Com. v. McCrae, G. ( 2023 )

J-S28038-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GREGORY MCCRAE :
:
Appellant : No. 149 MDA 2022
Appeal from the PCRA Order Entered January 5, 2022
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0001041-2010
BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: MARCH 8, 2023
Appellant, Gregory McCrae, appeals from the order entered in the
Luzerne County Court of Common Pleas, which dismissed as untimely his
petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§
9541-9546. We affirm and grant counsel’s petition to withdraw.
The PCRA court set forth the facts and procedural history of this case
as follows.
On May 10, 2010, an information was filed against
[Appellant] charging him with two counts of aggravated
assault, 18 Pa.C.S.A. § 2702(a)(3). Counsel was
appointed to represent [Appellant], and the matter was
scheduled for trial. On May 10, 2011, however, the parties
entered into a plea agreement whereby (1) the
Commonwealth agreed to move to amend Count 2 of the
information to aggravated harassment by a prisoner, 18
Pa.C.S.A. § 2703; (2) [Appellant] agreed to plead guilty to
Count 1 and the amended Count 2; and (3) the parties
agreed that [Appellant] would be sentenced to 2 to 4
years’ imprisonment on Count 1, consecutive to a sentence
[Appellant] was already serving, and 2 to 4 years[’]
J-S28038-22
imprisonment on Count 2, concurrent to the sentence
imposed at Count 1.
Following a full colloquy of [Appellant], the [c]ourt
accepted the plea, finding that it was voluntarily and
knowingly tendered, and imposed the agreed upon
sentence. No post-sentence [motions] were filed by
[Appellant], nor did he appeal his judgment of sentence to
the Superior Court.
On March 31, 2021, [Appellant] filed a pro se document
titled “Motion to Set Aside the Verdict/Plea Based on After-
Discovered Evidence Based on the Discovery of Violations
of 18 Pa.C.S.A. § 9112(A) and Pa.R.Crim.P. 510(A),”
asking the [c]ourt to dismiss with prejudice the criminal
information filed to No. 1041 of 2010.” The motion alleged
that [Appellant] was eligible for relief based on (a) the
ineffectiveness of counsel that undermined the truth
determining process, (b) an unlawfully induced guilty plea,
and (c) the unavailability at the time of trial of exculpatory
evidence.
Construing [Appellant’s] March 31, 2021 motion as a PCRA
petition, [the court] appointed Attorney Jeffrey Yelen to
represent him on June 1, 2021, and scheduled a hearing.
Prior to that hearing, however, Attorney Yelen filed (1) a
“no merit” letter, indicating that after reviewing
[Appellant’s] file and contacting [Appellant], he had
determined that there was no merit to the PCRA petition,
and (2) a motion to withdraw as counsel. In a letter to the
[c]ourt in support of his motion to withdraw, Attorney
Yelen opined that [Appellant’s] PCRA petition was facially
untimely and that no exception to the time bar applied,
and further, that there was no substantive merit to the
allegation raised therein.
Attorney Yelen’s motion to withdraw as counsel was
subsequently granted, and the [c]ourt filed a notice of
intention to dismiss the PCRA petition pursuant to
Pa.R.Crim.P. 907. The notice indicated, inter alia, that
[Appellant’s] PCRA petition was facially untimely, and no
exception to the time requirements applied. [Appellant]
was informed that he had twenty days in which to respond
to the Rule 907 notice. Although [Appellant] did not do so,
-2-
J-S28038-22
he did submit a response to Attorney Yelen’s request to
withdraw as counsel on September 17, 2021, which
addressed the untimeliness of the petition and which [the
PCRA c]ourt considered. Thereafter, on December 17,
2021, the [PCRA c]ourt dismissed [Appellant’s petition].
(PCRA Court Opinion, 5/3/22, at 1-3) (record citations and footnote
omitted).
On January 12, 2022, Appellant filed a pro se timely notice of appeal.
The court conducted a Grazier1 hearing and appointed counsel to represent
Appellant on appeal. On February 28, 2022, the court directed Appellant to
file a concise statement in accordance with Pa.R.A.P. 1925(b), and Appellant
timely complied on March 19, 2022.
On June 21, 2022, appellate counsel filed a petition for leave to
withdraw and a Turner/Finley2 brief in this Court. Appellant filed a pro se
response to counsel’s petition and brief on July 7, 2022.
Before counsel can be permitted to withdraw from representing a
petitioner under the PCRA, Pennsylvania law requires counsel to file a “no-
merit” brief or letter pursuant to Turner and Finley. Commonwealth v.
