Com. v. Coit, K. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
KEVIN COIT :
:
Appellant : No. 2979 EDA 2017
Appeal from the PCRA Order August 11, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001938-2012,
CP-51-CR-0012646-2011
BEFORE: GANTMAN, P.J., OTT, J., and PLATT*, J.
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 09, 2018
Appellant, Kevin Coit, appeals from the order entered in the Philadelphia
County Court of Common Pleas, which denied his first petition filed under the
Post Conviction Relief Act at 42 Pa.C.S.A. §§ 9541-9546. We affirm and grant
counsel’s petition to withdraw.
The PCRA court opinion sets forth the relevant facts and procedural
history of this case as follows:
On February 13, 2013, [Appellant] appeared before this
court and entered a negotiated guilty plea to two robberies.
CP 51-CR-0012646-2011 occurred on July 31, 2011 at a bar
on the 4200 block of North 8th Street, Philadelphia, at 11:50
p.m. [Appellant] and a companion entered the bar, fired
gunshots, and demanded that the employees give them
cash from the register. They also took a purse from a
patron.
CP 51-CR-00[01938-2012] occurred on October 18, 2011,
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* Retired Senior Judge assigned to the Superior Court.
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at 11:25 p.m., at Lober and Dorset Streets in Philadelphia.
[Appellant] stopped a vehicle, pointed a gun at the two
passengers inside the vehicle, threatened to blow their
heads off, and ordered them to remove part of their
clothing, give the clothing to him, and leave their valuables
inside the garments.
At the guilty-plea colloquy, the [c]ourt advised [Appellant]
that pursuant to the plea agreement, [Appellant] was to
plead guilty to two counts of robbery as a felony of the first
degree, criminal conspiracy as a felony of the first degree,
and possession of an instrument of crime. The negotiated
sentence would be concurrent terms of incarceration of five
to ten years on one robbery and four to ten years on the
other robbery. …
[Appellant] stated that he was 22 years old, had completed
the 11th grade, and was not under the influence of drugs,
alcohol or medication. [Appellant] said that he had never
been treated for a mental illness.
[Appellant] was informed that he had the absolute right to
plead not guilty and go to trial and that by pleading guilty
he was giving up his right to confront and cross-examine
witnesses against him, call witnesses in his behalf, and
testify or not testify.
[Appellant] was further informed that at trial, the
Commonwealth had the burden to prove the charges beyond
reasonable doubt, that he had the right to a jury trial or a
bench trial and that a jury verdict would have to be
unanimous.
[Appellant] stated that he understood that by pleading
guilty he was giving up his right to litigate pre-trial motions
to suppress physical evidence, statements and
identifications.
[Appellant] had separate attorneys for each case.
[Appellant] stated that he had spoken with his attorneys and
was satisfied with their representation. Each attorney
stated that he or she had discussed with [Appellant] his right
to plead not guilty and go trial. Each attorney stated that
[Appellant] appeared to understand his rights. Each
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attorney stated that he or she believed that [Appellant] was
competent and qualified to enter the negotiated plea.
[Appellant] acknowledged that by pleading guilty he was
giving up his right to appeal except for the voluntariness of
the plea, the jurisdiction of the court and the legality of the
sentence. [Appellant] acknowledged that by pleading guilty
he was giving up any defense of justification.
As to each case, the prosecutor read a summary of the
evidence. The [c]ourt asked [Appellant] whether he was
able to hear and understand the facts as summarized by the
prosecutor. [Appellant] said that he did. The [c]ourt asked
whether what the prosecutor had summarized was
“essentially” what had happened. [Appellant] said that it
was. The [c]ourt accepted the guilty pleas. The [c]ourt
sentenced [Appellant] to an aggregate [term] of five to ten
years of incarceration, as set forth in the plea agreement.
[Appellant] did not file a motion to withdraw his guilty plea.
[Appellant] did not file a notice of appeal to the Superior
Court.
On December 16, 2014, [Appellant] filed a pro se PCRA
Petition. [Appellant] alleged that his sentence was illegal
and that counsel had not properly advised him of his
options. [Counsel] was appointed to represent [Appellant].
On May [26], 2016, [counsel] filed an Amended PCRA
Petition, alleging that the plea was unlawfully induced and
that guilty plea counsel were ineffective for allowing
[Appellant] to enter an involuntary plea.
[Appellant’s] PCRA Petition was properly dismissed as
untimely.
(PCRA Court Opinion, filed January 10, 2018, at 1-5) (internal citations
omitted). Additional procedural history of the case includes the following. On
July 11, 2017, the PCRA court issued notice of its intent to dismiss the petition
without a hearing, per Pa.R.Crim.P. 907, and formally dismissed the petition
as untimely on August 14, 2017. Appellant timely filed a notice of appeal on
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September 11, 2017. The court ordered Appellant on December 18, 2017, to
file a concise statement of errors complained of on appeal, per Pa.R.A.P.
1925(b); counsel timely complied on Monday, January 8, 2018.
Preliminarily, counsel has filed a “no-merit” letter/brief on appeal and a
petition to withdraw as counsel,1 pursuant to Commonwealth v. Turner,
518 Pa. 491, 544 A.2d 927 (1988); Commonwealth v. Finley, 550 A.2d 213
(1988). Before counsel can withdraw representation under the PCRA, the law
requires counsel to satisfy the mandates of Turner/Finley. Commonwealth
v. Karanicolas, 836 A.2d 940, 947 (Pa.Super. 2003).
…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.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007).
