Com. v. Brown, T.

Opinion

J-S40030-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : : TYREE J. BROWN : : No. 2699 EDA 2017 Appellant

Appeal from the PCRA Order July 13, 2017 in the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0011343-2007

BEFORE: LAZARUS, J., DUBOW, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 12, 2018

Appellant, Tyree J. Brown, appeals pro se from the order dismissing his

second petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541–9546, as untimely. We affirm on the basis of the PCRA

court’s opinions.

In its opinions, the PCRA court aptly explains the factual and procedural

history of this case. (See PCRA Court Opinion, 12/15/17, at 1-8; PCRA Ct.

Op., 7/21/14, at 1-11). Therefore, we need not recount them at length here.

We note briefly for the convenience of the reader that on February 23,

2009, Appellant entered a counselled, negotiated guilty plea to third degree

murder and related offenses in connection with an armed robbery of a

convenience store perpetrated by Appellant and his co-conspirator on June

____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S40030-18

25, 2007. During the course of the robbery Appellant wounded the store’s

owner with a sawed off shotgun. His co-conspirator killed a customer.

Appellant confessed to these crimes. The guilty plea avoided a mandatory

term of life imprisonment for second-degree murder. The court sentenced

Appellant to an aggregate term of not less than twenty-eight years’ nor more

than sixty years of incarceration in a state correctional institution.

Appellant’s judgment of sentence became final on March 25, 2009, thirty

days after the entry of his negotiated plea on February 23, 2009. Appellant

filed his first PCRA petition July 16, 2012, three years after his judgment of

sentence became final. The PCRA court dismissed the appeal, this Court

affirmed, and our Supreme Court denied allowance of appeal. (See PCRA Ct.

Op., 12/15/17, at 1-2). More than six years after his judgment of sentence

became final, Appellant filed the instant second PCRA petition, pro se, on

October 22, 2015. It was untimely by over six years.

Appellant raises eight questions on appeal.

[1.] Did [Appellant] request [ ] an appeal?

[2.] Was counsel ineffective for failing [to file a] requested appeal?

[3.] Did trial counsel completely disregard his client’s requested appeal?

-2- J-S40030-18

[4.] Did trial counsel completely disregard state and federal requirements to file an Anders1 brief to be excused from representation?

[5.] Did counsel just ignore his client’s constitutional right to an appeal?

[6.] Since [counsel] was never properly excused from record is it safe to say [he] still represent[s Appellant] client?

[7.] Did [Appellant] properly meet [exception] standards?

[8.] Did [Appellant] fall under the "public record" standards?

(Appellant’s Brief, at 3).

On June 21, 2018, Appellant also filed a pro se application for relief,

citing Pennsylvania Rule of Appellate Procedure 2185, (Time for Serving and

Filing Briefs), and Pa.R.A.P. 2188, (Consequence of Failure to File Brief, and

Reproduced Records). Appellant asked this Court to bar the Commonwealth’s

brief, unless this Court gave it permission to proceed. (See Application

(Motion), 6/21/18). The Commonwealth served its brief, late after extensions,

on July 2, 2018.

Our standard and scope of review for PCRA claims are well-settled:

We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court’s ruling if it ____________________________________________

1 See Anders v. California, 386 U.S. 738 (1967). The brief that accompanies court-appointed appellate counsel’s petition to withdraw from representation is commonly referred to as an Anders brief. See Commonwealth v. Santiago, 978 A.2d 349, 351 n.1 (Pa. 2009).

-3- J-S40030-18

is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court’s decision on any grounds if the record supports it. We grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Further, where the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary.

Commonwealth v. Reed, 107 A.3d 137, 140 (Pa. Super. 2014) (citation

omitted). Additionally,

[T]he time limitations pursuant to . . . the PCRA are jurisdictional. [Jurisdictional time] limitations are mandatory and interpreted literally; thus, a court has no authority to extend filing periods except as the statute permits. If the petition is determined to be untimely, and no exception has been pled and proven, the petition must be dismissed without a hearing because Pennsylvania courts are without jurisdiction to consider the merits of the petition.

