Com. v. Bacon, B.

J-S36006-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BILLY BACON :
:
Appellant : No. 694 MDA 2018
Appeal from the PCRA Order March 28, 2018
In the Court of Common Pleas of Bradford County
Criminal Division at No(s): CP-08-CR-0000683-2008
BEFORE: PANELLA, P.J., SHOGAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PANELLA, P.J.: FILED NOVEMBER 15, 2019
Billy Bacon appeals pro se from the March 28, 2018 order entered in the
Bradford County Court of Common Pleas, dismissing his petition filed pursuant
to the Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541-9546,
without a hearing. Additionally, Bacon’s appointed counsel has filed a no merit
letter in accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). After
careful review, we affirm the order and grant counsel’s petition to withdraw.
In 2009, following a jury trial, Bacon was convicted of involuntary
deviate sexual intercourse with a child, two counts of aggravated indecent
assault of a child less than 13 years old, sexual assault, and indecent assault
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* Retired Senior Judge assigned to the Superior Court.
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of a child.1 On October 19, 2009, the trial court sentenced Bacon to an
aggregate term of 18 years’ to 36 years’ imprisonment. After his post-
sentence motion was denied, Bacon filed a timely notice of appeal. This Court
affirmed Bacon’s judgment of sentence, and the Pennsylvania Supreme Court
later denied his petition for allowance of appeal on October 19, 2011.
After exhausting his direct appeal rights, Bacon wrote to the court
expressing his desire to file a PCRA petition. The court appointed Tiffany
Cummings, Esquire (“Attorney Cummings”) as PCRA counsel on June 28,
2012. Yet, in the years following her appointment as PCRA counsel, Attorney
Cummings was unable to file a petition for collateral relief due to Bacon’s
unwillingness to participate in the matter. Eventually, Bacon acquiesced and
requested that Attorney Cummings seek post-conviction relief on his behalf.
Pursuant to Bacon’s wishes, Attorney Cummings filed a “Nunc Pro Tunc
Petition to Allow Filing of PCRA Petition.” Accordingly, the court granted Bacon
nunc pro tunc relief on July 27, 2015. See Trial Court Order, 07/27/15.
Thereafter, Attorney Cummings petitioned the PCRA court to withdraw
her representation. As a result, the court granted Cummings leave to withdraw
and appointed Carrie Donald, Esquire (“Attorney Donald”) as Bacon’s PCRA
counsel. See Trial Court Order, 09/01/16; see also Trial Court Order,
09/02/16. In appointing new counsel, the PCRA court also provided Bacon
with an extension to file his petition.
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1 See 18 Pa. C.S.A. §§ 3123(b), 3125(a)(7), 3125(b), 3124.1, and
3126(a)(7), respectively.
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Bacon, through counsel, filed his PCRA petition on November 14, 2016,
alleging the verdict was against the weight of the evidence; his constitutional
rights were violated at trial; and the victim recanted his trial testimony. See
Appellant’s PCRA Petition, 11/14/16. The PCRA court issued a Pa.R.Crim.P.
907 notice of its intent to dismiss Bacon’s petition, reasoning that his claims
were mostly waived and without merit.2 See PCRA Court Notice, 06/08/17, at
2. The PCRA court dismissed Bacon’s collateral pleading on March 28, 2018.
Bacon timely filed a pro se notice of appeal, and Attorney Donald subsequently
filed a Turner/Finley letter and a motion to withdraw.
Before we address Bacon’s appeal, we must consider the adequacy of
Attorney Donald’s Turner/Finley filings. The Turner/Finley procedure
requires proof of:
1) A no-merit letter by PC[R]A counsel detailing the nature and
extent of his review;
2) The “no merit” letter by PC[R]A counsel listing each issue the
petitioner wished to have reviewed;
3) The PC[R]A counsel’s “explanation,” in the “no merit” letter, of
why the petitioner’s issues were meritless;
4) The PC[R]A court conducting its own independent review of the
record; and
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2 On December 20, 2017, during the pendency of his PCRA petition, Bacon
filed a pro se application for reinstatement of his collateral appellate rights
nunc pro tunc. See Appellant’s Application, 12/20/17. He also filed three
subsequent applications seeking the same relief. Consequently, this Court
denied Bacon’s subsequent applications for relief without prejudice and
directed the PCRA court to rule on his December 20, 2017 petition within 30
days of its order. See Superior Court Order, 02/21/18. Following that, the
PCRA court issued an order on February 28, 2018, declaring Bacon’s
application as moot because no final order had been entered on his PCRA. See
PCRA Court Order, 02/28/18.
