Com. v. Sturgis, R.

J-S22014-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RASHEEN STURGIS :
:
Appellant : No. 196 MDA 2021
Appeal from the PCRA Order Entered January 11, 2021
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000563-2017
BEFORE: PANELLA, P.J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY PANELLA, P.J.: FILED: DECEMBER 22, 2021
Rasheen Sturgis appeals from the order entered in the Lycoming County
Court of Common Pleas on January 11, 2021, dismissing his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541-
9546. Because we agree with counsel and the PCRA court that Sturgis’s PCRA
petition was untimely, we affirm the PCRA court’s order denying the PCRA
petition.
On January 29, 2019, after a bench trial, Sturgis was found guilty of
possession with intent to deliver a controlled substance, possession of a
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* Retired Senior Judge assigned to the Superior Court.
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controlled substance, and possession of drug paraphernalia.1 On April 2, 2019,
the trial court sentenced Sturgis to thirty-three months to fifteen years’
incarceration. Sturgis did not file any post-sentence motions or a direct
appeal.
Over one year later, on July 10, 2020, Sturgis filed a pro se PCRA
petition alleging trial counsel was ineffective for failing to file a timely
suppression motion. Counsel was appointed and filed an amended petition on
September 9, 2020. The PCRA court issued notice pursuant to Pa.R.Crim.P.
907 of its intent to dismiss the petition without a hearing due to the petition
being untimely. On January 11, 2021, the PCRA court dismissed the petition.
On February 5, 2021, PCRA counsel filed a timely notice of appeal. In
lieu of a concise statement, counsel later filed a statement of intent to file an
Anders brief pursuant to Pa.R.A.P. 1925(c)(4).2 PCRA counsel then filed an
Anders brief in this Court, discussing the timeliness of the petition and the
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1 The court acquitted Sturgis of a charge of criminal use of a communication
facility.
2 We note that PCRA counsel mistakenly labeled her brief an Anders brief.
See Anders v. California, 386 U.S. 738 (1967). Anders applies only when
counsel seeks to withdraw from representation on direct appeal. When counsel
seeks to withdraw from representation on collateral appeal, as here,
Commonwealth v. Turner, 544 A.2d 927 (Pa. Super. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), apply. See
Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011).
Counsel’s mistake is not fatal to her application to withdraw, as we have held
that “[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.” Id.(citation omitted).
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ineffectiveness claim. While we found counsel substantially complied with the
briefing requirements of Turner/Finley, we discovered counsel failed to file
a contemporaneous application to withdraw from representation and therefore
there was no evidence that she had advised Sturgis of his rights going forward.
Accordingly, we directed counsel to either file an advocate’s brief or a petition
to withdraw that met the requirements pursuant to Turner/Finley. Counsel
has since filed a proper application to withdraw as counsel and complied with
all the requirements of Turner, Finley, and Commonwealth v. Friend, 896
A.2d 607 (Pa. Super. 2006). Sturgis has not filed a response as of this date.
We therefore turn to our own independent review of the record to determine
if we agree with counsel’s conclusion that Sturgis’s PCRA petition was
meritless.
If Sturgis’s petition was untimely, the PCRA court lacked jurisdiction to
grant any relief, and therefore the petition would be meritless. See
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014).
A PCRA petition, including a second or subsequent one, must be
filed within one year of the date the petitioner’s judgment of
sentence becomes final, unless he pleads and proves one of the
three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
judgment becomes final at the conclusion of direct review by this
Court or the United States Supreme Court, or at the expiration of
the time for seeking such review. 42 Pa.C.S.[A.] § 9545(b)(3).
The PCRA’s timeliness requirements are jurisdictional; therefore,
a court may not address the merits of the issues raised if the
petition was not timely filed. The timeliness requirements apply to
all PCRA petitions, regardless of the nature of the individual claims
raised therein. The PCRA squarely places upon the petitioner the
burden of proving an untimely petition fits within one of the three
exceptions.
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Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (some internal
citations and footnote omitted).
Since Sturgis did not file a post-sentence motion or a direct appeal, his
judgment of sentence became final on May 2, 2019, when his time for seeking
direct review with this Court expired. See 42 Pa.C.S.A. § 9545(b)(3)
(judgment of sentence becomes final “at the conclusion of direct review … or
at the expiration of time for seeking the review”). Therefore, Sturgis originally
had until May 4, 2020, to timely file a PCRA petition in this matter.3 The instant
petition – filed more than one year later – appears to be patently untimely.
