Com. v. Brown, H.

• Court: Superior Court of Pennsylvania
• Decided: September 10, 2014
• Docket: 1742 EDA 2013
• Status: Unpublished

Opinion

J.S04043/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : : HAAMIR BROWN, : : Appellant : No. 1742 EDA 2013

Appeal from the PCRA Order May 17, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division No(s).: CP-51-CR-0011354-2009

BEFORE: BENDER, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 10, 2014

Appellant, Haamir Brown, takes this appeal pro se from the order of

the Philadelphia County Court of Common Pleas dismissing, as untimely, his

first Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, petition.

Appellant claims he is entitled to relief based on the ineffective assistance of

plea counsel and appointed PCRA counsel. We are constrained to affirm.

On October 18, 2010, Appellant pleaded guilty to one count each of

conspiracy and possession with intent to deliver cocaine.1 At that time,

* Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S. § 903(a)(1); 35 P.S. § 780-113(a)(30). Appellant was arrested

ator, the coconspirator exchanged the J. S04043/14

Appellant was represented by Robert

the terms of the plea agreement, the Commonwealth agreed not to pursue a

mandatory minimum sentence of three years and recommended an

See N.T.,

10/18/10, at 3-4; Written Guilty Plea Colloquy, 10/18/10, at 1. On the

agree with the plea bargain or agreement, I can withdraw my guilty plea and

have a trial before a judge and jury or before

Plea Colloquy at 1.

When entering his plea, Appellant requested a delay in his surrender

date. The trial court accepted the plea, imposed the negotiated aggregate

sentence, and allowed Appellant to surrender on November 16, 2010. The

court warned him:

[I]t is very, very important you show up. I have this discussion with everybody. I have now given two people these maximum sentences, and this [plea agreement] is a

wa

am going to vacate your sentence, resentence you, and

money for a package of crack cocaine from Appellant, and the coconspirator delivered the cocaine to the confidential informant. At the time of his arrest, Appellant was in possession of $452, including the buy money, 15 packets of

prior convictions for possession with intent to deliver controlled substances, and prior convictions for simple assault, terroristic threat, and possessing an instrument of crime.

-2- J. S04043/14

probably give you the maximum. So it is very, very important you show up.

N.T. at 23-24.

Appellant failed to appear on his surrender date. The trial court

-51-CR-0011354-2009, at 8. The court, on November

17, 2010, issued a bench warrant for Appellant, vacated the negotiated

Id. at 8-9. Appellant was not present at this

resentencing proceeding,2 and plea counsel did not file post-sentence

motions or a direct appeal on his behalf. Appellant was taken into custody

more than five months later. On April 27, 2011, the court lifted its bench

warrant with a notation that Appellant was serving the November 17th

sentence imposed in absentia. Id. at 9.

On January 6, 2012, Appellant filed the pro se PCRA petition giving

rise to this appeal.3 Appellant asserted: (1) the November 17, 2010

sentence constituted a separate, illegal conviction for escape; (2) the trial

court improperly resentenced him in absentia without considering his

2 A record of the November 17, 2010 resentencing proceeding was not ordered to be transcribed nor placed in the certified record. 3 A stamp bearing a mailing date of January 6, 2012, was attached to pro se PCRA petition. Therefore, we use that mailing date as the See Commonwealth v. Little, 716 A.2d 1287, 1288-

-3- J. S04043/14

explanations for his failure to surrender; and (3) he was entitled to

enforcement of his previously negotiated two to four year sentence based on

regarding the November 17th resentencing proceeding.4

represent Appellant. On August 29, 2012, PCRA counsel filed a

Turner/Finley5 letter indicating Appellant was not entitled to relief because

the sentence was within the statutory maximum for the offenses and the

PCRA petition was untimely filed. Letter, John P. Cotter, Esq., to Hon. Glenn

B. Bronson, 8/29/12, at 2. On November 16, 2012, PCRA counsel filed a

supplemental Turner/Finley letter a pro se

filings, but reaching the same conclusion. Letter, John P. Cotter, Esq., to

Hon. Glenn B. Bronson, 11/16/12, at 2.

