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[U] Commonwealth v. Carter

Superior Court of Pennsylvania

February 3, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
SEAN CARTER Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order of November 19, 2012 In the Court of Common Pleas of Allegheny County Criminal Division at No.: CP-02-CR-0004283-2006

BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and STRASSBURGER, J. [*]

MEMORANDUM

WECHT, J.

Sean Carter appeals from the November 19, 2012 order dismissing his third petition for relief under the Post-Conviction Relief Act (" PCRA"), 42 Pa.C.S. §§ 9541-46, as untimely. We affirm.

On direct appeal, we summarized the factual and initial procedural history of this case as follows:

Since October of 2005, [ Carter] had been under the supervision of Agent Nicholas Sobol of the Pennsylvania Board of Probation and Parole. While under supervision, [ Carter] was supposed to be living with his mother at 582 Ardmore Boulevard in Pittsburgh. On February 28, 2006, Agent Sobol received inform ation that [ Carter] was selling narcotics from the residence located at 7209 Fleury Way in Pittsburgh. Agent Sobol went to the Fleury Way residence accompanied by approximately six agents from the Board of Probation and Parole. When the agents arrived at the residence, [ Carter] opened the door. [ Carter] was administratively detained and placed in handcuffs. [ Carter] also informed Agent Sobol that he had purchased the residence. A female identified as Loretta Wade was observed standing in the living room with outerwear on. During a pat-down of Ms. Wade, agents recovered a single piece of crack cocaine weighing two ounces, a sm all amount of marijuana, and a crack pipe. No drugs or paraphernalia were found on [ Carter's] person. The agents observed [ that] the house was in a dilapidated condition, was sparsely furnished, and was not set up for housekeeping. Agents conducted a search of the im m ediate area[, ] which included the living room . There, they found plastic baggies inside a night stand. On the living room sofa, the agents recovered a prescription bottle labeled with [ Carter's] nam e, a sock containing a solid rock of crack cocaine weighing 35.63 grams, eighteen to twenty plastic baggies, and a cell phone.
[ Carter] was arrested and charged with various drug offenses. [ Carter] filed a motion to suppress, which was denied following a hearing. The case proceeded to a non-jury trial on March 27, 2007. At trial, the suppression hearing transcript was incorporated into the record. The Commonwealth also presented the testimony of Agent Sobol, Agent David Bole, Detective John McBurney[, and] expert testimony from Ray Bonacci of the Allegheny County District Attorney's Office Narcotics Enforcement Team. [ Carter] testified in his own defense and denied informing Agent Sobol that he had purchased the Fleury Way residence. He also denied [ that] he was engaged in selling crack cocaine from that address. At the close of the evidence, [ Carter] was found guilty of [ possession with intent to deliver ("PWID")], possession of a controlled substance, and possession of drug paraphernalia.[ [1] On June 19, 2007, [ Carter] was sentenced to 5 to 10 years' imprisonment.

Commonwealth v. Carter, No. 1329 WDA 2007, slip op. at 1-3 (Pa.Super. June 9, 2008). We affirmed Carter's judgment of sentence on June 9, 2008. I d. at 1, 7. Carter did not seek allowance of appeal to the Pennsylvania Supreme Court.

On September 10, 2008, Carter filed a timely pro se PCRA petition, his first. The PCRA court denied that petition without a hearing. On February 19, 2010, we affirmed the PCRA court's order in an unpublished memorandum. See Commonwealth v. Carter, No. 546 WDA 2009 (Pa.Super. Feb. 19, 2010). Carter filed a petition for allowance of appeal, which our Supreme Court denied on July 21, 2010. Commonwealth v. Carter, 998 A.2d 958 (Pa. 2010) (per curiam ).

On June 9, 2011, Carter filed a second pro se PCRA petition. On August 12, 2011, the PCRA court, concluding that Carter failed to satisfy the PCRA's strict time limit, see 42 Pa.C.S. § 9545(b)(1), dismissed Carter's second petition. In an unpublished per curiam memorandum, we affirmed the PCRA court's dismissal order, also concluding that Carter's petition was untimely. Commonwealth v. Carter, No. 1405 WDA 2011, slip op. at 6 (April 11, 2012). Carter did not file a petition for allowance of appeal with the Pennsylvania Supreme Court.

The PCRA court set forth the procedural events that occurred after Carter's second PCRA appeal as follows:

On March [ 21], 2012, during the pendency of his [ second PCRA appeal] to the Superior Court, [ Carter] filed a "NOTICE OF APPEAL [2012 NEW CASE LAW] ." The Court entertained the filing under the Post-Conviction Relief Act. Commonwealth v. Hall, 771 A.2d 1232, 1135 (Pa. 2001) (quoting Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa. 1999)). Because of the assertions made by [ Carter] in his third PCRA, counsel was appointed to represent [ Carter] on April 17, 2012 – a date after the Superior Court issued its Opinion at No. 1405 WDA 2011.
On May 11, 2012, counsel filed a motion for leave to withdraw under Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988). The motion was granted on May 30, 2012, and [ Carter] was ordered to notify the Court in writing whether he wished to proceed with his PCRA. On June ...

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