Com. v. Thornton, B.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
BARTHANIEL TOUCHSTONE :
THORNTON : No. 2301 EDA 2016
:
Appellant
Appeal from the PCRA Order June 2, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0014585-2008
BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.
MEMORANDUM BY RANSOM, J.: FILED JANUARY 19, 2018
Appellant, Barthaniel Touchstone Thornton, appeals from the order
entered June 2, 2016, dismissing as untimely his petition for collateral relief
filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
We affirm.
On May 21, 2009, Appellant proceeded to a waiver trial and was found
guilty of aggravated assault, firearms not be carried without a license, carrying
firearms in public on the streets of Philadelphia, possession of an instrument
of crime, simple assault, and recklessly endangering another person.1 On
September 24, 2009, Appellant was sentenced to serve an aggregate term of
fifteen to thirty years of incarceration. Appellant did not file a direct appeal.
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1
18 Pa.C.S. §§ 2702(a), 6106(a)(1), 6108, 907(a), 2701(a), and 2705.
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On February 11, 2011, Appellant filed a petition for writ of habeas corpus
with the Pennsylvania Supreme Court, which the court denied. See
Commonwealth v. Thornton, 29 A.3d 1156 (Pa. 2011).
On August 3, 2012, Appellant pro se filed a PCRA petition. In February
2014, David Scott Rudenstein, Esq. was appointed as counsel.2 In January
2016, Mr. Rudenstein filed a Turner/Finley “no merit” letter and motion to
withdraw.3 On April 29, 2016, Appellant filed a response in opposition.
Upon consideration of Mr. Rudenstein’s Turner/Finley letter, the PCRA
court issued Rule 907 notice of its intent to dismiss Appellant’s petition on May
4, 2016. The Honorable Joan A. Brown accepted the Turner/Finley letter
and dismissed Appellant’s petition on June 2, 2016. No action was taken on
the motion to withdraw. Thereafter, this matter was transferred to the
Honorable Leon W. Tucker.
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2
Appellant filed a series of supplemental pro se correspondences before and
after counsel was appointed. “‘The Rules of Criminal Procedure contemplate
that amendments to pending PCRA petitions are to be “freely allowed to
achieve substantial justice,’ Pa.R.Crim.P. 905(A), but Rule 905 amendments
are not ‘self-authorizing’ such that a petitioner may simply ‘amend’ a
pending petition with a supplemental pleading.” Commonwealth v. Mason,
130 A.3d 601, 653 n. 19 (Pa. 2015) (citing Commonwealth v. Porter, 35
A.3d 4, 12 (Pa. 2012)). “[A]mendment is permitted only by direction or leave
of the PCRA court.” Porter, 35 A.3d at 12. There is no indication that
Appellant requested the PCRA court consider the amendments, nor any
indication that the court granted Appellant leave to amend his initial PCRA
petition. See Porter, supra.
3
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988).
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On June 27, 2016, Appellant pro se filed a notice of appeal. During the
pendency of the appeal, Judge Tucker undertook a separate review of the
Turner/Finley letter. Thereafter, Judge Tucker sent a letter to this Court
seeking remand for appointment of new counsel stating: “[W]e believe Mr.
Thornton should be represented by counsel, as there may be substantive
issues of merit that should be resolved on appeal.” Letter from Judge Tucker
to Deputy Prothonotary of the Superior Court, 2/6/2017.
On February 22, 2017, this Court remanded the appeal to the PCRA
court for thirty (30) days for a determination to resolve the lack of disposition
on the motion to withdraw filed by PCRA counsel, David Scott Rudenstein,
Esq. See Pa. Super. Order, 2/22/2017. On May 3, 2017, Judge Tucker issued
an order that permitted PCRA counsel to withdraw and appointed Michael P.
Marryshow, Esq. to represent Appellant on appeal. See PCRA Ct. Order,
5/3/2017. Mr. Marryshow filed a brief with this Court purporting to raise
claims under the auspices of a direct appeal. This was error as the PCRA court
never authorized Appellant to file a direct appeal nunc pro tunc.
