Com. v. Singh, G. ( 2015 )


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  • J-S69033-15
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    GURINDER SINGH,
    Appellant                    No. 437 EDA 2015
    Appeal from the PCRA Order of January 9, 2015
    In the Court of Common Pleas of Delaware County
    Criminal Division at No(s): CP-23-CR-0002760-2012
    BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.
    MEMORANDUM BY OLSON, J.:                       FILED DECEMBER 29, 2015
    Appellant, Gurinder Singh, appeals pro se from the order entered on
    January 9, 2015, dismissing his petition filed under the Post-Conviction
    Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.       Although both the PCRA
    court and the Commonwealth contend that Appellant is entitled to relief, we
    are constrained to affirm the order of the PCRA court.
    The PCRA court has ably summarized the facts and procedural posture
    underlying this appeal. As the PCRA court explained:
    On February 24, 2012, [Appellant] was arrested and
    charged with, inter alia, first-degree murder and third-
    degree murder in connection with the death of his wife. . . .
    On April 30, 2012, a preliminary hearing was held and Mr.
    Scott Kramer, Esquire represented [Appellant]. On May 10,
    2012, Appellant was arraigned. . . . On December 4, 2012,
    Appellant entered a non-negotiated guilty plea to third-
    degree murder. On January 23, 2013, the [trial] court held
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    a sentencing hearing. At the hearing, the Commonwealth
    asked the court to sentence Appellant to a period of state
    incarceration of 20 to 40 years.         Appellant’s counsel
    requested the court [to] sentence Appellant toward the
    bottom of the standard [sentencing] range. On January 23,
    2013, the [trial] court sentenced Appellant to [serve 15 to
    30 years in prison, followed by five years of probation].
    On [Tuesday,] February 5, 2013, [(or, 13 days after
    Appellant was sentenced)] Appellant’s plea counsel filed a[n
    untimely] motion for reconsideration of sentence[. See
    Pa.R.Crim.P. 720(A)(1) (“a written post-sentence motion
    shall be filed no later than 10 days after imposition of
    sentence”). The trial court denied Appellant’s post-sentence
    motion in an order entered] on March 4, 2013. [Trial Court
    Order, 3/4/13, at 1.] Appellant never filed a timely notice
    of appeal to the Superior Court. However, on October 11,
    2013, Appellant’s plea counsel filed an untimely notice of
    appeal at 2878 EDA 2013, which was ultimately withdrawn
    by plea counsel on November 26, 2013.
    On March 3, 2014, Appellant filed a pro se PCRA petition
    alleging[,] inter alia[,] that plea counsel [was ineffective
    because he] failed to file a timely notice of appeal. On
    March 5, 2014, an order was entered appointing Steve
    Molineux, Esquire [(hereinafter “Attorney Molineux”)] as
    PCRA counsel.
    PCRA    Court   Opinion,   3/30/15,   at   2-3   (some   internal   citations   and
    capitalization omitted).
    On November 5, 2014, Attorney Molineux filed a “no merit” letter and
    a petition to withdraw as counsel, pursuant to Commonwealth v. Turner,
    
    544 A.2d 927
    (Pa. 1988) and Commonwealth v. Finley, 
    550 A.2d 213
    (Pa.
    Super. 1988) (en banc). On November 26, 2014, the PCRA court entered an
    order granting Attorney Molineux’s petition to withdraw as counsel and
    providing Appellant with notice that it intended to dismiss Appellant’s PCRA
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    petition in 20 days, without holding a hearing. PCRA Court Order, 11/26/14,
    at 1; see also Pa.R.Crim.P. 907(1). On January 9, 2015, the PCRA court
    entered an order dismissing Appellant’s PCRA petition without a hearing.
    Appellant filed a timely, pro se notice of appeal from the PCRA court’s
    dismissal order and Appellant has filed a pro se brief to this Court.1 We now
    affirm the dismissal of Appellant’s untimely PCRA petition.
    As our Supreme Court held, we “review an order granting or denying
    PCRA relief to determine whether the PCRA court’s decision is supported by
    evidence of record and whether its decision is free from legal error.”
    Commonwealth v. Liebel, 
    825 A.2d 630
    , 632 (Pa. 2003).
    The PCRA contains a jurisdictional time-bar, which is subject to limited
    statutory exceptions.        This time-bar demands that “any PCRA petition,
    including a second or subsequent petition, [] be filed within one year of the
    date that the petitioner’s judgment of sentence becomes final, unless [the]
    petitioner pleads [and] proves that one of the [three] exceptions to the
    timeliness requirement . . . is applicable.” Commonwealth v. McKeever,
    
