Com. v. Walker, E., Jr.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
EARL DOUGLAS WALKER, JR. :
:
Appellant : No. 494 MDA 2021
Appeal from the PCRA Order Entered March 11, 2021
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0004910-2018
BEFORE: BOWES, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY BOWES, J.: FILED: MARCH 15, 2022
Earl Douglas Walker, Jr. appeals pro se from the order that dismissed
as untimely his petition filed pursuant to the Post Conviction Relief Act
(“PCRA”). We affirm.
On February 13, 2019, Appellant entered open guilty pleas to several
crimes, including burglary, conspiracy, robbery, and aggravated assault in
connection with an armed invasion of an occupied home in Lancaster County
committed with another adult and two juveniles. Appellant, facing a possible
maximum sentence of 133 years of incarceration, opted to proceed directly to
sentencing and received an aggregate sentence of sixteen to thirty-two years.
Appellant did not file post-sentence motions or a direct appeal.
The docket reflects that on June 19, 2020, the clerk of court’s received
a pro se PCRA petition which Appellant apparently sent on June 16, 2020.
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Therein, Appellant claimed that counsel was ineffective in that he could have
entered a negotiated plea rather than an open one, and complained that his
sentences should have all been concurrent to each other and his parole
violation. See PCRA Petition, 6/16/20, at 4. Appellant further alleged that
his petition was “being filed nunc pro tunc as a result of the institutional law
library being closed for the past few months due to the coronavirus pandemic
and [Appellant] could not use the law library.” Id. at 3 (unnecessary
capitalization omitted).
Counsel was appointed and moved to withdraw pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). Specifically, counsel
opined that Appellant’s June 16, 2020 PCRA petition was untimely filed with
no applicable timeliness exceptions, as it had been due on or before March 16,
2020, and the emergency pandemic mitigation measures did not commence
until after that date. See Motion to Withdraw, 9/22/20, at 2-3. Counsel
alternatively indicated that withdrawal was appropriate because the claims
Appellant wished to raise were meritless. Id. at 5-9.
The PCRA court permitted counsel to withdraw and issued notice of its
intent to dismiss the petition as untimely. See Pa.R.Crim.P. 907 Notice,
11/20/20, at unnumbered 5-6. Although counsel was permitted to withdraw,
the clerk of courts served this filing on counsel and not Appellant, and
Appellant did not respond to the notice. The PCRA court dismissed Appellant’s
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petition on March 10, 2021, and Appellant filed a timely notice of appeal. The
PCRA court directed Appellant to file a Pa.R.A.P. 1925(b) statement and he
did not comply. However, we remanded to allow Appellant to file a statement
because the PCRA court’s order had not been properly docketed and served.1
Appellant filed his statement, and also the sworn statement of fellow-inmate
Bruce Wishnefsky in support of the timeliness allegations raised in Appellant’s
PCRA petition.
We subsequently remanded a second time for the PCRA court to provide
Appellant with portions of the record necessary for preparing his appellate
brief. Appellant eventually filed his brief, and the Commonwealth indicated
that it would not file one of its own. Accordingly, the appeal is ripe for
disposition.
Appellant states the following questions for our consideration, which we
have renumbered for ease of disposition:
1. Whether PCRA counsel was ineffective when she filed
a “no merit” letter that said, without evidentiary support, that
Appellant’s PCRA petition was not timely when it referenced her
unsupported belief that inmates had access to the prison law
library through March 29, 2020?
2. Whether the [PCRA] court erred in the June 4, 2021,
Memorandum when it ignored Paragraphs 4 and 5 of the
Wishnefsky affidavit, which explained that the SCI Laurel
Highlands law library was closed on March 16, 2020.
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1 Indeed, the docket indicates that service continued to be made upon
withdrawn counsel and not upon Appellant at all times through the assignment
of this appeal to the instant panel of this Court.
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3. Whether the [PCRA] court erred in the June 4, 2021,
Memorandum when it held that Appellant’s claims failed to satisfy
any of the PCRA time bar exceptions, when the improper
obstruction by government officials exception applied, due to the
closing of the courts by the Pennsylvania Supreme Court and the
unscheduled closing of the SCI Laurel Highlands law library?
4. Whether PCRA counsel was ineffective when she filed
a “no merit” letter which failed to allege the Appellant’s guilty plea
was unknowing when plea counsel failed to advise Appellant that
there was a defense to the burglary charge if the premises were
open to the public to purchase marijuana?
5. Whether PCRA counsel was ineffective when she filed
a “no merit” letter that said consecutive sentences for burglary
and robbery were appropriate, even though no burglary took
place?
Appellant’s brief at 2.
We begin with a review of the applicable legal principles. “The standard
of review of an order dismissing a PCRA petition is whether that determination
is supported by the evidence of record and is free of legal error.”
Commonwealth v. Cruz, 223 A.3d 274, 277 (Pa.Super. 2019) (cleaned up).
