Com. v. Mason, W.

J-S59018-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WADE ANTHONY MASON :
:
Appellant : No. 1590 EDA 2019
Appeal from the PCRA Order Entered April 29, 2019
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0006304-2009
BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 12, 2019
Appellant Wade Anthony Mason appeals from the order dismissing as
untimely his third petition filed under the Post Conviction Relief Act 1 (PCRA).
Appellant’s PCRA counsel has filed a petition to withdraw and an
Anders/Santiago brief.2 We affirm and grant PCRA counsel’s petition to
withdraw.
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1 42 Pa.C.S. §§ 9541-9546.
2Counsel filed a brief and petition withdraw pursuant to Anders v. California,
386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). When counsel seeks to withdraw from a matter involving the denial of
PCRA relief, a Turner/Finley “no-merit letter” is the appropriate filing. See
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). However, “[b]ecause an
Anders brief provides greater protection to a defendant, this Court may
accept an Anders brief in lieu of a Turner/Finley letter.” Commonwealth
v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011).
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The PCRA court summarized the procedural history of this case as
follows:
On January 20, 2011, a jury convicted [Appellant] of rape, sexual
assault and simple assault. Thereafter, on April 11, 2011, the
[trial] court sentenced [Appellant] to an aggregate term of seven
to fourteen years of imprisonment, and a consecutive two-year
probationary term. Following the denial of [Appellant]’s timely
post-sentence motion, [Appellant] filed an appeal [with this
Court], in which he raised a claim of prosecutorial misconduct. In
an unpublished memorandum filed on April 14, 2012, [this Court]
rejected [Appellant]’s claim and affirmed his judgment of
sentence. On September 19, 2012, the Supreme Court denied
[Appellant]’s petition for allowance of appeal. Commonwealth
v. Mason, 48 A.3d 484 (Pa. Super. 2012).
[Appellant] thereafter filed a timely pro se PCRA petition, and [the
PCRA] court appointed counsel. After reviewing the record and
[Appellant]’s proposed issues, PCRA counsel filed a petition to
withdraw and “no-merit” letter pursuant to [Turner/Finley].
[The PCRA] court then issued a Pa.R.A.P. 907 notice of intent to
dismiss [Appellant]’s pro se petition without a hearing.
[Appellant] filed a pro se response. By order entered March 26,
2014, [the PCRA] court dismissed [Appellant]’s PCRA petition and
granted PCRA counsel’s petition to withdraw. [Appellant] filed a
timely pro se appeal to [this Court]. In an unpublished
memorandum filed on January 16, 2015, [this Court] affirmed the
order denying [PCRA] relief. Commonwealth v. Mason, 118
A.3d 448 (Pa. Super. 2015). [Appellant] did not file a motion for
allowance of appeal.
[Appellant] then filed his second pro se PCRA petition on March
20, 2015. Within this petition, [Appellant] reiterated his claim of
prosecutorial misconduct that he unsuccessfully litigated during
his direct appeal. [The PCRA] court issued a Pa.R.A.P. 907 notice
of intent to dismiss [Appellant]’s second PCRA petition as untimely
filed. [Appellant] filed a pro se response on May 18, 2015. By
order entered June 22, 2015, this court dismissed [Appellant]’s
second PCRA petition. [Appellant] filed a pro se appeal to [this
Court]. In an unpublished memorandum filed on March 14, 2016,
the Superior Court affirmed this court’s order denying [PCRA]
relief. Commonwealth v. Mason, No. 2483 EDA 2015.
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On November 30, 2017, [Appellant] filed the instant PCRA
petition, his third, citing Commonwealth v. Muniz, 164 A.3d
1189 (Pa. 2017). PCRA [c]ounsel was appointed to represent his
interests. On March 5, 2019, [the PCRA court] served [Appellant]
with a [Rule 907 notice]. Thereafter[, Appellant’s] PCRA was
dismissed on April 30, 2019[.]
PCRA Ct. Op., 7/8/19, at 1-3 (some formatting altered).
