Com. v. Norris, B.

J.S23032/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BRUCE NORRIS, :
:
Appellant :
: No. 2512 EDA 2015
Appeal from the PCRA Order July 14, 2015
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-0618592-1975
BEFORE: PANELLA, OTT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MARCH 17, 2016
Appellant, Bruce Norris, appeals pro se from the order entered in the
Philadelphia County Court of Common Pleas dismissing his Post Conviction
Relief Act1 (“PCRA”) petition based upon Counsel’s Finley2 letter and
untimeliness. Appellant claims that the petition was timely under the
PCRA’s “newly recognized constitutional right” exception in 42 Pa.C.S. §
9545(b)(1)(iii), following the decisions of the United States Supreme Court
in Lafler v. Cooper, 132 S. Ct. 1376 (2012), and Missouri v. Frye, 132 S.
Ct. 1399 (2012). He avers that he filed his pro se PCRA petition within sixty
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
2
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc);
see also Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
J.S23032/16
days of March 21, 2012, the date the Supreme Court rendered its decisions
in Lafler and Frye. We affirm.
We adopt the facts and procedural history set forth in the PCRA court’s
opinion.3 See PCRA Ct. Op., 8/28/15, at 1-3. Appellant timely appealed
from the order dismissing the instant petition.4
Appellant raises the following issue in his pro se brief:
Was Appellant deprived of effective assistance of
counsel in violation of the Sixth and Fourteenth
Amendments to the Constitution of the United States and
article I, Section 9 of the Pennsylvania Constitution when
his trial counsel failed to advise him fully regarding an
offer from the Commonwealth that would have allowed
him to plead guilty in exchange for a sentence of 25 years?
Appellant’s Brief at 3.
This Court has stated:
Our standard of review of the denial of a PCRA
petition is limited to examining whether the court’s
rulings are supported by the evidence of record and
free of legal error. This Court treats the findings of
the PCRA court with deference if the record supports
those findings. It is an appellant’s burden to
persuade this Court that the PCRA court erred and
that relief is due.
* * *
3
We note that the reconstructed certified record in the case sub judice only
contains documents related to the instant PCRA petition. The docket
indicates that the pro se PCRA petition was filed on April 18, 2012. It is not
contained in the certified record. Given our disposition, this is of no
moment.
4
The PCRA court did not issue a Pa.R.A.P. 1925(b) order.
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The PCRA time limitations, and exceptions thereto, are set
forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii). That section
states:
(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:
(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.
To invoke one of these exceptions, the petitioner must
plead it and satisfy the burden of proof. Additionally, any
exception must be raised within sixty days of the date that
the claim could have been presented. 42 Pa.C.S.A §
9545(b)(2). Our Supreme Court “has repeatedly stated
that the PCRA timeliness requirements are jurisdictional in
nature and, accordingly, a PCRA court cannot hear
untimely PCRA petitions.”
Commonwealth v. Feliciano, 69 A.3d 1270, 1274-75 (Pa. Super. 2013)
(some citations omitted). “[A] judgment becomes final at the conclusion of
direct review, including discretionary review in . . . Supreme Court of
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Pennsylvania, or at the expiration of time for seeking the review.” 42
Pa.C.S. § 9545(b)(3).
Appellant filed the instant serial PCRA petition on April 18, 2012, thus
it is patently untimely. See 42 Pa.C.S. § 9545(b)(1). Therefore, we
determine whether, as averred by Appellant, any timeliness exception
applies in this case.
The PCRA court court concluded that the decisions of the United States
Supreme Court in Lafler and Frye did not create a new constitutional right
to overcome the time-bar. See PCRA Ct. Op. at 6. The Feliciano Court
considered this precise issue as follows:
“The right to effective assistance of counsel during the plea
bargaining process has been recognized for decades.”
Commonwealth v. Lewis, 63 A.3d 1274, 1280 (Pa.
Super. 2013) (citing Hill v. Lockhart, [ ] 106 S. Ct. 366, [
] (1985) (holding that “the two-part Strickland [v.
Washington], [ ] 104 S. Ct. 2052 [ ][(1984)], test applies
to challenges to guilty pleas based on the ineffective
assistance of counsel”); Padilla v. Kentucky, [ ] 130 S.
