Com. v. William, E.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERIC WILLIAM :
:
Appellant : No. 2294 EDA 2022
Appeal from the PCRA Order Entered July 19, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003947-2017
BEFORE: BOWES, J., STABILE, J., and DUBOW, J.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 22, 2023
Eric William appeals pro se from the order that dismissed as untimely
his petition filed pursuant to the Post Conviction Relief Act (“PCRA”). We
affirm.
While Appellant was in prison awaiting trial on charges of murder, he
snuck into the cell of the murder victim’s stepfather and stabbed him in the
face, neck, and testicles. For that assault, Appellant pled guilty on March 5,
2018, to attempted murder and received a negotiated sentence of ten to
twenty years of incarceration to run concurrently with his life sentence for the
murder.
On direct appeal, Appellant contended that he had been coerced into
pleading guilty and the trial court erred in failing to appoint substitute counsel
at Appellant’s request. On August 27, 2019, this Court affirmed the judgment
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of sentence. See Commonwealth v. William, 221 A.3d 313, 314 (Pa.Super.
2019) (non-precedential decision). Specifically, we held that Appellant waived
his claim that his plea was not knowing and voluntary by not raising it in the
trial court. Id. (non-precedential decision at 4-5). We addressed his
challenge to the court’s refusal to appoint new counsel as follows:
Here, during the guilty plea hearing, the court addressed
Appellant’s motion to substitute counsel. Appellant explained that
he was dissatisfied with counsel’s representation because he did
not receive full discovery and did not adequately discuss defense
strategy. Appellant characterized the relationship as “eroding”
and “not a good relationship.”
The trial court informed Appellant that if that were true [it]
would not accept the plea. Counsel then stated that he
represented Appellant during the unrelated murder trial, talked
about this incident extensively during the trial, and went over
photographs, videos, and other discovery. The court then
explained that it did not hear anything indicating that counsel was
not prepared, so it denied the motion to substitute counsel.
Finally, the trial court again asked Appellant whether he was
satisfied with counsel’s representation, to which Appellant
responded “Yes.”
Upon review, we conclude that because Appellant did not
show irreconcilable differences between himself and counsel, the
trial court did not abuse its discretion in denying Appellant’s
motion to substitute counsel.
Id. (non-precedential decision at 5-6 (cleaned up).
Since Appellant did not seek review in our Supreme Court, his judgment
of sentence became final on September 26, 2019. On October 31, 2020, more
than one year after his judgment of sentence became final, Appellant filed a
motion for an extension of time to file a PCRA petition, citing his limited access
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to the prison library due to the COVID-19 pandemic. See Motion for Extension
of Time, 10/31/20, at 1.1 No action was taken upon the motion.
On February 10, 2021, Appellant filed a pro se PCRA petition raising
claims that plea counsel was ineffective.2 The PCRA court appointed counsel,
followed by substitute counsel, who filed a request to withdraw and 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
Therein, counsel tacitly acknowledged that Appellant’s petition was untimely
pursuant to the PCRA’s one-year time bar. See Finley Letter Brief, 5/9/22,
at 2-3 (citing 42 Pa.C.S. § 9545). Rather than address the possible application
of timeliness exceptions, counsel opted to “proceed as though the court
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1 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. DiClaudio, 210 A.3d 1070, 1074 (Pa.Super. 2019).
Here, the certificate of service for the motion is dated October 31, 2020, and
the envelope in which it was mailed is postmarked November 3, 2020. The
envelope was stamped as having been received by the Office of Judicial
Records on November 9, 2020. The motion was received by the Prison Liaison
Unit of the Office of Judicial Records on November 24, 2020, and it was finally
docketed on November 25, 2020. While it does not alter our disposition, we
opt to use the earliest possible filing date, namely October 31, 2020, in
conducting our analysis.
2 Since the petition is not dated, we use the postmark date as the filing date
in this instance.
3 The appointment and substitution orders are not contained within the
certified record but are noted on the docket.
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granted the [motion for an] extension of time to file,” and explained the lack
of merit in Appellant’s substantive claims. Id. at 3.
The PCRA court issued notice of its intention to dismiss Appellant’s PCRA
petition as untimely, stating that the circumstances related to the pandemic
and the various emergency orders concerning the suspension of filing
deadlines in the spring of 2020 did not prevent Appellant from filing a timely
PCRA petition.4 See Pa.R.Crim.P. 907 Notice, 6/17/22, at ¶¶ 15-20. The
PCRA court further agreed with counsel that the substantive issues Appellant
sought to raise were meritless. Id. at ¶¶ 21-27. Accordingly, the court
purported to notify Appellant that it intended to dismiss his petition without a
hearing as both untimely and meritless and advised him that he had twenty
days to file a response. Id. at ¶ 30-31. However, the docket does not indicate
that the notice was served upon Appellant, and he filed no response.
