Com. v. Harris, A. ( 2019 )

J. S62039/19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ANTONYO MONTEZ HARRIS, : No. 895 WDA 2019
:
Appellant :
Appeal from the PCRA Order Entered April 1, 2019,
in the Court of Common Pleas of Venango County
Criminal Division at No. CP-61-CR-000352-2016
BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 31, 2019
Antonyo Montez Harris appeals pro se from the April 1, 2019 order
entered in the Court of Common Pleas of Venango County denying his second
PCRA petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court set forth the following procedural history:
Pursuant to a plea agreement entered into between
the Commonwealth and [appellant] and filed with the
[trial] court November 30, 2016, [appellant] agreed
to plead guilty to one count of Corrupt Organizations,
two counts of Delivery of a Controlled Substance,
[and] one count of Criminal Use of a Communications
Facility . . . .[1] [Appellant] was subsequently
sentenced on February 7, 2017, to a total aggregate
sentence of imprisonment of a minimum of
ninety-three (93) months, and a maximum of
1 18 Pa.C.S.A. § 911(b)(4), 35 P.S. § 780-113(a)(30), and 18 Pa.C.S.A.
§ 7512(a), respectively.
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twenty-five (25) years. [Appellant did not file a
post-sentence motion or seek a direct appeal.]
On June 1, 2017, [appellant] filed a pro se Petition
for Post-Conviction Relief. On June 6, 2017, [the
PCRA court] appointed Attorney Eric A. Padin as
PCRA counsel. An evidentiary hearing on the PCRA
petition was held on December 15, 2017, and on
April 12, 2018, [the PCRA c]ourt denied the Petition.
On May 7, 2018, [appellant] filed [a] pro se Notice of
Appeal and Concise Statement of Errors Complained
of on Appeal, however, Attorney Padin still
represented [appellant], so the [PCRA c]ourt issued
an order directing Attorney Padin to file an amended
statement of [errors] complained of on appeal within
twenty-one (21) days [pursuant to
Pa.R.A.P. 1925(b)]. On May 29, 2018, Attorney Padin
filed an amended Concise Statement.
On July 18, 2018, [appellant] filed a pro se Petition
for Modification of Relief, and on August 29, 2018, he
filed a Motion to Modify and Reduce Sentence. Again,
[the PCRA c]ourt issued an order explaining that
Attorney Padin is still the attorney of record, so the
motions were forwarded to him. On July 25, 2018,
Attorney Padin filed a petition to withdraw, improperly
entitled an Anders/Mc[C]lendon[2] brief. On
September 10, 2018, [appellant] filed another pro se
Petition for Modification of Relief, but [the PCRA c]ourt
lacked jurisdiction because the appeal was still
pending in the Superior Court of Pennsylvania. On
October 30, 2018, the Superior Court affirmed the
dismissal of the PCRA [petition], and granted Attorney
Padin's petition to withdraw. [See Commonwealth
v. Harris, No. 690 WDA 2018, unpublished
memorandum (Pa.Super. filed October 30, 2018).]
2 Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981). We note that when counsel seeks to
withdraw from an appeal involving a PCRA petition a Turner/Finley no-merit
letter is the appropriate filing. See Commonwealth v. Turner, 544 A.2d
927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988)
(en banc).
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[On February 13, 2019, appellant filed pro se his
second PCRA petition.] On February 26, 2019, [the
PCRA c]ourt issued an Order stating it intended to
dismiss the second PCRA petition without a hearing
pursuant to Pa.R.Crim.P. 907. Attached to the Order
was an unsigned Opinion providing [the PCRA court’s]
analysis [of] why [it] intended to dismiss. [Appellant]
believed [the PCRA court’s] Order denied his petition
and filed a Notice of Appeal with the Pennsylvania
Superior Court on March 28, 2019. On April 1, 2019,
[the PCRA court] filed [its] Order and Opinion denying
the second PCRA petition.[3]
PCRA court opinion, 6/24/19 at 1-3. The PCRA court directed appellant to file
a Rule 1925(b) statement. Appellant timely complied. The PCRA court
subsequently filed its Rule 1925(a) opinion.
