Com. v. Minnefield, T. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TAMEIKA MINNEFIELD
Appellant No. 1020 WDA 2016
Appeal from the PCRA Order December 31, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0003188-2011
BEFORE: OLSON, MOULTON and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED JUNE 23, 2017
Appellant, Tameika Minnefield, appeals from the order entered on
December 31, 2015 dismissing her first petition filed pursuant to the Post-
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. In this appeal
from the denial of PCRA relief, Appellant’s court-appointed counsel filed a
petition to withdraw as counsel and a no-merit brief pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). As
we conclude that counsel fulfilled the procedural requirements of
Turner/Finley, and this appeal is without merit, we grant counsel’s petition
to withdraw as counsel and affirm the PCRA court’s order dismissing
Appellant’s PCRA petition.
* Retired Senior Judge assigned to the Superior Court
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The factual background of this case is as follows. During September
and October 2011, Appellant beat her four-year-old daughter with a belt
about the arms, stomach, back, legs, and buttocks. These beatings caused
numerous contusions and abrasions. During this same time period,
Appellant failed to provide her daughter with food.
The procedural history of this case is as follows. On January 23, 2012,
the Commonwealth charged Appellant via criminal information with
aggravated assault,1 simple assault,2 endangering the welfare of a child,3
and recklessly endangering another person.4 On September 5, 2012,
Appellant pled guilty to aggravated assault and endangering the welfare of a
child. On October 18, 2012, Appellant was sentenced in absentia to an
aggregate term of 76 to 152 months’ imprisonment. Appellant appealed her
judgment of sentence and this Court affirmed. See Commonwealth v.
Minnefield, 87 A.3d 883, 2013 WL 11253513 (Pa. Super. 2013). Appellant
did not seek allocatur from our Supreme Court.
On July 24, 2015, Appellant filed a pro se PCRA petition. On August
13, 2015, counsel was appointed. On December 7, 2015, the PCRA court
issued notice of its intent to dismiss the petition without an evidentiary
1
18 Pa.C.S.A. § 2702(a)(1).
2
18 Pa.C.S.A. § 2701(a)(1).
3
18 Pa.C.S.A. § 4304(a)(1).
4
18 Pa.C.S.A. § 2705.
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hearing. See Pa.R.Crim.P. 907(A). On December 31, 2015, the PCRA court
dismissed the petition. This timely appeal followed. Appellant’s court-
appointed counsel filed a petition to withdraw as counsel and a
Turner/Finley brief. Appellant filed a pro se response to counsel’s
Turner/Finley brief. The matter is now ripe for disposition.
Counsel presents one issue in his Turner/Finley brief:
Whether the PCRA petition filed by [] Appellant lacked arguable
merit and failed to state any colorable claims for relief due to
untimeliness, being previously litigated on direct appeal[,] and
otherwise lacking any substantive merit in failing to implicate the
legality of sentence as compelled for PCRA relief?
Turner/Finley Brief at 2.
Prior to addressing the merits of the issues raised in counsel’s
Turner/Finley brief, we must determine whether he met the procedural
requirements to withdraw as counsel. Counsel seeking to withdraw in PCRA
proceedings
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
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without merit, the court will permit counsel to withdraw and
deny relief.
Commonwealth v. Muzzy, 141 A.3d 509, 510–511 (Pa. Super. 2016)
(ellipses and citation omitted). In this case, counsel fulfilled the procedural
requirements for withdrawing as PCRA counsel. Therefore, we turn to the
lone issue raised in counsel’s Turner/Finley brief.
“Crucial to the determination of any PCRA appeal is the timeliness of
the underlying petition. Thus, we must first determine whether the instant
PCRA petition was timely filed.” Commonwealth v. Brown, 141 A.3d 491,
499 (Pa. Super. 2016) (citation omitted). The timeliness requirement for
PCRA petitions “is mandatory and jurisdictional in nature[.]”
Commonwealth v. Brown, 143 A.3d 418, 420 (Pa. Super. 2016) (citation
omitted). Thus, we shall concentrate our attention on whether Appellant
timely filed her PCRA petition and, if not, whether she has raised a viable
statutory exception to the PCRA’s timeliness requirement.
A PCRA petition is timely if it is “filed within one year of the date the
judgment [of sentence] becomes final.” 42 Pa.C.S.A. § 9545(b)(1). “[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)(3). Because Appellant did not seek
allocatur from our Supreme Court, her judgment of sentence became final
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on November 12, 2013.5 Appellant’s PCRA petition was filed on July 24,
2015. Thus, the petition was patently untimely.6
An untimely PCRA petition may be considered if one of the following
three exceptions applies:
(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.A. § 9545(b)(1)(i-iii). If an exception applies, a PCRA petition
may be considered if it is filed “within 60 days of the date the claim could
have been presented.” 42 Pa.C.S.A. § 9545(b)(2). “It is the petitioner’s
burden to plead and prove an exception to the PCRA-timeliness rule.”
Commonwealth v. Wiley, 966 A.2d 1153, 1158 (Pa. Super. 2009) (citation
omitted).
5
November 10, 2013, the thirtieth day after this Court affirmed Appellant’s
judgment of sentence, was a Sunday. The following day was a holiday.
Thus, Appellant had until November 12, 2013 to seek allocatur from our
Supreme Court.
6
The fact that Appellant was sentenced in absentia does not impact the
timeliness requirement of the PCRA. See Commonwealth v. Pollard, 911
A.2d 1005, 1007 (Pa. Super. 2006).
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As noted above, a petitioner must plead and prove the existence of a
timeliness exception in order for the PCRA court to have jurisdiction over an
untimely petition. Failure to plead the applicability of a timeliness exception
in the PCRA petition renders the PCRA court without jurisdiction to consider
the merits of the petition. See Commonwealth v. Derrickson, 923 A.2d
466, 468-469 (Pa. Super. 2007), appeal denied, 934 A.2d 72 (Pa. 2007). In
this case, Appellant’s PCRA petition did not allege that she satisfied one of
the PCRA’s timeliness exceptions. As such, she failed to plead and prove the
applicability of a timeliness exception and the PCRA court properly held that
it lacked jurisdiction over her untimely petition.7 Accordingly, this appeal
lacks merit and we grant counsel’s petition to withdraw and affirm the order
dismissing Appellant’s petition.
Petition to withdraw as counsel granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2017
7
As we conclude that the trial court lacked jurisdiction over Appellant’s
petition, we need not address the issue discussed in counsel’s
Turner/Finley brief.
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