Furthermore, “‘[a]mong the related but distinct rules which make up the
law of the case doctrine’ is the rule that ‘upon transfer of a matter between
trial judges of coordinate jurisdiction, the transferee trial court may not alter
the resolution of a legal question previously decided by the transferor trial
court.’” Commonwealth v. King, 999 A.2d 598, 600 (Pa. Super. 2010)
(quoting Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995)).
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The various rules which make up the law of the case doctrine not
only serve to promote the goal of judicial economy (as does
the coordinate jurisdiction rule) but also operate to (1) to protect
the settled expectations of the parties; (2) to insure uniformity of
decision; (3) to maintain consistency during the course of a single
case; (4) to effectuate the proper and streamlined administration
of justice; and (5) to bring litigation to an end.... The various
policies which motivated the development of these rules and
which continue to motivate the enduring existence of both
the coordinate jurisdiction rule and the law of the case doctrine
are of paramount importance in the context of a criminal
proceeding where the criminal defendant and his counsel must be
allowed to proceed to trial with an established trial strategy and
with the security of knowing, for example, that he either will or
will not be permitted to represent himself or that his pre-trial
statements either will or will not be introduced against him at trial.
In this regard, these rules seek to ensure fundamental fairness in
the justice system by preventing a party aggrieved by one judge's
interlocutory order to attack that decision by seeking and securing
relief from a different judge of the same court, thereby forcing
one's opponent to shift the focus of his trial strategy in the matter.
Commonwealth v. Santiago, 822 A.2d 716, 724 (Pa. Super. 2003)
(quoting Starr, 664 A.2d at 1331).
The PCRA court’s decision to dismiss on the basis of PCRA counsel’s
Turner/Finley letter was akin to a disposition of a legal question. See Rule
907 Notice, 5/4/2016. It is well-established that:
[w]hen “counsel determines that the issues raised under the
PC[R]A are meritless, and when the PC[R]A court concurs, counsel
will be permitted to withdraw and the petitioner may proceed pro
se, or by privately retained counsel, or not at all.” Turner, 544
A.2d at 928-929 (emphasis added); see also Commonwealth v.
Finley, 550 A.2d 213 215 (Pa. Super. 1988) (en banc) (“Once
counsel for the petitioner determine that the issues raised under
the PC[R]A are ‘meritless,’ and the PC[R]A court concurs, counsel
will be permitted to withdraw and the petitioner may proceed on
his own or with the aid of private counsel to pursue a review of
the ruling entered, if he/she so wishes.” (citing Turner, supra)
(emphasis added).
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We therefore conclude that, when counsel has been appointed
to represent a petitioner in post-conviction proceedings as a
matter of right under the rules of criminal procedure and when
that right has been fully vindicated by counsel being permitted to
withdraw under the procedure authorized in Turner, new counsel
shall not be appointed and the petitioner, or appellant, must
thereafter look to his or her own resources for whatever further
proceedings there might be.
Commonwealth v. Maple, 559 A.2d 953, 956 (Pa. Super. 1989) (footnote
omitted).
Judge Tucker’s decision to appoint Mr. Marryshow as appellate counsel
was in direct conflict with the dismissal of Appellant’s petition based on a
Turner/Finley letter and, curiously, Judge Tucker’s decision to permit Mr.
Rudenstein to withdraw. Even if Judge Tucker did not agree with the initial
determination of the PCRA court, Judge Tucker was barred from appointing
appellate counsel by the coordinate jurisdiction rule. Id.; see also
Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012). We note
further that, by appointing appellate counsel in a PCRA matter deemed by the
PCRA court to be meritless, this violation of the coordinate jurisdiction rule
resulted in a waste of judicial resources. See Starr, 664 A.2d at 1331.
Notwithstanding this error, we consider the brief filed by Mr. Marryshow
on Appellant’s behalf. On appeal, Appellant raises the following issue:
Did the trial court err in sentencing Appellant on a second strike
mandatory minimum sentence without first providing Appellant’s
complete record of previous convictions to Appellant?
