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[U] Commonwealth v. Rivera

Superior Court of Pennsylvania

February 20, 2014



Appeal from the PCRA Order May 6, 2013 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR-0001443-2007, CP-38-CR-0001446-2007, CP-38-CR-0001447-2007, CP-38-CR-0001520-2007




Appellant, Marcelo Rivera, appeals from the May 6, 2013 order denying his second petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Contemporaneously with this appeal, counsel has requested leave to withdraw in accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and their progeny.[1] After careful review, we affirm and grant counsel's petition to withdraw.

A prior panel of this Court summarized the relevant facts and procedural history of this case as follows.

On March 27, 2008, Appellant pled guilty to various drug offenses under four docket numbers. On May 21, 2008, the court sentenced Appellant to an aggregate term of twelve to twenty-six years' imprisonment. He did not file a direct appeal. Appellant filed a timely pro se PCRA petition on November 11, 2008. The PCRA court returned this petition with the direction that he provide more facts. On December 18, 2008, Appellant filed a pro se amended PCRA, which was dismissed without a hearing on March 2, 2009. The following day, the court appointed counsel. Appellant then filed a pro se notice of appeal on March 13, 2009, which he requested to withdraw three days later. Counsel for Appellant filed a formal request to withdraw his notice of appeal on June 3, 2009.
On December 23, 2009, Appellant filed a counseled motion to reinstate his appellate rights from the denial of his first PCRA petition.2 The PCRA court denied the motion, but on appeal, this Court found the PCRA court erred in not providing Appellant with counsel for his first pro se PCRA petition. This Court remanded the case for counsel to amend Appellant's first PCRA petition.
Appellant's amended PCRA petition, filed on November 15, 2010, claimed ineffective assistance of counsel for failure to provide an interpreter at the guilty plea hearing, and for failure to advise him of the outcomes and penalties in pleading guilty. A hearing was held on February 25, 2011, at which the PCRA court heard testimony from both Appellant and trial counsel. The court dismissed the petition and Appellant filed a timely notice of appeal on March 8, 2011.
2 Counsel claimed that she did not receive notice of the March 2, 2009 dismissal of Appellant's first PCRA petition and therefore inadvertently missed the filing deadline for an appeal. Appellant's Brief at 5-6.

Commonwealth v. Rivera, 37 A.3d 1230 (Pa. Super. 2011) (unpublished memorandum) (footnote in original). Subsequently, this Court affirmed the PCRA court's dismissal of Appellant's PCRA petition. Id.

On January 13, 2012, Appellant filed the instant PCRA petition, and a hearing was held on November 19, 2012. On April 17, 2013, the PCRA court provided Appellant with notice of its intent to dismiss Appellant's petition pursuant to Pa.R.Crim.P. 907. Thereafter, on May 6, 2013, Appellant filed a pro se response to the PCRA court's notice. On the same date, the PCRA court denied Appellant's PCRA petition by order and opinion. On May 7, 2013, Appellant filed a timely notice of appeal. [2]

Subsequently on August 20, 2013, David Warner, Jr., Esquire (Attorney Warner) filed a petition to withdraw. On September 17, 2013, Appellant filed a pro se motion "to allow for pro-se submission on the merits, due to withdrawal of counsel." By per curiam order, this Court allowed Appellant until October 24, 2013 to file a pro se brief, cautioning that "[f]ailure to file a brief within the given time period may be considered a waiver of appellant's right to present his issues to this Court." On October 22, 2013, Appellant filed a pro se brief.

On appeal, counsel raises the following issue for our review.

A. Whether the PCRA court erred in its decision to deny [] Appellant's PCRA Petition because his PCRA counsel, Melissa Montgomery, represented his codefendant in her PCRA petition and failed to inform Appellant of said representation, thereby creating a conflict of interest[?]

Turner/Finley Brief at 4.

Additionally, Appellant sets forth the following arguments in his pro se brief.

1) Did counsel factually falsify to his client that he would amend the statement of reasons for appeal to include issues found cognizable in: Commonwealth v. Liebel[, ] 825 A.2d 630 [(Pa. 2003)]?

2) Did the lower court actually appoint a counsel whom was the subject of a legal matter where this court remanded that counsel be appointed?

3) Would it therefore be quite true that counsel Montgomery already had a conflict with an Hispanic speaking client whom actually spoke very little English where she was also representing [A]ppellant's co-defendant whom fully knew appellant spoke very little English?

