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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
BRANDON SPAULDING,
Appellant No. 622 WDA 2016
Appeal from the PCRA Orders of February 29, 2016
and March 1, 2016 In the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0000834-2011
and CP-43-CR-0000835-2011
BEFORE: OLSON and RANSOM, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED APRIL 18, 2017
Appellant, Brandon Spaulding, appeals from the orders entered on
February 29, 2016 and March 1, 2016, dismissing identical petitions
pursuant to the Post Conviction Relief Act1 (PCRA) that were decided before
two different judges in Mercer County at docket numbers 834 of 2011
(docket # 834) and 835 of 2011 (docket # 835), respectively. Appointed
PCRA counsel, who represented Appellant in both PCRA matters, filed with
this Court a petition to withdraw from further representation 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).
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1
42 Pa.C.S.A. §§ 9541-9546.
*Former Justice specially assigned to the Superior Court.
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Upon review, we grant counsel’s petition to withdraw and affirm the
dismissal of Appellant’s PCRA petitions.
We briefly summarize the facts and procedural history of this case as
follows. At docket # 834, Appellant pled guilty to one count of indecent
assault, 18 Pa.C.S.A. § 3126(a)(7). On November 2, 2012, Judge Robert G.
Yeatts sentenced Appellant to 30 to 94 months of incarceration. In a
memorandum decision filed on August 2, 2013, this Court denied Appellant
permission to appeal the discretionary aspects of sentencing. See
Commonwealth v. Spaulding, 83 A.3d 1056 (Pa. Super. 2013)
(unpublished memorandum). Appellant did not appeal that determination.
At docket # 835, Appellant pled guilty to one count of aggravated
indecent assault, 18 Pa.C.S.A. § 3125(a)(7). On June 28, 2013, President
Judge Thomas R. Dobson sentenced Appellant to three-and-one-half to
seven years of imprisonment, consecutive to any sentence Appellant had
already received. Appellant did not appeal that decision.
On January 11, 2016, Appellant filed a single pro se PCRA petition
captioned with both docket numbers. Appellant alleged that trial counsel
who represented Appellant in both criminal matters, Stephen Gerard
Delpero, Esquire, provided ineffective assistance of counsel for advising
Appellant that the sentence entered at docket # 835 would be imposed
concurrently to the sentence imposed at docket # 834. Jarrett K. Whalen,
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Esquire was appointed to represent Appellant on his PCRA petitions at both
docket numbers.2 At docket # 835, President Judge Dobson dismissed
Appellant’s PCRA petition as untimely by order entered on February 29,
2016. At docket # 834, Judge Yeatts dismissed Appellant’s PCRA petition as
untimely by order entered on March 1, 2016. This single appeal resulted.3
Initially, we must address the fact that Appellant filed a single appeal
from two orders entered by different judges at different docket numbers.
This Court recently determined:
“Where [ ] one or more orders resolves issues arising on
more than one docket or relating to more than one
judgment, separate notices of appeal must be filed.” Note to
Pa.R.A.P. 341, citing Commonwealth v. C.M.K., 932 A.2d
111, 113 n.3 (Pa. Super. 2007). In C.M.K., this Court
quashed a single appeal from two judgments of sentence
imposed on codefendants who were convicted and
sentenced individually on different charges. C.M.K., 932
A.2d at 112. We noted that the filing of the joint appeal in
that instance was unworkable because the appeals required
individualized arguments, separate appellate analyses of the
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2
We note that the PCRA court judges were the same trial court judges.
3
Although still represented by counsel, Appellant filed a timely single pro se
notice of appeal to both orders using both docket # 834 and docket # 835 in
the caption. “Because a notice of appeal protects a constitutional right, […]
this Court is required to docket a pro se notice of appeal despite being
represented by counsel[.]” Commonwealth v. Williams, 151 A.3d 621,
624 (Pa. Super. 2016). Each PCRA judge ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant complied timely at each docket number. At docket # 834, the
PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a) on June 17,
2016. At docket # 835, the PCRA court issued a Rule 1925(a) opinion on
June 1, 2016.
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evidence, and distinct examination of the different
sentences imposed. Id.
* * *
While our Supreme Court recognized that the practice of
appealing multiple orders in a single appeal is discouraged
under Pa.R.A.P. 512 (joint appeals), it previously
determined that “appellate courts have not generally
quashed [such] appeals, provided that the issues involved
are nearly identical, no objection to the appeal has been
raised, and the period for appeal has expired.” K.H. v. J.R.,
826 A.2d 863, 870 (Pa. 2003) (citation omitted).
In the Interest of: P.S., 2017 WL 1034459 (Pa. Super. 2017) (footnote
omitted).