On June 10, 2019, Appellant filed a timely notice of appeal. He filed a
court-ordered Pa.R.A.P. 1925(b) statement on June 21, 2019. The trial court
issued a responsive Rule 1925(a) opinion stating that Appellant’s PCRA
petition was untimely. On August 29, 2019, PCRA counsel filed a petition to
withdraw and an Anders brief with this Court. Appellant subsequently filed
two pro se responses.
Counsel identifies one issue for our review:
Was the trial court in error for dismissing [Appellant’s PCRA]
petition alleging that his sentence was unconstitutional pursuant
to [Muniz] and its progeny?
Anders/Santiago Brief at 9.
Initially, we must address whether PCRA counsel has fulfilled the
procedural requirements for withdrawing his representation in this Court.
Commonwealth v. Muzzy, 141 A.3d 509, 510 (Pa. Super. 2016) (stating
that before “addressing the merits of the appeal, we must review counsel’s
compliance with the procedural requirements for withdrawing as counsel”
(citation omitted)).
As we have explained,
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[c]ounsel petitioning to withdraw from PCRA representation must
proceed under [Turner and Finley] and must review the case
zealously. Turner/Finley counsel must then submit a “no-merit”
letter to the [PCRA] 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.
Where counsel submits a petition and no-merit letter that
satisfy the technical demands of Turner/Finley, the court—
[PCRA] 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.
Id. at 510-11 (citations omitted and some formatting altered).
As noted previously, we may accept PCRA counsel’s Anders brief if we
conclude that it substantially complies with Turner/Finley. See Widgins,
29 A.3d at 817 n.2. PCRA counsel’s petition to withdraw and brief to this
Court detail his diligent review of the case and includes the issue that
Appellant wishes to have reviewed. PCRA counsel sets forth reasons why the
issue lacks merit and requests permission to withdraw. Additionally, PCRA
counsel has provided Appellant with a copy of the no-merit brief and his
application to withdraw, as well as a statement advising Appellant of his right
to proceed pro se or with privately retained counsel. See Widgins, 29 A.3d
at 818. Accordingly, we will permit PCRA counsel to withdraw if, after our
review, we conclude that the issues relevant to this appeal lack merit.
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PCRA counsel identifies Appellant’s claim that Muniz satisfies the newly
recognized constitutional right exception to the PCRA’s time bar. See 42
Pa.C.S. § 9545(b)(1)(iii). Anders/Santiago Brief at 6. PCRA counsel notes
that the Pennsylvania Supreme Court has yet to hold that Muniz applies
retroactively. Id. Therefore, PCRA counsel maintains that Appellant cannot
rely on Muniz to excuse the timeliness of his instant PCRA petition. Id.
Our standard of review for the dismissal of a PCRA petition is limited to
“whether the record supports the PCRA court’s determination and whether the
PCRA court’s decision is free of legal error.” Commonwealth v. Lawson, 90
A.3d 1, 4 (Pa. Super. 2014) (citation omitted). We grant great deference to
the PCRA court’s factual findings and we will not disturb them unless they
have no support in the record. Commonwealth v. Rigg, 84 A.3d 1080, 1084
(Pa. Super. 2014) (citation omitted).
It is well settled that “the timeliness of a PCRA petition is a jurisdictional
requisite.” Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super. 2015)
(citation omitted). A PCRA petition “including a second or subsequent petition,
shall be filed within one year of the date the judgment becomes final[.]” 42
Pa.C.S. § 9545(b)(1). A judgment is 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).
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Courts may consider a PCRA petition filed more than one year after a
judgment of sentence becomes final only if the petitioner pleads and proves
one of the following three statutory exceptions:
(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). Moreover, a petitioner must file his petition
within sixty days of the date the claim could have been presented. See 42
Pa.C.S. § 9545(b)(2).3
In Commonwealth v. Murphy, 180 A.3d 402, 405-06 (Pa. Super.
