Com. v. Ethridge, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DANIEL ETHRIDGE,
Appellant No. 1650 WDA 2016
Appeal from the PCRA Order Entered October 4, 2016
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0001943-2002
BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 07, 2018
Appellant, Daniel Ethridge, appeals from the order dismissing, as
untimely, his petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-9546. We affirm.
The facts underlying Appellant’s conviction for first-degree murder,
recklessly endangering another person, and two counts of robbery, are not
germane to this appeal. A jury convicted him of these offenses on September
11, 2003. On November 24, 2003, the trial court sentenced Appellant to life
imprisonment without the possibility of parole, and a consecutive term of 14-
28 years’ incarceration. On direct appeal, this Court affirmed his judgment of
sentence on December 28, 2004, and our Supreme Court denied his
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* Retired Senior Judge assigned to the Superior Court.
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subsequent petition for allowance of appeal. Commonwealth v. Ethridge,
869 A.2d 6 (Pa. Super. 2004) (unpublished memorandum), appeal denied,
878 A.2d 862 (Pa. 2005).
Appellant filed a timely, pro se PCRA petition, his first, on November 16,
2005, which was subsequently denied by the PCRA court on March 26, 2010,
following appointed counsel’s filing of a Turner/Finley1 letter. On January 7,
2011, this Court issued a judgment order remanding the case for the
reinstatement of Appellant’s PCRA rights and for the appointment of new
counsel. See Commonwealth v. Ethridge, 23 A.3d 1077 (Pa. Super. 2011)
(judgment order). A second PCRA attorney, Daniel Chunko, Esq., was
appointed to represent Appellant, but that attorney’s appointment contract
with the PCRA court expired while he was reviewing Appellant’s petition,
prompting the court to appoint yet another attorney on December 12, 2012.
However, ten days later, Attorney Chunko filed a Turner/Finley letter and a
motion to withdraw with the PCRA court. Consequently, Appellant’s third
PCRA attorney moved to vacate his appointment, which the PCRA court
granted. Appellant then filed two motions for leave to amend his PCRA petition
on October 17, 2013, and July 23, 2014. According to the PCRA Court, “[n]o
ruling was made on these motions.” PCRA Court Opinion (PCO), 5/11/17, at
5.
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1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
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Yet another attorney was appointed to represent Appellant on July 9,
2014. That attorney withdrew 20 days later with the permission of the PCRA
court. The court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss
Appellant’s petition on April 20, 2015, and dismissed the petition on May 15,
2015. However,
[p]rior to the court’s dismissal, … [Appellant] had sent a motion
for an extension of time to object to the dismissal, which was not
lodged with the Clerk of Courts until May 26, 201[5]. After having
already filed its order dismissing the petition, the court granted
[Appellant]’s motion for an extension of time on May 29, 2015,
and allowed [Appellant] an additional thirty (30) days to file his
objections. [Appellant] filed no objections, but on May 17, 2016,
[Appellant] filed a “Notice of Nunc Pro Tunc Appeal” from the
court’s May 15, 2015 order dismissing his petition.
The court then issued a second order dismissing
[Appellant]’s petition on July 20, 2016. Rather than appealing
from the second order, on August 24, 2016, [Appellant] filed a
second PCRA petition and an accompanying “memorandum of law”
asserting that he was entitled to new PCRA proceedings with new
appointed counsel because Attorney Chunko no longer
represented him at the time of his no merit letter, and asserting
that he was not served with notice of the May 15, 2015 dismissal
of his petition, and that he instead relied on the court’s granting
of his request for an extension. The court dismissed the second
petition on September 30, 2016,[2] and [Appellant] filed his notice
of appeal on October 24, 2016. On November 2, 2016, the court
ordered [Appellant] to file his [Pa.R.A.P. 1925(b) statement], and
on November 17, 2015, [Appellant]’s … [Rule 1925(b)] statement
was lodged with the Clerk of Courts….
PCO at 5-6. The PCRA court then issued its Rule 1925(a) opinion on April 11,
2017.
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2 This order was dated September 30, 2016, but not docketed in the lower
court until October 4, 2016.