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5) The PC[R]A court agreeing with counsel that the petition was
meritless.
Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011) (citation
omitted). “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.” Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007)
(citation omitted). Substantial compliance with the above requirements is
sufficient to secure permission to withdraw from representation. See
Widgins, 29 A.3d 816 at 819.
Upon review of counsel’s no merit letter, Attorney Donald identified the
sole claim asserted by Bacon, reviewed the merits of that claim, and explained
why the claim lacked merit. See Turner/Finley Letter, 04/30/19, at 3-4.
She also served copies of her filings on Bacon and provided an explanation of
his right to proceed pro se or with private counsel. See id. Therefore, we
conclude Attorney Donald substantially complied with the Turner/Finley
requirements. See Widgins, 29 A.3d 816 at 818-819.
Next, we note Bacon did not submit a pro se appellate brief, and the
sole claim raised in the Turner/Finley letter is whether the victim recanted
his trial testimony. However, prior to reaching the merits of Bacon’s claim, we
must first consider the timeliness of his PCRA petition.
In Pennsylvania, it is well settled that no court has jurisdiction to hear
an untimely PCRA petition. See Commonwealth v. Robinson, 837 A.2d
1157, 1161 (Pa. 2003). Generally, a PCRA petition must be filed within one
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year from the date the judgment of sentence becomes final. See
Commonwealth v. Brandon, 51 A.3d 231, 233 (Pa. Super. 2012); see also
42 Pa. C.S.A. § 9545(b). To overcome the PCRA’s time-bar, a petitioner must
allege and prove one of three exceptions: (1) interference by government
officials in the presentation of the claim; (2) newly discovered fact evidence;
and (3) an after-recognized constitutional right. See 42 Pa.C.S.A. §
9545(b)(1)(i)-(iii).3 When one of these exceptions is met, the petition will be
considered timely under the PCRA. See Commonwealth v. Gamboa-Taylor,
753 A.2d 780, 783 (Pa. 2000). Therefore, as Pennsylvania law makes clear,
the time limitations of the PCRA are jurisdictional in nature and, as such, a
court cannot address the merits of an untimely petition, unless an exception
is met. See Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003);
see also 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
Here, as Bacon did not file a petition with the United States Supreme
Court, his judgment of sentence became final for purposes of the PCRA on
January 16, 2012. See 42 Pa. C.S.A. § 9545(b)(3) (“[a] judgment 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,
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3 On October 24, 2018, the General Assembly amended section 9545(b)(2) of
the PCRA statute to expand the time for filing a petition from 60 days to one
year from the date the claim could have been presented. See 2018
Pa.Legis.Serv.Act 2018-146(S.B. 915), effective December 24, 2018. The
amendment applies only to claims arising one year before the effective date
of this section, i.e. December 24, 2017, or thereafter. Therefore, this
amendment does not apply to Bacon’s petition, filed November 14, 2016.
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or at the expiration of time for seeking the review.”). His petition, filed four
years later, is patently untimely. Therefore, since Bacon failed to plead and
prove an exception to the PCRA’s time limit, the PCRA court lacked jurisdiction
to review the merits of Bacon’s PCRA petition.
The court’s July 27, 2015 order granting Bacon the right to file a PCRA
petition nunc pro tunc does not alter this conclusion. In his counseled petition
for nunc pro tunc relief, Bacon asserted that his depression prevented him
from filing a timely PCRA petition. Bacon did not identify any authority that
his depression qualified for a timeliness exception, and our independent
review reveals none. Therefore, the PCRA court did not have the authority to
grant Bacon the right to file a nunc pro tunc petition. See Commonwealth
v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (holding a court has no authority
to extend the PCRA’s time limitations except as the PCRA statute permits).
Moreover, even if we were to review the merits of Bacon’s claim, there
is no evidence in the certified record to support Bacon’s argument that the
victim recanted his trial testimony. In fact, counsel asserts that “the victim
vehemently denied recanting and informed [Attorney Donald] that he was
confident [Bacon] was the perpetrator of the crime [against him].” See No
merit letter, 4/30/19, at 4 (unnumbered). Bacon has not responded to this
assertion. As such, this appeal lacks merit. Therefore, we affirm the order
dismissing Bacon’s PCRA petition and grant counsel’s motion to withdraw.
Order affirmed. Petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/15/2019
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