Com. v. Wells, E. ( 2021 )

J-S53044-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDWARD WELLS :
:
Appellant : No. 365 EDA 2020
Appeal from the PCRA Order Entered December 10, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004435-2013
BEFORE: SHOGAN, J., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: APRIL 26, 2021
Edward Wells (Wells) appeals from the order entered in the Court of
Common Pleas of Philadelphia County (PCRA court) dismissing his petition filed
pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546,
as untimely. We affirm.
I.
A.
On December 11, 2011, L.S., who was then nineteen-years old, went to
a club in Philadelphia with one of her girlfriends. Around closing time, L.S.
was unable to find her friend and while she looked for her, Wells followed L.S.
into a small, dark room. Wells forced L.S. to the ground and got on top of her
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* Retired Senior Judge assigned to the Superior Court.
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as she repeatedly told him that she did not want to have sex. Wells penetrated
L.S. vaginally and anally with his penis and left the room. L.S. then found her
friend, who drove her to the hospital to report the rape.
A DNA sample produced from L.S.’s rape kit examination was entered
into a statewide database, resulting in a match to Wells’ DNA in October 2012.
A search warrant was issued to secure a confirmatory DNA sample. Wells was
arrested in March 2013 after an oral swab confirmed that his DNA matched
the rape kit sample.
B.
On October 7, 2015, Wells pled guilty to rape and involuntary deviate
sexual intercourse.1 The trial court deferred sentencing for preparation of a
presentence investigation report and a mental health evaluation. On April 13,
2016, new counsel entered his appearance for Wells and filed a motion to
withdraw his guilty plea. At the May 16, 2016 hearing on the motion, defense
counsel argued that Wells should be permitted to withdraw his plea because
he was innocent and had a disconnect with prior counsel. Wells asserted that
he had not spoken to plea counsel for three years before he entered the plea
and that counsel told him he was “going to fry” if he didn’t sign the plea
agreement. (N.T. Motion to Withdraw Guilty Plea, 5/16/16, at 4).
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1 18 Pa.C.S. §§ 3121(a)(1), 3123(a)(1).
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On September 12, 2016, the trial court denied Wells’ motion to withdraw
the guilty plea and sentenced him to a term of not less than seven nor more
than fourteen years’ incarceration, followed by fifteen years of probation. On
direct appeal, Wells challenged the trial court’s denial of his pre-sentence
motion to withdraw his guilty plea. A panel of this Court affirmed the
judgment of sentence on January 25, 2018. (See Commonwealth v. Wells,
2018 WL 545628 (Pa. Super. filed Jan. 25, 2018)) (unpublished
memorandum). In rendering its decision, the Court pointed out that two
separate tests showed that Wells’ DNA matched the DNA from L.S., that she
reported the rape immediately and was prepared to testify against him at
trial.2 Wells did not file a petition for allowance of appeal with our Supreme
Court.
Wells, acting pro se, filed the instant PCRA petition on March 5, 2019.
Appointed counsel subsequently filed a Turner/Finley no-merit letter.3 On
October 2, 2019, the PCRA court issued notice of its intent to dismiss the PCRA
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2 The Court also observed that the record called into question Wells’ assertions
that counsel did not communicate with him for three years before the plea,
and that he entered the plea based on counsel’s statement that he would “fry”
if he refused. However, the Court noted that nothing in its decision should be
construed as ruling on the merits of Wells’ ineffectiveness claims or as
precluding him from developing them on collateral review. (See Wells, supra
at *7-8).
3Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988).
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petition. See Pa.R.Crim.P. 907(1). The court entered its order dismissing the
petition on December 10, 2019. This timely appeal followed. The PCRA court
permitted counsel to withdraw from representation and appointed new counsel
for appeal. Wells and the PCRA court complied with Rule 1925. See Pa.R.A.P.
1925(a)-(b).
II.
A.
On appeal, Wells raises claims of ineffective assistance of plea counsel.
He contends that counsel failed to advise him of a favorable plea offer made
early in the process and neglected to inform the court that he was suicidal or
request a mental health/competency evaluation. See 42 Pa.C.S.
