Com. v. Turton, B. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
BRYON GEORGE TURTON,
Appellant No. 313 WDA 2014
Appeal from the PCRA Order entered January 27, 2014,
in the Court of Common Pleas of Allegheny County,
Criminal Division, at No(s): CP-02-CR-0012460-1994.
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and ALLEN, JJ.
MEMORANDUM BY ALLEN, J.: FILED AUGUST 12, 2014
petition for post-conviction relief filed pursuant to the Post Conviction Relief
-46. PCRA counsel has also filed a
petition to withdraw. We affirm.
The pertinent facts and procedural history are as follows: On October
5, 1994, police charged Appellant, then nineteen years old, with one count
of criminal homicide involving the strangulation death of his girlfriend. On
January 31, 1996, a jury convicted Appellant of first-degree murder. On
March 28, 1996, the trial court sentenced him to life imprisonment without
the possibility of parole. Appellant filed a timely appeal to this Court. In an
unpublished memorandum filed on December 15, 1997, we affirmed
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counsel to address an ineffective assistance claim raised by Appellant in his
appeal. Commonwealth v. Turton, ___ A.2d ___ (Pa. Super. 1997)
(unpublished).
Upon remand, the trial court appointed new counsel, and the trial
court held an evidentiary hearing on December 8, 1998. By order entered
February 15, 2001, the trial court denied Appellant relief. Appellant once
again filed a timely appeal to this Court. In an unpublished memorandum
filed on April 27, 2004, we affirmed the trial court. Commonwealth v.
Turton, 852 A.2d 1256 (Pa. Super. 2004). On October 20, 2004, our
Suprem allocatur. Commonwealth v.
Turton, 862 A.2d 1255 (Pa. 2004).
On August 21, 2012, Appellant filed a pro se PCRA petition. The PCRA
court appointed counsel, and on October 2, 2013, PCRA counsel filed an
amended petition. The PCRA court issued Pa.R.Crim.P. 907 notice of intent
response. By order entered January 27, 2014, the PCRA court dismissed
y untimely, and because Appellant
failed to establish the applicability of an exception to the time bar. This
appeal followed. Both Appellant and the PCRA court have complied with
Pa.R.A.P. 1925.
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iled an Anders1
brief and a petition to withdraw. Compliance with Anders applies to counsel
who seeks to withdraw from representation on direct appeal. Anders
imposes stricter requirements than those imposed when counsel seeks to
withdraw during the post-conviction process pursuant to the dictates of
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
See Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super.
wishes to raise have no merit under a Turner/Finley analysis.
Our Supreme Court has summarized:
These cases establish the procedure for withdrawal of
court-appointed counsel in collateral attacks on criminal
convictions. Independent review of the record by
competent counsel is required before withdrawal is
permitted. Such independent review requires proof of:
1) - sel detailing the
nature and extent of his [or her] review;
2) -
the petitioner wished to have reviewed;
3) -
meritless;
4) The PCRA court conducting its own independent
review of the record; and
____________________________________________
1
Anders v. California, 386 U.S. 738 (1967).
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5) The PCRA court agreeing with counsel that the
petition was meritless.
Commonwealth v. Pitts, 981 A.2d 875, 876 n.1, (Pa. 2009) (citations
nsel has complied with the mandates of
Turner and Finley, as summarized in Pitts, supra. Thus, we must
PCRA petition was untimely filed, and Appellant cannot establish an
exception to t
petition under the PCRA is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA
findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,
1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a
hear
claim is patently frivolous and is without a trace of support in either the
record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011
(Pa. Super. 2001).
The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation
omitted). Thus, if a PCRA petition is untimely, neither an appellate court nor
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the PCRA court has jurisdiction over the petition. Id out jurisdiction,
raised in an untimely petition. Id.
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
becomes final unless the petition alleges, and the petitioner proves, an
exception to the time for filing the petition. Commonwealth v. Gamboa-
Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under
these exceptions
been interference by government officials in the presentation of the claim; or
(2) there exists after-discovered facts or evidence; or (3) a new
Commonwealth v. Fowler, 930
A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition
Gamboa-Taylor, 753
A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to
the time restrictions of the PCRA must be pled 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); see also Pa.R.A.
raised before the lower court are waived and cannot be raised for the first
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Because Appellant did not file a petition for writ of certiorari with the
l of
ninety thereafter, on January 18, 2005. 42 Pa.C.S.A. § 9545(b)(3);
U.S.Sup.Ct.R. 13. Appellant filed the instant PCRA petition over seven years
later. As a result, his PCRA petition is patently untimely unless he has
satisfied his burden of pleading and proving that one of the enumerated
exceptions applies. See Commonwealth v. Beasley, 741 A.2d 1258, 1261
(Pa. 1999).
Appellant has failed to prove the applicability of any of the exceptions
under the exception of subsection 9545(b)(1)(iii) because the United States
Supreme Court recognized a new constitutional right in Miller v. Alabama,
132 S. Ct. 2455 (2012). In Miller, the high court held that mandatory
Miller, 132 S. Ct. at 2460. Appellant asserts that the
Miller decision should be applied retroactively to his life sentence.
Initially, we note that the Miller holding is inapposite because
Appellant was not a juvenile when he killed his girlfriend. Moreover, even
had Appellant been a juvenile at the time, our Supreme Court has
determined that the Miller decision should not be applied retroactively. See
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generally, Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013). Thus,
to Section 9545(b)(iii).
Alternatively, Appellant attempts to establish an exception to the
Miller
present counsel, however, this same evidence was referenced in the United
Roper v. Simmons, 543 U.S. 551
(2005) and Graham v. Florida, 560 U.S. 48 (2010). At best, Appellant
Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008); see also
Commonwealth v. Lark, 746 A.2d 585, 588 n.4 (explaining that matters of
In sum, Appe
to meet his burden of proof with regard to any exception to the timeliness
-conviction reli
withdraw.
Petition to withdraw granted. Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/2014
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