct appeal with this
Court. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a). Thus, in order to
be timely, Appellant needed to file his PCRA petition on or before August 21,
2009. Appellant did not file the instant PCRA petition until June 13, 2012.
As previously stated, if a petitioner does not file a timely PCRA
petition, his petition may be received under any of the three limited
exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.A. §
9545(b)(1). The record reflects that Appellant did not specifically raise any
of the timeliness exceptions in his PCRA petition.4 Consequently, because
the PCRA petition was untimely and no exceptions apply, the PCRA court
4
We note that in the appellate brief filed by PCRA counsel there is a
discussion presented pertaining to whether Appellant raised the first
exception to the timeliness requirements of the PCRA, i.e., interference by
11-15. However, as the PCRA
neither an allegation in the petition nor evidence at the hearing that any
effectiveness of his counsel before the August 2[1], 2009 fili
PCRA Court Opinion, 1/17/14, at 3.
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lacked jurisdiction to address the claims presented and grant relief. See
Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding
that PCRA court lacks jurisdiction to hear untimely petition). Likewise, we
lack jurisdiction to reach the merits of the appeal. See Commonwealth v.
Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002) (holding that Superior
Court lacks jurisdiction to reach merits of appeal from untimely PCRA
petition). Also, having conducted an independent review of the record in
light of the PCRA petitions and the issues set forth therein, as well as the
we agree that the PCRA petition is
meritless and allow counsel to withdraw.
Motion to withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/2014
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Com. v. Gibbs, R.
Combined Opinion