However, due to the Covid-19 pandemic, the Pennsylvania Supreme
Court entered a series of administrative orders during this time extending
court filing deadlines. In particular, our Supreme Court filed an emergency
order which specified that “legal papers or pleadings ... which are required to
be filed between March 19, 2020 and May 8, 2020, generally SHALL BE
DEEMED to have been filed timely if they are filed by the close of business on
May 11, 2020.” In re: General Statewide Judicial Emergency, 230 A.3d 1015(Pa. 4/28/2020) (per curiam). Furthermore, the president judge in each
county was given discretion regarding enforcement of deadlines so as to
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3May 2, 2020, fell on a Saturday. Therefore, under 1 Pa.C.S.A. § 1908, Sturgis
had until Monday, May 4, 2020, to file a facially timely PCRA petition.
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ensure the health and safety of all. See id. The president judge in Lycoming
County did not extend the filing deadline beyond May 11, 2020.4
Because Sturgis’s petition was required to be filed by May 4, 2020,
during the applicable time frame, the Supreme Court's Order extended
Sturgis’s filing date to May 11, 2020. Nevertheless, Sturgis did not file his
petition until two months later.
Thus, the PCRA court lacked jurisdiction to review Sturgis’s petition
unless he was able to successfully plead and prove one of the statutory
exceptions to the PCRA’s time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
The PCRA provides three exceptions to its time-bar:
(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)(i)-(iii). A petitioner asserting one of these
exceptions must file a petition within one year of the date the claim could have
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4The PCRA court identifies June 1, 2020, as the filing deadline under pandemic
procedures. While our review of pertinent orders does not reveal an extension
of the filing deadline beyond May 11, it is ultimately irrelevant as Sturgis’s
petition was not filed until a month after June 1.
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first been presented. See 42 Pa.C.S.A. § 9545(b)(2). Exceptions to the time-
bar must be pled in the petition, and may not be raised for the first time on
appeal. See Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super.
2007).
Sturgis contends he meets the governmental interference exception.
Specifically, Sturgis asserts he was prevented from filing his PCRA petition on
time due to the libraries being closed at the prison. His assertion is based on
a letter he received from the Acting General Counsel of the Department of
Corrections that stated the general libraries would be temporarily closed due
to the COVID-19 pandemic. Sturgis argues he understood this to mean the
law libraries were closed as well, and he therefore was somehow unable to file
his PCRA petition.
However, the letter clearly distinguishes the general libraries from the
law libraries, which is evident right away from the subject of the letter -
“General Libraries and Law Libraries”. See March 22, 2020 Letter (emphasis
added). In addition to the above information regarding the general libraries,
the letter clearly states that services for the law library will continue as
needed. See id. In fact, the letter specifically states that criminal matters “like
Post Conviction Relief Act (PCRA) matters” will be given priority. Id.Therefore, the letter is not evidence that Sturgis was prevented from
accessing the law library to file his PCRA petition. Nor has Sturgis presented
any arguments regarding an inability to read the letter, an explanation why
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he needed to use the law library to prepare his petition, or if he made any
attempt at all to access services to file his petition and if those attempts were
denied. His apparent misinterpretation of the letter simply does not constitute
governmental interference.
Further, Sturgis’s sole substantive claim of trial counsel ineffectiveness
cannot support an exception to the time-bar either. See Commonwealth v.
Mitchell, 141 A.3d 1277, 1284-85 (Pa. 2016). Even if it could, it is clear from
the record that as early as May 2018, when prior counsel filed an untimely
motion to suppress, Sturgis believed his rights had been violated during an
investigatory detention that led to the charges against him. Additionally, it is
also clear from that same time that trial counsel failed to timely file a motion
to suppress based on this belief, despite a request from Sturgis to do so.
Notwithstanding the fact that he knew about this ineffectiveness claim long
before the PCRA time-bar, and before the start of the pandemic, Sturgis failed
to timely raise this issue.
As the PCRA court properly concluded Sturgis’s PCRA petition was
untimely and does not fall under an exception to the PCRA time bar, we affirm
the PCRA court’s order dismissing the petition.
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Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2021
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