Com. v. Tucker, T. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
TYREE TUCKER
Appellant No. 3819 EDA 2015
Appeal from the PCRA Order November 6, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000157-2011
BEFORE: OLSON, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED DECEMBER 30, 2016
Tyree Tucker appeals, pro se, from the order entered November 6,
2015, in the Philadelphia County Court of Common Pleas, dismissing as
untimely filed his first petition for collateral relief filed pursuant to the Post
Conviction Relief Act (“PCRA”).1 Tucker seeks relief from the judgment of
sentence of 17½ to 35 years’ imprisonment imposed on October 28, 2011,
following a negotiated guilty plea to third-degree murder and possessing an
instrument of crime.2 On appeal, Tucker argues the PCRA court erred in
dismissing his petition because plea counsel rendered ineffective assistance.
For the reasons below, we affirm.
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1
42 Pa.C.S. §§ 9541-9546.
2
18 Pa.C.S. §§ 2502(c) and 907, respectively.
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The relevant facts underlying Tucker’s appeal are as follows. As noted
above, on October 28, 2011, Tucker entered a negotiated guilty plea to
charges of third-degree murder and possessing an instrument of crime for
the September 29, 2010, shooting death of Carmen Duran. In exchange for
the plea, the Commonwealth agreed to nolle pros the remaining charges of
first-degree murder, firearms not to be carried without a license, and
carrying a firearm on a public street in Philadelphia,3 as well as recommend
a sentence of 17½ to 35 years’ imprisonment. The case proceeded
immediately to sentencing, and the trial court imposed the sentence
provided for in the plea agreement. No post-sentence motion or direct
appeal was filed.
On September 17, 2013, Tucker filed a pro se PCRA petition, alleging
the ineffective assistance of plea counsel and requesting the reinstatement
of his direct appeal rights. He filed a pro se, amended petition on July 11,
2014. Thereafter, PCRA counsel was appointed. However, on September 3,
2015, counsel filed a Turner/Finley4 “no merit” letter, stating Tucker’s
petition was untimely filed, and requesting permission to withdraw. On
September 22, 2015, the PCRA court sent Tucker notice of its intent to
dismiss his petition as untimely filed. Although Tucker sought an extension
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3
18 Pa.C.S. §§ 2502, 6106, and 6108, respectively.
4
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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of time to file a response, it does not appear the court addressed that
request. Ultimately, on November 6, 2015, the PCRA court entered an order
dismissing Tucker’s petition as untimely, and permitting appointed counsel
to withdraw. This appeal followed.5, 6
Our review of an order denying PCRA relief is well-established: “In
reviewing the denial of PCRA relief, we examine whether the PCRA court’s
determination is supported by the record and free of legal error.”
Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)
(internal punctuation and citation omitted). Further, a PCRA court may
dismiss a petition “without an evidentiary hearing if there are no genuine
issues of material fact and the petitioner is not entitled to relief.” Id.(citations omitted).
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5
We note Tucker’s notice of appeal, filed on December 11, 2015, is facially
untimely. See Pa.R.A.P. 903 (notice of appeal must be filed within 30 days
after entry of order on appeal). Nevertheless, Pennsylvania Rule of
Appellate Procedure 108 provides the date of the entry of an appealable
order “shall be the day the clerk of the court … mails or delivers copies of
the order to the parties.” Pa.R.A.P. 108(a)(1). Here, neither the order itself
nor the docket entry for November 6, 2015, reflects the date the order
dismissing the PCRA petition was sent to Tucker. See Pa.R.Crim.P.
114(B)(1) (requiring copies of order be “promptly” served on “each party’s
attorney, or the party if unrepresented”); (C)(2) (requiring clerk of court to
enter on the docket the date of service of an order). Accordingly, we will
presume the appeal was timely filed.
6
The PCRA court did not order Tucker to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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Here, the PCRA court dismissed Tucker’s petition after concluding it
was untimely filed. See PCRA Court Opinion, 1/5/2016, at 4-5. The PCRA’s
time limitations are jurisdictional in nature, and neither a trial court nor an
appeals court may ignore the untimeliness of a petition to address the
substantive claims raised therein. See Mitchell, supra, 141 A.3d at 1284.
Pursuant to Section 9545(b)(1), a PCRA petition must be filed within
one year of the date the judgment of sentence becomes final. See 42
Pa.C.S. 9545(b)(1). Tucker’s judgment of sentence was final on November
28, 2011, 30 days after the sentence was imposed, and Tucker failed to file
a direct appeal.7 See id. at § 9545(b)(3). Therefore, he had until
November 28, 2012, to file a timely petition, and the one before us, filed ten
months later, is facially untimely.
