Com. v. Burton, J. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JHILEEL BURTON
Appellant No. 1055 EDA 2016
Appeal from the PCRA Order March 11, 2016
in the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0000116-2013
BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 21, 2017
Appellant, Jhileel Burton, appeals from the order entered in the
Montgomery County Court of Common Pleas denying his Post Conviction
Relief Act1 (“PCRA”) petition. This case returns to us after we remanded to
have counsel comply with all of the requirements of Turner/Finley,2
including filing a petition to withdraw with this Court.3 Appellant’s counsel
* Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3
Appellant’s counsel, John W. Aitchison, Esq., had filed an Anders brief,
which we regarded as a Turner/Finley brief. See Anders v. California,
386 U.S. 738 (1967). We note that in Commonwealth v. Wrecks, 931
A.2d 717 (Pa. Super. 2007), this Court explained the standard for
withdrawal of counsel on collateral review.
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has substantially complied. We grant counsel’s petition to withdraw and
affirm the order below.
Counsel petitioning to withdraw from PCRA representation
must proceed not under Anders but under
[Turner/Finley]. Similar to the Anders situation,
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.
* * *
It is thus apparent that Anders and Turner/Finley are
close cousins, bearing similarities in that counsel is
required to examine the record, present issues, and
request permission to withdraw. However, there are also
significant differences. Anders applies to direct appeals;
Turner/Finley applies to PCRA cases. Anders counsel is
not permitted to withdraw unless the appeal is wholly
frivolous, but Turner/Finley counsel is permitted to do so
if the case lacks merit, even if it is not so anemic as to be
deemed wholly frivolous. Also, Anders counsel must not
argue against the client’s interests while Turner/Finley
counsel must do so, articulating why the client’s claims
have no merit.
Id. at 721-22 (citations omitted). “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. Widgins, 29 A.3d 816,
817 n.2 (Pa. Super. 2011) (citation omitted).
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The facts are unnecessary for our disposition. The relevant procedural
history of this case as stated by the PCRA court is as follows:
On September 6, 2013, [Appellant] entered a plea of
guilty to one count of conspiracy to commit robbery and
nineteen counts of robbery. The terms of the plea
agreement included one limitation on the sentence to be
imposed: rather than pursue a mandatory minimum
sentence for each of the nineteen crimes of violence with a
visibly possessed firearm, pursuant to 42 Pa.C.S. § 9712,
the Commonwealth would seek only one. [On December
9, 2013, t]he undersigned judge ordered [Appellant] to
serve an aggregate term of eight to sixteen years’
imprisonment, which included a single mandatory term of
five years, and a consecutive term of four years’ probation.
[Appellant] did not appeal from his judgment of
sentence.
* * *
[O]n May 21, 2015, [A]ppellant, acting pro se, mailed a
petition for post-conviction collateral relief to the Clerk of
Courts, who filed the petition on the docket on May 28,
2015.
By order dated June 24, 2015, filed June 25, 2015, the
undersigned judge appointed Brendan M. Campbell,
Esquire, to represent [Appellant], to determine whether
[Appellant] may be entitled to relief under the [PCRA] and
to amend the pro se petition as necessary to obtain any
relief to which [Appellant] may have been entitled under
the Act. The order appointing counsel expressly directed
[Appellant] to refrain from filing any documents on the
record, with the exception of an application for a change of
counsel, or to proceed without counsel. The undersigned
judge served [Appellant] with a copy of that order. Before
Mr. Campbell took any action of record, [Appellant] acting
pro se, filed an amended PCRA petition on September 8,
2015. He did so without seeking or obtaining leave of
court to act on his own behalf while simultaneously
represented by counsel, and without seeking or obtaining
leave of court to file an amended PCRA petition. The
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undersigned judge disregarded the September 8th
petition.[4]
On September 23, 2015[,] Mr. Campbell filed an
application to withdraw from representing [Appellant] and
submitted a “no merit letter” dated August 21, 2015, in
accordance with [Turner, 544 A.2d at 927]. Mr. Campbell
determined [Appellant] was not eligible for relief under the
Act because his pro se petition was untimely. In response
to Mr. Campbell’s application and no merit letter, the
4
We note that:
[p]ursuant to our Rules of Appellate procedure and
decisional law, this Court will not review the pro se filings
of a counseled appellant. Commonwealth v. Nischan,
928 A.2d 349, 355 (Pa. Super. 2007) (noting that an
appellant’s pro se filings while represented by counsel are
legal nullities) [ ]; Commonwealth v. Ellis, [ ] 626 A.2d
1137, 1140–41 ([Pa.] 1993) (same). Rule 3304 of the
Pennsylvania Rules of Appellate procedure provides as
follows:
Rule 3304. Hybrid Representation
Where a litigant is represented by an attorney before
the Court and the litigant submits for filing a petition,
motion, brief or any other type of pleading in the
matter, it shall not be docketed but forwarded to
counsel of record.
