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[U] Commonwealth v. Verosko

Superior Court of Pennsylvania

February 25, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
DANIEL VEROSKO Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order of May 23, 2013 In the Court of Common Pleas of Erie County Criminal Division at No.: CP-25-CR-0001359-2009

BEFORE: PANELLA, J., OLSON, J., and WECHT, J.

MEMORANDUM

WECHT, J.

Daniel Verosko appeals the May 23, 2013 order dismissing his "Petition for the Allowance to File an Allowance of Appeal Nunc Pro Tunc." For the reasons that follow, we treat Verosko's petition as a petition for relief under the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-46. Because the petition is untimely pursuant to the PCRA, we dismiss Verosko's appeal for want of jurisdiction.

In a prior memorandum in this case, we adopted the PCRA court's summary of the initial procedural history of this case as follows:

On February 26, 2009, [Verosko] was arrested for his participation in a drug conspiracy to deliver heroin, cocaine, and methamphetamines in the Erie area. On August 26, 2009, [Verosko] filed a Motion to Suppress. A hearing was held before this [c]ourt on October 1, 2009, and this [c]ourt subsequently denied the motion on October 29, 2009.
On March 17, 2010, following a jury trial before the Honorable Shad Connelly, [Verosko] was found guilty of two counts each of possession with intent to deliver and possession of a controlled substance, and one count each of criminal conspiracy, possession of drug paraphernalia, firearms not to be carried without a license, and persons not to possess, use, manufacture, control, sell o[r] transfer firearms.
On April 27, 2010, the Honorable Shad Connelly sentenced [Verosko] in absentia to an aggregate term of 14 to 28 years of imprisonment. On that date, Judge Connelly ordered a bench warrant for [Verosko's] failure to appear for sentencing. [Verosko] did not file a post-sentence motion or a direct appeal.
On March 21, 2011, a bench warrant for [Verosko] was returned.
On April 15, 2011, [Verosko] filed his pro se PCRA petition. On April 19, 2011, [the PCRA court] appointed PCRA counsel. On September 16, 2011 PCRA counsel filed a Turner/Finley "no-merit" letter and a Petition For Leave to Withdraw as Counsel. Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

Commonwealth v. Verosko, No. 1877 WDA 2011, slip op. at 1-2 (Pa.Super. June 19, 2012) (citing PCRA Court Opinion ("P.C.O."), 10/17/2011, at 1-2). On October 17, 2011, the PCRA court notified Verosko of its intention to dismiss the PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907. On November 3, 2011, Verosko filed objections to the notice. On November 7, 2011, the PCRA court dismissed Verosko's PCRA petition and granted appointed counsel's motion to withdraw as counsel.

On June 19, 2012, a panel of this Court affirmed the PCRA court's order in a unpublished memorandum. Id. at 1, 10. Notably, Verosko raised the issue of whether trial counsel was ineffective for failing to file a direct appeal. The panel found the issue to be waived because Verosko did not raise the issue in the first instance before the PCRA court. Rather, the issue was raised for the first time in Verosko's reply brief. Id. at 10.

On April 26, 2013, Verosko filed a "Petition for the Allowance to File an Allowance of Appeal Nunc Pro Tunc." In his petition, Verosko sought to have his direct appeal rights reinstated nunc pro tunc on the basis that trial counsel was ineffective for failing to file a direct appeal. On May 23, 2013, the PCRA court denied Verosko's petition based upon our June 19, 2012 memorandum affirming the denial of Verosko's PCRA petition. On June 25, 2013, Verosko filed a notice of appeal. On June 26, 2013, the PCRA court, without having ordered Verosko to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), issued a memorandum opinion relying upon its May 23, 2013 order as the basis for denying Verosko's petition for reinstatement of his direct appeal rights.

Verosko raises four issues for our consideration:

1. Did the trial court abuse its discretion or [err] when it denied [Verosko's] petition for allowance of appeal nunc pro tunc?
2. Did the trial court [err] when it denied relief to file his appeal nunc pro tunc outside the framework of the PCRA?
3. Did the trial court [err] when it denied [Verosko] his Pennsylvania and United States constitutional rights for a first appeal as a right to appeal his judgment of sentence and conviction protected by due process?
4. Was [Verosko] denied effective assistance of counsel when trial counsel failed to ask the sentencing court for a continuance at the sentencing hearing when [Verosko] was not present at that hearing?

Brief for Verosko at 3 (capitalization modified).