On July 19, 2022, the PCRA court signed two orders dismissing
Appellant’s PCRA petition, one of which included the required notice informing
Appellant that he had thirty days to appeal the dismissal. See Pa.R.Crim.P.
907(4). The other noted counsel’s absence from that day’s proceeding, but
did not address the pending withdrawal request. There is no indication on the
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4 The PCRA court also indicated that the law library at Appellant’s correctional
institution “was contacted” and that its records indicated that Appellant used
it on Wednesdays in August and September 2020. See Pa.R.Crim.P. 907
Notice, 6/17/22, at ¶ 20. We do not consider the substance of this apparent
ex parte hearsay in conducting our review.
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docket that either order was served upon Appellant by certified mail, return
receipt requested, as mandated by Rule 907(4). However, the docket
indicates that service in some form was made upon Appellant on August 16,
2022.
Appellant filed a timely pro se notice of appeal no later than August 24,
2022.5 The PCRA court issued an opinion on September 7, 2022. The docket
does not reflect that the opinion was served upon Appellant or his counsel,
who had not yet received permission to withdraw. Although not ordered to
do so, the following week, Appellant pro se filed a statement of errors
complained of on appeal claiming, inter alia, that the PCRA court erred in
ruling his petition untimely and that PCRA counsel was ineffective in filing to
amend the petition to assert a timeliness exception. The PCRA court did not
file a new opinion in response to Appellant’s concise statement.
This Court remanded the case for the PCRA court to rule upon counsel’s
withdrawal request, which it granted by order of February 15, 2023.6 The
parties thereafter filed their respective briefs. Appellant presents the following
questions for our review:
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5 Appellant filed an appeal before the dismissal order was entered which this
Court dismissed as duplicative. Further, since the non-compliant service was
not issued until August 16, 2022, Appellant’s notice of appeal was timely. See
Pa.R.Crim.P. 114(C)(2); Pa.R.A.P. 108(a)(1), (d).
6 The docket does not state if or when the order was served upon the parties
or counsel.
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1. Whether guilty-plea counsel was ineffective for failing to
obtain [Appellant]’s case discovery prior to advising the
defendant to plea[d] guilty?
2. Whether guilty-plea counsel was ineffective when he failed
to investigate?
3. Whether guilty-plea counsel was ineffective when he
advised [Appellant] to commit perjury in order to receive
Commonwealth’s plea offering?
4. Whether PCRA counsel was ineffective when he failed to
amend [Appellant]’s PCRA petition to include a timeliness
exception provided by 42 Pa.C.S. § 9545(b)(1)(i)-(iii)?
Appellant’s brief at 3.
We begin with a review of the applicable law. “In general, we review an
order dismissing or denying a PCRA petition as to whether the findings of the
PCRA court are supported by the record and are free from legal error.”
Commonwealth v. Howard, 285 A.3d 652, 657 (Pa.Super. 2022) (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 the timeliness of a PCRA petition is jurisdictional
and that if the petition is untimely, courts lack jurisdiction over the petition
and cannot grant relief.” Commonwealth v. Fantauzzi, 275 A.3d 986, 994
(Pa.Super. 2022). Therefore, we must first consider whether the PCRA court
correctly ruled that Appellant’s claim was untimely filed.
The PCRA provides as follows, in pertinent part, regarding the time for
filing a petition:
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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 did not plead an exception in his pro se PCRA petition.
Instead, he addresses the timeliness of his petition on appeal by asserting
that PCRA counsel was ineffective for not amending the petition to assert that
the governmental interference timeliness exception applied. See Appellant’s
brief at 20-25. Therefore, we address that claim before examining the
timeliness of the underlying petition.
Pursuant to our Supreme Court’s decision in Commonwealth v.
Bradley, 261 A.3d 381 (Pa. 2021), “a PCRA petitioner may, after a PCRA
court denies relief, and after obtaining new counsel or acting pro se, raise
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claims of PCRA counsel’s ineffectiveness at the first opportunity to do so, even
if on appeal.” Id. at 401. Since, as detailed above, there is no indication that
Appellant was served with the PCRA court’s Pa.R.Crim.P. 907 notice, and
Appellant did not realize pro se status until after this appeal was filed, this
appeal was his first opportunity to raise the claim.