Pa.R.A.P. 3304.
In Ellis, our Supreme Court wrote that “[a] represented
appellant may petition to terminate his representation; he
may, acting pursuant to the rules of criminal procedure,
proceed on his own behalf. Conversely, he may elect to
allow counsel to take his appeal[.]” Ellis, [ ] 626 A.2d at
1141 [ ]. An appellant may not, however, offer pro se
filings while he continues to be represented by counsel.
Id.
Commonwealth v. Glacken, 32 A.3d 750, 752-53 (Pa. Super. 2011).
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undersigned judge granted him leave to withdraw as court-
appointed counsel for [Appellant] by order dated
September 29, 2015, filed September 30, 2015.
* * *
In an abundance of caution, the undersigned judge
appointed John W. Aitchison, Esquire to review the record
and to determine whether the decision in
[Commonwealth v. Melendez-Negron, 123 A.3d 1087
(Pa. Super. 2015)] might apply by analogy to [Appellant’s]
pro se PCRA petition, and whether court-appointed counsel
could amend the petition to plead a claim of arguable
merit.
* * *
On December 28, 2015, Mr. Aitchison filed an amended
PCRA petition on behalf of [Appellant]. The amended
petition pled that [Appellant] was entitled to relief under
the PCRA on two grounds: a violation of the Constitution
of the United States and the ineffective assistance of
counsel.
* * *
The undersigned judge . . . filed a notice of intention to
dismiss the amended PCRA petition without a hearing,
pursuant to Pa.R.Crim.P. 907(1). The notice expressly
informed [Appellant] that the reason for the dismissal was
the failure of the PCRA petition to plead an exception to
the timeliness requirement of 42 Pa.C.S. § 9545(b). . . .
The notice gave [Appellant] twenty days to file a response.
[Appellant] did not respond to the notice. On March 11,
2016[,] the undersigned judged filed an order denying the
amended PCRA petition without a hearing. The instant
appeal followed.
PCRA Ct. Op., 5/27/16, at 2-3, 6-8, 10. Appellant filed a court-ordered
Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The PCRA
court filed a responsive opinion.
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Appellant’s counsel filed a petition to withdraw representation pursuant
to Anders. However, counsel did not file a separate petition to withdraw as
counsel in this Court. Accordingly, in an abundance of caution to ensure
proper notice to Appellant, we directed counsel to file a separate petition to
withdraw from representation. Commonwealth v. Burton, 1055 EDA 2016
(unpublished judgment order at 2-3) (Pa. Super. Apr. 7, 2017). Counsel
filed a petition to withdraw. Appellant did not file a pro se response.
Prior to addressing the issues raised in the Anders brief, we first
examine counsel’s petition to withdraw. See Commonwealth v. Daniels,
947 A.2d 795, 797 (Pa. Super. 2008).
[I]ndependent review of the record by competent counsel
is required before withdrawal is permitted. Such
independent review requires proof of:
1) A “no-merit” letter by PCRA counsel detailing the nature
and extent of his review;
2) The “no-merit” letter by PCRA counsel listing each issue
the petitioner wished to have reviewed;
3) The PCRA counsel's “explanation”, in the “no-merit”
letter, of why the petitioner’s issues were meritless;
4) The PCRA court conducting its own independent review
of the record; and
5) The PCRA court agreeing with counsel that the petition
was meritless.
Widgins, 29 A.3d at 817-18 (citations and punctuation omitted). Further,
the Widgins Court explained:
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The Supreme Court [in Commonwealth v. Pitts, 981
A.2d 875 (Pa. 2009),] did not expressly overrule the
additional requirement imposed by the [Commonwealth
v. Friend, 896 A.2d 607 (Pa. Super. 2006)] decision, i.e.,
that PCRA counsel seeking to withdraw contemporaneously
forward to the petitioner a copy of the application to
withdraw that includes (i) a copy of both the “no-merit”
letter, and (ii) a statement advising the PCRA petitioner
that, in the event the trial court grants the application of
counsel to withdraw, the petitioner has the right to
proceed pro se, or with the assistance of privately retained
counsel.
Id. at 818 (some citations omitted).