Appellant's Br. at 3 (unnecessary capitalization removed).
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Essentially, Appellant challenges the legality of his sentence. According
to Appellant, he was not provided with copies of his prior convictions or
notified of the Commonwealth’s intent to seek the mandatory minimum of ten
to twenty years of incarceration for aggravated assault. See Appellant's Br.
at 8 (citing 42 Pa.C.S. § 9741(d)).
Our standard of review of the denial of a PCRA petition is
limited to examining whether the evidence of record supports the
court's determination and whether its decision is free of legal
error. This Court grants great deference to the findings of the
PCRA court if the record contains any support for those
findings. [A] petitioner is not entitled to a PCRA hearing as a
matter of right; the PCRA court can decline to hold a hearing if
there is no genuine issue concerning any material fact and the
petitioner is not entitled to post-conviction collateral relief, and no
purpose would be served by any further proceedings. A reviewing
court on appeal must examine each of the issues raised in the
PCRA petition in light of the record in order to determine whether
the PCRA court erred in concluding that there were no genuine
issues of material fact and in denying relief without an evidentiary
hearing.
Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa. Super. 2015), appeal
denied, 136 A.3d 981 (Pa. 2016) (internal citations and quotation marks
omitted).
Initially, we examine the timeliness of Appellant’s petition. Although
illegal sentencing issues cannot be waived, they must be presented in a timely
PCRA petition. Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa. Super.
2013). As we have explained:
The filing mandates of the PCRA are jurisdictional in nature and
are strictly construed. The question of whether a petition is timely
raises a question of law. Where the petitioner raises questions of
law, our standard of review is de novo and our scope of review
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plenary. An untimely petition renders this Court without
jurisdiction to afford relief.
A petition for relief under the PCRA must be filed within one
year of the date the PCRA petitioner's judgment of sentence
becomes final unless the petitioner alleges and proves that an
exception to the one-year time-bar is met. 42 Pa.C.S. § 9545.
Taylor, 65 A.3d at 468 (citations omitted).
There are three 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). Any petition attempting to invoke these
exceptions “shall be filed within 60 days of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v. Gamboa-
Taylor, 753 A.2d 780, 783 (Pa. 2000).
The instant PCRA petition was filed on August 3, 2012, more than three
years after the judgment became final.4 Further, Appellant has neither
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4
Appellant’s petition is patently untimely. Appellant’s judgment of sentence
became final on October 26, 2009. The time for filing a PCRA petition seeking
collateral review ended one year after the date the judgment of sentence
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pleaded nor attempted to prove an exception to the time-bar in his PCRA
petitions or in his brief. Consequently, the PCRA court was without jurisdiction
to review the merits of Appellant’s claim and properly dismissed his petition
without an evidentiary hearing. See Taylor, 65 A.3d at 468.5
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/19/2018
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became final, October 25, 2010. See 42 Pa.C.S. § 9545(b)(1). Thus, the
petition was filed more than three years after the judgment became final.
5
Notwithstanding our lack of jurisdiction, we note briefly that Appellant’s claim
is devoid of merit. The certified record contains Appellant’s written jury trial
waiver colloquy, which serves as proof of his notice of the potential range of
sentences for the crimes charged. See Jury Waiver Colloquy, at 3 (signed by
District Attorney, Counsel, trial judge, and Appellant 5/21/2009). After
conviction and before sentencing, Appellant was provided with notice of his
prior record score, including twenty-seven Philadelphia arrests and one felony-
rape conviction. See Notes of Testimony (N.T.), 5/21/2009, at 132. At that
time, the court requested a presentence report and informed Appellant on the
record that he had a second strike and a potential ten to twenty year sentence.
Id. The statute merely requires “reasonable notice of the Commonwealth's
intention to proceed under this section shall be provided after conviction and
before sentencing[.]” 42 Pa.C.S. § 9714(d).
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