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[U] Commonwealth v. Gunter

Superior Court of Pennsylvania

November 20, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
CLARENCE LEE GUNTER, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order Entered January 2, 2013 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0000288-2010

BEFORE: BENDER, P.J., GANTMAN, J., and OLSON, J.

MEMORANDUM

BENDER, P.J.

Appellant, Clarence Lee Gunter, appeals pro se from the trial court's order, entered January 2, 2013, denying his petition for relief filed pursuant to Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

Appellant was arrested and charged with fifteen counts of various offenses after he raped and sexually assaulted a mentally handicapped woman. His identity as the perpetrator of those crimes was confirmed by DNA evidence. See N.T. Guilty Plea Hearing, 8/26/10, at 34-38. On August 26, 2010, Appellant entered a negotiated plea agreement with the Commonwealth, pursuant to which he pled guilty to offenses including sexual assault, aggravated indecent assault, and indecent exposure. In exchange, the Commonwealth withdrew many of the charges pending against him. The Commonwealth also agreed to a sentence of five to ten years' imprisonment for Appellant's crime of sexual assault, with no further penalty for his remaining convictions. After a thorough colloquy, the trial court accepted the plea agreement and sentenced Appellant to the negotiated term. He did not file a direct appeal.

On January 3, 2011, Appellant filed a pro se PCRA petition. Counsel was appointed, but subsequently sought to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988). The PCRA court granted that motion and dismissed Appellant's PCRA petition without a hearing. Appellant filed a timely notice of appeal, and a panel of this Court affirmed. Commonwealth v. Gunter, 50 A.3d 244 (Pa.Super. 2012) (unpublished memorandum). Appellant did not petition for permission to appeal to our Supreme Court.

On October 5, 2012, Appellant filed a pro se document purporting to be a PCRA petition. However, that filing did not present any claims; instead, it merely set forth a request for permission to file a PCRA petition. The PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss this 'petition.' Thereafter, on October 30, 2012, Appellant filed a pro se document entitled "Petitioners Objections to the Court's Notice With The Intent to Dismiss." In that document, Appellant claimed that his guilty plea was invalid and his plea counsel rendered ineffective representation. He further asserted that his initial PCRA counsel was ineffective for seeking to withdraw rather than raising these claims. That same day, October 30, 2012, Appellant filed another pro se PCRA petition presenting the same arguments as posited in his response to the court's Rule 907 notice. On November 16, 2012, the PCRA court issued another Rule 907 notice of its intent to dismiss Appellant's petition.[1] Despite Appellant's filing multiple other pro se documents in response, the court issued an order dismissing Appellant's petition as untimely.[2]

Appellant filed a timely pro se notice of appeal, as well as a timely concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Herein, he raises five issues for our review, reproduced verbatim:

1. Whether Appellant's guilty plea was unlawfully induced by ineffective trial counsel and trial judge, and both trial and PCRA counsel were ineffective?
2. Whether trial counsel was ineffective for failure to substantiate victim's mental abilities related to the allegations, and Appellant's mental deficiencies related to his ability to enter into a knowingly, voluntarily and intelligently made plea of guilty to charges he did not commit?
3. Whether PCRA counsel was ineffective for failure to raise ineffectiveness of trial counsel who led Appellant into entering a guilty plea that was not knowingly, voluntarily and intelligently made?
4. Whether PCRA counsel committed fraud on the court by receiving money to represent Appellant and then abandoning him without working on Appellant's case?
5. Whether PCRA counsel's refusal to comply with the January 9, 2012 order to produce records so Appellant could perfect his appeal constitutes a Brady[3] violation which should apply retroactively?

Appellant's Brief at 2.

This Court's standard of review regarding an order denying a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super. 2001).

We must begin by addressing the timeliness of Appellant's petition, as the PCRA time limitations implicate our jurisdiction and may not be altered or disregarded in order to address the merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the PCRA, any petition, including a second or subsequent one, must be filed within one year of the date the judgment of sentence becomes final, unless the petitioner pleads and proves that one of the following exceptions apply:

(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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, any petition attempting to invoke one of these exceptions "shall be filed within 60 days of the date the claim could have been presented." 42 Pa.C.S. § 9545(b)(2).

Here, Appellant's judgment of sentence became final thirty days after it was imposed, or on September 25, 2010. See 42 Pa.C.S. § 9545(b)(3) (judgment of sentence becomes final at the conclusion of direct review or the expiration of the time for seeking the review); Pa.R.A.P. 903(a) (requiring notice of appeal to "be filed within 30 days after the entry of the order from which the appeal is taken"). Thus, he had until September 26, 2011, to file a timely PCRA petition, making his October 5, 2012 petition patently untimely. In his appellate brief, Appellant does not assert the applicability of any of the above-stated exceptions. It is also apparent from our review of the certified record that he did not present any such argument to the PCRA court. Accordingly, the PCRA court did not have jurisdiction to review the merits of Appellant's claim, and properly dismissed his petition as untimely.

Order affirmed.

Judgment Entered.

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