Com. v. Furman, C. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
CERRONE FURMAN :
:
Appellant : No. 203 EDA 2021
Appeal from the PCRA Order Entered December 9, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0402812-2001,
CP-51-CR-0402822-2001
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CERRONE FURMAN :
:
Appellant : No. 204 EDA 2021
Appeal from the PCRA Order Entered December 9, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0402812-2001,
CP-51-CR-0402822-2001
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 29, 2021
Appellant, Cerrone Furman, appeals from the post-conviction court’s
December 9, 2020 order denying, as untimely, his petition filed under the Post
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* Former Justice specially assigned to the Superior Court.
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Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review,
we affirm.
The facts of Appellant’s underlying convictions are not pertinent to his
present appeal. We only note that on April 27, 2005, a jury convicted
Appellant of second-degree murder and possessing an instrument of crime in
two separate, but consolidated cases. On June 17, 2005, he was sentenced
to an aggregate term of life incarceration without the possibility of parole. 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. Furman, 911 A.2d 180 (Pa. Super. 2006) (unpublished
memorandum), appeal denied, 917 A.2d 313 (Pa. 2007).
Over the next decade, Appellant litigated three unsuccessful PCRA
petitions. On July 13, 2018, he filed his fourth, pro se petition, which underlies
his present appeal. Therein, Appellant claimed that his petition was timely-
filed after the United States Supreme Court’s decision in McCoy v. Louisiana,
138 S.Ct. 1500 (2018), which Appellant claimed created a new constitutional
right that applies retroactively to his case. On September 8, 2020, the PCRA
court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s
petition without a hearing on the basis that it was untimely. Appellant filed a
pro se response, but on December 9, 2020, the court issued an order
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dismissing his untimely petition. Appellant filed timely, pro se notices of
appeal in each of his two underlying cases.1
Appellant presents one question for our review: “Did the PCRA court
err[] by arbitrarily dismissing [the] petition when it ignored a timely request
for an extension of time, and leave to amend, wherein [Appellant]
demonstrated the petition was timely under 42 Pa.C.S. § 9545(b)(1)(i), and
[Appellant had] no access to [the] law library due to [a] COVID-19 prison
lockdown?” Appellant’s Brief at 4 (unnumbered; some capitalization omitted,
some added).
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 addressing the
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1 Our Court sua sponte consolidated Appellant’s appeals on March 18, 2021.
We recognize that Appellant’s notices of appeal each set forth both docket
numbers of his underlying cases. In Commonwealth v. Walker, 185 A.3d
969, 977 (Pa. 2018), our Supreme Court held that “the proper practice under
[Pa.R.A.P.] 341(a) is to file separate appeals from an order that resolves
issues arising on more than one docket. The failure to do so requires the
appellate court to quash the appeal.” Here, Appellant filed a separate notice
of appeal at each docket number. Therefore, although he included both case
numbers on each notice of appeal, we conclude that he complied with Rule
341 and Walker. See Commonwealth v. Johnson, 236 A.3d 1141, 1148
(Pa. Super. 2020) (“Based on our review of Walker and Rule 341, Johnson
filed separate notices that perfected four appeals from each of the four
common pleas court dockets. The fact that the notices contained all four lower
court numbers is of no consequence. Indeed, the Rules of Appellate Procedure
are to be liberally construed to effectuate justice.”) (citations omitted), appeal
denied, 242 A.3d 304 (Pa. 2020).
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timeliness of Appellant’s petition, because the PCRA time limitations implicate
our jurisdiction and may not be altered or disregarded in 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
any petition attempting to invoke one of these exceptions “be filed within one
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year of the date the claim could have been presented.” 42 Pa.C.S. §
9545(b)(2).2
Here, Appellant’s judgment of sentence became final in 2007. Thus,
his present petition filed in 2018 is patently untimely and, for this Court to
have jurisdiction to review the merits thereof, Appellant must prove that he
meets one of the exceptions to the timeliness requirements set forth in 42
Pa.C.S. § 9545(b). As set forth above, Appellant argued in his pro se petition
that he meets the new-retroactive-right exception of section 9545(b)(1)(iii)
based on McCoy. Herein, however, he seemingly changes his argument, now
claiming that he raised a McCoy claim in a timely-filed PCRA petition in 2007,
but that his attorney “failed to brief … that claim” and, instead, sought to
withdraw on the basis that Appellant’s petition was meritless. Appellant’s Brief
at 6 (unnumbered). Appellant insists that prior PCRA counsel’s alleged
ineffectiveness in this regard somehow obstructed his ability to file a ‘direct
appeal.’ Id.
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2 Section 9545(b)(2) previously required that a petition be filed within 60 days
that the claim could have been presented, but an amendment to that
provision, effective December 24, 2018, changed the language to that quoted
supra, requiring that a petition be filed within one year. 42 Pa.C.S. §
9545(b)(2). That amendment applies to any claims arising on or after
December 24, 2017. Because McCoy was decided on May 14, 2018,
Appellant’s petition was required to be raised within one year of McCoy’s
issuance, which it was.
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Appellant’s confusing ineffectiveness argument fails to meet the
governmental-interference timeliness exception. Initially, our Supreme Court
has stated that,
[c]laims relating to ineffectiveness of counsel for failing to raise
certain issues do not qualify [under section 9545(b)(1)(i)] due to
the specific provision in 42 Pa.C.S. § 9545(b)(4) that the term
‘government officials’ does not include defense counsel.”
