Com. v. Faulk, D. ( 2023 )


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  • J-S34013-23
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    DAQUAN DUANE FAULK                           :
    :
    Appellant               :   No. 153 WDA 2023
    Appeal from the PCRA Order Entered January 9, 2023
    In the Court of Common Pleas of Westmoreland County Criminal Division
    at No(s): CP-65-CR-0000596-2017
    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    DAQUAN DUANE FAULK                           :
    :
    Appellant               :   No. 444 WDA 2023
    Appeal from the PCRA Order Entered January 9, 2023
    In the Court of Common Pleas of Westmoreland County Criminal Division
    at No(s): CP-65-CR-0001868-2018
    BEFORE: LAZARUS, J., STABILE, J., and MURRAY, J.
    MEMORANDUM BY LAZARUS, J.:                         FILED: December 8, 2023
    Daquan Duane Faulk appeals, pro se, from the order, entered in the
    Court of Common Pleas of Westmoreland County, dismissing his petition1 filed
    ____________________________________________
    1 Faulk filed one petition containing both Docket Number CP-65-CR-0000596-
    2017 (No. 596-2017), and Docket Number CP-65-CR-0001868-2018 (No.
    1868-2018). We note that each of these dockets resulted in negotiated guilty
    pleas and the guilty pleas were entered in different years, as detailed infra.
    J-S34013-23
    pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
    9546.2 After careful review, we affirm.
    We adopt the following factual and procedural histories as summarized
    by the PCRA court:
    Guilty Plea Involving Docket N[o.] 596-2017
    The charges in the case at [No. 596-2017] arose from an incident
    that took place on August 17, 2016, at the Westmoreland County
    Prison. On that date, [Faulk] was recorded striking Corrections
    Officers Seth Kristoff and Joseph Sibal multiple times, causing
    them injuries that required medical treatment. [Faulk] was
    charged by criminal information on March 22, 2017 with four []
    counts of [a]ggravated [a]ssault, 18 Pa.C.S.A. §[§ ]2702(a)(2)
    and (3); two [] counts of [a]ssault by [p]risoner, [id. at] §[
    ]2703(a); and two [] counts of [s]imple [a]ssault, [id. at] §[
    ]2701(a)(1). [Faulk] had two [] other pending[, unrelated,] cases
    at the time he was charged at [No. 596-2017]. . . . On December
    14, 2016, Valerie Veltri, Esq[uire], was appointed to represent
    [Faulk] on all three [] cases. [Faulk] had already been deemed
    competent at a hearing before the Honorable Rita Hathaway [(trial
    court)]. . . on October 25, 2016. Nonetheless, [Attorney] Veltri
    filed a [p]etition for [m]ental [h]ealth [e]valuation of [Faulk] on
    September 20, 2017. Although [the trial court] granted that
    ____________________________________________
    2 On February 6, 2023, Faulk filed a single timely notice of appeal listing both
    of the above-captioned docket numbers, in violation of Pa.R.A.P. 341 and our
    Supreme Court’s holding in Commonwealth v. Walker, 
    185 A.3d 969
     (Pa.
    2018). However, our Supreme Court has recently held that appellate courts
    may permit appellants to correct a Walker violative notice of appeal where
    the underlying notice of appeal was timely filed. See Commonwealth v.
    Young, 
    265 A.3d 462
     (Pa. 2021). Accordingly, on March 31, 2023, this Court
    directed Faulk to file two amended notices of appeal in the PCRA court, with
    each notice listing only one trial court docket number. See Order, 3/31/23,
    at 1-3. In the same order, this Court directed the prothonotary, upon receipt
    of Faulk’s amended notices of appeal, to consolidate Faulk’s appeals. See id.
    at 3. Faulk complied and filed two amended notices of appeal, each with its
    own trial court docket number, on April 12, 2023. This Court sua sponte
    consolidated Faulk’s appeals. See Pa.R.A.P. 513.
    -2-
    J-S34013-23
    motion, the mental health evaluation never took place because
    [Faulk], who denied mental health problems, refused to
    cooperate.