Appellant raises the following issues for our review:
I. Did the PCRA court err in finding that appellant’s
second PCRA petition is time-barred?
II. Whether an evidentiary hearing, new
sentencing and/or new trial is warranted where
appellant was denied his Sixth Amendment right
to effective assistance of counsel where the
guilty plea was induced based on trial counsel’s
failure to advise him of the Commonwealth’s
initial offer to plead guilty to a lesser sentence
of 4 to 8 years?
III. Whether appellant was deprived of effective
assistance of counsel under state law during the
first PCRA proceedings where PCRA counsel
failed to disclose that he labored under an actual
conflict of interest?
3 We note that appellant’s notice of appeal is treated as having been filed on
April 1, 2019, the date the order denying the second PCRA petition was
entered. See Pa.R.A.P. 905(a)(5) (stating, “[a] notice of appeal filed after
the announcement of a determination but before the entry of an appealable
order shall be treated as filed after such entry and on the day thereof.”).
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Appellant’s brief at 4 (unnecessary capitalization omitted).
In his first issue, appellant contends his “second petition is not
[time-]barred under the [PCRA] given that review of the initial PCRA petition
by [this] court did not conclude until October 30, 2018.” (Id. at 8.) Appellant
further contends the discovery that his court-appointed PCRA counsel also
represented appellant’s co-defendant constitutes a newly discovered fact and
is an exception to the time-bar. (Id. at 9.)
In order to be timely filed, a PCRA petition, including second and
subsequent petitions, must be filed within one year of when an appellant’s
judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1) (emphasis
added). “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 the time for seeking
the review.” 42 Pa.C.S.A. § 9545(b)(3). Our supreme court has held that the
PCRA’s time restriction is constitutionally sound. Commonwealth v. Cruz,
852 A.2d 287, 292 (Pa. 2004). In addition, our supreme court has instructed
that the timeliness of a PCRA petition is jurisdictional. If a PCRA petition is
untimely, courts lack jurisdiction over the petition. Commonwealth v.
Wharton, 886 A.2d 1120, 1124 (Pa. 2005); see also Commonwealth v.
Callahan, 101 A.3d 118, 121 (Pa.Super. 2014) (holding courts do not have
jurisdiction over untimely PCRA petition).
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Here, appellant’s judgment of sentence became final on March 9, 2017,
30 days after the deadline for filing a direct appeal with this court expired.4
See 42 Pa.C.S.A. § 9545(b)(3); see also Pa.R.A.P. 903(a) (requiring notice
of appeal to be filed within 30 days after entry of order from which appeal is
taken). Therefore, appellant’s second PCRA petition filed on February 13,
2019, almost two years after his judgment of sentence became final, is
patently untimely.
If a PCRA petition is untimely filed, the jurisdictional time-bar can only
be overcome if appellant alleges and proves one of the three statutory
exceptions, as set forth in 42 Pa.C.S.A. § 9545(b)(1). Commonwealth v.
Spotz, 171 A.3d 675, 678 (Pa. 2017). The three narrow statutory exceptions
to the one-year time-bar are as follows: “(1) interference by government
officials in the presentation of the claim; (2) newly discovered facts; and
(3) an after-recognized constitutional right.” Commonwealth v. Brandon,
51 A.3d 231, 233-234 (Pa.Super. 2012), citing 42 Pa.C.S.A.
§ 9545(b)(1)(i-iii). A petition invoking an exception to the jurisdictional
time-bar must be filed within one year of the date that the claim could have
been presented. 42 Pa.C.S.A. § 9545(b)(2). If appellant fails to invoke a
4 We note that appellant was sentenced in open court on February 7, 2017,
but the sentencing order was not entered on the docket until February 14,
2017. Pursuant to Pa.R.A.P. 108(d)(2), “[i]n a criminal case in which no
post-sentence motion has been filed, the date of imposition of sentence in
open court shall be deemed to be the date of entry of the judgment of
sentence.”