    947 A.2d 782
    , 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b).          Further,
    ____________________________________________
    1
    In its opinion, the PCRA court requests that we remand the case so that
    Appellant’s direct appeal rights could be reinstated nunc pro tunc. PCRA
    Court Opinion, 3/30/15, at 3. The Commonwealth filed a brief in response
    to Appellant’s brief, and also suggested that this Court should remand this
    case to the PCRA court for an evidentiary hearing on the alleged denial of
    Appellant’s direct appeal rights. Commonwealth’s Brief, at 5. Unfortunately,
    because Appellant’s PCRA petition was untimely, we cannot do as the PCRA
    court and the Commonwealth request.
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    since the time-bar implicates the subject matter jurisdiction of our courts,
    we are required to first determine the timeliness of a petition before we
    consider the underlying claims. Commonwealth v. Yarris, 
    731 A.2d 581
    ,
    586 (Pa. 1999). Our Supreme Court explained:
    the PCRA timeliness requirements are jurisdictional in
    nature and, accordingly, a PCRA court is precluded from
    considering untimely PCRA petitions.               See, e.g.,
    Commonwealth v. Murray, 
    753 A.2d 201
    , 203 (Pa. 2000)
    (stating that “given the fact that the PCRA's timeliness
    requirements are mandatory and jurisdictional in nature, no
    court may properly disregard or alter them in order to reach
    the merits of the claims raised in a PCRA petition that is
    filed in an untimely manner”); Commonwealth v. Fahy,
    
    737 A.2d 214
    , 220 (Pa. 1999) (holding that where a
    petitioner fails to satisfy the PCRA time requirements, this
    Court has no jurisdiction to entertain the petition). [The
    Pennsylvania Supreme Court has] also held that even where
    the PCRA court does not address the applicability of the
    PCRA timing mandate, th[e court would] consider the issue
    sua sponte, as it is a threshold question implicating our
    subject matter jurisdiction and ability to grant the requested
    relief.
    Commonwealth v. Whitney, 
    817 A.2d 473
    , 475-476 (Pa. 2003).
    In the case at bar, Appellant was sentenced in open court on January
    23, 2013; Appellant then filed an untimely post-sentence motion on
    Tuesday, February 5, 2013.     Given that Appellant’s post-sentence motion
    was untimely, the filing of the post-sentence motion did not toll the time-
    period for filing a notice of appeal to this Court.   Pa.R.Crim.P. 720(A)(3);
    Commonwealth v. Green, 
    862 A.2d 613
    , 618 (Pa. Super. 2004) (en banc)
    (“where the defendant does not file a timely post-sentence motion, there is
    no basis to permit the filing of an appeal beyond 30 days after the
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    imposition of sentence”); see also Pa.R.Crim.P. 720 cmt. (“[i]f no timely
    post-sentence motion is filed, the defendant’s appeal period runs from the
    date sentence is imposed”). Appellant was thus required to file his notice of
    appeal “within 30 days of imposition of sentence” – or, by February 22,
    2013. Pa.R.Crim.P. 720(A)(3); Pa.R.A.P. 903(a). Appellant did not do so.
    Since Appellant did not file a timely post-sentence motion or a timely
    notice of appeal in this case, Appellant’s judgment of sentence became final
    at the end of the day on February 22, 2013. Pa.R.A.P. 903(a); 42 Pa.C.S.A.
    § 9454(b)(3). Appellant then had until Monday, February 24, 2014 to file a
    timely PCRA petition. 42 Pa.C.S.A. § 9545(b). As Appellant did not file his
    PCRA petition until March 3, 2014, the current petition is manifestly untimely
    and the burden thus fell upon Appellant to plead and prove that one of the
    enumerated exceptions to the one-year time-bar applied to his case. See
    42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Perrin, 
    947 A.2d 1284
    ,
    1286 (Pa. Super. 2008) (to properly invoke a statutory exception to the one-
    year time-bar, the PCRA demands that the petitioner properly plead all
    required elements of the relied-upon exception).
    Here, Appellant claims to invoke the “after-discovered facts” exception
    to the time-bar. This statutory exception provides:
    (1) Any petition under this subchapter, including a second
    or subsequent petition, shall be filed within one year of the
    date the judgment becomes final, unless the petition alleges
    and the petitioner proves that:
    ...
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    (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[;]
    ...
    (2) Any petition invoking an exception provided in
    paragraph (1) shall be filed within 60 days of the date the
    claim could have been presented.
    42 Pa.C.S.A. § 9545(b).
    Thus, to properly invoke the after-discovered facts exception, the
    petitioner is statutorily required to file his petition “within 60 days of the
    date the claim could have been presented.” 
    Id. As our
    Supreme Court has
    explained, to satisfy this “60-day requirement,” a petitioner must “plead and
    prove that the information on which he relies could not have been obtained
    earlier, despite the exercise of due diligence.” Commonwealth v. Stokes,
    