    [Faulk] was originally set to plead guilty before [the trial court] on
    October 2, 2017. However, he postponed this [one] day because
    he wanted his mother to be present. [O]n October 3, 2017,
    [Faulk], with the advice of Attorney Veltri, executed a negotiated
    [written g]uilty [p]lea [colloquy] and entered guilty pleas at all
    three [] cases. . . . At [No. 596-2017, Faulk] agreed to plead
    guilty to two [] counts of [a]ssault by [p]risoner.            [Faulk]
    acknowledged that Attorney Veltri advised him of the following:
    1. The nature of the charges filed against him;
    2. Each element of each offense that must be proven beyond
    a reasonable doubt;
    3. Any and all lesser included [offenses];
    4. All possible defenses he might have in his case;
    5. His legal rights as a person charged with a crime; and
    6. The possible consequence of entering a guilty plea.
    [See Guilty Plea Petition, 10/3/17, at] ¶3. [Faulk] also indicated
    [his] understanding that he had the right to plead not guilty to
    any of the charges filed against him and that entering a plea of
    guilty would affect his rights to a jury trial, to a speedy trial, to
    confront his accusers[,] to compel the production of evidence, to
    the assistance of counsel, and to the right against self-
    incrimination. [Id. at ¶ 4]. [Faulk] recognized that he had been
    advised by [Attorney Veltri] of the maximum possible sentences
    to the charges to which he was pleading guilty, of the sentencing
    guidelines as they related to his prior record score, the offense
    gravity scores[,] and the possible ranges of sentences applicable
    to each crime for which he was pleading guilty. [Id. at ¶ 7].
    [Faulk] also admitted that his physical and mental health was
    satisfactory. [Id. at ¶ 12]. [Faulk] signed his name to the
    [p]etition, noting that he “offered his plea of guilty freely and
    voluntarily and of [his] own accord and free will and with full
    understanding of all the matters set forth in the [criminal
    i]nformation and in [this] petition.” [Id. at ¶ 27].
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    J-S34013-23
    After [Faulk] completed the [p]etition, [the trial court] conducted
    a colloquy[, in relevant parts,] . . . as follows:
    BY THE COURT
    Q: Do you understand your trial rights and your appeal
    rights as [Attorney] Veltri explained them to you?
    A: Yeah.
    ***
    Q: Do you understand, Mr. Faulk, at all three cases what
    you’re pleading guilty to, what the Commonwealth would
    have to prove and what the maximum penalties could be?
    ***
    A: Yes.
    Q: And you understand that if you were convicted, the
    penalties could all be consecutive meaning one on top of the
    other? If you went to trial, and you’re not going to trial, but
    if you were[,] you could get consecutive, meaning one on
    top of the other, do you understand that?
    ***
    A: Yeah
    Q: Has anybody threatened you or promised you anything
    except for this plea? Has anybody threatened you or
    promised you anything other than they promised you or said
    they would recommend this plea. . . .?
    A: No, not that I know of.
    ***
    BY [ATTORNEY] VELTRI: Your Honor, I wanted to put a few
    things on the record. We did have a competency hearing
    and there’s been an attempt by Louis Martone twice to visit
    Mr. Faulk to determine some mental health issues. This
    -4-
    J-S34013-23
    court has ruled him competent. Mr. Faulk believes he is
    competent, but as his attorney and his advocate, I do
    believe there are some issues that need to be resolved. I’m
    asking the court . . . upon sentencing if he would be seen at
    some place that could help with any kind of –
    [Faulk]: No, I don’t need [any] mental health.
    [Trial Court]: That’s not up to me. I did have a hearing in
    October of 2016. I listened to experts and I’ve determined
    that Mr. Faulk is competent.       Then you asked for a
    reevaluation on competency. My understanding is that two
    times [] Martone attempted to see your client and [Faulk]
    refused to interact with him[.]
    [N.T. Guilty Plea Hearing, 10/3/17, at 7, 11-13, 22-23, 26.]
    [The trial court accepted the negotiated plea.] In accordance with
    the negotiated plea, [the trial court] sentenced [Faulk at No. 596-
    2017] to an aggregate sentence of three [] to ten [] years[’
    imprisonment]. . . .[3] [Faulk] filed neither post-sentence motions
    nor a direct appeal [from] his judgment of sentence.
