NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

Transcription

1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA, Appellee v. ELIEZER PEREZ, Appellant : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : : : : : : No MDA 2012 Appeal from the PCRA Order Entered June 11, 2012, In the Court of Common Pleas of Berks County, Criminal Division, at No. CP-06-CR BEFORE: SHOGAN, OTT and COLVILLE*, JJ. MEMORANDUM BY SHOGAN, J.: Filed: April 9, 2013 Appellant, Eliezer Perez, appeals from the order denying this serial petition filed pursuant to the Post Conviction Relief Act ( PCRA ), 42 Pa.C.S.A In addition, counsel for Appellant has filed a petition to withdraw. 1 Upon review, we grant counsel s petition to withdraw and affirm. *Retired Senior Judge assigned to the Superior Court. 1 We note that, after appointed PCRA counsel filed a motion to withdraw, Appellant filed a pro se motion seeking an enlargement of time in which to file a pro se brief with this Court. Subsequently, Appellant filed a pro se motion seeking to place this case on freeze/hold status. In an order dated February 6, 2013, this panel granted Appellant thirty days in which to file his pro se brief with this Court, and to serve a copy of said brief to the Commonwealth. Further, the order granted the Commonwealth twenty-one days in which to respond to Appellant s pro se brief. However, the order denied Appellant s request to place this matter on freeze/hold status. Appellant has since filed a timely pro se brief with this Court. The

2 In Appellant s direct appeal, a panel of this Court summarized the facts of this case as follows: On March 29, 1995, around 10:00 p.m., Amildo Toro, Jr., the victim, was in the parking lot of Vaccaro s Six Pack Outlet in Reading, Pennsylvania. Toro entered the store and purchased a bottle of beer. While Toro was in the store [A]ppellant drove into the parking lot of the store. A bystander asked [A]ppellant if he was looking for someone and [A]ppellant replied that he was not and drove away only to return moments later as Toro exited the store. Appellant called Toro over to his car and the two engaged in a conversation. Appellant was sitting inside his vehicle and Toro was standing outside the driver s side window. Approximately thirty seconds later, witnesses heard a single gunshot and saw a flash emanating from [A]ppellant s vehicle. Toro fell to the ground and was taken to the hospital where he died from a fatal gunshot wound to his neck. Commonwealth v. Perez, 698 A.2d 640, (Pa. Super. 1997). On February 5, 1996, a jury convicted Appellant of one count of firstdegree murder, two counts of aggravated assault, one count of possessing instruments of crime, and one count of firearms not to be carried without a license. On February 28, 1996, the trial court sentenced Appellant to serve a term of life imprisonment for the first-degree murder conviction, as well as consecutive terms of incarceration of six to twenty-three months for possessing an instrument of crime and nine to twenty-three months for carrying a firearm without a license. In a published opinion, this Court affirmed Appellant s judgment of sentence on August 1, Commonwealth v. Perez, 698 A.2d 640 (Pa. Super. 1997). On Commonwealth has indicated that it will not file an additional Appellee s brief in this case. This matter is now ripe for our disposition. -2-

3 September 8, 1997, the Pennsylvania Supreme Court denied Appellant s petition for allowance of appeal as untimely filed. Appellant allegedly learned of counsel s late filing of the petition for allowance of appeal via a letter from counsel to Appellant dated September 11, On October 5, 1998, Appellant filed his first PCRA petition, and the lower court denied relief. On December 5, 2000, a panel of this Court affirmed the denial of relief. Commonwealth v. Perez, 769 A.2d 1208 (Pa. Super. 2000) (unpublished memorandum). Appellant filed a petition for allowance of appeal, which our Supreme Court denied on April 17, Commonwealth v. Perez, 565 Pa. 641, 771 A.2d 1282 (2001). On September 28, 2007, Appellant filed his second PCRA petition. On May 22, 2008, the PCRA court dismissed the PCRA petition without a hearing. On February 26, 2009, a panel of this Court affirmed the denial of relief upon determining that the second PCRA petition was untimely filed. Commonwealth v. Perez, 970 A.2d 475 (Pa. Super. 2009) (unpublished memorandum). Again, Appellant filed a petition for allowance of appeal, which our Supreme Court denied on September 1, Commonwealth v. Perez, 603 Pa. 86, 982 A.2d 61 (2009). On May 18, 2012, Appellant filed, pro se, the instant PCRA petition. On June 11, 2012, the PCRA court dismissed the PCRA petition as untimely -3-