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valid exception to the PCRA time-bar, courts are without jurisdiction to review
the petition or provide relief. Spotz, 171 A.3d at 676.
Here, a review of appellant’s brief demonstrates that he is attempting
to assert the newly discovered facts exception to the jurisdictional time-bar
under Section 9545(b)(1)(ii). (Appellant’s brief at 9.) Our supreme court has
held that when considering a claim seeking to invoke the newly discovered
facts exception, “the petitioner must establish only that (1) the facts upon
which the claim was predicated were unknown and (2) they could not have
been ascertained by the exercise of due diligence.” Commonwealth v. Cox,
146 A.3d 221 (Pa. 2016) (citation omitted). “Due diligence does not require
perfect vigilance and punctilious care, but merely a showing the party has put
forth reasonable effort to obtain the information upon which a claim is based.”
Id. at 230 (citation and original quotation marks omitted). Appellant must
offer “evidence that he exercised due diligence in obtaining facts upon which
his claim was based.” Id. at 227, citing Commonwealth v. Breakiron, 781
A.2d 94, 98 (Pa. 2001). “[T]he presumption that information which is of public
record cannot be deemed ‘unknown’ for purposes of subsection 9545(b)(1)(ii)
does not apply to pro se prisoner petitioners.” Commonwealth v. Burton,
158 A.3d 618, 638 (Pa. 2017) (emphasis in original).
Appellant contends that in January 2019, he became aware his PCRA
counsel, at the time he represented appellant in his first PCRA petition, had
also represented appellant’s co-defendant at her plea and sentencing
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hearings.5 (Appellant’s brief at 9.) Appellant argues this information satisfies
the newly discovered facts exception to the jurisdictional time-bar. (Id.)
Appellant states that he was not able to discover this information previously
because he “was incarcerated and did not have access to the
District Attorney’s file or other information otherwise readily available to the
public[.]” (Id.)
PCRA counsel’s prior representation of appellant’s co-defendant is a
matter of public record but the presumption that this information cannot be
“unknown” for purposes of the newly discovered facts exception does not
apply here because appellant is a pro se incarcerated petitioner. See Burton,
158 A.3d at 638. Appellant, however, failed to explain how he only learned
of this information in January 2019, several years after pleading guilty in
November 2016 and why it could not have been discovered earlier. Moreover,
appellant failed to present evidence of the due diligence he exercised that led
to his eventual discovery of this information. Therefore, appellant has failed
to plead and prove evidence that established the newly discovered facts
exception to the jurisdictional time-bar.
5The trial court noted that PCRA counsel represented appellant’s co-defendant
before representing appellant in his first PCRA petition. (Trial court opinion,
6/24/18 at 6 (emphasis added).)
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Consequently, the PCRA court lacked jurisdiction to review appellant’s
pro se second PCRA petition, and we may not review the petition on appeal.6
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/31/2019
6 Addressing appellant’s conflict of interest issue, alternatively, the trial court
stated:
Here, there is no conflict that rises to the level of
ineffectiveness. Attorney Padin represented
[appellant’s co-defendant] before representing
[appellant], but the prior representation did not
prejudice [appellant]. Attorney Padin’s
representation of [appellant] consisted of only a
PCRA [petition], and the arguments were related to
an incorrect calculation of [appellant’s] Prior Record
Score and previous attorney’s failure to file to
withdraw [appellant’s] guilty plea and failure to file a
direct appeal. Like the attorney in [Commonwealth
v.] Toro, [638 A.2d 991 (Pa.Super. 1994),]
Attorney Padin did not receive any confidential
information, and his loyalties were not divided by
representing both people.
Trial court opinion, 6/24/19 at 6.
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