Commonwealth v. Pursell, … 749 A.2d 911, 916 ([Pa.] 2000);
see also Commonwealth v. Yarris, …731 A.2d 581, 587 ([Pa.]
1999) (“[T]he drafters of the 1995 amendments specifically
excluded ‘defense counsel’ from such officials. 42 Pa.C.S. §
9545(b)(4). Therefore, [s]ection 9545(b)(1)(i) does not operate
to save [an] appellant’s claims of ineffective assistance of counsel
from the bar of untimeliness.”). [The a]ppellant has failed to meet
the governmental interference exception.
Commonwealth v. Abu-Jamal, 833 A.2d 719, 725 (Pa. 2003).
Moreover, to the extent Appellant claimed in his petition that McCoy
satisfies the new-retroactive-right exception of section 9545(b)(1)(iii), that
claim also fails. This Court has explained:
Subsection (iii) of Section 9545 has two requirements. First, it
provides that the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or this court
after the time provided in this section. Second, it provides that
the right “has been held” by “that court” to apply retroactively.
Thus, a petitioner must prove that there is a “new” constitutional
right and that the right “has been held” by that court to apply
retroactively. The language “has been held” is in the past tense.
These words mean that the action has already occurred, i.e., “that
court” has already held the new constitutional right to be
retroactive to cases on collateral review. By employing the past
tense in writing this provision, the legislature clearly intended that
the right was already recognized at the time the petition was filed.
Commonwealth v. Murphy, 180 A.3d 402, 405 (Pa. Super. 2018) (citation
omitted), appeal denied, 195 A.3d 559 (Pa. 2018).
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In McCoy, the Supreme Court declared that,
[w]hen a client expressly asserts that the objective of “his
defence” is to maintain innocence of the charged criminal acts, his
lawyer must abide by that objective and may not override it by
conceding guilt. U.S. Const. Amdt. 6 (emphasis added)….
Preserving for the defendant the ability to decide whether to
maintain his innocence should not displace counsel’s, or the
court’s, respective trial management roles.
McCoy, 138 S.Ct. at 1509 (emphasis and quotation marks in original; some
citations omitted). The McCoy Court further explained:
Violation of a defendant’s Sixth Amendment-secured autonomy
ranks as error of the kind our decisions have called “structural”;
when present, such an error is not subject to harmless-error
review. ... Structural error affect[s] the framework within which
the trial proceeds, as distinguished from a lapse or flaw that is
simply an error in the trial process itself. An error may be ranked
structural, we have explained, if the right at issue is not designed
to protect the defendant from erroneous conviction but instead
protects some other interest, such as the fundamental legal
principle that a defendant must be allowed to make his own
choices about the proper way to protect his own liberty. An error
might also count as structural when its effects are too hard to
measure, as is true of the right to counsel of choice, or where the
error will inevitably signal fundamental unfairness, as we have
said of a judge’s failure to tell the jury that it may not convict
unless it finds the defendant's guilt beyond a reasonable doubt.
Under at least the first two rationales, counsel’s admission of a
client's guilt over the client’s express objection is error structural
in kind. Such an admission blocks the defendant’s right to make
the fundamental choices about his own defense. And the effects
of the admission would be immeasurable, because a jury would
almost certainly be swayed by a lawyer’s concession of his client’s
guilt.
Id. at 1511 (citations and quotation marks omitted).
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In our unpublished, yet persuasive, decision in Commonwealth v.
Hoffman, No. 856 WDA 2019, unpublished memorandum (Pa. Super. filed
Jan. 13, 2020), we explained:
[A] defendant’s “secured autonomy” under the Sixth Amendment
is not a “new” constitutional right. See, e.g., Florida v. Nixon,
543 U.S. 175 … (2004) (recognizing [a] defendant’s ultimate
authority to decide whether to plead guilty, waive jury trial, testify
in his own defense, or take appeal); Faretta v. California, 422
U.S. 806 … (1975) (explaining [the] Sixth Amendment grants to
accused personally right to make his own defense; Sixth
Amendment speaks of “assistance” of counsel; “assistant,”
however expert, is still assistant). McCoy simply applied a
defendant’s well-rooted Sixth Amendment right to autonomy to a
new set of circumstances. See, e.g., Commonwealth v.
Garcia, 23 A.3d 1059 (Pa. Super. 2011), appeal denied, 38 A.3d
823 ([Pa.] 2012) (holding [the] application of criminal defendant’s
long-standing constitutional right to effective assistance of
counsel to new set of facts did not create “new constitutional right”
under PCRA). See 42 Pa.C.S.[] § 9545(b)(1)(iii). Thus, the
PCRA court properly dismissed [Hoffman’s] current petition as
untimely.
Id. at *1–2. See also Commonwealth v. Gonzalez, 242 A.3d 416, at *4-
5 (Pa. Super. 2020) (unpublished memorandum) (citing Hoffman in
concluding that McCoy does not create a new constitutional right).
Here, we likewise conclude that Appellant cannot rely on McCoy to meet
the timeliness exception of section 9545(b)(1)(iii), as that case does not
create a new constitutional right. Moreover, even if it did, the Supreme Court
has not held that McCoy applies retroactively. Thus, Appellant has failed to
satisfy section 9545(b)(1)(iii) on this basis, as well. See Gonzalez, 242 A.3d
at *5 (citing Commonwealth v. Brown, 237 A.3d 1057, at *7 (Pa. Super.
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2020) (unpublished memorandum) (finding that McCoy does not apply
retroactively)).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/2021
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