4 filed. Appellant filed the instant appeal, and the PCRA court appointed counsel to represent Appellant. 2 On December 5, 2012, Appellant s PCRA attorney filed a motion to withdraw as counsel and an appropriate Turner/Finley document. 3, 4 When counsel seeks to withdraw representation in a collateral appeal, the following conditions must be met: 1) As part of an application to withdraw as counsel, PCRA counsel must attach to the application a no-merit letter, 2) PCRA counsel must, in the no-merit letter, list each claim the petitioner wishes to have reviewed, and detail the nature and extent of counsel s review of the merits of each of those claims, 3) PCRA counsel must set forth in the no-merit letter an explanation of why the petitioner s issues are meritless, 2 We note that the PCRA court was not obligated to appoint counsel for an appeal from Appellant s third PCRA petition. Rather, appointment of counsel is only required where an indigent petitioner is pursuing a first PCRA petition, and such appointment is discretionary with regard to serial petitions. See Pa.R.Crim.P Nonetheless, counsel was appointed for this appeal from the denial of Appellant s third collateral petition. 3 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 4 Counsel has requested leave to withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981), apparently in the mistaken belief that an appeal from the denial of a PCRA petition required that filing. However, because counsel is requesting leave to withdraw from his position as PCRA counsel, the correct standards under which his request will be considered are the less stringent requirements set forth in Turner and Finley. See Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004), appeal denied, 584 Pa. 691, 882 A.2d 477 (2005) (noting that because an Anders brief provides greater protection to the defendant, we may accept an Anders brief in lieu of a Turner/Finley letter). -4-

5 4) PCRA counsel must contemporaneously forward to the petitioner a copy of the application to withdraw, which must include (i) a copy of both the no-merit letter, and (ii) a statement advising the PCRA petitioner that, in the event the trial court grants the application of counsel to withdraw, the petitioner has the right to proceed pro se, or with the assistance of privately retained counsel; 5) The court must conduct its own independent review of the record in light of the PCRA petition and the issues set forth therein, as well as of the contents of the petition of PCRA counsel to withdraw; and 6) The court must agree with counsel that the petition is meritless. Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa. Super. 2008) (internal punctuation marks omitted) (citing Commonwealth v. Friend, 896 A.2d 607, 615 (Pa. Super. 2006)). In the present case, counsel has complied with the requirements for withdrawal from a collateral appeal. In the motion filed with this Court, counsel alleged that he has reviewed the case, evaluated the issues, and concluded that the appeal is wholly frivolous. Counsel has also listed the issues relevant to this appeal, and explained why, in his opinion, those issues are without merit. In addition, counsel has included a letter sent to Appellant containing a copy of his motion to withdraw and a statement advising Appellant of his rights to proceed pro se or through privately retained counsel. Thus, we will allow counsel to withdraw if, after our review, we conclude that the issues relevant to this appeal lack merit. -5-

6 Accordingly, after a review of Appellant s arguments, we have discerned the following issues, which are presented in the brief filed by PCRA counsel on behalf of Appellant: 1. Did the Lower Court err in dismissing appellants current PCRA petition, without giving the appellant a 907 Notice of Intent to Dismiss, and for not allowing appellant to amend said PCRA petition in order to determine whether or not appellant, could establish cause for the procedural default of state rules, and make a showing of the prejudice resulting therefrom? 2. Did the Lower court err in not considering appellants invocation of the 42 Pa (b)(2) and (iii), in light of appellants assertion of the new holdings of the United States Supreme Court in Martinez v. Ryan, Maples v. Thomas, and Lafler v. Cooper, nor the retroactivity of the above mentioned U.S. Supreme court holdings? 3. With the fact that trial counsel was also the direct review counsel on appeal to the PA Superior Court, as well as the PA Supreme Court, was counsel ineffective for failing to timely file for allocator? 4. Was Trial/appellate counsel ineffective? 5. Did the Lower Court err in dismissing appellants first PCRA petition as time barred, without even considering whether or not there existed cause for the procedural default of claims of ineffective assistance of both the trial/appellate and first PCRA counsels? 6. Was inadequate assistance of counsel at initial collateral review proceedings in violation of appellants constitutional right to an effective attorney during said proceedings? 7. Has the question of Prejudice ever been addressed by any court, and therefore does the issue remain open for a decision in a PCRA initial collateral proceeding/ and an evidentiary hearing to show prejudice and cause for the procedural default should be granted? Appellant s Brief at 4 (verbatim). -6-