§ 9543(a)(2)(ii) (listing ineffective assistance of counsel as basis for
substantive PCRA relief). However, before we may consider these arguments,
we must first address the timeliness of his PCRA petition. Wells acknowledges
that his petition is facially untimely and claims he meets the governmental
interference exception to the PCRA’s time-bar.4
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4 On appeal from the dismissal of a PCRA petition, our review is limited to
examining whether the trial court’s determination is supported by the
evidence of record and free of legal error. See Commonwealth v. Koehler,
229 A.3d 915, 927 (Pa. 2020). When an issue raises a question of law, our
review is de novo and our scope of review is plenary. See id. We further
note that a PCRA petitioner is not automatically entitled to an evidentiary
hearing, and we review a PCRA court’s decision dismissing a petition without
a hearing for an abuse of discretion. See Commonwealth v. Miller, 102
A.3d 988, 992 (Pa. Super. 2014); Pa.R.Crim.P. 907(1).
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“The timeliness of a PCRA petition is a jurisdictional requisite.”
Commonwealth v. Shiloh, 170 A.3d 553, 557 (Pa. Super. 2017) (citation
omitted). A petitioner must file a PCRA petition within one year of the date
the underlying judgment becomes final. See 42 Pa.C.S. § 9545(b)(1). In the
instance case, Wells’ judgment of sentence became final on February 26,
2018, when his time to file a direct appeal expired. 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.”).
We cannot consider a facially untimely PCRA petition unless a petitioner
pleads and proves one of the following limited exceptions:
(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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii).
Although Wells emphasizes that he filed his petition just beyond the one-
year deadline, there is no equitable tolling of the PCRA’s one-year statute of
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limitations, and we lack jurisdiction over this case unless he satisfies the plain
language of an exception to the time-bar. See Commonwealth v. Rizvi,
166 A.3d 344, 348 (Pa. Super. 2017).
B.
With regard to Wells’ argument concerning the governmental
interference exception, he points to several shortcomings in the prison
system. Specifically, Wells avers that he is legally blind and claims that the
Department of Corrections (DOC) did not provide him with an aid to assist him
with legal-related tasks including legal research until February 15, 2019, a
short time before the deadline to file a timely PCRA petition lapsed. Wells also
claims “substantial and pervasive” governmental interference hindering his
ability to file a timely petition in the form of: an approximate two-week DOC
mail interruption leading into September 2018 which led to a lag in mail
service; his move to a restricted housing area within the prison because of
threats to his life; and his transfer to a different prison, further delaying his
mail access.
The pertinent question with respect to the timeliness exception at
subsection 9545(b)(1)(i) is whether the government interfered with the
defendant’s ability to present his claim and whether he was duly diligent in
seeking the facts on which his claim is based. See Commonwealth v.
Chimenti, 218 A.3d 963, 975 (Pa. Super. 2019), appeal denied, 229 A.3d
565 (Pa. 2020).
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In the instant case, Wells has not made a plausible showing that the
government actively hindered his ability to timely raise his underlying
ineffective assistance of counsel claims. See Rizvi, supra at 348 (finding
meritless appellant’s claim that limited prison library resources and his
restricted housing status amounted to governmental interference). By Wells’
own admission, he was provided with legal assistance from a prison aid in
advance of the one-year filing deadline. Further, the record reflects that Wells
was aware of counsel’s allegedly deficient representation related to entry of
his guilty plea in 2017-2018 when litigating his direct appeal. Wells has not
provided a sound reason why he could not have developed these claims
further at that time or at some point prior to the filing deadline. To the extent
Wells raises ineffective assistance of counsel claims in connection with the
untimeliness of his petition, it is well settled that allegations of ineffectiveness
do not overcome the jurisdictional timeliness requirements of the PCRA. See
Commonwealth v. Zeigler, 148 A.3d 849, 853 (Pa. Super. 2016).5
In sum, we conclude that the government did not interfere with Wells’
timely discovery of his underlying ineffectiveness claims forming the basis of
this petition. Therefore, Wells’ petition is time-barred and the PCRA court
lacked jurisdiction to review it.
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5 We observe with regard to Wells’ assertion concerning counsel’s failure to
request a mental health evaluation that the record belies his claim and shows
such evaluation was completed.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/26/21
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