Com. v. Sanabria, L. ( 2020 )

J-S09037-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEE SANABRIA, :
:
Appellant : No. 588 EDA 2019
Appeal from the PCRA Order Entered January 23, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005419-2016
BEFORE: SHOGAN, J., LAZARUS, J., and COLINS, J.*
JUDGMENT ORDER BY COLINS, J.: FILED APRIL 06, 2020
Appellant, Lee Sanabria, pro se, appeals from the order entered
January 23, 2019, that dismissed his first petition filed under the Post
Conviction Relief Act (“PCRA”)1 without a hearing. We affirm.
On May 22, 2017, Appellant pleaded guilty to robbery, conspiracy to
commit robbery, and possessing instruments of crime.2 On August 15, 2017,
he was sentenced to four to ten years of confinement, with a concurrent five-
year probation; he did not file a direct appeal. On July 23, 2018, Appellant,
pro se, filed his first, timely PCRA petition. The PCRA court appointed counsel
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541–9546.
2 18 Pa.C.S. §§ 3701(a)(1)(ii), 903, and 907(a), respectively.
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to represent Appellant, but, on December 17, 2018, PCRA counsel filed a
petition to withdraw and a “no merit” letter pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc). On December 19, 2018, the PCRA court
entered a notice of intent to dismiss all claims without a hearing pursuant to
Pa.R.Crim.P. 907 (“Rule 907 Notice”); the notice ordered that any response
thereto must be filed within 20 days of the date of the notice.
On January 2, 2019, Appellant, pro se, filed a request for extension of
20 additional days to file a response to the Rule 907 Notice. The request’s
explanation for Appellant’s need for an extension of time was, in its entirety:
“In light of the holidays and the new [Department of Corrections] mailing
policy[3] – and scheduling of Law Library – Petitioner cannot respond to the
Court within 20 days of 12/19/18 907 Notice.” Request for Extension of Time
to File Response to 907 Notice to Dismiss PCRA, 1/2/2019, at ¶ 2. As PCRA
counsel’s motion to withdraw had not yet been granted, on January 9, 2019,
counsel also filed a motion for extension of time to file a response to the Rule
907 Notice on Appellant’s behalf. On January 23, 2019, without ruling on
Appellant’s request for an extension of time, the PCRA court dismissed
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3 We take judicial notice that the revised mail policy of the Department of
Corrections required all incoming mail to prisoners to be first diverted to a
third-party contractor in Florida.
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Appellant’s petition and granted counsel’s motion to withdraw. On
February 19, 2019, Appellant filed this timely appeal.4
Appellant presents the following issue for our review:
Whether the [trial] court erred by dismissing [Appellant’s] PCRA
petition and abused its discretion by not granting extension of
time to file response to the court’s [Rule] 907 Notice to dismiss?
Appellant’s Brief at 2 (unnecessary capitalization omitted).
“We review the denial of PCRA relief to decide whether the PCRA court’s
factual determinations are supported by the record and are free of legal error.”
Commonwealth v. Medina, 209 A.3d 992, 996 (Pa. Super. 2019) (quoting
Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018)).
Appellant contends that the trial “court erred by dismissing [his] PCRA
petition and abused its discretion by not granting [an] extension of time to file
[a] response to the court’s [Rule] 907 Notice [.]” Appellant’s Brief at 6. He
argues that he “will clearly suffer prejudice in light of the fact that PCRA
counsel’s ineffectiveness must be raised in a Response to a Court’s 907 Notice
to Dismiss or it will be waived.” Id. at 8-9 (citations omitted); see also id.
at 5 (summary of argument).
However, Appellant failed to explain in his extension-of-time request
what he specifically intended to provide in his Rule 907 response had his
request been granted. See Request for Extension of Time to File Response to
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4Appellant filed his statement of errors complained of on appeal on March 20,
2019. The trial court entered its opinion on June 24, 2019.
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907 Notice to Dismiss PCRA, 1/2/2019, at ¶ 2. In his brief, filed more than
six months later, Appellant’s only explanation of what specific issue he would
have raised in a Rule 907 response is a bald claim of PCRA counsel’s
ineffectiveness. Appellant’s Brief at 5, 8-9.5 Appellant’s argument that the
court erred by not responding to his request for additional time to file
a Rule 907 response is not analogous to a claim that the court failed to provide
an appellant the opportunity to respond.
For the reasons given above, we conclude that Appellant’s sole issue
raised on appeal is meritless. Having discerned no error of law, we affirm the
order below. See Medina, 209 A.3d at 996.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2020
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5Appellant has not alleged that PCRA counsel’s petition to withdraw and “no
merit” letter were insufficient. See Appellant’s Brief at 5-9.
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