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[U] Commonwealth v. Brown

Superior Court of Pennsylvania

March 6, 2014



Appeal from the PCRA Order of May 16, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0207801-2005




Appellant William Brown, pro se, appeals from the May 16, 2013 order dismissing as untimely his petition pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. Also pending before this Court are Appellant's January 15, 2014 and February 12, 2014 applications for relief seeking redress for the Commonwealth's untimely brief. We affirm the order and deny the application for relief.

The record reveals Appellant pled guilty to third degree murder, attempted murder, aggravated assault, criminal conspiracy and possession of an instrument of crime.[1] On May 25, 2006, the trial court imposed an aggregate sentence of 40 to 80 years of incarceration. Appellant did not file a direct appeal from his judgment of sentence. On May 21, 2007, Appellant filed his first PCRA petition. The PCRA court dismissed that petition on January 9, 2008. In a memorandum of January 13, 2009, this Court affirmed the dismissal as to all but one claim. On the remaining claim, we remanded to the PCRA court for a determination of whether counsel failed to consult with Appellant regarding a direct appeal. Commonwealth v. Brown, 968 A.2d 787 (Pa.Super. 2009), unpublished memorandum, at 10. The PCRA court conducted an evidentiary hearing and once again dismissed Appellant's petition. This Court affirmed the PCRA court's decision on October 8, 2010. Commonwealth v. Brown, 15 A.3d 521 (Pa.Super. 2010) (unpublished memorandum), appeal denied, 20 A.3d 1209 (Pa. 2011).

On May 16, 2011, Appellant filed the instant pro se petition, which he titled a "Motion to Withdraw Guilty Plea Nunc Pro Tunc." PCRA Petition, 5/16/11. Appellant's petition alleges he is innocent and counsel's ineffective assistance induced him to enter the guilty plea. Id. at 1. Specifically, Appellant alleges that counsel failed to interview witnesses, investigate various defenses, and communicate sufficiently with Appellant. Id. at 1-2. Appellant did not allege any facts in support of the timeliness of his petition.

On February 15, 2013, [2] the PCRA court filed notice of its intent to dismiss the petition. Appellant did not respond to the Rule 907 notice, and the PCRA court entered the order on appeal on May 16, 2013. Appellant filed this timely appeal on May 24, 2013.

The PCRA is the sole means of obtaining collateral review of any claim that falls within its ambit. 42 Pa.C.S.A. § 9542; Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011). Appellant's claims of ineffective assistance of counsel are cognizable under the PCRA. 42 Pa.C.S.A. § 9543(a)(2)(ii). Thus, the PCRA court was correct in treating Appellant's May 16, 2011 filing as a PCRA petition.

The PCRA contains the following restrictions governing the timeliness of any PCRA petition.

(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.
(3) For purposes of this subchapter, 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.

42 Pa.C.S.A. § 9545(b). The PCRA's timeliness requirements are jurisdictional. Watts, 23 A.3d at 983. Pennsylvania courts lack jurisdiction to entertain an untimely petition. Id.

As noted above, Appellant did not file a direct appeal from his May 25, 2006 judgment of sentence. Thus, his judgment of sentence became final on June 26, 2006, at the expiration the 30-day appeal period. Pa.R.A.P. 903(a). Pursuant to § 9545(b)(1), Appellant had until June 26, 2007 to file a timely PCRA petition. Appellant's May 16, 2011 petition is facially untimely, and Appellant does not allege that any of the timeliness exceptions set forth in § 9545(b)(1) applies. Thus, the PCRA court did not err in dismissing Appellant's petition as untimely.[3]

Order affirmed. Applications for relief denied.

Judgment Entered.

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