Ct. 1473 [ ] (2010) (“Before deciding whether to plead
guilty, a defendant is entitled to the effective assistance of
competent counsel.”)). In Frye, the United State Supreme
Court merely clarified that this well-established right
“extends to the negotiation and consideration of plea
offers that lapse or are rejected.” Frye, 132 S. Ct. at
1404 (emphasis added). In other words, the Frye Court
held “that, as a general rule, defense counsel has the duty
to communicate formal offers from the prosecution to
accept a plea on terms and conditions that may be
favorable to the accused.” Id. at 1408. In determining
whether counsel has satisfied this obligation, the two-part
test set forth in Strickland applies. See id. at 1409. In
Lafler, the Court explained that to meet the prejudice
prong of the Strickland test where the alleged
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ineffectiveness of counsel involves the defendant’s
rejection of a plea offer, the defendant must show,
that but for the ineffective advice of counsel there is
a reasonable probability that the plea offer would
have been presented to the court (i.e., that the
defendant would have accepted the plea and the
prosecution would not have withdrawn it in light of
intervening circumstances), that the court would
have accepted its terms, and that the conviction or
sentence, or both, under the offer's terms would
have been less severe than under the judgment and
sentence that in fact were imposed.
Lafler, 132 S. Ct. at 1385.
It is apparent that neither Frye nor Lafler created
a new constitutional right. Instead, these decisions
simply applied the Sixth Amendment right to counsel, and
the Strickland test for demonstrating counsel’s
ineffectiveness, to the particular circumstances at hand,
i.e. where counsel’s conduct resulted in a plea offer lapsing
or being rejected to the defendant’s detriment.
Feliciano, 69 A.3d at 1276-77 (some emphasis added and footnotes
omitted).
As neither Lafler nor Frye created a new constitutional right,
Appellant’s argument that those decisions provided a time-bar exception
under Section 9545(b)(1)(iii) is meritless. See id. at 1277. We find that
this issue has been settled by our decision in Feliciano, and thus detect no
basis upon which to conclude that the PCRA court erred in dismissing the
instant petition as untimely. Thus, we affirm the PCRA court’s order
dismissing the PCRA petition as untimely.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/17/2016
-6-
Circulated
Circulated 02/23/2016
02/23/2016 04:54 PM
PM
IN THE COURT Or COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEALTH CP-51-CR-141-819-27775
v
FILE
opinion Norris. Bruce
VS. AUG 282015
Criminal Appeals Unit
III/IihIIiiiiiiiiijj
73 3 first Judicial District of PA
8z8z7s1 SUPERIOR COURT
BRUCE NORRIS 2512 EDA 2014
BRINKLEY, J. AUGUST 28, 2015
OPINION
Defendant Bruce Norris filed a petition for relief pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S.A. § 9541 et seq. (eff. Jan. 16, 1996), raising a claim of ineffective
assistance of counsel based upon the retroactive application of a constitutional right. After
independent review of Defendant's pro se PCRA petition and PCRA counsel's Finley letter, this
Court dismissed Defendant's petition without a hearing based upon Counsel's Finley letter and
untimeliness. Defendant appealed the dismissal of his petition to the Superior Court. The sole
issue addressed in this Opinion is whether this Court properly dismissed Defendant's petition
based upon Counsel's Finley letter and untimeliness. This Court's decision should be affirmed.
PROCEDURAL HISTORY AND FACTS
On June 30, 1975, Defendant was arrested and charged with murder and related offenses.
On October 31, 1975, following a jury trial, Defendant was found guilty of second -degree
murder, robbery, criminal conspiracy, possessing instruments of crime (PIC), and possessing
prohibited weapons. On January 19, 1976, the Honorable Alex Bonavitacola sentenced
1
Defendant to life imprisonment on the murder charge, 5 to 10 years state incarceration on the
robbery charge, and 5 to 10 years state incarceration on the conspiracy charge. The sentences on
all charges were to run consecutively to one another. In addition, Judge Bonavitacola further
sentenced Defendant to 2V to 5 years state incarceration on "the remaining count ", to run
concurrently with the sentences on the other charges, although he did not specify which of
Defendant's two remaining charges this sentence applied to.
