Com. v. Galleher, C. ( 2014 )

J-S25020-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHALLAN GALLEHER
Appellant No. 365 MDA 2013
Appeal from the Order Entered May 10, 2013
In the Court of Common Pleas of Bradford County
Criminal Division at No: CP-08-CR-0000295-2006
BEFORE: OTT, STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 28, 2014
Appellant, Challan Galleher, appeals from the May 10, 2013 order
42 Pa.C.S.A. § 9541-9546. Counsel has filed a no merit letter and petition
to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
The record reveals that Appellant appeared at an October 16, 2006
hearing and pled guilty to involuntary deviate sexual intercourse with a child
and involuntary deviate sexual intercourse with a person less than 16 years
J-S25020-14
of age.1
sentence of 13 to 45 years of incarceration at a January 15, 2007 sentencing
dismissed numerous other charges and did not seek to have Appellant
declared a sexually violent predator. This Court affirmed the judgment of
sentence on November 2, 2007. Appellant did not seek allowance of appeal
in the Pennsylvania Supreme Court.
On May 15, 2009, Appellant filed a pro se petition for a writ of habeas
corpus. The PCRA court treated that filing as a first PCRA petition, and on
August 31, 2010 the court filed its notice of intent to dismiss the petition
without a hearing pursuant to Pa.R.Crim.P. 907. The PCRA court dismissed
the petition on September 8, 2010 without ever having appointed counsel,
and Appellant filed a timely pro se appeal. In an unpublished memorandum
filed August 11, 2011, this court vacated and remanded for appointment of
counsel. The PCRA court appointed counsel on March 19, 2012. On January
29, 2013, the trial court once again entered notice of its intent to dismiss
petition on May 10, 2013. This timely appeal followed.2
____________________________________________
1
18 Pa.C.S.A. § 3123(a)(7) and (b).
2
Counsel and Appellant filed separate notices of appeal from the PCRA
013 order, docketed at 365 and 366 MDA 2013. By per
curiam order of August 14, 2013, we dismissed the appeal at 366 MDA 2013
(Footnote Continued Next Page)
-2-
J-S25020-14
Procedure under Turner/Finley entails the following:
Counsel petitioning to withdraw from PCRA representation
must proceed ... under [Turner/Finley and] . . . must review
the case zealously. Turner/Finley counsel must then submit a
-
Court, detailing the nature an
review of the case, listing the issues which petitioner wants to
have reviewed, explaining why and how those issues lack merit,
and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the
withdraw; and (3) a statement advising petitioner of the right to
proceed pro se or by new counsel.
[W]here counsel submits a petition and no-merit letter that
... 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.
Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012). Instantly,
requirements.
We begin our own review with an analysis of the timeliness of
l timeliness provision requires a
petitioner to file a PCRA petition within one year of the date on which the
judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). This Court
_______________________
(Footnote Continued)
In this memorandum,
2013 order.
-3-
J-S25020-14
e
Appellant did not seek allowance of appeal to our Supreme Court, his
judgment of sentence became final thirty days later, on December 3, 2007.
See Pa.R.A.P. 1113(a) (requiring an appellant to seek allowance of appeal to
the Supreme Court within 30 days
Appellant had until December 3, 2008 to file a timely PCRA petition.
petitioner can avoid the time bar if he or she pleads and proves the
applicability of one of three timeliness exceptions set forth in § 9545(b)(1)(i-
iii). Since Appellant has not attempted to plead or prove the applicability of
any of the three timeliness exceptions,3 the PCRA court was without
____________________________________________
3
Appellant asserts in his pro se brief that he filed a PCRA petition on
December 21, 2007, but he concedes that document does not appear in the
pro se Brief at 21-22. Appellant also asserts
that a time-stamped copy of his December 21, 2007 PCRA petition is
Id. at
22. That pending motion also does not appear anywhere in the certified
per
curiam
motion to supplement the record. Since the certified record contains no
evidence that Appellant filed, or attempted to file, a timely PCRA petition,
Appellant cannot avoid the jurisdictional time bar.
Appellant requested permission to proceed pro se in an application for relief
filed November 26, 2013. In an order filed December 4, 2013, this Court
deferred decision on that application to this memorandum, advising
Appellant that when counsel proceeds under Turner/Finley, this Court will
proceed pro se
(Footnote Continued Next Page)
-4-
J-S25020-14
jurisdiction to entertain his petition.4
Order affirmed. Application for Relief Granted. Petition to withdraw
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2014
_______________________
(Footnote Continued)
and reviewed his pro se brief.
4
for appointment of counsel has no bearing on the jurisdictional issue. See
Commonwealth v. Smith, 818 A.2d 494, 500-01 (Pa. 2003) (holding that
the PCRA court must appoint counsel to represent a first time petitioner,
even where the petition appears untimely).
-5-