Com. v. Franklin, V. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VINCENT FRANKLIN :
:
Appellant : No. 924 EDA 2020
Appeal from the PCRA Order Entered February 24, 2020
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0000743-2004
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY BENDER, P.J.E.: Filed: April 8, 2021
Appellant, Vincent Franklin, appeals pro se from the post-conviction
court’s order dismissing, as untimely, his petition filed under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review,
we affirm.
On March 8, 2005, Appellant was convicted by a jury of various sexual
offenses, including rape and involuntary deviate sexual intercourse.
Appellant’s convictions stemmed from evidence that he had committed
ongoing, sexual abuse of his girlfriend’s minor daughter over the course of
four years. For his crimes, Appellant was sentenced to an aggregate term of
25 to 50 years’ incarceration. On direct appeal, this Court affirmed his
judgment of sentence, and our Supreme Court denied his subsequent petition
for allowance of appeal. See Commonwealth v. Franklin, 911 A.2d 179J-S02012-21
(Pa. Super. 2006) (unpublished memorandum), appeal denied, 917 A.2d 313(Pa. 2007).
Due to procedural circumstances not pertinent to our disposition of this
appeal, Appellant’s sentence for rape was subsequently vacated, and he was
resentenced on May 23, 2014. The court imposed the same, aggregate term
of 25 to 50 years’ incarceration. We again affirmed his judgment of sentence
on direct appeal, and our Supreme Court denied review. See
Commonwealth v. Franklin, 135 A.3d 662 (Pa. Super. 2015) (unpublished
memorandum), appeal denied, 14 A.3d 723 (Pa. 2016).
On July 27, 2017, Appellant filed a pro se PCRA petition (hereinafter
“prior Petition”), and counsel was appointed. After conducting an evidentiary
hearing on December 11, 2017, the PCRA court dismissed Appellant’s prior
Petition. On appeal, this Court affirmed, concluding that Appellant’s claims
were untimely. See Commonwealth v. Franklin, 130 EDA 2019,
unpublished memorandum at 4 (Pa. Super. filed July 15, 2019). We reasoned
that Appellant’s resentencing did not “reset the clock” for his post-conviction
claims, which attacked his underlying convictions that had become final in
2007. Id. Because Appellant made no attempt to argue the applicability of
any PCRA timeliness exception, we affirmed the court’s order denying his
petition as untimely. Id. Our Supreme Court denied Appellant’s petition for
allowance of appeal. See Commonwealth v. Franklin, 221 A.3d 647 (Pa.
2019).
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On January 15, 2020, Appellant filed the pro se PCRA petition that
underlies his present appeal. Counsel was appointed, and filed a
Turner/Finley1 ‘no-merit’ letter and petition to withdraw. The PCRA court
issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition
without a hearing, and granted counsel’s petition to withdraw. Appellant did
not respond. On February 24, 2020, the court issued an order and opinion
dismissing his petition as being untimely.
Appellant filed a timely, pro se notice of appeal. He also complied with
the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The court filed a Rule 1925(a) opinion on May 20,
2020, stating that it was relying on the reasons set forth in its February 24,
2020 opinion for dismissing Appellant’s petition.
Before addressing the argument presented in Appellant’s pro se brief,
we note that this Court’s standard of review regarding an order denying a
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. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin
by examining the timeliness of Appellant’s petition, because the PCRA time
limitations implicate our jurisdiction and may not be altered or disregarded in
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1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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order to address the merits of a petition. See Commonwealth v. Bennett,
930 A.2d 1264, 1267 (Pa. 2007). Under the PCRA, any petition for post-
conviction relief, including a second or subsequent one, must be filed within
one year of the date the judgment of sentence becomes final, unless one of
the following exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition alleges
and the petitioner proves that:
(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
(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. § 9545(b)(1)(i)-(iii). Additionally, section 9545(b)(2) requires that
a petition “be filed within one year of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Appellant’s judgment of sentence, related to issues arising from
his resentencing hearing, became final on November 21, 2016. Thus, his
present petition, filed in January of 2020, is patently untimely, and Appellant
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must prove the applicability of a timeliness exception to trigger this Court’s
jurisdiction to review his claims.
Appellant contends that he meets the governmental interference
exception.2 Specifically, he avers that in his prior Petition, denied in November
of 2018, he raised “issues regarding sentencing counsel’s ineffective
assistance of counsel, a merger issue, and an illegal sentence.” Appellant’s
Brief at 14. He insists that these claims were argued before the prior PCRA
court at the evidentiary hearing held on December 11, 2017. Appellant
contends that these issues were timely, as they stemmed from his
resentencing on May 23, 2014, and that he has been precluded from pursuing
these claims because the government has denied him access to the record of
the December 11, 2017 hearing. Appellant insists that, despite repeated
requests, he has been denied a copy of the transcript of that hearing. Thus,
he maintains that the government interfered with his ability to appeal from
the denial of his prior Petition raising these ostensibly timely, collateral attacks
on his May 23, 2014 sentence.
Initially, in Appellant’s pro se PCRA petition, he made no mention of the
alleged interference by the government in obtaining the transcript of the
December 11, 2017 hearing. Instead, he claimed only that his sentence is
greater than the lawful maximum, and that his trial counsel acted ineffectively
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2 We note that Appellant has not included a Statement of the Questions
Involved section in his appellate brief. See Pa.R.A.P. 2116. However, we can
glean his issue from the first paragraph of the Argument section of his brief.
See Appellant’s Brief at 10.
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by not challenging his illegal sentence. See PCRA Petition, 1/15/20, at 2-7;
PCRA Court Opinion, 2/24/20, at 11 (stating that Appellant raised four issues
in his pro se petition: three challenges to the legality of his sentence, and one
“undefined” claim of ineffective assistance of counsel). Because Appellant
failed to plead the applicability of any timeliness exception in his petition, the
PCRA court lacked jurisdiction to consider the merits of his issues, and he has
not preserved his governmental-interference claim for our review. See
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot
be raised for the first time on appeal.”).
In any event, we would deem Appellant’s governmental-interference
argument meritless. Notably, Appellant was counseled during the litigation of
his prior Petition, as well as on appeal from the denial thereof. In that appeal,
his counsel presented claims pertaining to Appellant’s 2005 convictions, which
led to this Court’s concluding that those issues were untimely. See Franklin,
No. 130 EDA 2019, unpublished memorandum at 4. At no point did
Appellant’s counsel argue that there were any issues pertaining to Appellant’s
2014 resentencing, or assert that counsel could not raise such claims because
the December 11, 2017 PCRA hearing transcript was unavailable. Thus, to
the extent Appellant now claims he was denied review of challenges to his May
23, 2014 resentencing, that denial was due to his counsel’s failure to assert
such issues on appeal, not because the government interfered with Appellant’s
ability to do so. Accordingly, even if preserved, we would conclude that
Appellant’s governmental-interference claim is meritless.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/8/21
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