However, the PCRA provides that an otherwise untimely petition is not
time-barred if a petitioner pleads and proves the applicability of one of three
time-for-filing exceptions: (1) interference by government officials, (2)
newly discovered evidence, or (3) a newly-recognized constitutional right
which had been applied retroactively. See 42 Pa.C.S. §§ 9545(b)(1)(i)-(iii).
Any petition invoking one of these exceptions must be filed “within 60 days
of the date the claim could have been presented.” Id. at § 9545(b)(2).
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7
Because the 30th day, November 27, 2011, fell on a Sunday, Tucker had
until Monday, November 28, 2011, to file a timely notice of appeal. See 1
Pa.C.S. § 1908.
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In his brief, Tucker provides two explanations for his untimely filing.
First, he claims that in “September or October of 2012,” he filed a motion for
extension of time to file a PCRA petition with the trial court, but the motion
was never docketed. Tucker’s Brief at 5. See also PCRA Court Opinion,
1/5/2015, at 2 n.1. Since this filing would have been within the requisite
one-year time period, Tucker suggests his petition should be consider timely
filed. See Tucker’s Brief at 5.
Preliminarily, we note Tucker did not include this claim in his initial or
amended PCRA petitions, or in response to the PCRA court’s notice of intent
to dismiss the petition as untimely. Because it was never presented to the
PCRA court, this argument is now waived on appeal. See Pa.R.A.P. 302(a);
Commonwealth v. Wharton, 811 A.2d 978, 987 (Pa. 2002) (holding PCRA
“claims cannot be raised for the first time on appeal to this Court”).
Moreover, our review reveals his purported attempt to file a timely
petition - or rather, his attempt to extend the time to file a timely petition -
is neither included in the certified record nor listed on the docket. “As an
appellate court, we are ‘limited to considering only those facts that have
been duly certified in the record on appeal.’” Commonwealth v. Spotz, 18
A.3d 244, 323 (Pa. 2011), quoting Commonwealth v. Williams, 715 A.2d
1101, 1103 (Pa. 1998). Accordingly, for our purposes, Tucker’s first post-
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sentence filing was his September 2013 PCRA petition. His alleged extra-
record attempt to preserve his rights does not provide a basis for relief.8
Second, Tucker contends he made “sufficient allegations” to invoke the
newly-discovered evidence exception set forth at Subsection 9545(b)(1)(ii).
Tucker’s Brief at 8. Specifically, he maintains plea counsel provided
ineffective assistance by failing to move to withdraw his plea and/or file a
direct appeal. See id. at 8-9.
Again, we conclude this claim is waived because Tucker did not include
it in his initial or amended PCRA petitions, or in response to the PCRA court’s
notice of intent to dismiss the petition as untimely. See Commonwealth v.
Furgess, ___ A.3d ___, ___, 2016 PA Super 219, *1 (Pa. Super. Sept. 28,
2016) (“Asserted exceptions to the time restrictions for the PCRA must be
included in the petition, and may not be raised for the first time on
appeal.”). Moreover, even if this claim was not waived, we would conclude it
is meritless. Attached to PCRA counsel’s “no-merit” letter is a letter from
plea counsel to Tucker dated January 6, 2012. In that letter, counsel
explained to Tucker why he did not file a post-sentence motion or an appeal
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8
We recognize that, in its opinion, the PCRA court refers to pro se
correspondence, purportedly sent to the “Clerk of Courts” in September and
October of 2012, in which Tucker requested “docket sheets to determine the
status of his case … and extension of time to file a PCRA petition.” PCRA
Court Opinion, 1/5/2016, at 2 n.1. However, the court, concluded, like this
panel, that it could not “consider [the motions] as filings for PCRA purposes”
because they were never docketed. Id.-6-
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on his behalf, and that the time for filing such requests had expired. See
“No Merit” Letter, 9/3/2015, at Exhibit A. Therefore, Tucker knew well
within the one-year filing period that counsel had failed to file a direct
appeal. However, he then waited an additional 20 months to file a PCRA
petition. See 42 Pa.C.S. § 9545(b)(2) (stating any petition invoking timing
exception must be filed within 60 days of the date the claim could have been
presented). Consequently, no relief is warranted.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2016
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