Com. v. Benson, H. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HERBERT BENSON :
:
Appellant : No. 542 WDA 2017
Appeal from the PCRA Order March 16, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0000788-2010
BEFORE: BOWES, J., PANELLA, J., and STABILE, J.
MEMORANDUM BY BOWES, J.: FILED MAY 21, 2018
Herbert Benson appeals from the order1 that dismissed without a
hearing his first PCRA petition. In this Court, Appellant’s counsel has filed a
motion to withdraw and a brief pursuant to Anders v. California, 386 U.S.
738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009),2
____________________________________________
1The order is dated March 15, 2017, but was not filed until March 16, 2017.
We have amended the appeal paragraph accordingly.
2 When counsel seeks to withdraw in a PCRA case, the proper filing is a letter
or 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),
rather than an Anders brief. “However, because an Anders brief provides
greater protection to a defendant, this Court may accept an Anders brief in
lieu of a Turner/Finley letter.” Commonwealth v. Reed, 107 A.3d 137,
139 n.5 (Pa.Super. 2014) (internal quotation marks omitted).
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and Appellant has filed a pro se response. We affirm the order and grant
counsel’s motion.
Appellant, represented by appointed counsel, entered a negotiated
guilty plea to third-degree murder and other charges in exchange for a
sentence of twenty to forty years incarceration on the murder count and no
further penalties on the remaining counts. The trial court accepted the plea
and imposed the sentence on October 2, 2011. On October 12, 2011,
although plea counsel had not been granted leave to withdraw, Appellant
filed a pro se motion to withdraw his plea and for the appointment of
counsel. The trial court appointed new counsel and scheduled a hearing.
However, Appellant decided to withdraw his motion, as is recorded in a court
order filed on November 7, 2011.
No further action was taken in Appellant’s case until he filed a pro se
motion for transcripts on August 28, 2015. As there was no matter pending
at the time, the trial court denied the motion. On May 3, 2016, Appellant
filed a pro se PCRA petition in which he claimed that his plea was not
knowing, voluntary, or intelligent based upon the numerous medications he
was on at the time, and that plea counsel coerced him into taking the plea.
PCRA Petition, 5/3/16, at 3. The PCRA court appointed counsel, who filed an
amended petition stating two claims of plea counsel ineffectiveness.
Amended PCRA Petition, 12/22/16, at unnumbered 7. The Commonwealth
filed an answer, urging that the trial court dismiss the petition as untimely
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filed. The PCRA court filed a notice of its intent to dismiss Appellant’s
petition without a hearing pursuant to Pa.R.Crim.P. 907, advising Appellant
that he had twenty days to respond. Appellant filed no response.
The PCRA court dismissed Appellant’s petition by order entered March
16, 2017. Appellant timely filed a notice of appeal, and both Appellant and
the PCRA court complied with Pa.R.A.P. 1925. As noted above, Appellant’s
counsel filed in this Court a motion to withdraw and no-merit brief, and
Appellant filed a pro se response. Thus, before we may address the
potential merit of Appellant’s claims, we must determine if counsel has
complied with the technical requirements of Turner and Finley.
Turner/Finley counsel 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 the 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.
If counsel fails to satisfy the foregoing technical
prerequisites of Turner/Finley, the court will not reach the
merits of the underlying claims but, rather, will merely deny
counsel’s request to withdraw. Upon doing so, the court will
then take appropriate steps, such as directing counsel to file a
proper Turner/Finley request or an advocate’s brief.
However, where counsel submits a petition and no-merit
letter that do 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
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counsel that the claims are without merit, the court will permit
counsel to withdraw and deny relief. By contrast, if the claims
appear to have merit, the court will deny counsel’s request and
grant relief, or at least instruct counsel to file an advocate’s
brief.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007) (citations
omitted).
Counsel has detailed her review of the case, discussed the issues
raised in Appellant’s amended petition, and explained why they lack merit.
She has also forwarded a copy of her motion and brief to Appellant, and
advised him of his relevant rights. Accordingly, we are satisfied that counsel
has substantially complied with the technical requirements of Turner and
Finley. Therefore, we will review the merits of the issues contained in
counsel’s brief, as well as the arguments raised by Appellant in his pro se
response.
“Our standard of review of a [PCRA] court order granting or denying
relief under the PCRA calls upon us to determine ‘whether the determination
of the PCRA court is supported by the evidence of record and is free of legal
error.’” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa.Super. 2013)
(quoting Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa.Super.
2011)).
Both the PCRA court in its opinion, and PCRA counsel in her no-merit
brief, contend that Appellant’s petition was properly dismissed as untimely.
We thus begin by noting that the timeliness of a post-conviction petition is
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jurisdictional. Commonwealth v. Lewis, 63 A.3d 1274, 1280-81
(Pa.Super. 2013). Generally, a petition for relief under the PCRA, including
a second or subsequent petition, must be filed within one year of the date
the judgment of sentence is final unless the petition alleges, and the
petitioner proves, that an exception to the time for filing the petition is met,
and that the claim was raised within sixty days of the date on which it
became available. 42 Pa.C.S. § 9545(b)(1), (2).