We are convinced that the approach referred to in K.H. is best suited
to the circumstances before us. Here, Appellant presents closely interrelated
issues concerning trial counsel’s alleged ineffectiveness in representing
Appellant at sentencing in both cases. He filed identical PCRA petitions at
both docket # 834 and docket # 835. The Commonwealth has not objected
to the procedural misstep of filing a single notice of appeal and the period to
appeal the denial of Appellant’s PCRA petitions has expired. Hence, we
decline to quash either appeal because Appellant filed a single appeal from
the two orders at issue.
Next, before we proceed to review the merits of Appellant's claims, we
must determine whether counsel has satisfied certain procedural
requirements to withdraw representation:
Counsel petitioning to withdraw from PCRA representation
must proceed ... under Turner, supra and Finley, supra
and ... must review the case zealously. Turner/Finley
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counsel must then submit a “no-merit” letter to the trial
court, or brief on appeal to this 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—
trial court or this 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. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citation
omitted).
After reviewing the record and counsel’s petition to withdraw, we
conclude that PCRA counsel has complied with the requirements of
Turner/Finley. PCRA counsel detailed his review, listed the issue presented
in the PCRA petitions, and explained why the claim was frivolous in light of
its untimeliness. Moreover, PCRA counsel indicated that after his own
independent review of the record, he could not identify any meritorious
issues that he could raise on Appellant's behalf to plead and prove that one
of the PCRA timeliness exceptions applied. Counsel also attached proof that
he sent Appellant the petition to withdraw along with the no-merit letter and
instructed him that he had the right to retain counsel or proceed pro se. As
counsel complied with the Turner/Finley requirements to withdraw his
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representation, we must now determine whether the PCRA courts correctly
dismissed Appellant's PCRA petitions as untimely.
We have previously determined:
It is well-established that the PCRA's timeliness
requirements are jurisdictional in nature and must be
strictly construed; courts may not address the merits of the
issues raised in a petition if it is not timely filed. Generally,
a PCRA petition must be filed within one year of the date
the judgment of sentence becomes final unless the
petitioner meets his burden to plead and prove one of the
exceptions enumerated in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii),
which include: (1) the petitioner's inability to raise a claim
as a result of governmental interference; (2) the discovery
of previously unknown facts or evidence that would have
supported a claim; or (3) a newly-recognized constitutional
right. However, the PCRA limits the reach of the exceptions
by providing that a petition invoking any of the exceptions
must be filed within 60 days of the date the claim first could
have been presented.
Walters, 135 A.3d at 591–592 (internal citations and quotations omitted).
Here, Appellant’s current ineffective assistance of counsel claim could
not have arisen until the trial court sentenced Appellant at docket # 835,
because that was when Appellant would have first realized he was not
sentenced concurrently to docket # 834, as he was allegedly promised.
Thus, we look at the finality of Appellant’s judgment of sentence at docket
# 835. As previously discussed, President Judge Thomas R. Dobson
imposed sentence at docket # 835 on June 28, 2013. Because Appellant did
not appeal that determination, his judgment of sentence became final 30
days later when the time for taking an appeal with this Court expired. See
42 Pa.C.S.A. § 9545(b)(3) (A judgment is deemed final “at the conclusion of
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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 review.”); see also Pa.R.A.P. 903(a) (“the notice of appeal
[] shall be filed within 30 days after the entry of the order from which the
appeal is taken.”). Thus, Appellant’s judgment of sentence became final on
Monday, July 29, 2013.4 See 1 Pa.C.S.A. § 1908 (“Whenever the last day of
[a statutory] period shall fall on [] Sunday, [it] shall be omitted from the
computation.”). Thus, Appellant’s PCRA petitions filed on January 11, 2016
were patently untimely. None of the abovementioned exceptions are
applicable. Instead, Appellant claims ineffective assistance of counsel.
However, this Court has stated previously that a claim for ineffective
assistance of counsel does not save an otherwise untimely petition for
review on the merits. Commonwealth v. Ward-Green, 141 A.3d 527, 535
(Pa. Super. 2016). As such, the PCRA courts lacked jurisdiction to entertain
Appellant’s sentencing claim and such a challenge is devoid of merit.
Additionally, we have conducted an independent review of the entire record
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4
Likewise, Appellant’s PCRA petition filed at docket # 834 was also filed
outside the PCRA’s one-year jurisdictional time-bar. In that matter, this
Court denied Appellant permission to appeal the discretionary aspects of
sentencing on August 2, 2013. Appellant had 30 days to appeal our decision
to the Pennsylvania Supreme Court, but did not. See Pa.R.A.P. 1113(a) (“a
petition for allowance of appeal shall be filed with the Prothonotary of the
Supreme Court within 30 days after the entry of the order of the Superior
Court [] sought to be reviewed”). Thus, Appellant’s judgment of sentence at
docket # 834 became final on September 2, 2013. Appellant’s PCRA
petition filed on January 11, 2016 was also patently untimely.
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as required by Turner/Finley and have not discerned any other potentially
meritorious issues.
Orders affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/18/2017
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