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[U] Commonwealth v. Gomez

Superior Court of Pennsylvania

February 18, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
FRANCISCO JOSE GOMEZ, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
FRANCISCO JOSE GOMEZ, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order May 31, 2013 in the Court of Common Pleas of Northampton County Criminal Division at Nos.: CP-48-CR-0001336-2009, CP-48-CR-0003981-2009

BEFORE: SHOGAN, J., OTT, J., and PLATT, J. [*]

MEMORANDUM

PLATT, J.

Appellant, Francisco Jose Gomez, appeals from the order of May 31, 2013, which denied, following a hearing, his first petition brought under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Counsel has filed a motion to withdraw.[1] For the reasons discussed below, we grant counsel's request to withdraw and affirm the denial of the PCRA petition as untimely.

On March 9, 2010, Appellant entered a guilty plea to two counts of driving under the influence (DUI), [2] one count of public drunkenness, [3] and one count of careless driving, [4] in satisfaction of the charges at cases CP-48-CR-1336-2009 and CP-48-CR-3981-2009. Appellant moved for immediate sentencing and the trial court sentenced him to an aggregate term of incarceration of not less than six months nor more than ten years. Appellant did not file any post-sentence motions and did not file a direct appeal.

On November 19, 2012, Appellant, acting pro se, filed a motion to withdraw his guilty plea. The trial court deemed the motion to be a PCRA petition and appointed counsel. Despite the appointment of counsel, Appellant filed a pro se amended PCRA petition on December 20, 2012. On May 10, 2013, the PCRA court held an evidentiary hearing. Following the hearing, by order of May 31, 2013, the PCRA court denied the petition as untimely. (See Order, 5/31/13, at unnumbered p. 1). The instant, timely appeal followed.[5]

On appeal, Appellant raises the following question for our review.

A. Whether an appeal of a denial of a PCRA petition filed well beyond the one-year time limit and where no exception exists is frivolous such that appointed counsel should be granted permission to withdraw?

(Appellant's Brief, at 5).

Here, Appellant's court-appointed counsel has petitioned this Court for permission to withdraw and has submitted a Turner/Finley-compliant brief, as is required for counsel seeking to withdraw on appeal of the denial of a PCRA petition. Appellant has not responded to the petition to withdraw. Court-appointed counsel who seek to withdraw from representing an appellant on appeal of a denial of a PCRA petition on the basis that the appeal lacks merit must review the case zealously. See Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007).

Turner/Finley 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 the 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 ...

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