2018), appeal denied, 195 A.3d 559 (Pa. 2018), this Court explained that
[s]ubsection (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 th[e Pennsylvania Supreme 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”
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33 Section 9545(b)(2) was amended on October 24, 2018, effective December
24, 2018, extending the time for filing from sixty days of the date the claim
could have been first presented to one year. The amendment applies to claims
arising on December 24, 2017, or thereafter. See Act 2018, Oct. 24, P.L.
894, No. 146, § 3.
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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.
Here, we acknowledge that this Court has declared that, “Muniz
created a substantive rule that retroactively applies in the
collateral context.” Commonwealth v. Rivera-Figueroa, 174
A.3d 674, 678 (Pa. Super. 2017). However, because [the
petitioner]’s PCRA petition is untimely (unlike the petition at issue
in Rivera-Figueroa), he must demonstrate that the Pennsylvania
Supreme Court has held that Muniz applies retroactively in order
to satisfy section 9545(b)(1)(iii). Because at this time, no such
holding has been issued by our Supreme Court, [the petitioner]
cannot rely on Muniz to meet that timeliness exception.[fn1]
Certainly, if the Pennsylvania Supreme Court issues a
[fn1]
decision holding that Muniz applies retroactively, [the
petitioner] can then file a PCRA petition . . . attempting to
invoke the ‘new retroactive right’ exception of section
9545(b)(1)(iii).
Murphy, 180 A.3d at 405-06 (some citations omitted).
Instantly, the Pennsylvania Supreme Court has yet to hold that Muniz
applies retroactively. Accordingly, like the petitioner in Murphy, Appellant
cannot rely on Muniz to excuse the facial untimeliness of the instant PCRA
petition. See id. Therefore, the PCRA court properly dismissed Appellant’s
petition as untimely. See Lawson, 90 A.3d at 4.
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We must also address Appellant’s pro se responses to PCRA counsel’s
Anders brief and petition to withdraw. From what we can discern,4 it appears
that Appellant is seeking to characterize his untimely PCRA as a petition for
habeas corpus or coram nobis relief. Additionally, Appellant cites to the ex
post facto clause of the United States Constitution, an apparent reference to
his Muniz claim.
Our Supreme Court has held that “claims that could be brought under
the PCRA must be brought under that Act. No other statutory or common law
remedy ‘for the same purpose’ is intended to be available; instead, such
remedies are explicitly ‘encompassed’ within the PCRA.” Commonwealth v.
Hall, 771 A.2d 1232, 1235 (Pa. 2001) (emphasis omitted); see also 42
Pa.C.S. § 9542 (stating that the PCRA subsumes both habeas corpus and
coram nobis); see also Commonwealth v. Pagan, 864 A.2d 1231, 1233
(Pa. Super. 2004) (explaining that other remedies do “not become available
merely because the PCRA [court] refuses to remedy a petitioner’s grievance;
rather, we look at the claims a petitioner is raising”). In sum, if “a petitioner’s
claim is cognizable under the PCRA, the PCRA is the only method of obtaining
collateral review.” Commonwealth v. Descardes, 136 A.3d 493, 503 (Pa.
2016).
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4 In his pro se filings, Appellant includes numerous citations to cases and
statutes, but does not indicate how they are applicable to his case. Therefore,
we limit our analysis to the issue that we were able to decipher from his
statements of the law.
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Here, to the extent Appellant challenges his sentence under Muniz and
the ex post facto clause, his claim is cognizable under the PCRA. See
Commonwealth v. Greco, 203 A.3d 1120, 1123 (Pa. Super. 2019) (holding
that a post-conviction claim that an original sentence is illegal due to the
retroactive application of a sexual offender registration requirement must be
raised in a PCRA petition). Therefore, because Appellant’s underlying claim is
cognizable under the PCRA, he cannot seek habeas corpus or coram nobis
relief. See Descardes, 136 A.3d at 503; see also Pagan, 864 A.2d at 1233.
Because our own review of the record confirms that Appellant’s claims
are without merit, we affirm the order denying Appellant’s PCRA petition, and
we grant counsel’s petition to withdraw. See Murphy, 180 A.3d at 405-06;
Muzzy, 141 A.3d at 510.
Order affirmed. Application to withdraw as counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/19
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