On December 7, 2012, the PCRA court issued a Pa.R.Crim.P. 907

notice of its intent to dismiss App

Appellant filed a pro se response to the Rule 907 notice, alleging, inter alia,

supplemental pro se objection asserting the discovery of new evidence,

4 Appellant did not request a withdrawal of his guilty plea to the underlying drug charges or a reinstatement of his direct appeal rights. 5 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

-4- J. S04043/14

namely, newspaper articles regarding alleged malfeasance in the

Philadelphia Police Narcotics Unit.6 On January 23, 2013, PCRA counsel filed

discovered evidence. However, on March 13, 2013, PCRA counsel filed

another Turner/Finley

implicated in the reported malfeasance. Letter, John P. Cotter, Esq., to Hon.

Glenn B. Bronson, dated 3/12/13, at 2.

The PCRA court, on March 28, 2013, again issued a Rule 907 notice of

Appellant filed a pro se

ineffectiveness and requesting an evidentiary hearing to consider whether he

was entitled to a two to four year sentence. The court, on May 17, 2013,

entered an order permitting PCRA counsel to withdraw and dismissing

appeal followed.7

Appellant presents the following question in his pro se brief:

Did the PCRA Court abuse its discretion and err[ ] when the court failed to conduct a cause hearing to determine if absentia was warranted; and further err in (1) sentencing

6 Appellant, in his pro se brief in this Court, does not argue his discovery of these newspaper articles entitles him to substantive relief or relief from the PCRA time-bar. Therefore, any claim based on these articles has been abandoned. 7 The PCRA court did not order the filing of a Pa.R.A.P. 1925(b) statement, but prepared an opinion in support of its decision.

-5- J. S04043/14

Appellant to . . . 10 to 20 years for escape a distinct crime that was not proven; (2) not finding plea counsel ineffective in advising Appellant he had an extension to surrender; and PCRA counsel was ineffective for failing to raise this claim?

Appellan

first hold a hearing to determine when the one year [PCRA time bar] actually

started because he has been charged and convicted of a new Charge of

Id. at 12 (emphasis in original). He

insists he had a reasonable explanation for his failure to surrender on

November 16, 2010, i.e. he was caring for his daughter. Id. at 11. He also

claims plea counsel led him to believe the trial court extended his surrender

date past November 16, 2010. Id. Additionally, Appellant alleged he was

unaware that the trial court resentenced him to a ten to twenty year

sentence until November 1, 2011, approximately seven months after he was

taken into custody and nearly one year after the sentence was imposed.

See id.

that PCRA counsel was ineffective for failing to investigate his claims. We

time-

alleged ineffectiveness.

is whether the determination of the PCRA court is supported by the evidence of record and is free of legal

-6- J. S04043/14

unless there is no support for the findings in the certified record.

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)

ay affirm the decision of the [PCRA] court if

Commonwealth v. Blackwell, 936 A.2d 497, 499 (Pa. Super. 2007)

(citation omitted).

It is well settled that

no court has jurisdiction to hear an untimely PCRA petition. The most recent amendments to the PCRA, effective January 16, 1996, provide that a PCRA petition, including a second or subsequent petition, shall be filed within one year of the date the underlying judgment becomes final. A

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 three statutory exceptions to the timeliness provisions in the PCRA allow for very limited circumstances under which the late filing of a petition will be excused. 42 Pa.C.S.[ ] § 9545(b)(1). To invoke an exception, a petition must allege and the petitioner must prove:

(i) the failure to raise a 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

-7- J. S04043/14

(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)(i)- petition is not filed within one year of the expiration of direct review, or not eligible for one of the three limited exceptions, or entitled to one of the exceptions, but not filed within 60 days of the date that the claim could have been first brought, the trial court has no power to address

Commonwealth v. Pollard, 911 A.2d 1005, 1007 (Pa. Super. 2006) (some

citations omitted). The Pennsylvania Supreme Court has emphasized that

ad hoc equitable

exceptions to the PCRA time-bar in addition to those exceptions expressly

Commonwealth v. Robinson, 837 A.2d 1157,

1162 (Pa. 2003) (citations omitted).

However, this Court has observed,

indigent petitioner is entitled to appointment of counsel on his first PCRA petition, even where the petition appears untimely on its face. In such cases, counsel is appointed principally to determine whether the petition is indeed untimely, and if so, whether any exception to the timeliness requirements of 42 Pa.C.S.[ ] § 9545(b) applies.