    Guilty Plea Involving Docket N[o. 1868-2018]
    At [No. 1868-2018, Faulk], on June 26, 2018, was charged by
    criminal information with [a]ttempt to [c]ommit [h]omicide, 18
    Pa.C.S.A. § 901(a), . . . and [p]erson [n]ot to [p]ossess [f]irearm,
    [id. at §] 6105(a)(1)[.] According to the complaint, on May 28,
    2017, [Faulk] shot Marque Sanders three times. On May 2, 2018,
    [Attorney] Veltri was again appointed as counsel for [Faulk].
    [Attorney Veltri] had also been appointed to represent [Faulk] at
    [another unrelated docket] for charges stemming from an alleged
    kidnapping and shooting of a woman on May 31, 2016.
    On November 19, 2018, with the assistance of Attorney Veltri,
    [Faulk] pled guilty at both docket[s]. At [No. 1868-2018], [Faulk]
    ____________________________________________
    3 Faulk was sentenced, at the other two unrelated dockets, to periods of
    incarceration of 20 to 40 years, and five to ten years, respectively. See id.
    The trial court imposed all three sentences, including the sentence at No. 596-
    2017, concurrently. See id. This resulted in an aggregate sentence of 20 to
    40 years’ incarceration from this set of plea deals. See id.
    -5-
    J-S34013-23
    agreed to plead guilty [as charged]. . . . As he had [at No. 596-
    2017], [Faulk] executed another [written g]uilty [p]lea [colloquy]
    applicable to both cases. The form was identical to that completed
    the prior year[, described supra]. During the [on-the-record]
    [g]uilty [p]lea [c]olloquy, [Faulk] indicated that he was not
    satisfied with [Attorney] Veltri’s representation, but stated that he
    was satisfied with the plea agreement. [See N.T. Guilty Plea
    Hearing, 11/19/18, at 10-11]. Pursuant to the agreement, [the
    trial court] sentenced [Faulk] to an aggregate period of
    incarceration of ten [] to twenty [] years. This was to run
    concurrent with the sentence[s] imposed on October 3, 2017 –
    meaning that [Faulk] received no additional time in prison as a
    result of these crimes. Despite being advised of his appeal rights,
    [Faulk again] filed neither post-sentence motions nor a direct
    appeal.
    PCRA Court’s Notice of Intention to Dismiss PCRA Petition, 11/21/22, at 2-7
    (footnote and some citations omitted).4
    On June 27, 2022, Faulk filed the instant pro se PCRA petition at the
    above-captioned dockets. The PCRA court appointed Kenneth Noga, Esquire,
    to represent Faulk. On August 3, 2022, Attorney Noga filed a Turner/Finley5
    no-merit letter, accompanied by a motion to withdraw.
    On November 21, 2022, the PCRA court issued notice of its intent,
    pursuant to Pa.R.Crim.P. 907, to dismiss Faulk’s PCRA as untimely filed and
    provided Faulk twenty days to file a response. See PCRA Court’s Notice of
    Intention to Dismiss PCRA Petition, 11/21/22, at 12-13.           Therefore, any
    response from Faulk was due on or before December 12, 2022.
    ____________________________________________
    4 The PCRA court incorporated its Pa.R.Crim.P. 907 notice of intent to dismiss
    into its Pa.R.A.P. 1925(a) opinion. See PCRA Court Opinion, 3/13/23, at 1.
    5 Commonwealth v. Turner, 
    544 A.2d 927
     (Pa. 1988); Commonwealth v.
    Finley, 
    550 A.2d 213
     (Pa. Super. 1988) (en banc).
    -6-
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    On December 6, 2022, Faulk filed a handwritten response, in which he
    indicated that he had been diagnosed with schizophrenia. See First Rule 907
    Response, 12/6/22, at 1.6 Additionally, Faulk stated that his diagnosis had
    prevented him from understanding his guilty pleas in the above-captioned
    cases and had further prevented him from filing timely direct appeals from his
    respective judgments of sentence. See 
    id.
