Com. v. Brown, T.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TYREE BROWN, :
:
Appellant : No. 1228 EDA 2014
Appeal from the PCRA Order March 17, 2014,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-0011343-2007
BEFORE: DONOHUE, WECHT and JENKINS, JJ.
MEMORANDUM BY DONOHUE, J.: FILED FEBRUARY 13, 2015
Tyree Brown (“Brown”) appeals the March 17, 2014 order entered by
the Philadelphia County Court of Common Pleas, Criminal Division,
dismissing his petition filed pursuant to the Post-Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-46, as untimely. We affirm.
The trial court aptly summarized the relevant facts and procedural
history of this case as follows:
On February 23, 2009, pursuant to negotiation
between the parties, Brown pled guilty to the
following offenses: Murder of the Third Degree
(“Murder”), 18 Pa.C.S. § 2502(c); Robbery –
Threatening Serious Bodily Injury (“Robbery”),
18 Pa.C.S. § 3701(a)(1)(ii); and Criminal Conspiracy
– Engaging in Murder of the Third Degree
(“Conspiracy”), 18 Pa.C.S. § 903(a)(1). On February
23, 2009, the [c]ourt sentenced Brown to the
following terms of incarceration: twenty to forty
(20-40) years [of] incarceration for Murder,
consecutive to eight to twenty (8-20) years [of]
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incarceration for Robbery to run concurrently with
eight to twenty (8-20) years [of] incarceration for
Conspiracy. Brown was represented by Daniel
Stevenson, Esquire at trial. Because Brown did not
file a post-sentence motion or notice of appeal, his
sentence became final thirty days from sentencing,
March 25, 2009. 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P.
903.
Brown allegedly asked Trial Counsel to file an appeal
on the date of his sentencing, February 23, 2009.
PCRA Pet. at 2. Brown allegedly never heard from
Trial Counsel and wrote a letter inquiring about the
status of his appeal on March 25, 2009. Id.
Attached to Brown’s PCRA Petition was a letter
appearing to be from Brown to Trial Counsel. PCRA
Pet. (Ex. A). Contrary to his claim that he sent a
letter March 25, 2009, the letter attached to his
petition is dated March 5, 2009, and indicates that it
was Brown’s second letter to Trial Counsel although
Brown’s Petition is silent regarding other letters. Id.
Approximately three years later, on March 19, 2012,
Brown alleges that he wrote the Superior Court of
Pennsylvania to inquire about the status of his
appeal. PCRA Pet. at 2. On June 4, 2012, Brown
was allegedly informed by the Prothonotary’s Office
of the Superior Court that they had no appeal on file.
Id. Brown attached the alleged letter from the
Prothonotary’s Office to his Petition. PCRA Pet. (Ex.
A).
On July 6, 2012, Brown untimely filed a pro se PCRA
Petition, therein asking the [c]ourt to reinstate his
appeal rights because Trial Counsel was ineffective
and abandoned him because counsel did not file
Brown’s requested appeal. Brown’s sentence
became final on March 25, 2009 as no motion or
notice of appeal was filed. 42 Pa.C.S. § 9545(b)(3);
Pa.R.A.P. 903. Brown then had one year, until
March 25, 2010, to file a PCRA Petition. 42 Pa.C.S. §
9545(b)(1). Thus, Brown’s pro se PCRA Petition on
July 6, 2012 was more than two years after the
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statute of limitations expired and more than three
years after his sentence became final.
On August 9, 2012, Brown filed an untimely Motion
to Amend his pro se PCRA Petition, characterizing his
claim as one upon which the facts were unknown to
him and could not have been ascertained by the
exercise of due diligence. PCRA Pet. Amend. Brown
further claimed that since he was not aware of the
facts until he received notice from the Prothonotary’s
Office of the Superior Court on June 4, 2012, his
claim was presented well within 60 days. Id. On
May 5, 2013, Brown was appointed PCRA Counsel,
John P. Cotter, Esquire.
On September 24, 2013, PCRA Counsel, acting in
accordance with Commonwealth v. Finley, 550
A.2d 213 (Pa. Super. 1988), filed a Motion to
Withdraw as Counsel and a letter stating that the
issues raised in Brown’s pro se PCRA petition were
meritless and that no issues of arguable merit could
be raised in a counseled petition.
On January 13, 2014, after conducting its own
independent review of the record, this [c]ourt agreed
with PCRA Counsel and issued Notice of Intent to
Dismiss pursuant to Pa.R.Crim.P. 907. Brown filed
his response on February 7, 2014. The [c]ourt
formally dismissed Brown’s PCRA petition by order
dated March 17, 2014 and granted PCRA Counsel
leave to withdraw from further representation of
Brown.
On April 10, 2014, Brown timely filed a Notice of
Appeal to the Superior Court. On April 17, 2014, the
[c]ourt ordered Brown to file a Concise Statement of
Matters Complained of pursuant to Pa.R.A.P. 1925(b)
(“1925(b) Statement”). On May 7, 2014, Brown
complied and filed his 1925(b) Statement[.]
Trial Court Opinion, 7/21/14, at 1-3.