PCRA petition is not limited to the mere naming of an attorney. To have any meaning, the rule also requires appointed counsel to provide meaningful representation.

-8- J. S04043/14

Commonwealth v. Perez, 799 A.2d 848 (Pa. Super. 2002) (citations

omitted).

Instantly, the trial court sentenced Appellant on October 16, 2010, to

to

appear for his surrender date, the court, on November 17, 2010, vacated

the October 16th sentence and resentenced Appellant in absentia to ten to

five times the length of the original sentence.

The conviction challenged by Appellant thus became final on December 17,

2010, when the time for taking an appeal to this Court expired.8 See 42

Pa.C.S. § 9545(b)(1), (3). Consequently, Appellant had until Monday,

December 19, 2011, to file a PCRA petition within the one-year time

requirement. See 1 Pa.C.S. 1908 (setting rules for calculation of time); 42

Pa.C.S. § 9545(b)(1). Appellant, however, filed his first pro se PCRA

-

year period expired. Therefore, his petition was untimely on its face.

responses, his brief, and the record, we are compelled to conclude that the

instant petition is untimely. Assuming arguendo, Appellant did not discover

8 Both PCRA counsel and the PCRA court appeared to have used the October

petition.

-9- J. S04043/14

that he had been resentenced in absentia to a ten to twenty year sentence

until November 1, 2011, see PCRA Pet., 1/6/12, at 3, he had sixty days

from the time of the discovery of that fact to file a timely petition. See 42

Pa.C.S. § 9545(b)(1)(ii), (2); Commonwealth v. Wilson, 824 A.2d 331,

336 n.9 (Pa. Super. 2003) (noting sixty day period in subsection 9545(b)(2)

begins to run from moment previously unknown fact was discovered).

Therefore, even if Appellant alleged the discovery of previously unknown

fact i.e.

proceeding he was required to file a PCRA petition by December 31, 2011.

pro se petition, filed on January 6, 2012,

did not fall within the exception created by Section 9545(b)(1)(ii). See 42

Pa.C.S. § 9545(b)(1)(ii), (2); Wilson, 824 A.2d at 336 n.9.

Moreover, because the timeliness of a PCRA petition is jurisdictional,

ailed

to protect his interests and rights at the resentencing hearing. 9 See

Pollard, 911 A.2d at 1007. Similarly, we cannot, under the PCRA, consider

whether the trial court possessed the authority to resentence Appellant to a

9 ovember 17, 2010 resentencing proceeding constituted a separate, uncharged conviction for escape is belied by the record. Appellant, when entering his plea to the underlying drug offenses, sought an extension of time to surrender and begin service of his two to four year sentence. The trial court, after accepting the plea and

request but warned him that he could be resentenced up to the maximum sentence if he did not comply with the surrender date. Appellant

- 10 - J. S04043/14

ten to twenty year sentence after it previously accepted and sentenced him

to the negotiated two to four year sentence. See id.; see also

Commonwealth v. Baroni

that structural errors can never be deemed harmless does not serve to

create Commonwealth

v. Fahy

always subject to review within the PCRA, claims must still first satisfy the

that Appellant did not establish an exception to the PCRA time-bar.

Lastly, Appellant contends that PCRA counsel was ineffective because

he failed to interview plea counsel. Appellant preserved this claim of PCRA

cou

them in this appeal. See Commonwealth v. Pitts, 981 A.2d 875, 880 n.4

(Pa. 2009).

only be entitled to relief if he can show: (1) that his claim has arguable

reasonable strategic decision; and, (3) that he suffered prejudice because of

Commonwealth v. Pursell, 724 A.2d 293,

304 (Pa. 1999). Prejudice, for the purposes of a claim of ineffectiveness,

requires a petitioner to demonstrate a reasonable possibility that the

- 11 - J. S04043/14

outcome of the proceeding instantly, the PCRA proceeding would be

different. See id.

As noted above, our review reveals no basis in the record to assert an

exception to the PCRA time-

counsel should have investigated the merits of his claim by contacting plea

counsel fails to establish any prejudice.10

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/10/2014

- 12 -