Appellant’s judgment of sentence became final in 2011 when he failed
to file a direct appeal. 42 Pa.C.S. § 9545(b)(3). Appellant’s PCRA petition
filed in 2016, therefore, is facially untimely. Neither Appellant’s pro se
petition nor the amended petition filed by counsel alleged a timeliness
exception. As such, it appears that the PCRA court properly dismissed
Appellant’s petition as untimely.
In his pro se response to counsel’s no-merit letter, Appellant argues
that the following timeliness exception is applicable to his petition: “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.” Appellant’s
supplemental brief at 3 (quoting 42 Pa.C.S. § 9545(b)(1)(ii)).
As this Court has explained,
[t]he timeliness exception set forth in [subs]ection
9545(b)(1)(ii) requires a petitioner to demonstrate he did not
know the facts upon which he based his petition and could not
have learned those facts earlier by the exercise of due diligence.
Due diligence demands that the petitioner take reasonable steps
to protect his own interests. A petitioner must explain why he
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could not have obtained the new fact(s) earlier with the exercise
of due diligence. This rule is strictly enforced.
Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.Super. 2010)
(citations omitted).
In an effort to demonstrate his ability to satisfy this exception,
Appellant argues that he spoke on April 14, 2016, with Robert Stringer,
another inmate “who frequently helps inmates with legal assistance.”
Appellant’s supplemental brief at 2. After Appellant informed Mr. Stringer of
the circumstances of Appellant’s case and his mental health issues, Mr.
Stinger enlightened Appellant to case law concerning manslaughter and
diminished capacity. Id. at 3. “At that moment [A]ppellant realized that his
plea counsel gave him bad advice and had counsel informed him of this he
would not have pled guilty and opted to go to trial.” Id. Appellant then filed
his PCRA petition within sixty days of his conversation with Mr. Stringer.
Appellant thus claims that PCRA counsel was ineffective in failing to consult
with him about these facts and to raise them to overcome the PCRA’s
timeliness requirements. Id. at 5.
To the extent that Appellant’s pro se response complains of PCRA
counsel’s performance, we note that, once his notice of appeal was filed,
Appellant lost the ability to litigate in the instant action the effectiveness of
PCRA counsel. Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super.
2014) (en banc) (“[C]laims of PCRA counsel’s ineffectiveness may not be
raised for the first time on appeal.”).
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Even if we were to consider whether Appellant can satisfy the newly-
discovered-fact exception outlined in § 9545(b)(1)(ii) by showing that he
was unaware of counsel’s failure to pursue defenses related to Appellant’s
mental health until Mr. Stringer so informed him, he is entitled to no relief.
Our Supreme Court has rejected similar attempts to circumvent the PCRA’s
timeliness requirements by asserting that a review of the case by a new
person had only recently informed the petitioner that prior counsel had been
ineffective. In Commonwealth v. Gamboa-Taylor, 753 A.2d 780 (Pa.
2000), the petitioner argued that the subsection 9545(b)(1)(ii) exception
was met where he filed his petition within sixty days of his new attorney’s
review of his file and resultant discovery of prior counsel’s ineffectiveness.
The Court found Gamboa-Taylor’s
attempt to interweave concepts of ineffective assistance of
counsel and [newly-discovered facts] as a means of establishing
jurisdiction is unconvincing. Although [Gamboa-Taylor]
formulates his assertions here in terms of the discovery of new
facts not previously known to him, it is readily apparent that
[his] argument, at its essence, is a claim for ineffective
assistance of PCRA counsel layered on top of trial counsel’s
ineffectiveness. This Court has stated previously that a claim for
ineffective assistance of counsel does not save an otherwise
untimely petition for review on the merits. Nevertheless, hoping
to gain the benefit of the exception, [Gamboa-Taylor] fashions
the argument that the basic facts concerning PCRA counsel’s
representation, which allegedly highlight that PCRA counsel was
ineffective, were not known to [Gamboa-Taylor] until current
counsel reviewed the file. However, subsequent counsel’s review
of previous counsel’s representation and a conclusion that
previous counsel was ineffective is not a newly discovered “fact”
entitling [Gamboa-Taylor] to the benefit of [§ 9545(b)(1)(ii)].
In sum, a conclusion that previous counsel was ineffective is not
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the type of [newly-discovered fact] encompassed by the
exception.
Id. at 785 (citations omitted). Applying this holding to the instant case, it is
clear that Appellant’s conversations with Mr. Stringer cannot satisfy his
burden under § 9545(b)(1)(ii) and (b)(2).
Therefore, the PCRA court properly determined that Appellant’s PCRA
petition was untimely filed and failed to satisfy an exception to the
timeliness requirements. The PCRA court was thus without jurisdiction to
entertain the merits of Appellant’s PCRA claims, and properly dismissed the
petition without a hearing. Accordingly, we agree with counsel that
Appellant has no meritorious claims, and grant her leave to withdraw.
Motion of Rachael Santoriella, Esquire, to withdraw as counsel is
granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/21/2018
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