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“Pennsylvania law makes clear no court has jurisdiction to hear an
untimely PCRA petition.” Commonwealth v. Monaco, 996 A.2d 1076,
1079 (Pa. Super. 2010) (quoting Commonwealth v. Robinson, 837 A.2d
1157, 1161 (Pa. 2003)). A petitioner must file a PCRA petition within one
year of the date on which the petitioner’s judgment became final, unless one
of the three following statutory exceptions applies:
(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.A. § 9545(b)(1). A petitioner must file a petition invoking one of
these exceptions “within 60 days of the date the claim could have been
presented.” 42 Pa.C.S.A. § 9545(b)(2). If a petition is untimely, and the
petitioner has not pled and proven any exception, “‘neither this Court nor
the trial court has jurisdiction over the petition. Without jurisdiction, we
simply do not have the legal authority to address the substantive claims.’”
Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)
(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).
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Here, Brown’s PCRA petition, as the trial court points out, is facially
untimely. “A judgment is deemed 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.’” Monaco, 996 A.2d at 1079 (quoting 42 Pa.C.S.A. §
9545(b)(3)). The trial court entered Brown’s judgment of sentence on
February 23, 2009. Brown filed no post-sentence motions or a direct
appeal. Therefore, Brown’s judgment of sentence became final thirty days
from February 23, 2009, or March 25, 2009. See Pa.R.A.P. 903(a) (“Except
as otherwise prescribed by this rule, the notice of appeal … shall be filed
within 30 days after the entry of the order from which the appeal is taken.”).
Under section 9545(b)(1), Brown needed to file a PCRA petition one year
from March 25, 2009, or March 25, 2010. Brown did not file his PCRA
petition until July 6, 2012. Accordingly, we are without jurisdiction to decide
Brown’s appeal unless he pled and proved one of the three timeliness
exceptions of section 9545(b)(1). See Derrickson, 923 A.2d at 468.
In this case, Brown pled the exception under section 9545(b)(1)(ii),
averring that he did not know that his trial counsel did not file a direct
appeal on his behalf until June 4, 2012, well within sixty days of when he
filed his PCRA petition. Amended PCRA Petition, 8/9/12, ¶ 1. However,
Brown has failed to raise this issue in his 1925(b) statement and in his
appellate brief on appeal. In Commonwealth v. Hill, 16 A.3d 484 (Pa.
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2011), our Supreme Court stated the following with respect to waiver under
Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure:
Our jurisprudence is clear and well-settled, and
firmly establishes that: Rule 1925(b) sets out a
simple bright-line rule, which obligates an appellant
to file and serve a Rule 1925(b) statement, when so
ordered; any issues not raised in a Rule 1925(b)
statement will be deemed waived; the courts lack
the authority to countenance deviations from the
Rule’s terms; the Rule’s provisions are not subject to
ad hoc exceptions or selective enforcement;
appellants and their counsel are responsible for
complying with the Rule’s requirements; Rule 1925
violations may be raised by the appellate court sua
sponte, and the Rule applies notwithstanding an
appellee’s request not to enforce it; and, if Rule
1925 is not clear as to what is required of an
appellant, on-the-record actions taken by the
appellant aimed at compliance may satisfy the Rule.
Id. at 494 (footnote omitted). Accordingly, Brown has waived the issue on
appeal.
Moreover, even if Brown had successfully preserved his argument that
his PCRA petition meets the timeliness exception of 9545(b)(1)(ii), we find
that it is without merit. In Commonwealth v. Carr, 768 A.2d 1164, 1168
(Pa. Super. 2001), our Court held the following:
Trial counsel’s failure to file a direct appeal was
discoverable during Appellant’s one-year window to
file a timely PCRA petition. In fact, the expiration of
Appellant’s time to file a direct appeal initiated the
PCRA’s one-year clock. Thus, Appellant had a full
year to learn if a direct appeal had been filed on his
behalf. A phone call to his attorney or the clerk of
courts would have readily revealed that no appeal
had been filed. Due diligence requires that Appellant
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take such steps to protect his own interests. The
mere fact that Appellant alleges his trial counsel was
ineffective for not filing his appeal does not save his
petition from the PCRA’s timeliness requirements.
Id. at 1168. Here, Brown allegedly contacted trial counsel inquiring about
the status of his appeal in March 2009. Although he allegedly got no
response, he waited almost three years to make further inquiry to the
Superior Court regarding the status of his appeal. These facts establish his
lack of diligence. Therefore, Brown has failed to plead and prove an
exception under section 9545(b)(1), and we are without jurisdiction to
address the merits of his appeal.
Brown filed a motion to dismiss the Commonwealth’s brief because the
Commonwealth filed its brief late, after already having received one
extension to file a brief. Given our disposition of this appeal, we deny
Brown’s motion as moot. See Commonwealth v. Bricker, 41 A.3d 872,
881 (Pa. Super. 2012) (“An issue before a court is moot if in ruling upon the
issue the court cannot enter an order that has any legal force or effect.”).
Order affirmed. Motion to dismiss the Commonwealth’s brief denied as
moot.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/13/2015
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