Com. v. Freeman, B. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
BRYAN ROBERT FREEMAN
Appellant No. 1757 EDA 2014
Appeal from the PCRA Order May 23, 2014
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0001077-1995
BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY MUNDY, J.: FILED OCTOBER 21, 2015
Appellant, Bryan Robert Freeman, appeals from the May 23, 2014
order dismissing, as untimely, his third petition for relief filed pursuant to
the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. In
addition, Appellant’s counsel has filed with this Court a petition to withdraw,
together with a Turner/Finley1 no-merit letter, averring the appeal is
without merit. After careful review, we grant counsel’s petition to withdraw
and affirm.
We summarize the relevant procedural history from the certified
record in this case as follows. On December 7, 1995, the trial court imposed
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1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super 1988) (en banc).
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a sentence of life imprisonment without the possibility of parole after
Appellant pled guilty to first-degree murder,2 committed when he was 17
years old. Appellant did not appeal his sentence to this Court. Accordingly,
his judgment of sentence became final on January 8, 1996, when the time to
file a notice of appeal to this Court expired.3 See 42 Pa.C.S.A. § 9545(b)(3)
(stating, “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[]”); Pa.R.A.P. 903(c) (stating, “[i]n a criminal case in which no
post-sentence motion has been filed, the notice of appeal shall be filed
within 30 days of the imposition of the judgment of sentence in open
court[]”). Therefore, Appellant had until January 16, 1997 to timely file a
PCRA petition.4 See 42 Pa.C.S.A. § 9545(b)(1) (stating, “[a]ny petition
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2
18 Pa.C.S.A. § 2502(a).
3
We observe that the 30th day fell on Saturday, January 6, 1996. When
computing the 30-day filing period, “[if] the last day of any such period shall
fall on Saturday or Sunday, or on any day made a legal holiday …, such day
shall be omitted from the computation.” 1 Pa.C.S.A. § 1908. Therefore, the
30th day for Appellant to file a timely notice of appeal was on Monday,
January 8, 1996.
4
The 1995 amendments to the PCRA initiated the current one-year time-
bar. The 1995 amendments also granted prisoners whose judgment of
sentence had become final by the implementation of the time-bar, one year
from the effective date of the amendments to file their first PCRA petition.
Act of November 17, 1995, P.L. 1118, No. 32 (Spec. Sess. No. 1), § 3(1).
The effective date of the 1995 amendments was January 16, 1996.
(Footnote Continued Next Page)
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under this subchapter, including a second or subsequent petition, shall be
filed within one year of the date the judgment becomes final[]”).
Thereafter, Appellant filed, pro se, a timely PCRA petition on January
10, 1997. Appellant later withdrew the petition on April 23, 1997.
On September 15, 2005, Appellant filed, pro se, a second untimely
PCRA petition. The PCRA court dismissed the petition on January 17, 2006,
and this Court dismissed the appeal due to counsel’s failure to file a brief.
Commonwealth v. Freeman, 335 EDA 2006 (Pa. Super. 2006). Appellant
did not file a petition for allowance of appeal with our Supreme Court.
On July 6, 2010, Appellant filed, pro se, a third PCRA petition that is
the subject of this appeal. The PCRA court appointed counsel on July 15,
2010. On September 2, 2010, the PCRA court stayed the PCRA proceedings
pending the decision of our Supreme Court in Commonwealth v. Batts, 66
A.3d 286 (Pa. 2013). Thereafter, Appellant’s counsel filed an amended
PCRA petition on August 16, 2012. The PCRA court again stayed the PCRA
proceedings pending our Supreme Court’s decision of Batts and
Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), cert. denied,
Cunningham v. Pennsylvania, 134 S. Ct. 2724 (2014). On April 1, 2014,
_______________________
(Footnote Continued)
Accordingly, “a petitioner’s first PCRA petition, that would otherwise be
considered untimely because it was filed more than one year after the
judgment of sentence became final, would be deemed timely if it was filed
by January 16, 1997.” Commonwealth v. Thomas, 718 A.2d 326, 329
(Pa. Super. 1998) (en banc).
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the PCRA court issued notice of its intention to dismiss the amended petition
without a hearing pursuant to Pennsylvania Rule of Criminal Procedure 907.
Appellant did not respond to the Rule 907 notice. On May 23, 2014, the
PCRA court lifted the stay and dismissed the amended petition. Appellant
timely filed, pro se, a notice of appeal on June 10, 2014.5
On March 26, 2015, counsel filed a petition to withdraw in this Court,
together with a Turner/Finley no-merit letter. On May 13, 2015, Appellant
filed a pro se answer to the Turner/Finley letter.