4) Should counsel legally be in any position to seek [to] withdraw on no merit when it becomes most evident that such counsel deliberately failed to litigate two legal issues totally germane to the review; Liebel and Evitts v. Lucey?

Appellant's Pro Se Reply Brief at 3.

We begin by noting our well-settled standard of review. "On appeal from the denial of PCRA relief, our standard and scope of review is limited to determining whether the PCRA court's findings are supported by the record and without legal error." Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied, Edmiston v. Pennsylvania, 134 S.Ct. 639 (2013). "[Our] scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the PCRA court level." Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation omitted). "The PCRA court's credibility determinations, when supported by the record, are binding on this Court." Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citation omitted). "However, this Court applies a de novo standard of review to the PCRA court's legal conclusions." Id.

Prior to considering Appellant's arguments, we must first review Attorney Warner's request to withdraw from representation. As delineated by our Supreme Court, the requirements counsel must adhere to when requesting to withdraw include the following.

1) A "no-merit" letter by PC[R]A counsel detailing the nature and extent of his review;
2) The "no-merit" letter by PC[R]A counsel listing each issue the petitioner wished to have reviewed;
3) The PC[R]A counsel's "explanation", in the "no-merit" letter, of why the petitioner's issues were meritless[.]

Commonwealth v. Pitts, 981 A.2d 875, 876 (Pa. 2009), quoting Finley, supra at 215. "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." Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007).

[W]here counsel submits a petition and no-merit letter that do 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. By contrast, if the claims appear to have merit, the court will deny counsel's request and grant relief, or at least instruct counsel to file an advocate's brief.

Id. (citation omitted).

Instantly, we determine that Attorney Warner has complied with the requirements of Turner/Finley. Specifically, counsel's Turner/Finley brief shows the nature and extent of counsel's review, addresses the claim Appellant raised in his PCRA petition, and determines that the issue lacks merit. Attorney Warner also provides a discussion of Appellant's claim, explaining why the issue is without merit. Additionally, Attorney Warner served Appellant with a copy of the petition to withdraw and the Anders brief, advising Appellant that, if he was permitted to withdraw, he had the right to proceed pro se or with privately retained counsel. Further, Appellant has filed a pro se brief raising four issues for our consideration. Accordingly, we may proceed to conduct an independent merits review of Appellant's appeal.

Before we may address the merits of Appellant's claims, however, we must first consider the timeliness of his PCRA petition because it implicates the jurisdiction of this Court and the PCRA court. Commonwealth v. Williams, 35 A.3d 44, 52 (Pa. Super. 2011) (citation omitted), appeal denied, 50 A.3d 121 (Pa. 2012). "Pennsylvania law makes clear no court has jurisdiction to hear an untimely PCRA petition." Id. The PCRA "confers no authority upon this Court to fashion ad hoc equitable exceptions to the PCRA time-bar[.]" Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011) (citation omitted). This is to "accord finality to the collateral review process." Id. "A petition for relief under the PCRA, including a second or subsequent petition, must be filed within one year of the date the judgment becomes final unless the petition alleges, and the petitioner proves, that an exception to the time for filing the petition, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is met." Commonwealth v. Harris, 972 A.2d 1196, 1199-1200 (Pa. Super. 2009), appeal denied, 982 A.2d 1127 (Pa. 2009). The act provides, in relevant part, as follows.

§ 9545. Jurisdiction and proceedings

(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.
(2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.

42 Pa.C.S.A. § 9545(b).

In the case sub judice, Appellant was sentenced on May 21, 2008 and no direct appeal was taken. Therefore, Appellant's judgment of sentence became final on June 20, 2008, when the time for Appellant to file a notice of appeal in this Court expired. See 42 Pa.C.S.A. § 9545(b)(3) (stating, "a judgment becomes 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 time for seeking the review[]"); Pa.R.A.P. 903(a) (stating, an appeal "shall be filed within 30 days after the entry of the order from which the appeal is taken[]"). Therefore, Appellant had one year, or until June 20, 2009 to timely file a PCRA petition. As Appellant did not file the instant petition until June 13, 2012, it was untimely filed.

In addition, we have reviewed counsel's Turner/Finley brief, as well as Appellant's pro se brief. Appellant does not argue in either brief that any of the three enumerated time-bar exceptions applies. Therefore, we conclude that Appellant's petition was untimely.[3]

Based on the foregoing, we affirm the PCRA court's May 6, 2013 order denying Appellant's second PCRA petition and grant counsel's petition to withdraw.

Order caffirmed. Petition to withdraw as counsel granted.

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