Com. v. Williams, M. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MITCHELL WILLIAMS, :
:
Appellant : No. 1610 EDA 2018
Appeal from the PCRA Order April 24, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001812-2009
BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED AUGUST 16, 2019
Mitchell Williams (Appellant) appeals pro se from the order denying as
untimely his second petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. Because we agree with the PCRA court
that Appellant’s petition is untimely, we affirm.
On September 17, 2010, a jury convicted Appellant of robbery, criminal
conspiracy, firearms not to be carried without a license, and possessing an
instrument of crime. On April 15, 2011, the trial court sentenced Appellant to
an aggregate 10 to 20 years of incarceration. Appellant filed a timely post-
sentence motion, which the trial court denied on May 3, 2011. Appellant filed
a direct appeal. This Court affirmed the judgment of sentence.
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* Retired Senior Judge assigned to the Superior Court.
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Commonwealth v. Williams, 62 A.3d 447 (Pa. Super. Oct. 2, 2012)
(unpublished memorandum). Appellant petitioned for allowance of appeal,
which the Pennsylvania Supreme Court denied on April 17, 2013.
Commonwealth v. Williams, 64 A.3d 632 (Pa. 2013).
On March 24, 2014, Appellant filed his first PCRA petition. The PCRA
court appointed counsel, who filed a Turner/Finley1 no-merit letter and
motion to withdraw as counsel on July 16, 2015. The PCRA court issued notice
of its intent to dismiss the petition pursuant to Pennsylvania Rule of Criminal
Procedure 907 on September 30, 2015. The PCRA court dismissed the petition
on November 5, 2015, and granted counsel’s request to withdraw from
representation. Appellant filed an appeal on December 1, 2015. This Court
dismissed the appeal on August 17, 2016 because Appellant did not file a brief.
On January 29, 2018, Appellant filed the underlying pro se PCRA
petition, his second. On April 4, 2018, the PCRA court issued Rule 907 notice.
The court dismissed the petition on April 24, 2018. The docket indicates that
Appellant filed a notice of appeal on May 29, 2018; the appeal is timely
because the envelope in which the notice of appeal was mailed bears an
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1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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“INMATE MAIL DEPARTMENT OF CORRECTIONS” date stamp of May 23, 2018.2
Both the PCRA court and Appellant have complied with Pa.R.A.P. 1925.
On appeal, Appellant presents three issues:
1. Whether the PCRA Court erred in failing to comply with
Pennsylvania Rule of Criminal Procedure 907(1)?
2. Whether the PCRA Court erred in holding that [Appellant] failed
to satisfy the requirements for filing a second or subsequent
PCRA petition?
3. Whether the PCRA Court erred in holding that [Appellant] failed
to allege that he satisfied the requirements to establish an
exception to the time-bar?
Appellant’s Brief at 4.
Consistent with the foregoing, we must determine whether we have
jurisdiction to decide Appellant’s claims. “Pennsylvania law makes clear no
court has jurisdiction to hear an untimely PCRA petition.” Commonwealth
v. Monaco, 996 A.2d 1076, 1079 (Pa. Super. 2010) (quoting
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003)).
A petitioner must file a PCRA petition within one year of the date on
which the petitioner’s judgment became final, unless one of the three
statutory exceptions applies:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
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2 Pennsylvania Rule of Appellate Procedure 121(a), also known as the
“Prisoner Mailbox Rule”, provides that “[a] pro se filing submitted by a prisoner
incarcerated in a correctional facility is deemed filed as of the date it is
delivered to the prison authorities [,] ... as evidenced by a properly executed
prisoner cash slip or other reasonably verifiable evidence of the date that the
prisoner deposited the pro se filing with the prison authorities.”
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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). A petitioner must file a petition invoking one of
these exceptions within one year of the date the claim could have been
presented. 42 Pa.C.S.A. § 9545(b)(2).3 If a petition is untimely, and the
petitioner has not pled and proven any exception, “‘neither this Court nor the
trial court has jurisdiction over the petition. Without jurisdiction, we simply
do not have the legal authority to address the substantive claims.’”
Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)
(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).
As noted above, the trial court sentenced Appellant on April 15, 2011,
and this Court affirmed Appellant’s judgment of sentence. See
Commonwealth v. Williams, 62 A.3d 447 (Pa. Super. Oct. 2, 2012)
(unpublished memorandum). On April 17, 2013, the Pennsylvania Supreme
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3 Act 146 of 2018 amended 42 Pa.C.S.A. §9545(b)(2), effective December
2017, and now provides that a PCRA petition invoking a timeliness exception
be filed within one year of the date the claim could have been presented; the
prior law required that the petition be filed within 60 days. The amendment
applies to Appellant, who filed his petition on January 29, 2018.
