Com. v. Larry, D. ( 2019 )

J-S51010-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DY'QUEAL AKEEM LARRY :
:
Appellant : No. 851 MDA 2018
Appeal from the PCRA Order April 26, 2018
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0000703-2008
BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.
MEMORANDUM BY PANELLA, P.J.: FILED: NOVEMBER 20, 2019
Dy’queal Akeem Larry (“Larry”) appeals from the order dismissing his
fifth serial petition for relief pursuant to the Post-Conviction Relief Act (PCRA),
42 Pa.C.S.A. §§ 9541-9546. The PCRA court dismissed the untimely petition
for lack of jurisdiction. Counsel has filed an Anders brief and a petition to
withdraw from further representation.1 We grant the petition to withdraw and
affirm the order of dismissal, which denied PCRA relief.
____________________________________________
1 Anders v. California, 386 U.S. 738 (1967). A Turner/Finley “no merit”
letter is the appropriate filing where counsel seeks to withdraw from an appeal
of the denial of PCRA relief. See Commonwealth v. Turner, 544 A.2d 927
(Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc). However, because an Anders brief provides greater protection to the
defendant, we may accept an Anders brief in lieu of a Turner/Finley
no-merit letter. See Commonwealth v. Fusselman, 866 A.2d 1109, 1111
n.3 (Pa. Super. 2004).
J-S51010-19
Briefly summarized, on December 8, 2008, Larry entered a nolo
contendere plea to murder of the third degree.2 His nolo plea stemmed from
a confrontation that occurred after Larry, working with cohort David Mable,
sold counterfeit cocaine to a street customer, Francis Trimboli. When Trimboli
realized he had been cheated, he got angry and knocked Larry off the bicycle
he was riding. Trimboli’s girlfriend, Christine Zelinsky, apparently tried to
break up the ensuing scuffle. Larry claimed that he only fired a handgun into
the air. Larry’s accomplice, Mable, also claimed he fired a handgun into the
air. However, one shot, apparently fired by Mable, fatally wounded Zelinsky
in the neck. Both Mable and Larry were charged with murder. Both eventually
pleaded to third degree murder.
In exchange for Larry’s open plea, the Commonwealth agreed not to
pursue a maximum sentence. See N.T. Hearing, 12/08/08, at 16. Therefore,
the plea removed the risk that Larry could be convicted of first-degree murder
and subject to a sentence of life without parole.
On January 26, 2009, the trial court sentenced Larry to a term of
incarceration of not less than fifteen nor more than forty years in a state
correctional institution. The trial court denied Larry’s motion for a modification
of sentence. No direct appeal was filed. Consequently, Larry’s judgment of
____________________________________________
2“Preliminarily, we note that in terms of its effect upon a case, a plea of nolo
contendere is treated the same as a guilty plea.” Commonwealth v. Leidig,
850 A.2d 743, 745 (Pa. Super. 2004).
-2-
J-S51010-19
sentence became final on February 25, 2009. He had until February 25, 2010
to file a timely PCRA petition.
Larry’s four previous PCRA petitions were all unsuccessful. See
Commonwealth v. Larry, 351 MDA 2016, 159 A.3d 1000 (Pa. Super. filed
December 12, 2016), (unpublished memorandum) (affirming denial of fourth
PCRA petition).
Larry filed the instant fifth PCRA petition, pro se, prematurely on August
17, 2016. The PCRA court appointed counsel to represent Larry. At the
conclusion of a PCRA hearing on April 26, 2018, the court denied the petition
as untimely.3 Larry filed a timely appeal on May 22, 2018. On May 24, 2018,
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), the PCRA court
directed Larry to file a statement of errors complained of on appeal. On August
27, 2018, he complied. See Pa.R.A.P. 1925(b). The PCRA Court filed an
opinion on May 1, 2019. See Pa.R.A.P. 1925(a).
