Com. v. Opher, V.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VERGUAN OPHER, :
:
Appellant : No. 672 EDA 2019
Appeal from the PCRA Order Entered February 22, 2019
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011370-2013,
CP-51-CR-0011371-2013, CP-51-CR-0011407-2013
BEFORE: BOWES, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JUNE 03, 2020
Verguan Opher (“Opher”) appeals, pro se, from the Order dismissing his
first Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).
See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
Opher was charged, at three separate docket numbers, with murder and
related charges, after shooting and killing a woman and injuring the woman’s
daughter, while attempting to kill another individual.
On January 14, 2015, Opher pled guilty, at three separate docket
numbers, to one count each of third-degree murder, conspiracy, and firearms
not to be carried without a license, and two counts of criminal attempt.1 The
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1 18 Pa.C.S.A. §§ 2502(c), 903, 6106(a)(1), 901.
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trial court sentenced Opher to an aggregate term of 30 to 60 years in prison.
Opher did not file a direct appeal.
Opher filed the instant, pro se, PCRA Petition2 on May 9, 2017. The
PCRA court appointed Opher counsel. After a series of continuances, on July
12, 2018, the PCRA court issued Pa.R.Crim.P. 907 Notice of its intent to
dismiss Opher’s Petition without a hearing. Opher filed a pro se Response.
On January 22, 2019, counsel filed a Motion to Withdraw as counsel. Counsel
also subsequently filed a “no-merit” letter pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc).3 On February 22, 2019, the PCRA court
permitted granted counsel permission to withdraw, and dismissed Opher’s
Petition as untimely filed.
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2 Although Opher titled his pro se filing a Petition for writ of habeas corpus,
the PCRA court properly treated the Petition as one filed pursuant to the PCRA.
See 42 Pa.C.S.A. § 9542 (providing that the PCRA is “the sole means of
obtaining collateral relief and encompasses all other common law and
statutory remedies …, including habeas corpus”).
3A copy of the Turner/Finley letter was also entered on the docket on May
7, 2018. However, it does not appear that a motion to withdraw as counsel
was filed at that time.
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Opher filed a timely Notice of Appeal4 and a court-ordered Pa.R.A.P.
1925(b) Concise Statement of matters complained of on appeal.
On appeal, Opher raises the following questions for our review:
I. Whether [Opher’s] mandatory minimum sentence of thirty (30)
to sixty (60) years is void ab ignition [sic], and unconstitutional
under both Article I, Sections 1, 9, 13, and 26 of the Pennsylvania
Constitution, and the Sixth, Eighth, and Fourteenth Amendments
to the United States Constitution?
II. Whether [Opher] presented proof of actual innocence of
sentence [sic], and to continue to subject him to serve a
mandatory minimum sentence based on mandatory minimum
statutes which have been deemed unconstitutional is a
fundamental miscarriage of justice, and violates the Sixth, Eighth,
and Fourteenth Amendments to the United States Constitution?
Brief for Appellant at iv.
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4 Opher’s pro se Notice of Appeal lists all three docket numbers, and the docket
sheets contained in the certified record indicate that the Notice of Appeal was
filed at each docket number. On April 23, 2019, this Court issued a Rule to
Show Cause why Opher’s appeals should not be quashed pursuant to
Commonwealth v. Walker, 185 A.3d 969, 971 (Pa. 2018) (holding that
“where a single order resolves issues arising on more than one docket,
separate notices of appeal must be filed for each of those cases.”). Opher
filed a pro se Response, asserting that the PCRA court failed to adequately
inform him of the Walker requirements. This Court subsequently discharged
the Rule to Show Cause. Here, the PCRA court’s Order dismissing Opher’s
Petition, which listed all three docket numbers, advised Opher that he had “30
days from the date of this Order in which to file an appeal to the Superior
Court of Pennsylvania.” Order, 2/22/19 (emphasis added). Because the PCRA
court’s instruction regarding Opher’s appeal rights constituted a “breakdown
in the court system,” we decline to quash Opher’s appeal on this basis. See
Commonwealth v. Stansbury, 219 A.3d 157, 158-60 (Pa. Super. 2019)
(declining to quash appeal for failure to comply with Walker, where the trial
court advised a pro se defendant to file “a written notice of appeal to the
Superior Court[,]” and concluding that the court’s misstatements amounted
to a “breakdown in court operations”).
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Our standard of review regarding a PCRA court’s order is
whether the determination of the PCRA court is supported by the
evidence of record and is free of legal error. The PCRA court’s
findings will not be disturbed unless there is no support for the
findings in the certified record.
Commonwealth v. Garcia, 23 A.3d 1059, 1060 (Pa. Super. 2011) (citations
omitted).
Initially, under the PCRA, a PCRA petition “shall be filed within one year
of the date the judgment of sentence becomes final[.]” 42 Pa.C.S.A.
§ 9545(b)(1). A judgment of sentence becomes final “at the conclusion of
direct review, … or at the expiration of time for seeking the review.” Id.
§ 9545(b)(3). The PCRA’s timeliness requirements are jurisdictional in nature,
and a court may not address the merits of the issues raised if the PCRA petition
was not timely filed. Commonwealth v. Albrecht, 994 A.2d 1091, 1093
(Pa. 2010).
Here, Opher’s judgment of sentence became final in February 2015,
when the time for filing a petition for allowance of appeal with the
Pennsylvania Supreme Court expired. See Pa.R.A.P. 1113(a). Opher’s
Petition, filed more than two years later, is therefore facially untimely.
However, Pennsylvania courts may consider an untimely petition if the
appellant can explicitly plead and prove one of three exceptions set forth under
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any petition invoking one of these
exceptions “shall be filed within one year of the date the claim could have
been presented.” Id. § 9545(b)(2). “The PCRA petitioner bears the burden
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of proving the applicability of one of the exceptions.” Commonwealth v.
Spotz, 171 A.3d 675, 678 (Pa. 2017).
Opher fails to identify or invoke any of the timeliness exceptions set
forth at section 9545(b)(1)(i)-(iii). Rather, both of Opher’s arguments
challenge the legality of his sentence. Although legality of sentence claims
generally cannot be waived, “there must be a basis for our jurisdiction to
engage in such review.” Commonwealth v. Miller, 102 A.3d 988, 995 (Pa.
Super. 2014). Because Opher failed to plead and prove an exception to the
PCRA’s timeliness requirements, we cannot address the merits of his claims.
Based upon the foregoing, the PCRA court did not err in dismissing
Opher’s Petition as untimely filed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/3/2020
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