    959 A.2d 306
    , 310-311 (Pa. 2008); Commonwealth v. Breakiron, 
    781 A.2d 94
    , 98 (Pa. 2001).    Moreover, because the “60-day requirement” of
    section 9545(b)(2) is a statutory mandate, the requirement is “strictly
    enforced.” Commonwealth v. Monaco, 
    996 A.2d 1076
    , 1080 (Pa. Super.
    2010).
    Within Appellant’s PCRA petition, Appellant claims that his plea counsel
    was ineffective for failing to file a timely notice of appeal from Appellant’s
    judgment of sentence and then “l[ying to Appellant] that he ha[d] filed” the
    notice of appeal.    Appellant’s Pro Se PCRA Petition, 3/3/14, at 5.       As
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    evidence of this ineffectiveness, Appellant attached the following exhibits to
    his PCRA petition:
       1) A letter from Appellant’s plea counsel to Appellant, dated August 1,
    2013, wherein Appellant’s plea counsel informed Appellant that a
    notice of appeal had been filed in the case. Appellant’s “Exhibit A,” at
    1;
       2) A letter from the Superior Court of Pennsylvania’s Office of the
    Prothonotary to Appellant, dated September 16, 2013, informing
    Appellant that “a review of [the Superior Court] dockets does not
    reveal that a notice of appeal has been forwarded to this office in”
    Appellant’s case. Appellant’s “Exhibit B,” at 1;
       3) A letter from Appellant’s plea counsel to Appellant, dated October
    11, 2013, wherein Appellant’s plea counsel stated:       “I received your
    correspondence regarding the matter of Commonwealth v. Singh. . .
    .    I cannot find a copy of the Notice of Appeal that I filed
    approximately 8 ½ months ago.         I have enclosed a copy of a new
    notice that I filed on your behalf.” Appellant’s “Exhibit C,” at 1;
       4) A letter from Appellant’s plea counsel to Appellant, dated December
    2, 2013, informing Appellant: “Kindly be advised that your Appeal in
    the matter of Commonwealth v. Singh has been withdrawn.                In
    order to have your Appeal formally re-instated, you must file a post-
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    conviction relief act petition asking for your Appellant [sic] Rights to be
    reinstated.” Appellant’s “Exhibit F,” at 1; and,
       5) A per curiam order from the Pennsylvania Superior Court in
    Commonwealth v. Singh, ___ A.3d ___, 2878 EDA 2013 (Pa. Super.
    2013), which was entered on November 25, 2013, declaring: “[u]pon
    consideration of Appellant’s “Petition to Withdraw Notice of Appeal,”
    filed by [Appellant’s plea counsel], the appeal is WITHDRAWN without
    prejudice to Appellant’s right to apply for relief in the trial court via the
    [PCRA].” Appellant’s “Exhibit G,” at 1.
    From the above, it is apparent that – at the latest – it was on or about
    December 2, 2013, that Appellant became aware of the fact that his plea
    counsel had failed to file a timely notice of appeal from the judgment of
    sentence and then “lied [to Appellant] that he ha[d] filed” the notice of
    appeal. Appellant’s Pro Se PCRA Petition, 3/3/14, at 5. Indeed, Appellant’s
    own evidence demonstrates that, on December 2, 2013, Appellant’s plea
    counsel wrote a letter to Appellant, informing Appellant that the notice of
    appeal had been withdrawn and that, for Appellant to have his direct appeal
    rights reinstated, Appellant needed to “file a post-conviction relief act
    petition asking for [his] [appellate] rights to be reinstated.”         Appellant’s
    “Exhibit F,” at 1 (some internal capitalization omitted).
    Appellant did not file his PCRA petition within one year of the date that
    his judgment of sentence became final or within 60 days of learning that his
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    plea counsel had failed to file a timely notice of appeal on his behalf.   As
    such, Appellant’s PCRA petition is manifestly untimely and our “courts are
    without jurisdiction to offer [Appellant] any form of relief.” Commonwealth
    v. Jackson, 
    30 A.3d 516
    , 523 (Pa. Super. 2011).         We must therefore
    conclude that the PCRA court properly dismissed Appellant’s PCRA petition.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/29/2015
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