Com. v. Yarsunas, K. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KAREN YARSUNAS,
Appellant No. 800 EDA 2014
Appeal from the PCRA Order Entered February 27, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0002637-2010
BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 12, 2015
Appellant, Karen Yarsunas, appeals from the post-conviction court’s
February 27, 2014 order denying as untimely her petition for relief filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
After careful review, we affirm.
On April 13, 2010, Folcroft Borough police in Delaware County arrested
Appellant for drug offenses related to the discovery of several prescription
and illicit drugs in her possession.1 The Commonwealth subsequently
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1
After initially discovering 2 small baggies of cocaine and 60 Methadone pills
in Appellant’s possession, police obtained a search warrant and discovered in
Appellant’s vehicle an additional “311 Methadone pills, 4 oxycontin pills, 50
oxycodone pills, 6 wax bags of heroin in a small match box, 1 bag of
cocaine, 3 Seroquel 200 pills, 1 Viagra pill, 2 red straws, 2 empty glassine
bags, $350, $120, $20, $82, $1,900 all in separate sections of her wallet, a
digital scale, and 2 Cricket cell phones.” Trial Court Opinion (TCO), 7/17/14,
at 3 n.3.
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charged Appellant with possession of, and possession with intent to deliver,
a controlled substance, possession of drug paraphernalia, adulteration and
misbranding of a controlled substance, failure to use a turn signal, and
windshield obstructions. A jury trial was held on March 1, 2011. The jury
found Appellant guilty on all drug-related counts. On May 10, 2011, the trial
court sentenced Appellant to an aggregate sentence of 5-10 years’
incarceration, to be followed by a consecutive term of 2 years’ probation.
Appellant filed a timely, counseled notice of appeal on June 6, 2011.
This Court affirmed Appellant’s judgment of sentence in a memorandum
opinion filed on April 10, 2012. See Commonwealth v. Yarsunas, 48 A.3d
473 (Pa. Super. 2012) (unpublished memorandum). Appellant did not seek
further appellate review at that time.
Appellant filed a timely, pro se PCRA petition on May 23, 2012, and
the PCRA court appointed PCRA counsel to represent her. Subsequently,
counsel filed an amended PCRA petition and, separately, an “Amended
Motion for Extraordinary Relief Pursuant to Title 42 Pa.C.S.A. § 9777(a)(2).”
At a hearing held on March 5, 2013, the PCRA court granted the motion for
extraordinary relief and Appellant (through counsel) withdrew her pending
PCRA petition.
On August 5, 2013, Appellant filed a “Motion for Post Trial Relief” in
the PCRA court (August 2013 PCRA Petition). The court treated the motion
as a PCRA petition and appointed Henry DiBenedetto, Esq., to represent
Appellant. On October 29, 2013, Attorney DiBenedetto filed a no-merit
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letter and a request to withdraw pursuant to Commonwealth v. Turner,
544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213
(Pa. Super. 1988). His request to withdraw was granted on October 31,
2013. Appellant filed a timely response to the no-merit letter on January
23, 2014. On January 30, 2014, the PCRA court issued a notice of its intent
to dismiss Appellant’s August 2013 PCRA Petition pursuant to Pa.R.Crim.P.
907. The court formally dismissed the petition as untimely under the PCRA
by order dated February 27, 2014.
On March 6, 2014, Appellant filed a timely notice of appeal from the
February 27, 2014 PCRA court order dismissing her August 2013 PCRA
Petition. Appellant filed a timely Pa.R.A.P. 1925(b) statement, and the PCRA
court issued its Rule 1925(a) opinion on July 17, 2014.
Appellant now presents the following questions for our review:
I. Is Appellant’s sentence illegal and unconstitutional
pursuant to Alleyne v. United States[, 133 S. Ct. 2151
(2013)]?
II. Did the PCRA court err when the court dismissed
Appellant’s amended petition for post-conviction relief as
untimely?
III. Did the PCRA court err when the court dismissed
Appellant’s amended petition for post-conviction relief as
lacking merit?
Appellant’s Brief, at 2 (unnecessary capitalization omitted).
We review Appellant’s claims under the following standard:
Our standard of review of an order denying PCRA relief is
whether the record supports the PCRA court's determination and
whether the PCRA court's decision is free of legal error.
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Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa. Super.
2011) (citing Commonwealth v. Berry, 877 A.2d 479, 482 (Pa.
Super. 2005)). The PCRA court's findings will not be disturbed
unless there is no support for the findings in the certified record.
Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.
Super. 2001)).
We must first address whether Appellant satisfied the
timeliness requirements of the PCRA. The timeliness of a PCRA
petition is a jurisdictional threshold and may not be disregarded
in order to reach the merits of the claims raised in a PCRA
petition that is untimely. Commonwealth v. Murray, 562 Pa.
1, 753 A.2d 201, 203 (2000). Effective January 16, 1996, the
PCRA was amended to require a petitioner to file any PCRA
petition within one year of the date the judgment of sentence
becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment of
sentence “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.” 42 Pa.C.S.A. §
9545(b)(3). …
However, an untimely petition may be received when the
petition alleges, and the petitioner proves, that any of the three
limited exceptions to the time for filing the petition, set forth at
42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are met. A petition
invoking one of these exceptions must be filed within sixty days
of the date the claim could first have been presented. 42
Pa.C.S.A. § 9545(b)(2). In order to be entitled to the exceptions
to the PCRA's one-year filing deadline, “the petitioner must plead
and prove specific facts that demonstrate his claim was raised
within the sixty-day time frame” under section 9545(b)(2).
Carr, 768 A.2d at 1167.
Commonwealth v. Lawson, 90 A.3d 1, 4-5 (Pa. Super. 2014) (footnote
omitted).
In its opinion, the PCRA court found that Appellant’s August 2013
PCRA Petition was untimely. See TCO, at 11-12. The PCRA court also
determined that Appellant could not rely on any exception to the timeliness
requirements of the PCRA by claiming retroactive application of Alleyne
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because Appellant did not raise that claim “within 60 days of the date the
claim could have been presented.” See TCO, at 13; 42 Pa.C.S. §
9545(b)(2). In any event, the PCRA court also concluded that Alleyne has
not been afforded retroactive effect by the issuing court and, thus, Appellant
could not have relied on the PCRA’s retroactivity timeliness exception. See
TCO, at 15-16; 42 Pa.C.S. § 9545(b)(1)(iii). Accordingly, the PCRA court
lacked jurisdiction to entertain Appellant’s August 2013 PCRA petition.2
After a thorough review of the record, the briefs, the applicable law,
and the thorough, well-reasoned opinion of the PCRA court, we agree that
Appellant’s August 2013 PCRA Petition is untimely and that no timeliness
exception applies. The PCRA court’s 24-page opinion adequately addresses
Appellant’s claim(s) to the contrary. Accordingly, we affirm on the basis of
the PCRA court’s opinion.
Order affirmed.
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2
Out of an abundance of caution, the PCRA court also addressed the merits
of Appellant’s claims, concluding that each lacked merit. Because we agree
that Appellant’s August 2013 PCRA petition was untimely, and that Appellant
failed to demonstrate the applicability of any exception to the PCRA’s
timeliness requirements, we need not review the PCRA court’s analysis in
this regard.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/12/2015
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