Instantly, counsel stated that he conducted a conscientious
examination of the record and reached a determination that the appeal was
wholly frivolous and that the petition was time barred. See Petition to
Withdraw as Counsel for Appellant, 5/9/17, at 2. He advised Appellant that
he had an immediate right to proceed pro se or with private counsel. See
id. Accordingly, we conclude that counsel’s petition to withdraw
substantially complies with the requirements set forth by the Widgins
Court. See Widgins, 29 A.3d at 817-18.
Counsel identifies the following issue for our review: “Whether the
trial court erred by determining that Appellant [ ] cannot plead facts
establishing jurisdiction over his petition pursuant to the Post Conviction
Relief Act?” Anders Brief at 4. Appellant claims the court erred by
imposing an unconstitutional mandatory minimum sentence pursuant to
Alleyne v. United States, 133 S. Ct. 2151 (2013). Anders Brief at 10.
This Court has stated:
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In reviewing the propriety of an order denying PCRA
relief, this Court is limited to examining whether the
evidence of record supports the determination of the PCRA
court, and whether the ruling is free of legal error. Great
deference is given to the findings of the PCRA court, which
may be disturbed only when they have no support in the
certified record.
Commonwealth v. Perry, 959 A.2d 932, 934-35 (Pa. Super. 2008)
(citations omitted).
As a prefatory matter, we determine whether Appellant’s PCRA petition
is timely. Where a petitioner fails to satisfy the PCRA time requirements,
this Court has no jurisdiction to entertain the petition. See
Commonwealth v. Fahy, 737 A.2d 214, 220 (Pa. 1999). In order to
satisfy the timeliness requirement, a PCRA petition “must normally be filed
within one year of the date the judgment becomes final unless one of the
exceptions in § 9545(b)(1)(i)-(iii) applies and the petition is filed within 60
days of the date the claim could have been presented.” Commonwealth v.
Copenhefer, 941 A.2d 646, 648 (Pa. 2007) (citations and footnote
omitted).
The timeliness exceptions to the PCRA requirements are set forth in 42
Pa.C.S. § 9545, which provides in pertinent part:
(b) Time for filing petition.─
(1) Any petition under this subchapter, including a
second or subsequent petition, shall be filed within one
year of the date the judgment becomes final, unless the
petition alleges and the petitioner proves that:
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(i) the failure to raise the claim previously was the
result of interference by government officials with the
presentation of the 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. § 9545(b)(1)(i)-(iii).
In Commonwealth v. Marshall, 947 A.2d 714 (Pa. 2008), our
Supreme Court “emphasize[d] that it is the petitioner who bears the burden
to allege and prove that one of the timeliness exceptions applies.” Id. at
719 (citation omitted). “[A]n 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. § 9545]
are met.” Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014)
(footnote omitted). Exceptions to the time restrictions of the PCRA must be
pleaded in the petition and may not be raised for the first time on appeal.
Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007). Even if
the legality of the sentence itself is in question, courts lack jurisdiction to
hear an untimely PCRA. See Fahy, 737 A.2d at 223 (stating that
“[a]lthough legality of sentence is always subject to review within the PCRA,
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claims must still first satisfy the PCRA’s time limits or one of the exceptions
thereto.”).
This Court has addressed whether Alleyne creates a new
constitutional right that applies to untimely PCRA petitions. We noted in
Commonwealth v. Ruiz, 131 A.3d 54 (Pa. Super. 2015), that “Alleyne
does not invalidate a mandatory minimum sentence when presented in an
untimely PCRA petition.” Id. at 58 (citation omitted). Therefore, a claim
involving Alleyne “may be raised on direct appeal, or in a timely filed
PCRA petition.” Id. at 60 (some emphasis added).
In the case sub judice, Appellant was sentenced on December 9, 2013.
He did not file a direct appeal. Thus, his judgment of sentence became final
on January 8, 2014. See 42 Pa.C.S. § 9545(b)(3) (providing “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”).
Appellant had until January 8, 2015, to file his PCRA petition. See 42
Pa.C.S. § 9545(b)(1) (providing PCRA petition must be filed within one year
of date judgment becomes final). Therefore, because he filed his pro se
PCRA petition on May 21, 2015, it was facially untimely.
Appellant failed to plead any exceptions to the time restrictions of the
PCRA within his petition or in response to the PCRA court’s Rule 907 notice.
See Marshall, 947 A.2d at 719. Accordingly, the PCRA court lacked
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jurisdiction to decide the merits of Appellant’s untimely petition. See
Copenhefer, 941 A.2d at 648; Fahy, 737 A.2d at 223. Thus, we agree with
counsel’s assessment that no relief is due, grant counsel’s petition to
withdraw, and affirm the PCRA court’s order denying Appellant’s PCRA
petition.
Order affirmed. Petition to withdraw as counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2017
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