Com. v. Soto, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ANGEL L. SOTO,
Appellant No. 2868 EDA 2016
Appeal from the PCRA Order July 25, 2016
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-000299-1989
BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 18, 2017
Appellant, Angel L. Soto, appeals from the post-conviction court’s July
25, 2016 order denying, as untimely, his third petition for relief filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
Additionally, Appellant’s counsel, Chad M. DiFelice, Esq., has filed a petition
to withdraw in accordance with Commonwealth v. Turner, 544 A.2d 927(Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc). After careful review, we affirm the PCRA court’s order
denying Appellant’s petition and grant Attorney DiFelice’s petition to
withdraw.
____________________________________________
* Former Justice specially assigned to the Superior Court.
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A detailed recitation of the facts of Appellant’s case is unnecessary to
our disposition of his present appeal. We note, however, that Appellant and
his cousin, Luis Torres, planned and carried out the 1988 murder of
Nepomuceno Pacheco. The motive for the murder was a drug-dealing
dispute. On June 19, 1991, a jury convicted Appellant of first-degree
murder and criminal conspiracy. That same day, the jury recommended a
sentence of life imprisonment for Appellant’s murder conviction. The court
imposed that sentence, as well as a consecutive term of 5 to 10 years’
incarceration for Appellant’s conspiracy conviction.
Appellant filed a timely direct appeal and, after this Court affirmed, our
Supreme Court denied his subsequent petition for allowance of appeal.
Commonwealth v. Soto, 693 A.2d 226 (Pa. Super. 1997), appeal denied,
705 A.2d 1308 (Pa. 1997).
On August 25, 1998, [Appellant] filed his first PCRA
petition. On January 27, 1999, the PCRA court dismissed the
petition without a hearing. On February 11, 1999, [Appellant]
filed a notice of appeal. On December 16, 1999, a panel of this
Court vacated the PCRA court’s dismissal of [Appellant]’s petition
and remanded for the appointment of new counsel. See
Commonwealth v. Soto, 680 EDA 1999, [unpublished
memorandum] at []6 (Pa. Super. [filed] Dec. 16, 1999).
Between January 24, 2000, and July 17, 2006, [Appellant] was
represented by three different court-appointed lawyers, and filed
multiple amended PCRA petitions. Finally, on or about
September 20, 2006, the PCRA court held an evidentiary hearing
on [Appellant]’s first PCRA petition. On November 21, 2006, the
PCRA court filed an order and opinion denying [Appellant]’s first
PCRA petition. On December 8, 2006, [Appellant] filed a notice
of appeal. On July 25, 2007, a panel of this Court issued a
memorandum affirming the dismissal of [Appellant]’s first PCRA
petition. See Commonwealth v. Soto, 3427 EDA 2006,
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[unpublished memorandum] at []17 (Pa. Super. [filed] Jul. 25,
2007). On March 12, 2008, the Pennsylvania Supreme Court
denied [Appellant]’s petition for allowance of appeal.
Commonwealth v. Soto, 945 A.2d 170 (Pa. 2008) (table).
Commonwealth v. Soto, No. 2482 EDA 2013, unpublished memorandum
at 3-4 (Pa. Super. filed May 29, 2014). On May 8, 2012, Appellant filed a
second, pro se PCRA petition, which was ultimately deemed untimely and
dismissed on July 23, 2013. This Court affirmed on appeal. Id.On March 23, 2016, Appellant filed the pro se PCRA petition that
underlies the present appeal. James Madsen, Esquire, was appointed to
represent Appellant, but on April 5, 2016, Appellant filed a pro se amended
petition. On May 19, 2016, Attorney Madsen filed a Turner/Finley petition
to withdraw with the PCRA. On June 6, 2016, the PCRA court issued a
Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition, to which
Appellant filed a timely, pro se response. Then, on July 25, 2016, the court
issued an order denying Appellant’s petition as being untimely filed.
However, the PCRA court did not rule on Attorney Madsen’s petition to
withdraw. As such, counsel filed a “Praecipe for Withdrawal of Appearance”
on August 11, 2016. Still, the PCRA court failed to rule on Attorney
Madsen’s praecipe for withdrawal.