     On December 27, 2022, Faulk
    filed a second response, titled “Defendant’s Response to the Commonwealth’s
    Notice to Dismiss Defendant’s Petition for Post-Conviction Relief Act.”7 See
    Second Rule 907 Response, 12/27/22, at 1.
    On January 9, 2023, the PCRA court dismissed Faulk’s PCRA petition
    concluding that it lacked jurisdiction, because Faulk’s petition was untimely
    and no exception to the PCRA time-bar applied. See Order, 1/9/23, at 2-3.
    In the same order, the PCRA court accepted Attorney Noga’s Turner/Finley
    no-merit letter and granted his motion to withdraw. See id. at 3.
    As noted supra, Faulk, acting pro se, filed timely notices of appeal, and
    a court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of
    on appeal. Faulk now raises the following claims for our review:
    ____________________________________________
    6 Faulk’s first response was otherwise unresponsive to the trial court’s Rule
    907 notice. Additionally, on appeal, Faulk only challenges the PCRA court’s
    purported failure to consider his second response, as detailed infra.
    7 Faulk’s second response was not docketed until January 6, 2023.  However,
    the PCRA court acknowledges that it was filed on or about December 27, 2022.
    See PCRA Court Opinion, 3/13/23, at 1.
    -7-
    J-S34013-23
    1. [Whether Faulk] was deprived of his protected right to effective
    assistance of counsel when after [Faulk] pled guilty, [Attorney
    Veltri,] without fil[]ing a motion to withdraw according to
    Turner/Finley, dec[i]ded to abandon [Faulk]. Did [Attorney
    Veltri] deprive[ Faulk] of his right to appeal?
    2. Because [Faulk] filed his [second response] . . . within the 30[-
    ]day deadline[,] did the [PCRA] court err[] when deciding that
    [Faulk]’s [second response] was untimely?
    Brief for Appellant, at 4.
    Prior to addressing Faulk’s claims, we must address the timeliness of
    the instant PCRA petition.   “On appeal from the denial of relief under the
    [PCRA], the standard of review is whether the findings of the PCRA court are
    supported by the record and free of legal error.” Commonwealth v. Martin,
    
    5 A.3d 177
    , 182 (Pa. 2010). Additionally, any PCRA petition “shall be filed
    within one year of the date the judgment becomes final.” 42 Pa.C.S.A. §
    9545(b)(1). A judgment of sentence becomes 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.” Id. at § 9545(b)(3). The PCRA’s timeliness requirements
    are jurisdictional in nature, and a court may not address the merits of the
    issues raised if the PCRA petition was not timely filed. Commonwealth v.
    Albrecht, 
    994 A.2d 1091
    , 1093 (Pa. 2010).
    Instantly, as noted above, Faulk’s judgment of sentence at No. 596-
    2017 was entered on October 3, 2017. Faulk did not file a direct appeal and,
    consequently, his judgment of sentence became final on November 2, 2017.
    See Pa.R.A.P. 903(a). Thus, Faulk had until November 2, 2018 to file a timely
    -8-
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    PCRA petition at No. 596-2017.        See 42 Pa.C.S.A. §§ 9545(b)(1), (3).
    Similarly, Faulk’s judgment of sentence at No. 1868-2018 was entered on
    November 19, 2018. Faulk did not file a direct appeal and, consequently, his
    judgment of sentence became final on December 19, 2018. See Pa.R.A.P.
    903(a).   Thus, Faulk had until December 19, 2019, to file a timely PCRA
    petition at No. 1868-2018. See 42 Pa.C.S.A. §§ 9545(b)(1), (3). Faulk’s
    instant petition was filed on June 27, 2022, three-and-one-half and two-and-
    one-half years beyond the one-year time limit at No. 596-2017 and No. 1868-
    2018, respectively. Thus, it is patently untimely at both dockets.
    However, Pennsylvania courts may consider an untimely petition if the
    petitioner can explicitly plead and prove one of the three exceptions set forth
    at 42 Pa.C.S.A. §§ 9545(b)(1)(i)-(iii). These three exceptions are as follows:
    (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.
    Id. Any petition invoking one of these exceptions “shall be filed within one
    year of the date the claim could have been presented.” Id. at § 9545(b)(2).
