Com. v. Ingram, J. ( 2018 )

J-S76037-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES GLEN INGRAM, JR. :
:
Appellant : No. 844 WDA 2018
Appeal from the Order Dated May 8, 2018
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0002003-2014
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED DECEMBER 24, 2018
James Glen Ingram (Appellant) appeals pro se from the order denying
as untimely his petition filed pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S.A. §§ 9541–9546. We affirm.
On January 12, 2015, Appellant pled guilty to one count of burglary, 18
Pa.C.S.A. § 3502(a)(2). That same day, the trial court sentenced Appellant
in the standard range to three to six years of incarceration. Appellant did not
file a direct appeal.
On January 14, 2016, Appellant filed a pro se PCRA petition. The PCRA
court appointed counsel. On March 31, 2016, counsel filed a praecipe to
withdraw the PCRA petition. The record next reflects “PCRA Status Conference
Cancelled” on May 13, 2016. No further activity occurred until February 22,
2018, when Appellant filed the pro se PCRA petition underlying this appeal.
On April 7, 2018, the PCRA court issued notice of intent to dismiss the PCRA
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petition without a hearing pursuant to Rule 907 of the Pennsylvania Rules of
Criminal Procedure. Appellant filed a response on May 2, 2018. On May 8,
2018, the PCRA court dismissed the petition on the basis that it was untimely.
Appellant filed this appeal.1
Appellant presents three issues:
[1.] WHETHER THE TRIAL COURT ERRED WHEN DENYING PCRA
[RELIEF] WITHOUT HEARING AND ALLOWING PCRA APPELLANT’S
COUNSEL TO WITHDRAW PRO SE PCRA AFTER THE 2/22/18 PCRA
WAS FILED?
[2.] WHETHER THE TRIAL COURT ERRED IN DENYING
APPELLANT THE APPOINTMENT OF COUNSEL?
[3.] WHETHER THE APPELLANT IS ENTITLED TO COUNSEL FOR
AN APPEAL TO THIS COURT?
Appellant’s Brief at 3.
At the outset, we note that this Court recently decided a similar appeal
filed by Appellant from the denial of PCRA relief at a different trial court docket.
Commonwealth v. Ingram, No. 600 WDA 2018 (Pa. Super. Ct. Nov. 30,
2018) (unpublished). In that case, Appellant made claims that were
analogous to those before us in this appeal – for example, that his underlying
PCRA should have been treated as a first PCRA, and that Appellant is entitled
to counsel where his prior counsel praeciped to withdraw Appellant’s first PCRA
without filing an amended PCRA. Because the procedural posture of the
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1The PCRA court did not order compliance with Pennsylvania Rule of Appellate
Procedure 1925.
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instant case is similar, and our analysis from the prior appeal is applicable, we
adopt and incorporate part of the analysis from our prior decision as follows:
This Court’s standard of review, when reviewing a PCRA court’s
dismissal of a PCRA petition, “is ‘to determine whether the
determination of the PCRA court is supported by the evidence of
record and is free of legal error.’ ” Commonwealth v. Furgess,
149 A.3d 90, 93 (Pa. Super. 2016) (quoting Commonwealth v.
Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2018)). Initially, we
must determine whether the instant PCRA petition is Appellant’s
first or second petition, as Appellant has proceeded pro se
throughout the litigation of the instant petition. “Defendants have
a general rule-based right to the assistance of counsel for their
first PCRA petition[s only].” Commonwealth v. Cherry, 155 A.3d
1080, 1082 (Pa. Super. 2018) (citing Pa.R.Crim.P. 904(C)). “The
indigent petitioner’s right to counsel must be honored regardless
of the merits of his underlying claims,...so long as the petition in
question is his first.” Id. (quoting Commonwealth v. Powell,
787 A.2d 1017, 1019 (Pa. Super. 2001)).
In the case sub judice, we conclude the instant petition under
review constitutes Appellant’s second PCRA petition. With regard
to Appellant’s first PCRA petition, appointed counsel filed a
praecipe to withdraw the petition. Appellant baldly suggests that
such action by counsel constituted an improper attempt at
withdrawing his representation, as counsel did not file a petition
to withdraw pursuant to Commonwealth v. Turner, 518 Pa.
491, 544 A.2d 297 (1988), and Commonwealth v. Finley, 550
A.2d 213 (Pa. Super. 1988) (en banc). However, Appellant has
not developed his averment. Further, Appellant does not aver that
he did not authorize counsel’s withdrawal of the first PCRA
petition.
Instead, Appellant focuses his argument on the claim that the trial
court did not grant the praecipe to withdraw the initial petition
until after he filed the instant PCRA petition, and therefore, he
claims the instant petition constitutes an amendment of his first
PCRA petition. Appellant is mistaken.
