Com. v. Dennison, B. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
BRANDON SCOTT DENNISON, :
:
Appellant : No. 1723 MDA 2015
Appeal from the PCRA Order August 19, 2015
In the Court of Common Pleas of Luzerne County
Criminal Division at No.: CP-40-CR-0004011-2006
BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 09, 2016
Appellant, Brandon Scott Dennison, appeals from the Order entered on
August 19, 2015, in the Court of Common Pleas of Luzerne County
dismissing his third Petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546. Additionally, Appellant’s appointed
counsel, William J. Watt III, Esquire, has filed a Petition to Withdraw as
counsel and an accompanying no-merit letter pursuant to Commonwealth
v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550
A.2d 213 (Pa. Super. 1988) (en banc). We grant counsel’s Petition to
Withdraw, quash this appeal, and dismiss Appellant’s Application for Remand
as moot.
A detailed recitation of the facts is not necessary to our disposition.
Appellant filed his third PCRA Petition on April 10, 2015, claiming his
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sentence is illegal pursuant to Alleyne v. United States, __ U.S. __, 133
S.Ct. 2151, 186 L.Ed.2d 314 (2013). After providing Notice to Appellant
pursuant to Pa.R.Crim.P. 907, the PCRA court dismissed Appellant’s Petition
as untimely on August 19, 2015. Appellant filed a Notice of Appeal on
September 28, 2015. See CCP Docket Entry #54.
On November 30, 2015, this Court issued a Rule to Show Cause Order
directing Appellant to explain why the appeal should not be quashed as
untimely where Appellant did not file the Notice of Appeal within 30 days of
the underlying order. Rule to Show Cause Order, filed 11/30/15, at 1.
In response, Appellant avers that he directed his court-appointed
counsel to file a Notice of Appeal but counsel did not respond to his request.
Appellant claims he then submitted his pro se Notice of Appeal by depositing
it in the prison mailbox on September 18, 2015, the same date handwritten
on the Notice of Appeal. Accordingly, Appellant argues that he timely filed
his Notice of Appeal under the Prisoner Mailbox Rule. See Pa.R.A.P. 121(a).
On May 9, 2016, Attorney Watt filed a Petition to Withdraw and a
Turner/Finley no-merit letter in the form of an Appellant’s Brief, stating
that there were no non-frivolous issues to be raised on appeal. Appellant
responded to Attorney Watt’s Petition to Withdraw in a pro se letter filed
with this Court on May 26, 2016. On June 13, 2016, Appellant filed an
application for remand to supplement his PCRA Petition and raise additional
issues.
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Before we consider Appellant’s arguments, we must review Attorney
Watt’s Petition to Withdraw. Pursuant to Turner/Finley, independent
review of the record by competent counsel is required before withdrawal on
collateral appeal is permitted. Commonwealth v. Pitts, 981 A.2d 875, 876
n.1 (Pa. 2009). Counsel is then required to submit a “no merit” letter (1)
detailing the nature and extent of his or her review; (2) listing each issue
the petitioner wished to have reviewed; and (3) providing an explanation of
why the petitioner’s issues were meritless. Id. The court then conducts its
own independent review of the record to determine if the Petition is
meritless. Id. 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.” Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super.
2007) (citation omitted).
Our review of the record discloses that Attorney Watt has complied
with each of the above requirements. In addition, Attorney Watt sent
Appellant copies of the Turner/Finley no-merit letter and his Petition to
Withdraw, and advised him of his rights in lieu of representation in the event
that the court granted Attorney Watt permission to withdraw. See
Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011).
Therefore, Attorney Watt has complied with the Turner/Finley
requirements.
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Before addressing the issues raised on appeal, we must determine
whether we have jurisdiction to hear this appeal. See Commonwealth v.
Liebensperger, 904 A.2d 40, 43 (Pa. Super. 2006); Pa.R.A.P. 903(a)
(“Except as otherwise prescribed by this rule, the notice of appeal required
by Rule 902 (manner of taking appeal) shall be filed within 30 days after the
entry of the order from which the appeal is taken.”).
Appellant has failed to provide “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.” Pa.R.A.P. 121(a).
No other evidence included in the certified record reasonably verifies that
Appellant timely filed his Notice of Appeal.
Moreover, the record contains no evidence of “extraordinary
circumstances such as a court holiday or closing or a breakdown in the
operations of the court” that would excuse his untimely filing.
Commonwealth v. Burks, 102 A.3d 497, 500 (Pa. Super. 2014). The
PCRA court’s August 19, 2015 Order dismissing Appellant’s PCRA Petition
clearly advised Appellant that “You have a right [to] appeal to the
appropriate appellate court within 30 days[.]” PCRA Court Order, filed
8/19/15, at 1. Appellant’s filing of his Notice of Appeal on September 28,
2015, was clearly untimely.
Accordingly, we grant counsel’s Petition to Withdraw, quash the
appeal, and dismiss the Application for Remand as moot.
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Petition to Withdraw granted. Appeal quashed. Application for Remand
dismissed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2016
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