    -9-
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    “The PCRA petitioner bears the burden of proving the applicability of one of
    the exceptions.” Commonwealth v. Spotz, 
    171 A.3d 675
    , 678 (Pa. 2017).
    In his first claim, Faulk does not invoke any of the three PCRA time-bar
    exceptions and, therefore, his petition is untimely.    See Albrecht, supra.
    Accordingly, we discern no error in the PCRA court’s dismissal of Faulk’s PCRA
    petition as untimely, as the PCRA court was without jurisdiction to review the
    merits of his petition.8
    In his second claim, Faulk contends that the PCRA court erred in failing
    to consider his second response to the PCRA court’s Rule 907 notice as timely
    filed. See Brief for Appellant, at 14-15. Faulk argues that, as an incarcerated
    individual, he should have been afforded the benefits of the “prisoner mailbox
    rule” in filing his second response. See id. Faulk asserts that he had 30 days
    to file a timely response, and his hand-dated cover page indicates that he filed
    his second response on December 14, 2022, within the 30-day time period.
    See id.
    ____________________________________________
    8   To the extent that Faulk argues Attorney Veltri rendered ineffective
    assistance of counsel by failing to withdraw from representation and thereby
    precluded Faulk from filing a direct appeal, this claim is without merit. The
    courts of this Commonwealth have long frowned upon hybrid representation.
    See Commonwealth v. Jette, 
    23 A.3d 1032
    , 1036 (Pa. 2011). However,
    this bar on hybrid representation does not extend to the filing of a notice
    of appeal. See Commonwealth v. Williams, 
    151 A.3d 621
    , 624 (Pa.
    Super. 2016) (“this Court is required to docket a pro se notice of appeal
    despite [a]ppellant being represented by counsel”). Thus, Faulk could have
    filed a pro se notice of appeal after he plead guilty at any of the above-
    captioned dockets, while still represented by Attorney Veltri. See 
    id.
    - 10 -
    J-S34013-23
    The “prisoner mailbox rule” provides that “[a] pro se filing submitted by
    a person incarcerated in a correctional facility is deemed filed as of the date
    of the prison postmark or the date the filing was delivered to the prison
    authorities as documented by a properly executed prisoner cash slip or
    other reasonably verifiable evidence.”            Pa.R.A.P. 121(f) (emphasis
    added).
    As we noted supra, on November 21, 2022, the PCRA court issued
    notice of its intent to dismiss Faulk’s PCRA petition, and afforded Faulk 20
    days to file a response. See Order, 11/21/22, at 1; see also Pa.R.Crim.P.
    907(1) (PCRA petitioners have 20 days to file timely response to notice of
    intent to dismiss).   Faulk’s second response was docketed as received on
    January 9, 2023, well outside the 20-day limit. However, as stated above,
    the PCRA court indicated that it received Faulk’s second response on
    December 27, 2022, and, consequently, considered it filed on that date. See
    PCRA Court Opinion, 3/13/23, at 1.
    In filing his second response, Faulk provided no prison cash slip, nor any
    other reasonably verifiable evidence as required by the prisoner mailbox rule.
    See Pa.R.A.P. 121(f). Indeed, despite his contentions to the contrary, a hand-
    dated cover sheet is insufficient evidence of the date it was handed to prison
    authorities because it effectively boils down to a bald assertion.
    - 11 -
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    In any event, none of the three dates, January 9, 2023, December 27,
    2022, or December 14, 2022, fall within the 20-day period9 within which Faulk
    was permitted to file a timely response. See Order, 11/21/22, at 1; see also
    Pa.R.Crim.P. 907(1). Moreover, this was Faulk’s second response, and he
    neither petitioned nor received permission to file any additional responses.
    Consequently, this claim is without merit and the PCRA court did not err in
    finding Faulk’s second response untimely. See Pa.R.A.P. 121(f).
    Order affirmed.
    DATE: 12/8/2023
    ____________________________________________
    9 As noted above, the 20-day period ended on December 12, 2022, a Monday.
    - 12 -
    

Document Info

Docket Number: 153 WDA 2023

Judges: Lazarus, J.

Filed Date: 12/8/2023

Precedential Status: Non-Precedential

Modified Date: 12/13/2024