Commonwealth v. Walters , 2016 Pa. Super. 42 ( 2016 )

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2016 Pa. Super. 42
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMEL WALTERS,
Appellant No. 701 MDA 2015
Appeal from the PCRA Order March 9, 2015
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0000796-2007; CP-40-CR-0000798-
2007
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED FEBRUARY 19, 2016
Appellant Jamel Walters appeals from the order of the Honorable Fred
A. Pierantoni of the Court of Common Pleas of Luzerne County dismissing
Appellant’s second petition pursuant to the Post Conviction Relief Act
(“PCRA”)1 as untimely filed. PCRA appellate counsel has filed a petition to
withdraw and a no-merit letter pursuant to Commonwealth v. Turner, 518
Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d
213 (Pa.Super. 1988) (en banc). We grant counsel’s petition to withdraw
and affirm the order dismissing Appellant’s PCRA petition.
On October 10, 2007, Appellant entered guilty pleas on two separate
dockets to several counts of possession of a controlled substance with intent
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1
42 Pa.C.S.A. §§ 9541-9546.
*Former Justice specially assigned to the Superior Court.
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to deliver2 and related crimes. On December 11, 2007, Appellant was
sentenced accordingly on all charges. Appellant filed a post-sentence motion
which the trial court subsequently denied. No appeal was filed.
On June 27, 2012, Appellant filed his first PCRA petition, raising
allegations of judicial misconduct on the part of his sentencing judge, Mark
Ciavarella, who was convicted of federal corruption charges in February
2011. The PCRA court dismissed Appellant’s petition as untimely filed,
finding that Appellant failed to plead and prove that one of the PCRA
timeliness exceptions was applicable. After Appellant appealed, the Superior
Court affirmed the trial court’s order dismissing the petition on October 4,
2013, and the Pennsylvania Supreme Court denied Appellant’s Petition for
Allowance of Appeal on March 25, 2014.
On June 6, 2014, Appellant filed the instant pro se PCRA petition,
reiterating his claim that his sentence should be vacated as a result of
former Judge Ciavarella’s misconduct. After the PCRA court subsequently
appointed Hugh Taylor, Esq. to assist Appellant, Atty. Taylor filed a “no-
merit” letter, asserting that Appellant’s second petition was also untimely
filed. After a hearing, the PCRA court dismissed Appellant’s PCRA petition on
March 9, 2015. Appellant filed a pro se notice of appeal directly with this
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2
35 P.S. § 780-113(a)(30).
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Court on April 7, 2015. This Court forwarded Appellant’s notice of appeal to
the Court of Common Pleas.3
Upon review of the record, this Court noted that it appeared that
Appellant was still represented by counsel as the trial court docket contained
no indication that Atty. Taylor had been granted leave to withdraw. As a
result, this Court remanded for a determination of whether Atty. Taylor had
abandoned Appellant and directed the trial court to take any further
necessary action, including, but not limited to, the appointment of new
counsel. After a hearing, the trial court determined that Atty. Taylor had not
abandoned Appellant and remained counsel of record.
However, it appears that the trial court subsequently allowed Atty.
Taylor to resign and reassigned the case to Allyson Kacmarski, Esq., who
filed a “no merit” brief and a petition to withdraw, notifying Appellant of his
right to proceed pro se or retain new counsel. Appellant did not respond to
Atty. Kacmarski’s filings.
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3
Pennsylvania Rule of Appellate Procedure 905(a)(4) provides:
If a notice of appeal is mistakenly filed in an appellate court, or
is otherwise filed in an incorrect office within the unified judicial
system, the clerk shall immediately stamp it with the date of
receipt and transmit it to the clerk of the court which entered the
order appealed from, and upon payment of an additional filing
fee the notice of appeal shall be deemed filed in the trial court
on the date originally filed.
Pa.R.A.P. 905(a)(4).
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When reviewing the denial of a PCRA petition, we are guided by the
following standard:
The standard of review for an order denying post-conviction
relief is limited to whether the record supports the PCRA court's
determination, and whether that decision is free of legal error.
The PCRA court's findings will not be disturbed unless there is no
support for the findings in the certified record.
Commonwealth v. Allen, 48 A.3d 1283, 1285 (Pa.Super. 2012) (citations
omitted).
Before we proceed to review the merits of Appellant’s PCRA petition,
we must determine whether counsel has satisfied certain procedural
requirements to withdraw her representation:
Counsel petitioning to withdraw from PCRA representation must
proceed ... under Turner, supra and Finley, supra and ...
must review the case zealously. 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 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 the right to proceed
pro se or by new counsel.
Where counsel submits a petition and no-merit letter that ...
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.
Commonwealth v. Doty, 48 A.3d 451, 454 (Pa.Super. 2012) (quoting
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007)).
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After reviewing the record and counsel’s petition to withdraw, we find
that PCRA appellate counsel complied with the requirements of Turner and
Finley, supra. In her “no-merit” letter, PCRA appellate counsel detailed the
nature and extent of her review, listed the issue which Appellant raised in
his pro se petition, and thoroughly explained why she believed Appellant’s
claim was frivolous and untimely filed. Moreover, PCRA appellate counsel
indicated that after her own independent review of the record, she could not
identify any meritorious issues that she could raise on Appellant’s behalf to
plead and prove that one of the PCRA timeliness exceptions applied.
Counsel also attached proof that she sent Appellant her petition to withdraw
along with her no-merit letter and instructed him he had the right to retain
counsel or proceed pro se. As counsel complied with the Turner-Finley
requirements to withdraw her representation, we must now determine
whether the PCRA court correctly dismissed Appellant’s PCRA petition as
untimely filed.
It is well-established that “the PCRA's timeliness requirements are
jurisdictional in nature and must be strictly construed; courts may not
address the merits of the issues raised in a petition if it is not timely filed.”
Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa.Super. 2011)
(citations omitted). Generally, a PCRA petition must be filed within one year
of the date the judgment of sentence becomes final unless the petitioner
meets his burden to plead and prove one of the exceptions enumerated in
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii), which include: (1) the petitioner’s inability
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to raise a claim as a result of governmental interference; (2) the discovery
of previously unknown facts or evidence that would have supported a claim;
or (3) a newly-recognized constitutional right. 42 Pa.C.S.A. §
9545(b)(1)(i)-(iii). However, the PCRA limits the reach of the exceptions by
providing that a petition invoking any of the exceptions must be filed within
60 days of the date the claim first could have been presented. Leggett, 16
A.3d at 1146 (citing 42 Pa.C.S.A. § 9545(b)(2)).
In this case, the trial court sentenced Appellant on December 11,
2007, and denied Appellant’s post-sentence motion on December 26, 2007.
As Appellant did not file a direct appeal, his sentence became final on
January 25, 2008. As Appellant filed his second PCRA petition on June 6,
2014, over six years after his sentence became final, his petition is facially
untimely.
In his pro se PCRA petition, Appellant did not attempt to explain why
his claims should not be dismissed as untimely filed. Appellant does not
acknowledge the PCRA’s timeliness requirements or discuss the applicability
of any of the timeliness exceptions. Appellant does not explain how the
unrelated misconduct of the sentencing judge affected the legality of his
sentence. Even assuming arguendo that Appellant could somehow prove a
connection between his case and former Judge Ciavarella’s criminal conduct,
he failed to file a PCRA petition invoking a timeliness exception within 60
days of the date the claim first could have been presented. Accordingly, we
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conclude that the PCRA court correctly dismissed Appellant’s PCRA petition
as untimely filed.
Petition to withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/2016
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