We first must determine which, if any, of Verosko's issues are cognizable in this appeal. Upon close inspection, we conclude Verosko's petition for reinstatement of his direct appeal rights must be considered as a petition for relief under the PCRA. "We have repeatedly held that the PCRA provides the sole means for obtaining collateral review and that any petition filed after the judgment of sentence becomes final will be treated as a PCRA petition." Commonwealth v. Kubis, 808 A.2d 196, 199 (Pa.Super. 2002); see Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa.Super. 2002); 42 Pa.C.S. § 9542. Thus, regardless of how a petition is titled, "the question [] becomes whether petitioner had an available remedy under the PCRA." Commonwealth v. Lusch, 759 A.2d 6, 8 (Pa.Super. 2000).

The claims for which the PCRA will provide a remedy are set forth in 42 Pa.C.S. § 9543(a)(2). To be entitled to relief, a petitioner must plead and prove by a preponderance of the evidence that his conviction or sentence was the result of one of the following:

(i) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent.
(iv) The improper obstruction by government officials of the petitioner's right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court.
(v) Deleted.
(vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.
(vii) The imposition of a sentence greater than the lawful maximum.
(viii) A proceeding in a tribunal without jurisdiction.

42 Pa.C.S. § 9543(a)(2).

In his petition, Verosko raised a single claim: whether trial counsel was ineffective for failing to file a direct appeal on Verosko's behalf. See Petition for the Allowance to File an Allowance of Appeal Nunc Pro Tunc, 4/26/2013, ¶6 (unpaginated). Unquestionably, this issue is cognizable under the PCRA. 42 Pa.C.S. § 9543(a)(2)(ii); Commonwealth v. Hall, 771 A.2d 1232, 1235-36 (Pa. 2001) (holding that the appellant's petition seeking restoration of his direct appeal rights nunc pro tunc premised upon trial counsel's ineffectiveness was cognizable under the PCRA); Commonwealth v. Lantzy, 736 A.2d 564, 569-70 (Pa. 1999) ("the PCRA provides the exclusive remedy for post-conviction claims seeking restoration of appellate rights due to counsel's failure to perfect a direct appeal."). Accordingly, Verosko's petition to reinstate his appellate rights must be treated as a PCRA petition, and, therefore, subject to the PCRA's strict time limits.

It is well-established that the PCRA time limits are jurisdictional, and are meant to be both mandatory and applied strictly by the courts to all PCRA petitions, regardless of the potential merit of the claims asserted. Commonwealth v. Murray, 753 A.2d 201, 202-03 (Pa. 2000); Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa.Super. 2011). "[N]o court may properly disregard or alter [these filing requirements] in order to reach the merits of the claims raised in a PCRA petition that is filed in an untimely manner." Murray, 753 A.2d at 203; see also Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).

Section 9545(b) sets forth the time limitations for filing of a PCRA petition as follows:

(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. § 9545(b)(1)(i)-(iii), (2). When a petition is filed outside the one-year time limit, the petitioner must plead and prove the applicability of one of the three exceptions to the PCRA time restriction. See Commonwealth v. Perrin, 947 A.2d 1284, 1285 (Pa.Super. 2008); 42 Pa.C.S. § 9545(b)(1)(i)-(iii).

Here, Versoko's judgment of sentence was imposed on April 27, 2010. Verosko did not file a direct appeal. Thus, his judgment of sentence became final thirty-days later, on or about May 27, 2010, at the expiration of the time period during which Verosko could have filed an appeal. See 42 Pa.C.S. § 9545(b)(3) ("[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) ("[T]he notice of appeal required by Rule 902 (manner of taking appeal) shall be filed within 30 days after the entry of the order from which the appeal is taken."). Thus, to be timely, any PCRA petition must have been filed on or before May 27, 2011, unless Verosko has pleaded and proven one of the enumerated exceptions to the time-bar. See 42 Pa.C.S. § 9545(b)(1).

Verosko did not file his petition until April 26, 2013, nearly two years after his judgment of sentence became final. Verosko's petition facially is untimely. Verosko did not plead, let alone prove, any of the enumerated exceptions. Consequently, Verosko's petition is time-barred by the PCRA, leaving no Pennsylvania court with jurisdiction to consider the merits of either Verosko's petition or the instant appeal. Accordingly, we dismiss this appeal for want of jurisdiction.

Appeal dismissed.

Judgment Entered.


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