Karanicolas, 836 A.2d 940, 947 (Pa.Super. 2003).
[C]ounsel must…submit a “no-merit” letter to the [PCRA]
court, or brief on appeal to this Court, detailing the nature
and extent of counsel’s diligent review of the case, listing
____________________________________________
1 Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).
2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
-3-
J-S28038-22
the issues which the petitioner wants to have reviewed,
explaining why and how those issues lack merit, and
requesting permission to withdraw.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007). Counsel
must also send to the petitioner a copy of the “no-merit” letter or brief and
motion to withdraw and advise petitioner of his right to proceed pro se or
with privately retained counsel. Id. “Substantial compliance with these
requirements will satisfy the criteria.” Karanicolas, supra at 947.
Instantly, appellate counsel filed a motion to withdraw as counsel and
a Turner/Finley brief detailing the nature of counsel’s review and explaining
why Appellant’s issues lack merit. Counsel’s brief also demonstrates he
reviewed the certified record and found no meritorious issues for appeal.
Counsel notified Appellant of counsel’s request to withdraw and advised
Appellant regarding his rights. Thus, counsel substantially complied with the
Turner/Finley requirements. See Wrecks, supra; Karanicolas, supra.Accordingly, we proceed with our independent assessment. See Turner,
supra at 494-95, 544 A.2d at 928-29 (stating appellate court must conduct
independent analysis and agree with counsel that appeal is frivolous).
Counsel raises the following issue on Appellant’s behalf:
Whether the court erred in dismissing the PCRA Petition as
untimely[?]
(Turner/Finley Brief at 1).
As the timeliness of a PCRA petition is separate from the merits of the
petitioner’s underlying claim, we must first determine whether the petition is
-4-
J-S28038-22
timely filed. Commonwealth v. Brensinger, 218 A.3d 440, 447-48
(Pa.Super. 2019) (en banc) (citing Commonwealth v. Stokes, 598 Pa.
574, 959 A.2d 306 (2008)). The timeliness of a PCRA petition is a
jurisdictional prerequisite. Commonwealth v. Zeigler, 148 A.3d 849(Pa.Super. 2016). Pennsylvania law makes clear that no court has
jurisdiction to hear an untimely PCRA petition. Commonwealth v.
Robinson, 575 Pa. 500, 837 A.2d 1157 (2003).
It is well-settled that the PCRA is intended to be the sole means of
achieving post-conviction relief. Commonwealth v. Taylor, 65 A.3d 462,
465 (Pa.Super. 2013) (citing 42 Pa.C.S.A. § 9542). If an issue is cognizable
under the PCRA, the issue must be raised in a timely PCRA petition.
“[R]egardless of how a petition is titled, courts are to treat a petition filed
after a judgment of sentence becomes final as a PCRA petition if it requests
relief contemplated by the PCRA.” Commonwealth v. Fantauzzi, 275 A.3d
986, 995 (Pa.Super. 2022), appeal denied, No. 317 MAL 2022, 2022 WL
17422510 (Pa. Dec. 6, 2022) (citing Commonwealth v. Wrecks, 934 A.2d
1287, 1289 (Pa.Super. 2007)). See also Commonwealth v. Torres, 223
A.3d 715, 716 (Pa.Super. 2019) (stating: “so long as a pleading falls within
the ambit of the PCRA, the court should treat any pleading filed after the
judgment of sentence is final as a PCRA petition”).
A PCRA petition shall be filed within one year of the date the
underlying judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1).
-5-
J-S28038-22
A judgment of sentence is deemed 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). To obtain merits review of a PCRA
petition filed more than one year after the judgment of sentence became
final, the petitioner must allege and prove at least one of the three
exceptions to the PCRA time-bar outlined in 42 Pa.C.S.A. § 9545(b)(1)(i-iii).3
Here, Appellant filed the instant “motion to set aside the verdict/plea
based on after-discovered evidence” on March 31, 2021. In his response to
counsel’s no-merit brief, Appellant insists he is not subject to the PCRA time
bar and claims that the court erred in construing his petition under the
____________________________________________
3 These exceptions are:
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.A. § 9545(b)(1)(i)-(iii).
-6-
J-S28038-22
confines of the PCRA. (Response to No Merit Brief, filed 7/7/22, at
unnumbered page 2). Nevertheless, because Appellant is requesting relief
contemplated by the PCRA, we conclude that Appellant’s current petition is
subject to review within the PCRA, and therefore must comply with the PCRA
time limits. See 42 Pa.C.S.A. § 9543(a)(2)(ii), (iii), (vi) (describing claims
of ineffective assistance of counsel, challenges to validity of guilty plea, and
assertions of exculpatory evidence unavailable at time of trial as falling
under parameters of PCRA). See also Fantauzzi, supra at 995.