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5
On June 12, 2014, the PCRA court ordered Appellant’s counsel to file,
within 21 days, a concise statement of errors complained of on appeal
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Appellant’s
counsel filed a Rule 1925(b) concise statement on July 3, 2014. On August
28, 2014, the PCRA court filed its Rule 1925(a) opinion, explaining that the
petition was time-barred.
Moreover, we note that we have held that a criminal defendant’s pro
se actions have no legal effect while he or she remains represented by
counsel. Commonwealth v. Hall, 476 A.2d 7, 9-10 (Pa. Super. 1984); see
also Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007)
(noting that a defendant’s pro se filings while represented by counsel are
legal nullities), appeal denied, 936 A.2d 40 (Pa. 2007). However, our
Supreme Court has held that a pro se notice of appeal filed by an appellant
while represented by counsel shall be considered merely premature if
counsel and the trial court take appropriate actions to perfect the appeal.
Commonwealth v. Cooper, 27 A.3d 994, 1008 (Pa. 2011).
Herein, after Appellant filed his pro se notice of appeal, the PCRA court
directed counsel to file a Rule 1925(b) statement, and counsel then
complied. Further, counsel filed a Rule 3517 docketing statement with this
Court, indicating that he was representing Appellant. Superior Court
Criminal Docketing Statement, 7/7/14, at 1. Accordingly, the PCRA court
and counsel’s actions effectively perfected this appeal, and we have
jurisdiction to address the merits of this appeal. See id.
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In his Turner/Finley letter, counsel identifies the following issues
Appellant seeks to have reviewed as taken from Appellant’s Rule 1925(b)
statement.
1. [Whether] the trial court erred in denying
his petition for writ of habeas corpus when the trial
court treated the petition for writ of habeas corpus
as a petition for post collateral relief[?]
2. [Whether] the trial court erred in denying a
hearing on the merits of his petition for writ of
habeas corpus[?]
3. [Whether] the trial court erred in not
vacating Appellant’s juvenile life without parole
sentence which he is currently serving[?]
4. [Whether] the trial court erred in not
holding a new sentencing hearing in light of the
[United States Supreme Court] ruling in Miller [v.
Alabama, 132 S. Ct. 2455 (2012)][?]
Turner/Finley Letter at 2.6
In his pro se answer to counsel’s petition to withdraw and
Turner/Finley letter, Appellant sets forth six additional issues, in which he
contends that the PCRA court improperly addressed his petition under the
PCRA, instead of as a habeas corpus petition, and that the PCRA court
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6
We note that counsel’s Turner/Finley letter does not contain pagination.
For ease of review, we have assigned each page a corresponding page
number.
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should have applied Miller retroactively.7 Appellant’s Pro Se Answer,
5/13/15, at 1-3.
“On appeal from the denial of PCRA relief, our standard and scope of
review is limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v.
Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied,
Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013). “[Our] scope of review
is limited to the findings of the PCRA court and the evidence of record,
viewed in the light most favorable to the prevailing party at the PCRA court
level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation
omitted). In order to be eligible for PCRA relief, a petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2).
These issues must be neither previously litigated nor waived. 42 Pa.C.S.A.
§ 9543(a)(3). “[T]his Court applies a de novo standard of review to the
PCRA court’s legal conclusions.” Commonwealth v. Spotz, 18 A.3d 244,
259 (Pa. 2011) (citation omitted).
In this case, the PCRA court dismissed Appellant’s PCRA petition
without conducting a hearing.
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7
We do not reproduce Appellant’s issues, verbatim, because they are not
relevant to our disposition.
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[T]he right to an evidentiary hearing on a post-
conviction petition is not absolute. It is within the
PCRA court’s discretion to decline to hold a hearing if
the petitioner’s claim is patently frivolous and has no
support either in the record or other evidence. It is
the responsibility of the reviewing court on appeal to
examine each issue raised in the PCRA petition in
light of the record certified before it in order to
determine if the PCRA court erred in its
determination that there were no genuine issues of
material fact in controversy and in denying relief
without conducting an evidentiary hearing.
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012), quoting
Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa. Super. 2007)
(citations omitted), appeal denied, 940 A.2d 365 (Pa. 2007); see also
Pa.R.Crim.P. 907. “We stress that an evidentiary hearing is not meant to
function as a fishing expedition for any possible evidence that may support
some speculative claim ….” Commonwealth v. Roney, 79 A.3d 595, 604-
605 (Pa. 2013) (citations and internal quotation marks omitted), cert.
denied, Roney v. Pennsylvania, 135 S. Ct. 56 (2014). We review a PCRA
court’s decision to dismiss without a hearing for abuse of discretion. Id. at
604.
Before we consider Appellant’s arguments, we must review PCRA
counsel’s request to withdraw from representation. As described by our
Supreme Court, the requirements PCRA counsel must adhere to when
requesting to withdraw include the following.