On November 6, 1975, Defendant filed a motion for a new trial. On February 17, 1976,
Defendant filed an appeal with the Supreme Court of Pennsylvania. On December 1, 1977, the
Supreme Court affirmed the judgment of sentence. On June 2, 1978, Defendant filed a petition
for relief pursuant to the Post -Conviction Hearing Act (PCHA), alleging ineffective assistance of
counsel based upon trial counsel's failure to obtain the statement of Defendant's co- defendant, to
object to the Commonwealth Attorney's improper argument, to cross -examine the co- defendant
as to bias and credibility, to cross -examine a witness based upon their inability to identify
Defendant at a previous lineup, and to raise these issues on appeal. On September 23, 1981, the
PCHA Court found Defendant's petition to be without merit. Defendant appealed the dismissal
of his petition to the Superior Court and, on October I, 1982, the Superior Court affirmed the
dismissal of Defendant's petition.
On April 18, 2012, Defendant filed the instant petition for relief pursuant to the Post -
Conviction Relief Act (PCRA), alleging ineffective assistance of counsel based upon trial
counsel's advising him to reject the Commonwealth's plea offer of 25 years state incarceration
without first advising Defendant of the advantages and disadvantages of accepting the offer. On
April 9, 2014, Barnaby Wittels, Esquire, was appointed as PCRA counsel. On February 25,
2015, Mr. Wittels filed a Finley letter stating that the issues raised in Defendant's petition were
2
untimely, waived, and without merit. On June 12, 2015, this Court' sent Defendant a notice
pursuant to Rule 907, indicating that his petition would be dismissed based upon Counsel's
Finley letter and untimeliness. Defendant did not file a response to the 907 notice. On July 15,
2015, after independent review of Defendant's pro se petition and Counsel's Finley letter, this
Court dismissed Defendant's petition without a hearing based upon Counsel's Finley letter and
untimeliness. On August 13, 2015, Defendant appealed the dismissal of his petition to the
Superior Court.
ISSUE
I. WHETHER THIS COURT PROPERLY DISMISSED DEFENDANT'S
PETITION BASED UPON COUNSEL'S FINLEY LETTER AND
UNTIMELINESS.
DISCUSSION
I. THIS COURT PROPERLY DISMISSED DEFENDANT'S PETITION
BASED UPON COUNSEL'S FINLEY LETTER AND UNTIMELINESS.
This Court properly dismissed Defendant's petition based upon Counsel's Finley letter
and untimeliness. When reviewing the denial of PCRA relief, the appellate court's review is
limited to determining whether the PCRA court's findings are supported by the record and
without legal error. Commonwealth v. Edmiston, 619 Pa. 549, 65 A.3d 339, 345 (2013) (citing
Commonwealth v. Breakiron, 566 Pa. 323, 781 A.2d 94, 97 n. 4 (2001)). The court's scope of
review is limited to the findings of the PCRA court and the evidence on the record of the PCRA
court's hearing, viewed in light most favorable to the prevailing party. Commonwealth v. Fahy,
598 Pa. 584, 959 A.2d 312, 316 (2008) (citing Commonwealth v. Duffey, 585 Pa. 493, 889 A.2d
56, 61 (2005)). The burden is on the petitioner in the PCRA petition to demonstrate by a
preponderance of the evidence that he or she is eligible for PCRA relief 42 Pa.C.S.A § 9543.
On March 13, 2015, Defendant's PCRA petition was reassigned to this Court.
3
It is well -settled in Pennsylvania that all petitions under the PCRA, including subsequent
petitions, must be filed within one year of the date the judgment becomes final, unless the
petition alleges, and the petitioner proves, an exception to the one -year time period.
Commonwealth v. Albrecht, 606 Pa. 64, 994 A.2d 1091, 1094 (2010) (citing Commonwealth v.
Hawkins, 598 Pa. 85, 953 A.2d 1248, 1252 (2008)). The exceptions apply where the petition
successfully alleges and proves one or more of the following:
(i) the failure to raise this claim previously was the result of interference by
government officials with presentation of the claim in violation of the
Constitution of 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)(i)- (iii). A petition invoking one of these exceptions must be filed
within 60 days of the date the claim could first have been presented. 42 Pa. C.S.A. § 9545(b)(2).