Appellant then filed a timely, pro se notice of appeal on August 17,
2016. He also timely complied with the PCRA court’s order directing him to
file a Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. On September 16, 2016, the court filed its Rule 1925(a) opinion.
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On November 28, 2016, Attorney Madsen filed with this Court a
petition to withdraw. On December 19, 2016, this Court issued a per curiam
order granting Attorney Madsen’s petition, and directing that the PCRA court
appoint new counsel for Appellant. Thereafter, Attorney DiFelice entered his
appearance on Appellant’s behalf. However, counsel failed to file a brief on
Appellant’s behalf, compelling this Court to issue a per curiam order
remanding Appellant’s case for the filing of a brief by Attorney DiFelice.
On May 24, 2017, Attorney DiFelice filed a petition to withdraw and an
accompanying brief. Upon review, this Court noticed that Attorney DiFelice
had not accurately advised Appellant of his immediate right to proceed pro
se or with privately retained counsel. See Commonwealth v. Muzzy, 141
A.3d 509, 512 (Pa. Super. 2016) (clarifying that, “in an appeal from the
denial of a PCRA petition, if counsel files a petition to withdraw as appellate
counsel in this Court, the letter to the client, inter alia, shall inform the PCRA
petitioner that upon the filing of counsel's petition to withdraw, the
petitioner-appellant has the immediate right to proceed in the appeal pro se
or through privately-retained counsel”). Consequently, we issued another
per curiam order, directing Attorney DiFelice to send Appellant a corrected
letter within 14 days. On June 27, 2017, Attorney DiFelice filed a letter that
complied with Muzzy. Appellant has not filed any response to counsel’s
petition to withdraw.
Accordingly, we now review Attorney DiFelice’s petition to withdraw
and Turner/Finley brief. Initially, this Court has explained that:
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Counsel petitioning to withdraw from PCRA representation must
proceed ... under [Turner, supra and Finley, supra and] ...
must review the case zealously. Turner/Finley counsel must
then submit a “no-merit” letter to the trial court, or brief on
appeal to this Court, detailing the nature and extent of counsel’s
diligent review of the case, listing the issues which petitioner
wants to have reviewed, explaining why and how those issues
lack merit, and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the “no
merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
and (3) a statement advising petitioner of the right to proceed
pro se or by new counsel.
***
[W]here counsel submits a petition and no-merit letter that ...
satisfy the technical demands of Turner/Finley, the court—trial
court or this Court—must then conduct its own review of the
merits of the case. If the court agrees with counsel that the
claims are without merit, the court will permit counsel to
withdraw and deny relief.
Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (quoting
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (internal
citations omitted)).
Here, Attorney DiFelice has satisfied the procedural requirements for
withdrawal. Specifically, he has set forth the two issues that Appellant
raised in his petition below, and explains why those claims are meritless. He
has also sent Appellant copies of his petition to withdraw and
Turner/Finley brief. Additionally, as discussed supra, Attorney DiFelice has
properly advised Appellant of his immediate right to proceed pro se or with
privately retained counsel. Accordingly, we will now review the merits of the
following two issues that Appellant seeks to assert herein:
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I. Whether the PCRA court erred in denying the petition of
Appellant [as being] untimely, in light of Missouri v. Frye, 132
S.Ct. 1399 (2012)[,] and Montgomery v. Louisiana, 136 S.Ct.
718 (2016), which Appellant contends announced a new legal
right to be advised of plea offers entitling him to retroactive
relief?
II. Whether Appellant’s mandatory life sentence without the
possibility of parole is illegal under Alleyne v. United States[,
133 S.Ct. 2151 (2013),] as a violation of the Eighth
Amendment[’s] prohibition on cruel and unusual punishment?
Appellant’s Brief at 5.