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On January 25, 2018, the Commonwealth filed an application to quash
Appellant’s appeal. In response, this Court issued the following order:
The motion to quash is hereby DENIED without prejudice to the
moving party's right to again raise this issue, if properly
preserved, in the appellate brief or, if the brief has already been
filed, then in a new application that may be filed after the appeal
has been assigned to the panel of this Court that will decide the
merits of the appeal.
Order, 4/4/18, at 1 (single page). Subsequently, the Commonwealth filed
neither a brief3 nor a motion to quash Appellant’s appeal since the instant
panel was assigned.
Appellant now presents the following questions for our review:
Whether the PCRA court erred as a matter of law in dismissing
Appellant’s petition without issuing the mandatory dismissal
notice [pursuant to Rule 907]?
Whether PCRA counsel was ineffective for withdrawing his
representation of Appellant based on the filing of a “no-merit”
letter by any attorney who was no longer counsel of record?
Appellant’s Brief at 4 (unnecessary capitalization omitted).
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
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3On December 7, 2017, following the Commonwealth’s second request for an
extension of time to file a brief, this Court granted the Commonwealth until
January 26, 2018 to file an appellee’s brief. Six months later, the
Commonwealth has still not filed a brief in this matter.
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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). 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:
(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).
Instantly, Appellant was convicted and sentenced in 2003, and his
judgment of sentence became final in 2005. See Commonwealth v.
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Feliciano, 69 A.3d 1270, 1275 (Pa. Super. 2013) (stating that “under the
PCRA, [a] 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”) (citing Commonwealth v. Owens, 718 A.2d 330, 331 (Pa.
Super. 1998)). Accordingly, Appellant’s August 2016, pro se PCRA petition is
patently untimely.
Upon review of Appellant’s PCRA petition, as well as the arguments he
presents in his brief, it is apparent that Appellant has not attempted to avail
himself of any of the enumerated exceptions to the timeliness requirements
of the PCRA that are set forth in Section 9545(b)(1)(i)-(iii). Accordingly, we
ascertain no error in the dismissal of Appellant’s petition without a hearing.
See Commonwealth v. Hudson, 156 A.3d 1194, 1197 (Pa. Super. 2017)
(“The petitioner bears the burden to plead and prove an applicable statutory
exception. If the petition is untimely and the petitioner has not pled and
proven an exception, the petition must be dismissed without a hearing
because Pennsylvania courts are without jurisdiction to consider the merits of
the petition.”).
We also note that with respect to untimely PCRA petitions, not every
defect in Rule 907 procedure requires a remedy. Even when a petitioner
preserves a claim that a PCRA court failed altogether to provide notice of
dismissal under Rule 907, “it does not automatically warrant reversal” when
“the petition is untimely[.]” Commonwealth v. Taylor, 65 A.3d 462, 468
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(Pa. Super. 2013). Here, the PCRA court denied Appellant’s PCRA petition as
untimely,4 yet nothing in his argument regarding the failure of the PCRA court
to issue a Rule 907 notice in this case bears upon the timeliness of his petition.
Order affirmed.
Judge Stabile joins this memorandum.
Judge Strassburger concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/07/2018
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4 Despite issuing an order dismissing as untimely Appellant’s current PCRA
petition, filed in August of 2016, see Order, 9/22/16, at 1 (single page), the
PCRA court’s opinion treated “this appeal as an appeal from the dismissal of
the first petition [filed in November of 2005]…[,]” citing Commonwealth v.
Rivera, 816 A.2d 282 (Pa. Super. 2003), but without providing any
explanation or analysis concerning that determination, PCO at 8. In Rivera,
we held that a petitioner who had been not been advised of his right to appeal
from his first, timely PCRA petition, was entitled to have his second, otherwise
untimely PCRA petition treated as having been timely filed due to that error.
Here, in both the first and second orders issued by the court dismissing
Appellant’s first, timely PCRA petition, Appellant was advised of his right to
appeal from those decisions. See Order, 5/15/15, at 1 (single page) (advising
Appellant that he had “thirty (30) days from the entry of this Order to file [an]
appeal”); and see Order, 7/22/16 at 3 (advising Appellant that “if he wishes
to appeal this final order, he has thirty (30) days from the entry of this Order
to file said appeal”). Accordingly, Rivera is not applicable in these
circumstances.
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