Id. at 140–41 (citations omitted).

Here, after a thorough review of the record, the briefs of the parties,

the applicable law, and the well-reasoned opinions of the Honorable Leon W.

Tucker, we conclude that Appellant’s petition is untimely with no statutory

exception to the one-year PCRA time limit pleaded and proven. Accordingly,

we affirm on the basis of the trial court’s opinions.

Moreover, we note the confirmation by the PCRA court that Appellant’s

multiple claims of ineffective assistance and abandonment of trial counsel

were previously litigated in his 2014 appeal. (See PCRA Ct. Op., 12/15/17,

at 1-8; see also PCRA Ct. Op., 7/21/14, at 1-11).

Order affirmed. Motion to bar Commonwealth’s brief denied as moot.

-4- J-S40030-18

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/12/18

-5- Circulated 08/21/2018 04:24 PM

3-2007 comm. v. Brown. Tyree J. CP-51-CR.001134 Opinion

\\\\\\ \\\ \\\\\ \\\\\\\I COMMONWEALTH COURT OF COMMON PLEAS OF PENNSYLVANIA FIRST JUDICIAL DISTRICT

·V�''P�ED· 7176506151 v. CP-51-CR-0011343-2007

TYREE J. BROWN JUL 2:l 2014 SUPERIOR COURT No. c·riminal Appeals Unit . 1228 EDA 2014 Firs�ie,Wistrict of PA

LEON W.TUCKER, J. DATE: July 21, 2014

I. PROCEDURAL HISTORY

This matter comes before the Superior Court of Pennsylvania on appeal from the

dismissal of Appellant Tyree Brown's (hereinafter referred to as "Brown") pro se Post-

Conviction Relief Act Petition (hereinafter referred to as "PCRA Petition").'

On February 23, 2009, pursuant to negotiation between the parties, Brown pied guilty to

the following offenses: Murder of the Third Degree ("Murder"), 18 PA.C.S. § 2502(c); Robbery

- Threatening Serious Bodily Injury ("Robbery"), 18 PA.C.S. § 3701(a)(l)(ii); and Criminal

Conspiracy- Engaging in Murder of the Third Degree ("Conspiracy"), 18 PA.C.S. § 903(a)(l).

On February 23, 2009, the Court sentenced Brown to the following terms of incarceration:

twenty to forty (20-40) years incarceration for Murder, consecutive to eight to twenty (8-20)

years incarceration for Robbery to run concurrently with eight to twenty (8-20) years

incarceration for Conspiracy. Brown was represented by Danie] Stevenson, Esquire at trial.

Because Brown did not file a post-sentence motion or notice of appeal, his sentence became final

thirty days from sentencing, March 25, 2009. 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903.

Brown allegedly asked Trial Counsel to file an appeal on the date of his sentencing,

February 23, 2009. PCRA Pet at 2. Brown allegedly never heard from Trial Counsel and wrote a.

letter inquiring about the status of his appeal on March 25, 2009. Id. Attached to Brown's PCRA Petition was a letter appearing to be from Brown to Trial Counsel. PCRA Pet. (Ex. A). Contrary

to his claim that he sent a letter March 25, 2009, the letter attached to his petition is dated March

5, 2009, and indicates that it was Brown's second letter to Trial Counsel although Brown's

Petition is silent regarding other letters. Id.

Approximately three years later, on March 19, 2012, Brown alleges that he wrote the

Superior Court of Pennsylvania to inquire about the status of his appeal. PCRA Pet. at 2. On June

4, 2012, Brown was allegedly informed by the Prothonotary's Office of the Superior Court that

they had no appeal on file. Id. Brown attached the alleged letter from the Prothonotary's Office I

to his Petition. PCRA Pet. (Ex. A).

