Com. v. Andrus, C.

• Court: Superior Court of Pennsylvania
• Decided: June 28, 2024
• Docket: 2924 EDA 2023
• Status: Unpublished

Opinion

J-S17020-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CRAIG ANDRUS : : Appellant : No. 2924 EDA 2023

Appeal from the PCRA Order Entered September 28, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005092-2017

BEFORE: BOWES, J., KING, J., and BENDER, P.J.E.

MEMORANDUM BY KING, J.: FILED JUNE 28, 2024

Appellant, Craig Andrus, appeals pro se from the order entered in the

Philadelphia County Court of Common Pleas, which dismissed his pro se

Petition for Modification/Reconsideration of Sentence, which the court treated

as a serial untimely petition for collateral relief under the Post Conviction Relief

Act (“PCRA”).1 We affirm.

The relevant facts and procedural history of this case are as follows. On

June 4, 2018, Appellant entered a negotiated guilty plea to third degree

murder and persons not to possess firearms. The court imposed the agreed-

upon aggregate sentence of 11½ to 23 years of imprisonment. This Court

affirmed Appellant’s judgment of sentence on September 9, 2019. See

Commonwealth v. Andrus, 221 A.3d 1236 (Pa.Super. 2019) (unpublished

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1 42 Pa.C.S.A. §§ 9541-9546. J-S17020-24

memorandum). Appellant did not petition our Supreme Court for allowance

of appeal. On December 26, 2019, Appellant timely filed a pro se PCRA

petition. The court appointed counsel, who filed a Turner/Finley2 no-merit

letter and motion to withdraw on February 29, 2020. The court issued

Pa.R.Crim.P. 907 notice on March 4, 2020. On March 18, 2020, the court

granted counsel’s motion to withdraw and denied PCRA relief; this Court

affirmed the denial of PCRA relief on June 10, 2021. See Commonwealth v.

Andrus, 258 A.3d 516 (Pa.Super. 2021) (unpublished memorandum).

On June 14, 2023, Appellant pro se filed the instant “Petition/Motion for

Modification/Reconsideration of Sentence,” requesting a reduction of his

sentence. The court treated Appellant’s filing as an untimely serial PCRA

petition and issued Pa.R.Crim.P. 907 notice on August 1, 2023. See 42

Pa.C.S.A. § 9542 (explaining that PCRA shall be sole means of obtaining

collateral relief and encompasses all other common law and statutory

remedies for same purpose). On September 28, 2023, the court denied PCRA

relief. Appellant timely filed a pro se notice of appeal on October 10, 2023.

The court did not order, and Appellant did not file, a Pa.R.A.P. 1925(b)

statement.

Appellant raises two issues for our review:

Did [plea counsel] coerce [Appellant] into pleading guilty?

Did [direct appeal and PCRA counsel provide ineffective ____________________________________________

2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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assistance] in violation of the 6th Amendment?

(Appellant’s Brief at 4).

Preliminarily, the timeliness of a PCRA petition is a jurisdictional

requisite. Commonwealth v. Turner, 73 A.3d 1283 (Pa.Super. 2013),

appeal denied, 625 Pa. 649, 91 A.3d 162 (2014). A PCRA petition must be

filed within one year of the date the underlying judgment becomes final. 42

Pa.C.S.A. § 9545(b)(1). A judgment is “final” at the conclusion of direct

review or at the expiration of time for seeking review. 42 Pa.C.S.A. §

9545(b)(3). The statutory exceptions to the PCRA time-bar allow very limited

circumstances to excuse the late filing of a petition. See 42 Pa.C.S.A. §

9545(b)(1)(i-iii).

Instantly, Appellant’s judgment of sentence became final on October 9,

2019, upon expiration of the time to file a petition for allowance of appeal with

our Supreme Court. See Pa.R.A.P. 1113(a) (allowing 30 days to file petition

for allowance of appeal); see also 42 Pa.C.S.A. § 9545(b)(3). Appellant’s

current PCRA petition, filed on June 14, 2023, is patently untimely. See 42

Pa.C.S.A. § 9545(b)(1). Appellant did not acknowledge the untimeliness of

his petition or assert any timeliness exception. See id. Thus, the court

properly dismissed Appellant’s petition as untimely.

We further observe that Appellant raises new claims on appeal for the

first time related to the ineffective assistance of prior counsel. (See

Appellant’s Brief at 10-13). See also Pa.R.A.P. 302(a) (stating issues not

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raised in court below are waived and cannot be raised for first time on appeal).

Notably, Appellant does not assert any exception to the PCRA time-bar in

connection with these new claims. Thus, even if Appellant had properly

preserved these claims in his petition below, the court would have lacked

jurisdiction to consider them. See 42 Pa.C.S.A. § 9545(b)(1). Accordingly,

we affirm.

Order affirmed.

Date: 6/28/2024

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