____________________________________________
3We note the PCRA court’s observation that no transcript of the PCRA hearing
was provided for the record. See Rule 1925(a) Opinion, 5/01/19, at 4. “This
Court cannot meaningfully review claims raised on appeal unless we are
provided with a full and complete certified record.” See Commonwealth v.
Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (citation omitted). A copy of the
notes of testimony is attached to the Anders brief. This is not compliant with
our Rules of Appellate procedure. In any event, nothing in the notes of the
hearing would affect our review or disposition.
-3-
J-S51010-19
As previously noted, counsel filed an Anders brief, and a motion to
withdraw as counsel. Counsel notified Larry of the petition to withdraw, and
sent him a copy of the Anders brief. Appellant has not responded.
The Anders brief presents one question for our review:
Whether the Appellant’s appeal that his PCRA was improperly
denied as untimely is wholly frivolous and without arguable merit
within the meaning of Anders v. California, 368 U.S. 728
(1967); Commonwealth v. McClendon, 434 A.2d 1185 (Pa.
1981); and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009)?
(Anders Brief, at 5)4.
Our standard of review is well-settled.
When reviewing a PCRA court’s dismissal of a PCRA petition,
this Court “is limited to examining whether the PCRA court's
determination is supported by the evidence of record and free of
legal error.” Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa.
Super. 2003) (en banc) (citation omitted). Before addressing the
merits of Appellant’s claims, we must first determine whether we
have jurisdiction to entertain the underlying PCRA petition. See
Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)
(explaining that timeliness of PCRA petition is a jurisdictional
requisite).
Under the PCRA, a PCRA petition “shall be filed within one
year of the date the judgment becomes final[.]” 42 Pa.C.S. §
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 the review.”
42 Pa.C.S. § 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.
____________________________________________
4 The Commonwealth did not file a brief. See Letter in Lieu of Brief, filed
8/05/19.
-4-
J-S51010-19
Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
In this case, Appellant filed the instant petition more than five years
after his judgment of sentence became final following his nolo contendere
plea. Accordingly, it is facially untimely under the PCRA. However,
Pennsylvania courts may consider an untimely PCRA petition if the appellant
can plead and prove one of the three exceptions to the statutory time-bar set
forth in 42 Pa.C.S.A. § 9545(b), which provides the following:
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.
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the date the claim
could have been presented.
-5-
J-S51010-19
42 Pa.C.S.A. § 9545(b)(1)–(2). See, e.g., Commonwealth v. Lark, 746
A.2d 585, 588 (Pa. 2000) (applying sixty-day time limit after reviewing
specific facts that demonstrated claim was timely raised).
Here, nothing in the record supports a claim under any of the statutory
exceptions. Moreover, counsel identifies issues that Larry has
mischaracterized (e.g., there was no mandatory minimum sentence), or were
previously litigated (e.g., the nolo plea), which would not establish an
exception to the time-bar.
While the brief fails to cite case law relevant to the question of
timeliness, we find the statutory requirements to be correctly identified and
the applicable time limits to be straightforward. Further, while counsel has not
certified that she served Larry with the brief or the petition to withdraw, she
has filed a copy of the Friend5 letter she mailed him which indicates that she
enclosed a copy of her Anders brief. The Friend letter also advises Larry that
counsel was contemporaneously filing a petition to withdraw. We are satisfied
on review that counsel has substantially complied with the Turner/Finley
requirements. Larry has not filed any response.
On independent review, we agree with counsel’s assessment that all of
Larry’s claims lack merit. Larry’s petition is untimely with no statutory
exception to the PCRA time bar pleaded or proven. The PCRA court properly
____________________________________________
5 Commonwealth v. Friend, 896 A.2d 607, 615 (Pa. Super. 2006)
-6-
J-S51010-19
decided that it lacked jurisdiction to review Larry’s underlying claims.
Accordingly, we grant the petition to withdraw and affirm the denial of PCRA
relief.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/2019
-7-