Withdrawal as counsel in this context also includes certain notice
requirements: Counsel must contemporaneously serve on Appellant copies of
the “no-merit” letter or brief, the petition to withdraw, and a letter with a
statement advising Appellant that he has the immediate right to file a brief in
this Court pro se or with new privately-retained counsel within 30 days.
Commonwealth v. Muzzy, 141 A.3d 509 (Pa.Super. 2016). To withdraw,
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1This Court later directed counsel to file an amended petition to withdraw,
which counsel has done.
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counsel must assure this Court of counsel’s compliance with these technical
requirements. Id.
Instantly, counsel’s amended petition to withdraw states he has made
a conscientious examination of the record in this case and determined the
appeal is totally frivolous. In the withdrawal petition, via the transmittal letter
attached as Exhibit A, counsel also confirmed he served the Commonwealth
and Appellant with a copy of the Turner/Finley Letter Brief and counsel’s
petition to withdraw, and advised Appellant of his right to proceed immediately
pro se or with privately retained counsel to file a brief within thirty (30) days
and raise any additional points Appellant’s deems worthy of review. In his
Turner/Finley brief on appeal, counsel listed the issue Appellant wished to
raise and explains that Appellant’s PCRA petition is untimely, without any valid
exception to the statutory time bar, and why the issue raised would not merit
relief in any event. Thus, appellate counsel has now substantially complied
with the Turner/Finley requirements. See Karanicolas, supra.
Accordingly, we proceed to an independent evaluation. 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).
Appellant has not responded to counsel’s petition.
Appellant raises one issue in the Turner/Finley brief:
WHETHER PLEA COUNSEL RENDERED INEFFECTIVE
ASSISTANCE WHICH RESULTED IN APPELLANT ENTERING
AN INVOLUNTARY AND UNLAWFULLY INDUCED GUILTY
PLEA?
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(Turner/Finley Brief at 5).
Initially, the timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008), cert.
denied, 556 U.S. 1285, 129 S. Ct. 2772, 174 L. Ed. 2d 277 (2009).
Pennsylvania law makes clear no court has jurisdiction to hear an untimely
PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 508, 837 A.2d
1157, 1161 (2003). The PCRA requires a petition, including a second or
subsequent petition, to be filed within one year of the date the underlying
judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence
is 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 review.” 42 Pa.C.S.A. §
9545(b)(3).
Generally, 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 timeliness exceptions. See 42
Pa.C.S.A. § 9545(b)(1)(i)-(iii). The petitioner must allege and prove:
(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
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(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) (emphasis added). “[W]hen a PCRA petition
is not filed within one year of the expiration of direct review, or not eligible for
one of the three limited exceptions, or entitled to one of the exceptions, but
not filed within 60 days of the date that the claim could have been first
brought, the trial court has no power to address the substantive merits of a
petitioner’s PCRA claims.” Commonwealth v. Gamboa-Taylor, 562 Pa. 70,
77, 753 A.2d 780, 783 (2000). Counsel, who is appointed to represent a PCRA
petitioner on any petition that is untimely on its face, has the initial duty to
consider the timeliness of the petition, investigate whether the petition is
actually untimely, and if so, whether any of the statutory exceptions to the
time bar applies to the petitioner’s case. See generally Commonwealth v.
Smith, 572 Pa. 572, 818 A.2d 494 (2003).
Instantly, on February 13, 2013, the trial court accepted Appellant’s plea
and, in accordance with the agreement, imposed the agreed-upon sentence
of five to ten years’ incarceration. Appellant filed no post-sentence motion or
direct appeal. Therefore, the judgment of sentence became final on or about
Monday, March 17, 2013, when the 30-day appeal period expired. See 42
Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(c)(3). Thus, Appellant had until March
17, 2014, to file a timely PCRA petition. Appellant filed his first petition on
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December 16, 2014, which is patently untimely, claiming his plea counsel gave
Appellant erroneous advice regarding the plea deal. Appellant’s bare
ineffectiveness of counsel claim does not satisfy an exception to the timeliness
requirements of the PCRA. See Commonwealth v. Wharton, 584 Pa. 576,
588, 886 A.2d 1120, 1127 (2005) (stating generally that bare “allegations of
ineffective assistance of counsel will not overcome the jurisdictional timeliness
requirements of the PCRA”); Gamboa-Taylor, supra at 80, 753 A.2d at 785
(holding standard ineffectiveness of counsel claims generally do not constitute
exceptions to PCRA time requirements). Compare Commonwealth v.
Bennett, 593 Pa. 382, 930 A.2d 1264 (2007) (identifying very limited
exception to Gamboa-Taylor line of cases on this point, where counsel
abandoned petitioner on appeal, abandonment was unknown to petitioner,
and petitioner filed for PCRA relief within sixty days of learning of counsel’s
abandonment; this exception is viewed under “new fact” exception) and more
recently Commonwealth v. Peterson, ___ Pa. ___, ___ A.3d ___, 2018 WL
4515440 (filed September 21, 2018) (applying Bennett to petitioner’s case,
where he promptly filed second PCRA petition upon learning that counsel had
filed petitioner’s first PCRA petition one day late, causing loss of petitioner’s
PCRA review rights; affirming PCRA court’s restoration of rights upon
petitioner’s proof of “new fact” and due diligence).
Following our independent review of the record, we conclude Appellant’s
petition met no statutory exception and remains time barred. Thus, we agree
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with counsel that Appellant’s appeal is frivolous. Accordingly, we affirm and
grant counsel’s petition to withdraw.
Order affirmed; counsel’s petition to withdraw is granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/9/18
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