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
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. Commonwealth v. Bennett, 930 A.2d
1264, 1267 (Pa. 2007) (stating PCRA time limitations implicate our
jurisdiction and may not be altered or disregarded to address the merits of
the petition). 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:
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(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). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Appellant’s judgment of sentence became final on March 31,
1998, at the expiration of the 90-day time-period for seeking review with the
United States Supreme Court of our Supreme Court’s denial of his petition
for allowance of appeal. See 42 Pa.C.S. § 9545(b)(3) (stating that a
judgment of sentence becomes final at the conclusion of direct review or the
expiration of the time for seeking the review); Commonwealth v. Owens,
718 A.2d 330, 331 (Pa. Super. 1998) (directing that under the PCRA,
petitioner’s judgment of sentence becomes final ninety days after our
Supreme Court rejects his or her petition for allowance of appeal since
petitioner had ninety additional days to seek review with the United States
Supreme Court). Thus, Appellant’s current petition filed in March of 2016, is
patently untimely and, for this Court to have jurisdiction to review the merits
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thereof, Appellant must prove that he meets one of the exceptions to the
timeliness requirements set forth in 42 Pa.C.S. § 9545(b).
Instantly, Appellant argues that he meets the ‘new retroactive right’
exception of section 9545(b)(1)(iii) for two different reasons. First, he
contends that the United States Supreme Court announced a new
constitutional rule in Frye, by which trial counsel now has an affirmative
duty to communicate to a defendant any formal plea offer from the
prosecution. Appellant claims that his trial counsel violated this rule, and
that he is entitled to retroactive application of Frye pursuant to
Montgomery v. Louisiana, 136 S.Ct. 718, 729 (2016) (holding “that when
a new substantive rule of constitutional law controls the outcome of a case,
the Constitution requires state collateral review courts to give retroactive
effect to that rule”). In other words, Appellant argues that viewing Frye and
Montgomery together, he has satisfied the exception of section
9545(b)(1)(iii).
We disagree. In Commonwealth v. Feliciano, 69 A.3d 1270 (Pa.
Super. 2013), we held that Frye did not create a new constitutional rule but,
instead, it “merely clarified that [the] well-established right [to effective
assistance of counsel during the plea bargaining process] ‘extends to the
negotiation and consideration of plea offers that lapse or are rejected.’”
Feliciano, 69 A.3d at 1276 (quoting Frye, 132 S.Ct. at 1409) (emphasis
added in Feliciano). Thus, Appellant cannot rely on Frye to satisfy the ‘new
rule’ component of section 9545(b)(1)(iii). See id. at 1277 (concluding that
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Feliciano could not rely on Frye to satisfy the timeliness exception of section
9545(b)(1)(iii)).
Second, Appellant argues that he has satisfied the exception of section
9545(b)(1)(iii) because his mandatory sentence of life imprisonment,
without the possibility of parole, violates Alleyne’s new rule that “facts that
increase mandatory minimum sentences must be submitted to the jury” and
found beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2163. Appellant
further maintains that Alleyne applies retroactively in light of Montgomery,
thus satisfying section 9545(b)(1)(iii).
Again, we disagree. While our Supreme Court has acknowledged that
Alleyne did create a new constitutional rule, the Court expressly held that
Alleyne does not apply retroactively to cases pending on collateral review.
See Commonwealth v. Washington, 142 A.3d 810, 818-820 (Pa. 2016).
In so ruling, the Court specifically found that Alleyne does not constitute a
‘substantive rule’ that applies retroactively under Montgomery, because
“the Alleyne rule neither alters the range of conduct or the class of persons
punished by the law.” Id. at 818 (citing Montgomery, 136 S.Ct. at 729-
30). Therefore, Appellant has failed to prove that Alleyne applies
retroactively to his case for purposes of satisfying the timeliness exception of
section 9545(b)(1)(iii).
For these reasons, we agree with Attorney DiFelice that neither of
Appellant’s two issues satisfy the ‘new retroactive right’ timeliness
exception. Accordingly, Appellant’s petition is untimely, and we affirm the
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PCRA court’s order denying it. We also grant Attorney DiFelice’s petition to
withdraw.
Order affirmed. Petition to withdraw granted. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/17
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