A review of the certified record reveals that the lower court
stamped the praecipe to withdraw Appellant’s first PCRA petition
on March 31, 2016, and the certified docket entries reflect the
same filing date. As the praecipe was properly accepted and
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docketed, Appellant’s first PCRA petition was disposed of on March
31, 2016. The instant petition, which was filed on February 19,
2018, is therefore Appellant’s second petition under the PCRA,
and, thus, he is not entitled to appointed counsel. Cherry, supra
(requiring appointment of counsel only for first PCRA petitions).
Id. at *2.
In the case quoted above, we ultimately determined that Appellant was
not entitled to relief because, at that docket, Appellant was “not ‘currently
serving’ a sentence for purposes of establishing PCRA eligibility.” Id. at 3
(citations omitted). However, in the appeal presently before us from a
different trial court docket, Appellant remains incarcerated. We therefore
proceed to determine whether Appellant is eligible for relief under the PCRA.
The PCRA court denied relief on the basis that the underlying PCRA
petition was untimely. Our standard of review of an order denying PCRA relief
is “whether the PCRA court’s determination is supported by the evidence of
record and free of legal error. We grant great deference to the PCRA court’s
findings, and we will not disturb those findings unless they are unsupported
by the certified record.” Commonwealth v. Holt, 175 A.3d 1014, 1017 (Pa.
Super. 2017) (citation omitted). Before we reach the merits of a petitioner’s
claim, Section 9545 of the PCRA requires that “[a]ny petition under this
subchapter, including a second or subsequent petition, shall be filed within
one year of the date the judgment becomes final.” 42 Pa.C.S.A. § 9545(b)(1).
The timeliness requirement of the PCRA is “mandatory and jurisdictional in
nature.” Commonwealth v. McKeever, 947 A.2d 782, 784-785 (Pa. Super.
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2008) (citing omitted). Therefore, “no court may disregard, alter, or create
equitable exceptions to the timeliness requirement in order to reach the
substance of a petitioner’s arguments.” Id. at 785. Although the timeliness
requirement is mandatory and jurisdictional, “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 set forth at 42 Pa.C.S.A. §
9545(b)(1)(i), (ii), and (iii), is met.” Commonwealth v. Hernandez, 79
A.3d 649, 651 (Pa. Super. 2013). The three exceptions to the timeliness
requirement 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). A petition invoking an exception “shall be
filed within 60 days of the date the claim could have been presented.” 42
Pa.C.S.A. § 9545(b)(2).
At the underlying docket, Appellant was sentenced on January 12, 2015,
and did not file a direct appeal. Therefore, his judgment of sentence became
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final 30 days from January 12, 2015, or February 11, 2015. See Pa.R.A.P.
903(a). Under Section 9545(b)(1), Appellant had to file his PCRA petition
within one year of February 11, 2015, or February 11, 2016. Appellant did
not file his PCRA petition until February 22, 2018 – approximately three years
after his judgment of sentence became final. Accordingly, we are without
jurisdiction to decide Appellant’s appeal unless he has pled and proved one of
the three timeliness exceptions of Section 9545(b)(1). Appellant has failed to
do so.
Appellant’s entire appellate argument reads:
The Appellant avers that no hearing was held on a
clarification of sentence issue and other issues raised pro se by
Appellant where appointed counsel did not file [an] amended
PCRA.
Argument
The Appellant further avers that from the record it can be
found that PCRA counsel for Appellant did not comply with Com.
v. Turner 518 Pa. 491, 544 A.2d 927 (Pa. 1988); and Com. v.
Finley, 379 Pa. Super. 390, 550 A.2d 213 (Pa. Super. 1988).
The Appellant avers that and believes he will serve more
years in prison than what was actually imposed by the trial court
if this case is not remanded to the trial court for hearing and
appointment of counsel. None of the issues raised by Appellant
has been addressed by counsel for Appellant.
Conclusion
The trial court erred when failing to conduct a hearing on
issues that should have been addressed by counsel for this
Appellant.
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The case should be remanded for appointment of counsel
for Appellant and hearing.
Appellant’s Brief at 6-7.2
As evident from the above argument, Appellant has failed to advance
an exception to the PCRA’s time bar. See Commonwealth v. Gibbs, 981
A.2d 274, 284 (Pa. Super. 2009) (It is an appellant’s obligation to sufficiently
develop arguments in his brief by applying the relevant law to the facts of the
case, persuade this Court that there were errors below, and convince us relief
is due because of those errors.). Accordingly, we affirm the order of the PCRA
court denying as untimely Appellant’s petition filed pursuant to the PCRA.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/24/2018
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2 The Commonwealth has not filed a brief.
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