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Court denied Appellant’s petition for allowance of appeal. Commonwealth
v. Williams, 64 A.3d 632 (Pa. 2013). Appellant did not seek a writ of
certiorari with the United States Supreme Court. Thus, Appellant’s judgment
of sentence became final on July 16, 2013, when the 90 day period for
Appellant to file a petition for a writ of certiorari expired. See 42 Pa.C.S.A. §
9545(b)(3) (stating, “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[ ]”); U.S. Sup. Ct. R. 13(1) (stating “a petition for a
writ of certiorari to review a judgment in any case ... is timely when it is filed
with the Clerk of this Court within 90 days after entry of the judgment[ ]”).
Appellant’s underlying PCRA petition, which he filed on January 29,
2018, is therefore untimely, and we lack jurisdiction unless he has pled and
proved one of the three timeliness exceptions of section 9545(b)(1). See
Derrickson, 923 A.2d at 468.
Appellant asserts that he qualifies for an exception to the time bar under
§ 9545(b)(1)(ii). See Appellant’s Brief at 10. He argues:
The “new facts” were based on a letter by [Appellant’s] trial
attorney explaining his strategy and demonstrating a failure to
execute that strategy. [Appellant] exercised due diligence in
obtaining those facts and they were presented within [the time
prescribed by the statute for] obtaining them. The order of the
PCRA court is not supported by the record and is not free from
legal error.
Id.
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We have explained:
The newly-discovered fact exception has two components, which
must be alleged and proved. Namely, the petitioner must
establish that: 1) the facts upon which the claim was predicated
were unknown and 2) could not have been ascertained by the
exercise of due diligence. If the petitioner alleges and proves
these two components, then the PCRA court has jurisdiction over
the claim under this subsection.
Commonwealth v. Brown, 141 A.3d 491, 500 (Pa. Super. 2016), citing
Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007).
The “new facts” to which Appellant refers implicate the effectiveness of
trial counsel. To prevail on a claim of ineffective assistance of counsel under
the PCRA, a petitioner must plead and prove by a preponderance of the
evidence that counsel’s ineffectiveness “so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place.” 42 Pa.C.S.A. § 9543(a)(2)(ii). Specifically, a petitioner must establish
that “the underlying claim has arguable merit; second, that counsel had no
reasonable basis for his action or inaction; and third, that Appellant was
prejudiced.” Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa.
Super. 2014). “A petitioner establishes prejudice when he demonstrates that
there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Commonwealth v.
Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations omitted).
Further, counsel “is presumed to be effective and the burden of
demonstrating ineffectiveness rests on appellant.” Commonwealth v.
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Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011). It is well settled that “counsel
cannot be held ineffective for failing to pursue a meritless claim[.]”
Commonwealth v. Hall, 867 A.2d 619, 632 (Pa. Super. 2005).
Instantly, in support of his “newly discovered evidence” of trial counsel’s
ineffectiveness, Appellant attached to his PCRA petition four exhibits,
consisting of two letters he wrote to trial counsel, and trial counsel’s two
letters in response, which were written between April and November of 2017.
See PCRA Petition, 1/29/18, Exhibits A-D. Appellant states, “trial counsel’s
letter does reveal ‘new facts.’ Trial counsel was clearly responding to, and
addressing, matters that he believed were not previously discussed with
[Appellant]. His responses, and the statements themselves, reveal the degree
of trial counsel’s lack of preparation and failure to develop a ‘sound trial
strategy.’” Appellant’s Brief at 19-20. We are not persuaded by Appellant’s
claim.
The PCRA court succinctly and accurately explained:
[Appellant] assert[s] that his receipt of a letter from trial counsel,
Francis Carmen, Esq., of the Defender Association of Philadelphia,
dated November 28, 2017, raised facts that were previously
unknown to [Appellant], thus exempting [Appellant] from the time
bar pursuant to 42 Pa.C.S.A. § 9543(b)(2)(ii). Mr. Carmen’s
response, which addressed [Appellant]’s questions regarding trial
strategy following a series of conversations, stated that “the
overall strategy is exactly what we agreed it would be . . .” He
then reviewed the various concerns raised by [Appellant].
[Appellant] first contacted Mr. Carmen concerning trial strategy
on April 11, 2017, well after his first PCRA appeal was dismissed
by our Superior Court. Although [Appellant] asserts that his
knowledge of Counsel’s trial strategy is new information, it is clear
that both [Appellant] and Mr. Carmen had discussed the trial
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strategy at length, prior to trial. [Appellant] cannot now claim
that these “facts were unknown to him and that he exercised due
diligence in discovering those facts.”
PCRA Court Opinion, 8/14/18, at 6.
Upon review, we agree with the PCRA court. Thus, as Appellant has
failed to plead and prove an exception under § 9545(b)(1), we are without
jurisdiction to address the merits of his appeal. We therefore affirm the PCRA
court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/19
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