Therefore, PCRA counsel’s alleged ineffectiveness is properly before us.
Our next task is to determine whether “the record before the appellate court
[is] sufficient to allow for disposition of any newly-raised ineffectiveness
claims,” or whether we must “remand to the PCRA court for further
development of the record and for the PCRA court to consider such claims as
an initial matter.” Bradley, supra at 402.
In this vein, we observe that, to prevail, Appellant must establish:
(1) that the underlying claim is of arguable merit; (2) that
counsel’s course of conduct was without a reasonable basis
designed to effectuate his client’s interest; and (3) that he was
prejudiced by counsel’s ineffectiveness, i.e. there is a reasonable
probability that but for the act or omission in question the outcome
of the proceeding would have been different.
Commonwealth v. Grayson, 212 A.3d 1047, 1054 (Pa.Super. 2019)
(cleaned up). “The failure to satisfy any prong of the test for ineffectiveness
will cause the claim to fail.” Commonwealth v. Davis, 262 A.3d 589, 595–
96 (Pa.Super. 2021).
Here, Appellant contends that, in response to the COVID-19 pandemic,
his “access to legal reference materials was completely restricted for several
weeks, followed by a subsequent period in which [his] access to legal
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reference materials was regulated to one hour per week.” Appellant’s brief at
21. Appellant asserts that “[t]his complete restriction from the legal reference
materials and subsequent limited access to the law library fell within the one-
year time limit in which [he] had to file his petition for post-conviction relief.”
Id. He maintains that, by “completely restricting [his] access to legal
reference materials,” the state, “admittingly [sic] without malice and as the
direct result of the COVID-19 pandemic,” infringed upon his Fourteenth
Amendment right to court access, rendering his petition timely pursuant to 42
Pa.C.S. § 9545(b)(1)(i). Appellant’s brief at 22.
Upon thorough review, we conclude that we need not remand the matter
for its further development, as we are able to determine from the certified
record that Appellant’s claim lacks arguable merit. Even assuming arguendo
that his constitutional rights were illegally infringed upon by the prison’s
pandemic mitigation measures, there is no indication that the lateness of the
filing was a result of governmental interference.
This Court has acknowledged that “allegations of restrictions on access
to law libraries or legal resources do not completely prevent an inmate from
preparing legal filings.” Commonwealth v. Miller, 296 A.3d 605, 2023 WL
2489952, at *6 (Pa. Super. 2023) (non-precedential decision). We have
rejected interference claims “where no research is required to complete the
form PCRA, sign it, and deliver it to authorities for mailing; and where the
courts are given latitude in deeming even non-conventional filings after
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judgments of sentence become final as PCRAs.” Commonwealth v. Cruz,
290 A.3d 681, 2022 WL 17687850, at *2 (Pa. Super. 2022) (non-precedential
decision) (cleaned up).
In the case sub judice, the claims Appellant raised in his petition were
based upon plea counsel’s alleged (1) failure to prepare for trial by reviewing
and investigating the Commonwealth’s discovery materials and (2) advice to
“just agree to whatever they say” at the plea hearing that coerced him into a
guilty plea agreement that he did not want to take. See Appellant’s brief at
10-11, 18-19. It is plain that these are fact-based claims that Appellant
attempted to assert on direct appeal which could have been raised
immediately after his judgment of sentence became final in September 2019.
He does not indicate what additional research was required for him to file his
PCRA petition, or how the restrictions on his library access that occurred in
the middle of the full year following the conclusion of his direct appeal were
the cause of the untimely filing.
Accordingly, there is no arguable merit to Appellant’s contention that his
PCRA petition qualified for the governmental interference timeliness
exception. Therefore, Appellant’s claim that PCRA counsel was ineffective for
failing to plead the exception must fail. See, e.g., Commonwealth v. Davis,
262 A.3d 589, 596 (Pa.Super. 2021) (“Counsel cannot be found ineffective for
failing to pursue a baseless or meritless claim.” (cleaned up)).
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Furthermore, because Appellant’s petition was untimely, neither the
PCRA court nor this Court has jurisdiction to address the substance of his PCRA
petition. See Fantauzzi, supra at 994. As such, we do not consider
Appellant’s remaining arguments, but instead affirm the dismissal of his
petition as untimely.
Order affirmed.
Date: 12/22/2023
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