Com. v. Guirleo, K.

J-S55024-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KERRIE LEI GUIRLEO :
:
Appellant : No. 414 WDA 2019
Appeal from the PCRA Order Entered January 17, 2019
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0001292-2015
BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 30, 2020
Kerrie Lei Guirleo appeals from the denial of her petition for relief under
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. This case
returns to us after we remanded for counsel to file either a proper
Turner/Finley brief or an advocate’s brief.1 In response, counsel filed an
Anders2 brief and a petition to withdraw. We grant counsel’s petition and
affirm the order of the PCRA court.
In August 2016, a jury found Guirleo guilty of persons not to possess,
use, manufacture, control, sell or transfer firearm.3 The trial court sentenced
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* Retired Senior Judge assigned to the Superior Court.
1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super. 1988).
2 Anders v. California, 386 U.S. 738 (1967).
3 See 18 Pa.C.S.A. § 6105(a)(1).
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Guirleo to three and a half to seven years’ incarceration and we affirmed the
judgment of sentence. Commonwealth v. Guirleo, No. 1334 WDA 2016,
2017 WL 2616007 (Pa.Super. filed June 16, 2017). Guirleo did not seek review
with our Supreme Court.
In December 2018, Guirleo filed the instant PCRA petition claiming her
petition was timely under the governmental interference and newly discovered
fact time-bar exceptions. She alleged that her conviction for possessing a
firearm was illegal because she had not been convicted of the predicate
offense that the prosecution argued at trial, aggravated assault. Rather, the
prosecution in the aggravated assault case had entered a nolle pros.
The PCRA court issued notice of its intent to dismiss the petition without
a hearing and in January 2019, it dismissed it. See Pa.R.Crim.P. 907. Guirleo
filed this timely appeal. Because she was unrepresented, we remanded for the
PCRA court to hold a Grazier hearing.4 The PCRA court appointed counsel
who, when the case returned to this Court, filed an Anders brief. However,
counsel’s Anders brief was deficient and thus we remanded for counsel to
“file either a petition to withdraw and a fully compliant Turner/Finley no-
merit letter, or an advocate’s brief[.]” Commonwealth v. Guirleo, 2020 WL
86566 at *1 (Pa.Super. filed January 6, 2020) (unpublished memorandum).
The case now returns to us as counsel has filed a new Anders brief and
a petition to withdraw as counsel. As we explained in our prior memorandum,
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4 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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the proper filing in this case would be a Turner/Finley letter, as counsel
wishes to withdraw in an appeal from the denial of PCRA relief. See Guirleo,
2020 WL 86566, at *1 (citing Commonwealth v. Widgins, 29 A.3d 816, 817
n.2 (Pa.Super. 2011)). Nonetheless, “[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.” Widgins, 29 A.3d at 817. We thus will
analyze whether counsel’s brief meets the standards of Turner/Finley.
A Turner/Finley brief must: (1) detail the nature and extent of
counsel’s review; (2) list each issue the petitioner wished to have reviewed;
and (3) an explanation of why the petitioner’s issues were meritless.
Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009). “Counsel must
also send to the petitioner: (1) a copy of the ‘no-merit’ letter/brief; (2) a copy
of counsel’s petition to withdraw; and (3) a statement advising petitioner of
the right to proceed pro se or by new counsel.” Commonwealth v. Wrecks,
931 A.2d 717, 721 (Pa.Super. 2007). If counsel has met the above
requirements, we then conduct an independent review of the petitioner’s
issues to determine if they are in fact meritless. Commonwealth v. Muzzy,
141 A.3d 509, 511 (Pa.Super. 2016). If we conclude that the claims are
meritless, we then grant counsel’s petition to withdraw. Id.Here, counsel has complied with the requirement of Turner/Finley. He
details the nature and extent of his review, including “a thorough review and
conscientious examination of the record, . . . a review of the official file, a
reading of the Notice of Appeal, [and] research and review of the applicable
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case law and statutes[.]” Anders Br. at 6. Counsel also lists all the issues
Guirleo wishes to have reviewed and provides a statement advising Guirleo of
her right to proceed pro se or to retain counsel. Having satisfied the procedural
requirements of Turner/Finley, we now conduct an independent review of
the issues counsel has identified.
Counsel raises the following issues in his Anders brief:
I. Whether the fact that [Guirleo’s] charge of aggravated
assault in case No. 762 of 1998 was nolle prossed
permits her to carry a firearm and thereby qualified
for the newly discovered evidence exception?