“It is an appellant’s burden to persuade us that the PCRA court erred and that
relief is due.” Commonwealth v. Stansbury, 219 A.3d 157, 161 (Pa.Super.
2019) (cleaned up).
It is well-settled that, “[b]ecause the PCRA time limitations implicate
our jurisdiction and may not be altered or disregarded in order to address the
merits of a petition, we must start by examining the timeliness of Appellant’s
petition.” Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014).
Indeed, “no court has jurisdiction to hear an untimely PCRA petition.”
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Commonwealth v. Ballance, 203 A.3d 1027, 1031 (Pa.Super. 2019). The
PCRA provides as follows regarding the time for filing a petition:
Any petition [filed pursuant to the PCRA], 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). Further, a petition invoking a timeliness exception
“shall be filed within one year of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2).
Appellant was sentenced on February 13, 2019. His judgment of
sentence became final thirty days later, i.e., on Friday, March 15, 2019, when
he failed to file a direct appeal. In order to file a timely PCRA petition, he thus
had to give it to prison authorities for mailing on or before Monday, March 16,
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2020.2 The cover letter accompanying Appellant’s PCRA petition is dated June
16, 2020. Accepting that as the earliest possible filing date, 3 Appellant’s
petition was three months late.
Appellant contends that his petition must be deemed timely filed
pursuant to the 42 Pa.C.S. § 9545(b)(1)(i) governmental-interference
exception both because of the unscheduled closing of the prison law library
and because of the Supreme Court’s closure of the courts due to the pandemic.
He asserts that there is no evidentiary basis for counsel’s representation in
the Turner/Finley letter that the law library remained opened to inmates until
the March 29, 2020 prison quarantine, and that the PCRA court in its
independent review overlooked portions of the affidavit he produced which
contradicted counsel’s understanding. See Appellant’s brief at 8, 10-12.
We disagree. We first observe that counsel properly concluded that
Appellant’s petition was not timely filed pursuant to our Supreme Court’s
emergency judicial orders issued at the outset of the COVID-19 pandemic. As
this Court recently detailed, the ultimate collective import of those orders is
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2See 1 Pa.C.S. § 1908 (providing that weekend days and legal holidays are
excluded from the computation of the time period for a filing when the last
day of the time period falls on a weekend or legal holiday).
3 Pursuant to the prisoner mailbox rule, “a pro se prisoner’s document is
deemed filed on the date he delivers it to prison authorities for mailing.”
Commonwealth v. Kennedy, 266 A.3d 1128, 1132 n.8 (Pa.Super. 2021).
Since Appellant signed his document June 16, 2020, that is the earliest date
on which he could have delivered it for mailing.
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that any document which was required to have been filed between March 19,
2020, and May 8, 2020, would be deemed to have been timely filed if they
were filed before the close of business on May 11, 2020. See
Commonwealth v. Woolstrum, ___ A.3d ___, 2022 PA Super 34, 2022 WL
570880 at *2-3 (Pa.Super. Feb. 25, 2022). Since Appellant’s brief was due
before March 19, 2020, and he filed it after May 11, 2020, the emergency
orders have no bearing on the timeliness of his filing.
Moreover, the verified statement of Bruce Wishnefsky does not support
a conclusion that the closure of the law library thwarted Appellant’s efforts to
timely file his PCRA petition.4 Mr. Wishnefsky indicated that at 6:00 p.m. on
March 16, 2020, all the inmates in Appellant’s D-Unit were recalled to the D-
Unit, that there was no subsequent announcement calling inmates to the law
library that day even though Mr. Wishnefsky had signed up for the evening
session, and that the restrictions on legal research continued until July 19,
2020. See Notice of Filing Affidavit in Support of PCRA Petition, 4/14/21, at
1-2.
Accepting these averments as true, they afford Appellant no relief. As
indicated above, Appellant’s PCRA petition had to be filed on or before March
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4Appellant did not produce Mr. Wishnefsky’s statement until after his petition
was dismissed and the case was on remand from this Court. Nonetheless, we
consider it given that the PCRA court’s Pa.R.Crim.P. 907 notice, which would
have prompted Appellant to produce it earlier, was improperly docketed and
served in the same breakdown of court processes as the Pa.R.A.P. 1925(b)
order, which was what necessitated the remand in the first place.
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16, 2020. Appellant does not contend that he had been prepared to file his
petition on March 16, but because the law library became unavailable as of
6:00 that evening, he was unable to do so. Indeed, he offers no explanation
of how the law library closure on the due date for the filing affected his ability
to mail it. Moreover, since Appellant ultimately mailed the petition on June
16, 2020, even though, according to Mr. Wishnefsky, law library access did
not resume until July 19, 2020, library access was plainly not essential to
Appellant’s ability to mail his petition.
Therefore, we agree with the PCRA court that neither of the reasons
proffered by Appellant justifies the late filing of his PCRA petition. Since his
petition was untimely, neither the PCRA court nor this Court has jurisdiction
to entertain his substantive claims. Accordingly, no relief is due.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/15/2022
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