7 In addition, Appellant has presented the following issues in his subsequently filed pro se appellate brief: 1. Did the lower court err in not considering Appellant s invocation of 42 Pa.c.S. 9545(b)(2)(iii) in light of the Appellant s assertion of the new holdings of the United States Supreme Court in Martinez V. Ryan and Maples V. Thomas, nor the retroactivity of the above mentioned U.S. Supreme Court holdings? 2. Was trial/appellate counsel ineffective for failing to timely file for allocator and for failing to notify the Appellant of the date the Pennsylvania Supreme Court denied his Petition For Allowance of Appeal? 3. Did the lower court err in dismissing Appellant s first PCRA petition as time barred and was first PCRA counsel ineffective for failing to cite trial/appellate counsel s ineffectiveness? Appellant s Pro Se Brief at 4 (verbatim). Our standard of review for an order denying PCRA relief is whether the record supports the PCRA court s determination, and whether the PCRA court s determination is free of legal error. Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa. Super. 2011), appeal denied, Pa., 42 A.3d 1059 (2012) (citing Commonwealth v. Berry, 877 A.2d 479, 482 (Pa. Super. 2005)). The PCRA court s findings will not be disturbed unless there is no support for the findings in the certified record. Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001)). 5 5 We note that Appellant correctly points out in his first issue that the PCRA court failed to comply with Pa.R.Crim.P. 907 by not providing Appellant with notice that the PCRA court intended to dismiss Appellant s PCRA petition without holding an evidentiary hearing. However, our Supreme Court has held that where the PCRA petition is untimely, the failure to provide such -7-

8 A PCRA petition must be filed within one year of the date that the judgment of sentence becomes final. 42 Pa.C.S.A. 9545(b)(1). This time requirement is mandatory and jurisdictional in nature, and the court may not ignore it in order to reach the merits of the petition. Commonwealth v. Murray, 562 Pa. 1, 5, 753 A.2d 201, 203 (2000). A judgment of sentence 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)(3). However, an untimely petition may be received when the petition alleges, and the petitioner proves, that any of the three limited exceptions to the time for filing the petition, set forth at 42 Pa.C.S.A. 9545(b)(1)(i), (ii), and (iii), is met. 6 A petition invoking one of these exceptions must be filed notice is not reversible error. Commonwealth v. Davis, 916 A.2d 1206, 1208 (Pa. Super. 2007) (citing Commonwealth v. Pursell, 561 Pa. 214, 225 n.7, 749 A.2d 911, 917 n.7 (2000)). As discussed infra, Appellant untimely filed this, his third, PCRA petition. For this reason, the failure of the PCRA court to provide the Rule 907 notice does not entitle Appellant to relief. Davis, 916 A.2d at The exceptions to the timeliness requirement are: (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 -8-

9 within sixty days of the date the claim could first have been presented. 42 Pa.C.S.A. 9545(b)(2). In order to be entitled to the exceptions to the PCRA s one-year filing deadline, the petitioner must plead and prove specific facts that demonstrate his claim was raised within the sixty-day time frame under section 9545(b)(2). Carr, 768 A.2d at Our review of the record reflects that Appellant s judgment of sentence became final on or about September 2, 1997, thirty days after a panel of this Court affirmed his judgment of sentence and the time for filing a petition for allowance of appeal with the Pennsylvania Supreme Court expired. 7 See 42 Pa.C.S.A. 9545(b)(3); Pa.R.A.P. 903(a). Appellant did not file the instant PCRA petition until May 18, Thus, Appellant s PCRA petition currently on appeal is patently untimely. As previously stated, if a petitioner does not file a timely PCRA petition, his petition may nevertheless be received under any of the three (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. 42 Pa.C.S.A. 9545(b)(1)(i), (ii), and (iii). 7 We observe Appellant needed to file his petition for allowance of appeal with the Pennsylvania Supreme Court on or before Tuesday, September 2, 1997, because August 31, 1997 was a Sunday, and Monday, September 1, 1997 was the Labor Day holiday. See 1 Pa.C.S.A (stating that, for computations of time, whenever the last day of any such period shall fall on Saturday or Sunday, or a legal holiday, such day shall be omitted from the computation). -9-

10 limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.A. 9545(b)(1). If a petitioner asserts one of these exceptions, he must file his petition within 60 days of the date that the exception could be asserted. 42 Pa.C.S.A. 9545(b)(2). As we have held, an appellant must file a PCRA petition raising a decision which establishes a newly-recognized constitutional right within sixty days of the date of issuance of that decision. See Commonwealth v. Baldwin, 789 A.2d 728, (Pa. Super. 2001), appeal denied, 581 Pa. 669, 863 A.2d 1141 (2004) (reiterating that PCRA petitions claiming an exception to the timeliness requirements based upon a constitutional right newly recognized by the United States Supreme Court or the Pennsylvania Supreme Court must be presented within 60 days of the newly published decision and stating that [n]either the court system nor the correctional system is obliged to educate or update prisoners concerning changes in case law. ). Our review of the record reflects that Appellant attempted to argue in his third pro se PCRA petition the timeliness exception under section 9545(b)(1)(iii), with his assertions that the United States Supreme Court cases of Martinez v. Ryan, U.S., 132 S.Ct (2012), Maples v. Thomas, U.S., 132 S.Ct. 912 (2012), and Lafler v. Cooper, U.S., 132 S.Ct (2012), provide him relief. PCRA Petition, 5/18/12, at