The petitioner must plead and prove specific facts that demonstrate his claim was raised within
the 60 day time frame. Commonwealth v. Hernandez, 79 A.3d 649, 651 -52 (2013).
The PCRA's timeliness requirements are jurisdictional in nature. Commonwealth v.
Johnston, 2012 Pa. Super. 67, 42 A.3d 1120, 1130 (2012) (citing Commonwealth v. Abu -Jamal,
596 Pa. 219, 941 A.2d 1263, 1267 -68 (2008)). The time "limitations are mandatory and are
interpreted literally; thus, a court has no authority to extend filing periods except as statute
permits." Commonwealth v. Seskey, 2014 Pa. Super. 27, 86 A.3d 237, 242 (2014) (quoting
Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214, 223 (1999)). "If the petition is determined
to be untimely, and no exception has been pled and proven, the petition must be dismissed
without hearing because Pennsylvania courts are without jurisdiction to consider the merits of
4
the petition." Id. (quoting Commonwealth v. Jackson, 30 A.3d 516, 518 -19 (Pa. Super. 2011);
Commonwealth v. Perrin, 947 A.2d 1284, 1285 (2008)).
Counsel should be strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment, and the burden to show
that counsel's performance was deficient rests squarely on the defendant. Commonwealth v.
Reyes- Rodriguez, 2015 Pa. Super. 47, 111 A.3d 775, 780 (2015) (quoting Burt v. Titlow, - -- U.S.
- - -, 134 S. Ct. 10, 17 (2013)). To establish trial counsel's ineffectiveness, a petitioner must
demonstrate: (1) the underlying claim has arguable merit; (2) counsel had no reasonable basis for
the course of action or inaction chosen; and (3) counsel's action or inaction prejudiced the
petitioner. Commonwealth v. Freeland, 2014 Pa. Super. 274, 106 A.3d 768, 775 (2014) (citing
Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987)). A PCRA petitioner will be
granted relief only when he proves, by a preponderance of the evidence, that his conviction or
sentence resulted from the ineffective assistance of counsel which, in the circumstances of the
particular case, so undermined the truth -determining process that no reliable adjudication of guilt
or innocence could have taken place. Id. (citing 42 Pa.C.S. § 9543(a)(2)(ii)). Counsel's assistance
is deemed constitutionally effective once the court determines that the defendant has not
established any one of the prongs of the ineffectiveness test. Id. (citing Commonwealth v. Rolan,
964 A.2d 398, 406 (Pa.Super.2008)). To establish prejudice, the defendant must show that there
is a reasonable probability that the outcome of the proceedings would have been different but for
counsel's action or inaction. Commonwealth v. Davido, 106 A.3d 611, 621 (Pa. 2014) (citing
Commonwealth v. Williams, 587 Pa. 304, 899 A.2d 1060, 1064 (2006)).
The decision whether to plead guilty or contest a criminal charge is probably the most
important single decision in any criminal case. Commonwealth v. Chazin, 2005 Pa. Super. 143,
5
873 A.2d 732, 735 (2005) (citing Commonwealth v. Copeland, 381 Pa.Super. 382, 554 A.2d 54,
60 (1988)). This decision must finally be left to the client's wishes; counsel cannot plead a man
guilty, or not guilty, against his will. Id. But counsel may and must give the client the benefit of
his professional advice on this crucial decision, and often he can protect the client adequately
only by using a considerable amount of persuasion to convince the client that one course or the
other is in the client's best interest. Id. In order to be entitled to relief, defendant will have the
burden of proving that: (1) an offer for a plea was made; (2) trial counsel failed to inform him of
such offer; (3) trial counsel had no reasonable basis for failing to inform him of the plea offer;
and (4) he was prejudiced thereby. Id.
In the case at bar, Defendant's judgment became final on March 1, 1978, when his time
to file a petition for a writ of certiorari with the United States Supreme Court expired.
Consequently, Defendant had until March 1, 1979 to file a timely petition pursuant to the PCRA.