II. Whether the public defender’s office failure to meet
with [Guirleo] prior to trial and failure to spend
sufficient time preparing for the case for trial qualified
for the newly discovered evidence exception?
III. Whether the trial court’s denial of [Guirleo’s] request
for discover and motion for transcripts and documents
constitutes interference by government officials
preventing [Guirleo] from filing her PCRA petition
within the one year time limitation?
IV. Whether the Fayette County District Attorney’s Office
failure to provide [Guirleo] in discovery a transcript of
her prior record constitutes interference by
government officials preventing [Guirleo] from filing
her PCRA petition within the one year time limitation?
Anders Br. at 2.
Because we conclude that Guirleo’s PCRA petition was untimely, we do
not address these issues on the merits. The PCRA’s time-bar is jurisdictional,
and “Pennsylvania courts may not entertain untimely PCRA petitions.”
Commonwealth v. Edmiston, 65 A.3d 339, 346 (Pa. 2013).
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A petitioner has one year from the date the judgment of sentence
becomes final to file a PCRA petition, unless an exception applies. 42 Pa.C.S.A.
§ 9545(b)(1). A judgment of sentence becomes final “at the conclusion of
direct review, including discretionary review in the Supreme Court of the
United States and the Supreme Court of Pennsylvania, or at the expiration of
time for seeking the review.” Id. at § 9545(b)(3). Should a petitioner file a
petition beyond the one-year time bar, she must plead and prove at least one
of the time-bar exceptions. These exceptions are:
(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 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.
Id. at § 9545(b)(1)(i)-(iii). The petitioner must raise the claim within one year
from the time the claim could have been raised. See id. at § 9545(b)(2).
Here, Guirleo’s judgment of sentence became final on July 17, 2017, as
the 30-day deadline to file a petition to appeal with our Supreme Court fell on
a Sunday. See Pa.R.A.P. 1113(a); 1 Pa.C.S.A. § 1908. Thus, she had until
July 17, 2018, to file a timely PCRA petition. The instant petition filed in
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December 2018 is facially untimely. As such, Guirleo bore the burden of
pleading and proving at least one of the time-bar exceptions. See
Commonwealth v. Smith, 121 A.3d 1049, 1054 (Pa.Super. 2015).
In her petition, Guirleo alleged the governmental interference and newly
discovered fact exceptions. Regarding the governmental interference
exception, she alleged the following:
1) Exhibits included in which the judge denied discovery and
transcripts in order to complete this PCRA; finally
obtaining information directly from Ms. Snyder.
2) Miscarriage of justice/ actual innocence, [Guirleo] never
convicted in previous case prosecutor informing jury
about.
PCRA Petition, at 3 (unnecessary capitalization removed). For the newly
discovered fact exception, she alleged the following:
1) The government was withholding exculpatory evidence in
which could have proved by innocence. Due to my
attorney’s ineffectiveness in requesting it, I was
convicted.
2) Serial ineffectiveness
3) Counsel never proffered plea bargain in which proves
ineffectiveness.
Id. (unnecessary capitalization removed).
In order to satisfy the governmental interference exception, the
petitioner must plead and prove “the failure to previously raise the claim was
the result of interference by governmental officials, and the information could
not have been obtained earlier with the exercise of due diligence.”
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Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008). The newly
discovered fact exception requires the petitioner to plead and prove that “the
facts upon with the claim was predicated were unknown” and “could not have
been ascertained by the exercise of due diligence.” Commonwealth v.
Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (quoting 42 Pa.C.S.A. §
9545(b)(1)(ii)) (emphasis omitted). Due diligence “‘does not require perfect
vigilance and punctilious care, but merely a showing the party has put forth
reasonable effort’ to obtain the information upon which a claim is based.”
Commonwealth v. Cox, 146 A.3d 221, 230 (Pa. 2016) (quoting
Commonwealth v. Edmiston, 65 A.3d 339, 348 (Pa. 2013)).
Here, Guirleo fails to plead sufficient facts to establish either exception.
Guirleo fails to explain why she could not, with due diligence, have learned
sooner that she allegedly was not convicted of the predicate crime of
aggravated assault. Her ineffectiveness claims are not “facts” for purposes of
the newly discovered fact exception. Having failed to plead and prove any
time-bar exception, we affirm the order dismissing her PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/30/2020
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