11 Initially, we observe that the United States Supreme Court s decision in Maples v. Thomas, U.S., 132 S.Ct. 912 (2012), was rendered on January 18, Even assuming for the sake of argument that the decision is applicable to Appellant s case, and would provide Appellant relief from the timeliness requirements of the PCRA, we observe that to qualify for the timeliness exception, Appellant would have had to present the claim on or before Monday, March 19, As we previously stated, Appellant did not file the instant PCRA petition until May 18, Thus, any relief that would possibly be afforded by the decision in Maples does not qualify because Appellant has not met the necessary timeliness exception. We next address Appellant s claim that he is entitled to the timeliness exception pursuant to the United State Supreme Court s decision in Martinez v. Ryan, U.S., 132 S.Ct (2012). In Martinez, the United States Supreme Court granted certiorari to determine whether ineffective assistance in an initial-review collateral proceeding on a claim of ineffective assistance at trial may provide cause for a procedural default in a federal habeas proceeding. Id. at The Court concluded that such ineffective assistance may establish cause, because an initial-review collateral proceeding is in many ways the equivalent of a prisoner s direct appeal as to the ineffective-assistance claim. Id. at However, the 8 We note that the 60-day period following the decision in Maples expired on March 18, 2012, which was a Sunday. See 1 Pa.C.S.A

12 Court specifically did not decide the case on constitutional grounds. See id. at 1315 ( This is not the case, however, to resolve whether that exception exists as a constitutional matter. ). Rather, the United States Supreme Court ruled on equitable grounds, stating the following: A constitutional ruling would provide defendants a free-standing constitutional claim to raise; it would require the appointment of counsel in initial-review collateral proceedings; it would impose the same system of appointing counsel in every State; and it would require a reversal in all state collateral cases on direct review from the state courts if the States system of appointing counsel did not conform to the constitutional rule. An equitable ruling, by contrast, permits States a variety of systems for appointing counsel in initial-review collateral proceedings or not asserting a procedural default and raising a defense on the merits in federal habeas proceeding. In addition, state collateral cases on direct review from state courts are unaffected by the ruling in this case. Id. at As this Court recently stated in Commonwealth v. Saunders, A.2d,, 2013 PA Super. 9, at *7 (2013), [w]hile Martinez represents a significant development in federal habeas corpus law, it is of no moment with respect to the way Pennsylvania courts apply the plain language of the time bar set forth in section 9545(b)(1) of the PCRA. Accordingly, the ruling in Martinez fails to provide Appellant an exception to the time bar of the PCRA. In addition, to the extent that Appellant relies on the United States Supreme Court s decision in Lafler v. Cooper, U.S., 132 S.Ct (2012), we observe that the facts in Lafler are distinguishable from -12-

13 the instant case. In Lafler, defense counsel erroneously informed the defendant that he could not be convicted of attempted murder for shooting the victim in the buttocks. Consequently, defense counsel advised the defendant to reject a plea offer. At trial, the district attorney successfully argued that the defendant was simply a bad shot, and a jury convicted the defendant. The defendant then received a harsher sentence than he would have under the plea offer. Here, we cannot address the applicability of Lafler to the PCRA petition because Appellant offers no evidence that such a plea bargain offer ever existed. Appellant bears the burden of proving that his untimely PCRA petition falls under one of the timeliness exceptions. 42 Pa.C.S.A. 9545(b)(1). For Lafler to apply, Appellant must demonstrate that the Commonwealth communicated a plea offer to his trial counsel. Our review of the record fails to reflect that a plea offer was made by the prosecution. Without any evidence of such, we cannot reach the merits of Appellant s claim, as there is no properly pled ground on which we can find an exception to the deadline. Thus, the PCRA court did not err in denying Appellant s untimely PCRA petition. Consequently, because the PCRA petition was untimely and no exceptions apply, the PCRA court lacked jurisdiction to address the claims presented and grant relief. See Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002), appeal denied, 573 Pa. 703, 827 A.2d

14 (2003) (holding that PCRA court lacks jurisdiction to hear untimely petition). Likewise, we lack jurisdiction to reach the merits of the appeal. See Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002) (holding that Superior Court lacks jurisdiction to reach merits of appeal from untimely PCRA petition). Also, after having determined upon independent review of the record in light of the PCRA petition and the issues set forth therein, as well as of the contents of the petition of PCRA counsel to withdraw, we allow counsel to withdraw. Motion to withdraw granted. Order affirmed. -14-