Defendant filed the instant petition on April 18, 2012, more than 33 years after the deadline to
file a timely petition had passed. To escape the time -bar, Defendant alleged the retroactive
application of a constitutional right exception based upon the United States Supreme Court's
holdings in Lafler v. Cooper and Missouri v. Frye, both decided on March 21, 2012, in which the
Court held that counsel may be ineffective by failing to explain the advantages and
disadvantages of accepting an offered plea deal. See Lafler v. Cooper, - -- U.S. - - -, 132 S. Ct. 1376
(2012); see also Missouri v. Frye, - -- U.S. - - -, 132 S. Ct. 1399 (2012).
However, Defendant's reliance on Lafler and Frye to avoid the time -bar is misplaced.
Contrary to Defendant's claims, neither case announced a new constitutional right in
Pennsylvania which would allow Defendant to avoid the time -bar. To the contrary, Defendant's
own memorandum of law in support of his pro se petition cites to a 1978 Superior Court case,
6
Commonwealth v. Napper, in which that Court held that counsel had a duty not only to
communicate the terms of an offer to his or her client but to also discuss the relative merits of the
offer compared to the defendant's chances at trial. See Commonwealth v. Napper, 254 Pa.Super.
54, 385 A.2d 521,524 (1978). Furthermore, on January 23, 1997, the Supreme Court of
Pennsylvania held, in Commonwealth v. Boyd, that the failure of trial counsel to explain the
advantages and disadvantages of a plea offer prior to advising the defendant to decline the offer
was cognizable as ineffective assistance of counsel under §9543(a)(2)(v) of the PCRA. See
Commonwealth v. Boyd, 547 Pa. 111, 688 A.2d 1172, 1174 -75 (1997). Moreover, in
Commonwealth ex rel. Dadario v. Goldberg, the Supreme Court held, on June 19, 2001, that
claims of ineffective assistance of counsel during the plea bargaining stage were cognizable
under §9543(a)(2)(ii) of the PCRA, following the repeal of §9543(a)(2)(v). See Commonwealth
ex rel. Dadario v. Goldberg, 565 Pa. 280, 773 A.2d 126, 131 (2001). While Defendant should
have filed his petition in 1978 or 1997, even under the most generous standard, Defendant had
until August 18, 2001, 60 days from the Supreme Court's decision in Commonwealth ex rel.
Dadario v. Goldberg, to file a timely PCRA petition alleging ineffective assistance o_'counsel
during the plea bargaining process. As Defendant did not file the instant petition until April 18,
2012, it is consequently untimely.
Even if Lafler and Frye did provide a means for Defendant to avoid the time -bar, his
petition is still without merit and waived. Defendant has failed to offer any evidence that the
Commonwealth offered him the claimed plea deal of 25 years state incarceration or that trial
counsel failed to discuss the advantages and disadvantages of the offer prior to advising
Defendant to decline the offer. To the contrary, the strength of the Commonwealth's case against
Defendant, including multiple witnesses who saw Defendant shoot the decedent and Defendant's
7
own statement to the police in which he admitted to shooting the decedent, makes it unlikely that
the Commonwealth would have offered him a plea deal of 25 years incarceration when he was
facing a sentence of life imprisonment. Moreover, Defendant attached an affidavit tc his pro se
petition that he was aware that an offer had been made, was counseled to reject it, and was never
told that he could receive a harsher sentence. However, once he received a life sentence, he was
fully aware that this was greater than a 25 -year sentence and could have raised this issue on
direct appeal. However, he failed to do so, thereby waiving this claim of ineffectiveness.
Furthermore, Defendant waited more than three decades to raise these claims, long after the 1999
death of his trial counsel, Stanley Stern, Esquire, the retirement of his first PCHA attorney,
Henry Wessel, and removal from the bar of his second PCHA attorney. Those events
notwithstanding, no benefit accrues to this defendant by such delay, as defendant himself gave an
inculpatory statement, actually admitting to being the shooter, and did so in the presence of
numerous witnesses, negating the likelihood that any such offer would have been made by the
Commonwealth in the first place. Thus, even if Defendant's petition was timely, his claims
therein are nevertheless without merit and no relief is due. Accordingly, this Court properly
dismissed Defendant's petition based upon PCRA counsel's Finley letter and untimeliness.
8
CONCLUSION
After review of the applicable case law, testimony and statutes, this Court committed no
error. Defendant's PCRA petition was properly dismissed based upon PCRA counsel's Finley
letter and untimeliness. Accordingly, this Court's decision should be affirmed.
9