1) A “no-merit” letter by PC[R]A counsel
detailing the nature and extent of his review;
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2) The “no-merit” letter by PC[R]A counsel
listing each issue the petitioner wished to have
reviewed;
3) The PC[R]A counsel’s “explanation”, in the
“no-merit” letter, of why the petitioner’s issues
were meritless[.]
Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009), quoting
Finley, supra at 215. “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).
[W]here counsel submits a petition and no-
merit letter that do satisfy the technical demands of
Turner/Finley, the court - trial court or this Court -
must then conduct its own review of the merits of
the case. If the court agrees with counsel that the
claims are without merit, the court will permit
counsel to withdraw and deny relief. By contrast, if
the claims appear to have merit, the court will deny
counsel’s request and grant relief, or at least instruct
counsel to file an advocate’s brief.
Id. (citation omitted).
Here, we conclude that counsel has complied with the technical
requirements of Turner/Finley. Specifically, counsel’s Turner/Finley letter
details the nature and extent of his review, addresses the claims Appellant
raised in his amended PCRA petition and Rule 1925(b) statement, and
determines that the issues lack merit. Counsel provides a discussion of
Appellant’s claims, explaining why the issues are without merit.
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Additionally, counsel served Appellant with a copy of the petition to withdraw
and Turner/Finley brief, advising Appellant that, if counsel was permitted
to withdraw, Appellant had the right to proceed pro se or with privately
retained counsel. We proceed, therefore, to conduct an independent merits
review of Appellant’s claims.
Turning to the merits of Appellant’s issues on appeal, Appellant’s PCRA
petition is facially untimely, as it was filed over 14½ years after his sentence
became final. Appellant’s amended PCRA petition asserts the newly
recognized constitutional right exception to the PCRA time-bar in Section
9545(b)(1)(iii). Appellant’s Amended PCRA Petition, 8/16/12, at 2. 8
Appellant argues that the United States Supreme Court’s decision in Miller
should be retroactively applied. Appellant’s Pro Se Answer, 5/13/15, at 2-3.
However, our Supreme Court has rejected that argument.9 Cunningham,
supra at 11. To the extent Appellant argues that this Court should give
broader retroactive effect to Miller under Danforth v. Minnesota, 552 U.S.
264 (2008), this Court lacks the judicial power to decide that question for
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8
We note that Appellant’s amended PCRA petition does not contain
pagination. For ease of review, we have assigned each page a
corresponding page number.
9
On March 23, 2015, the Supreme Court granted certiorari in Montgomery
v. Louisiana, 135 S. Ct. 1546 (2015), which presents the Miller
retroactivity question. Nonetheless, until the United States Supreme Court
issues its decision, Cunningham remains dispositive of the issue in
Pennsylvania.
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the purposes of the PCRA time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(iii)
(allowing a time-bar exception for “a constitutional right that was recognized
by the Supreme Court of the United States or the Supreme Court of
Pennsylvania … and has been held by that court to apply retroactively[]”).
Appellant also argues that he is entitled to habeas corpus relief outside
of the parameters of the PCRA. Appellant’s Brief at 16. This Court has
explained that claims pertaining to Miller go to the legality of the sentence.
Commonwealth v. Brown, 71 A.3d 1009, 1015-1016 (Pa. Super. 2013),
appeal denied, 77 A.3d 635 (Pa. 2013). Legality of sentence claims are
expressly cognizable under the PCRA. 42 Pa.C.S.A. § 9543(a)(2)(vii);
accord Commonwealth v. Beck, 848 A.2d 987, 989 (Pa. Super. 2004)
(citation omitted). Therefore, because Appellant’s “claim[] [was] cognizable
under the PCRA … the writ of habeas corpus was not available.”
Commonwealth v. Turner, 80 A.3d 754, 770 (Pa. 2013) (citation omitted),
cert. denied, Turner v. Pennsylvania, 134 S. Ct. 1771 (2014); see also
42 Pa.C.S.A. § 9542 (stating that the PCRA “shall be the sole means of
obtaining collateral relief and encompasses all other common law and
statutory remedies for the same purpose that exist when this subchapter
takes effect, including habeas corpus and coram nobis[]) (italics added).
Based on the foregoing, we agree with counsel that the issues
Appellant raises in this appeal are meritless. Further, the trial court did not
abuse its discretion by disposing of Appellant’s untimely petition without a
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hearing. See Roney, supra. Therefore, we grant counsel’s petition to
withdraw, and we conclude the PCRA court properly dismissed Appellant’s
PCRA petition without a hearing as untimely.10 Accordingly, the PCRA
court’s May 23, 2014 order is affirmed.
Order affirmed. Petition to withdraw as counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2015
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10
In light of our conclusion, we do not address Appellant’s remaining claims.
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