The trial court sentenced Appellant on May 10, 2011. Appellant did
not file post-sentence motions or a direct appeal. Accordingly, Appellant’s
judgment of sentence became final 30 days later, on June 9, 2011. See
Pa.R.A.P. 903(a). Hence, Appellant had until June 9, 2012, to file a timely
PCRA petition. The instant petition, filed nearly a decade after the judgment
of sentence became final, is patently untimely. See 42 Pa.C.S.A. §
9545(b)(1). Therefore, for the court to have jurisdiction over Appellant’s
claim, Appellant must prove he is eligible under one of the three exceptions
to the PCRA’s time-bar. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
In his response to PCRA counsel’s request to withdraw, Appellant
claimed that he was entitled to application of the “newly-discovered facts”
exception to the PCRA time bar based on a February 15, 2021 order
directing Appellant to be fingerprinted. Appellant claims that this recent
order to be fingerprinted proves that Appellant was not fingerprinted when
-7-
J-S28038-22
he was originally charged and constitutes “exculpatory evidence.”4
(Response to Request to Withdraw, filed 9/17/21, at ¶4). Appellant
acknowledges that he knew of the alleged error at the time of his guilty plea,
but Appellant claims that he did not have evidence proving that he was not
fingerprinted until he received the recent order directing him to be
fingerprinted. Appellant concludes that he fulfilled the requirements of the
newly-discovered facts exception to the time bar, and the PCRA court erred
by dismissing his petition as untimely filed. We disagree.
To meet the “newly-discovered facts” timeliness exception set forth in
Section 9545(b)(1)(ii), a petitioner must demonstrate “he did not know the
facts upon which he based his petition and could not have learned those
facts earlier by the exercise of due diligence.” Commonwealth v. Brown,
111 A.3d 171, 176 (Pa.Super. 2015), appeal denied, 633 Pa. 761, 125 A.3d
1197 (2015). “The focus of the exception is on [the] newly discovered facts,
not on a newly discovered or newly willing source for previously known
facts.” Commonwealth v. Burton, 638 Pa. 687, 704, 158 A.3d 618, 629
(2017) (internal citation and quotation marks omitted). Due diligence
requires that the petitioner “take reasonable steps to protect his own
____________________________________________
4 Appellant insists that the fact that he was not fingerprinted after his arrest
is a violation under 18 Pa.C.S.A. § 9112(a) (governing mandatory
fingerprinting within 48 hours of arrest) and Pa.R.Crim.P. 510(C)(2)
(requiring order directing defendant to submit to fingerprinting to be
attached to summons for preliminary hearing).
-8-
J-S28038-22
interests.” Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.Super.
2010), appeal denied, 610 Pa. 607, 20 A.3d 1210 (2011) (citations omitted).
However, it does not require “perfect vigilance nor punctilious care, but
rather it requires reasonable efforts by a petitioner, based on the particular
circumstances to uncover facts that may support a claim for collateral relief.”
Commonwealth v. Shiloh, 170 A.3d 553, 558 (Pa.Super. 2017) (citation
omitted). As such, “the due diligence inquiry is fact-sensitive and dependent
upon the circumstances presented.” Id.Upon review, we agree with the PCRA court that Appellant has not
satisfied the requirements for the newly-discovered fact exception to the
PCRA time bar. Appellant admits that he knew he had not been
fingerprinted at the time of his plea and that he asked plea counsel to look
into his claim of a procedural violation prior to entering his plea. (Response
to Request to Withdraw at ¶5). Hence, Appellant’s proffered “new” fact was
known to him in 2011, and Appellant cannot establish applicability of the
exception based on a new source (i.e., the order directing him to be
fingerprinted) for that fact. See Burton, supra. Moreover, Appellant has
not shown that he could not have uncovered proof of his not having been
fingerprinted earlier with the exercise of due diligence. See Monaco,
supra. As such, he failed to meet his burden of proving applicability of an
exception to the PCRA time bar.
Our independent review does not reveal any applicable timeliness
-9-
J-S28038-22
exceptions or other non-frivolous issues. See Turner, supra. Accordingly,
we affirm the court’s order dismissing the petition as untimely and grant
appellate counsel’s petition to withdraw.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/8/2023
- 10 -