On July 6, 2012, Brown untimely filed a prose PCRA Petition, therein asking the Court

to reinstate his appeal rights because Trial Counsel was ineffective and abandoned him because

counsel did not file Brown's requested appeal. Brown's sentence became final on March 25,

2009 as no motion or notice of appeal was filed. 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903. Brown

then had one year, until March 25, 2010, to file a PCRA Petition. 42 Pa.C.S. § 9545(b)(I). Thus,

Brown's pro se PCRA Petition on July 6, 2012 was more than two years after the statute of

limitations expired and more than three years after his sentence became final.

On August 9, 2012, Brown filed an untimely Motion to Amend his pro se PCRA

Petition, characterizing his claim as one upon which the facts were unknown to him and could

not have been ascertained by the exercise of due diligence. PCRA Pet. Amend. Brown further

claimed that since he was not aware of the facts until he received notice from the Prothonotary's

Office of the Superior Court on June 4, 2012, his claim was presented well within 60 days. Id.

On May 5, 2013, Brown was appointed PCRA Counsel, John P. Cotter, Esquire.

2 On September 24, 2013, PCRA Counsel, acting in accordance with Commonwealth v.

Finley, 550 A.2d 213 (Pa. Super. 1988), filed a Motion to Withdraw as Counsel and a letter

stating that the issues raised in Brown's prose PCRA petition were meritless and that no issues

of arguable merit could be raised in a counseled petition.

On January 13, 2014, after conducting its own independent review of the record, this

Court agreed with PCRA Counsel and issued Notice of Intent to Dismiss pursuant. to Pa.

RiCrim.P, 907. Brown filed his response on February, 7, 2014. The Court formally dismissed

Brown's PCRA petition by order dated March 17, 2014 and granted PCRA Counsel leave to

withdraw from further representation of Brown.

On April 10, 2014, Brown timely filed a Notice of Appeal to the Superior Court. On

April 17, 2014, the Court ordered Brown to file a Concise Statement of Matters Complained of

pursuant to Pa.R.A.P. 1925(b) ("1925(b) Statement"). On May 7, 2014, Brown complied and

filed his 1925(b) Statement wherein stating the following claims of error:

I. The PCRA court erred in denying Appellant's PCRA petition without a hearing in light of Martinez v. Ryan, 132 S.Ct. 1309 (2012) and Commonwealth v. Grant, 813 A.2d 726 (Pa. Super. 2002).

2. PCRA counsel was ineffective in failing to properly investigate Appellant's issues and file a proper amended petition to restore Appellant's direct appeal rights as required I

under the cases of Martinez and Grant.

3. Trial counsel was ineffective in failing to comply with Appellant's wishes to submit reconsideration and/or direct appeal when inquired by trial court as to Appellant's intentions to appeal in violation with the holding in Roe v. Flores-Ortega, 120 S.Ct. I 029 (2000).

4. Trial counsel was ineffective in waiving pre-sentence investigation report and depriving trial court the opportunity to review and assess Appellant's prior record, characteristics, etc. in consideration of sentencing where circumstances clearly depict no reasonably competent' lawyer would have done so thus depriving Appellant of his entitlements under U.S. CONST. amend. VI, XIV and Pa. Const. Art. 1 § 9.

3 5. Trial court erred in imposing 28-60 year term, where Appellant's ranking was a "2" under the sentencing guidelines, where the sentence on such ranking was at 96 months, and where the court failed to provide contemporaneous written statement of its reasons for imposing a term exceeding the guidelines, violating the holding in Commonwealth v. Mickell, 598 A.2d 1003 (Pa. Super. 1991).

6. PCRA court erred in accepting PCRA Counsel's "no merit" letter and failed to require counsel to properly represent Appellant's issues as mandated in the case of Evitts v. Lucey, 105 S.Ct. 830 (1985) and Commonwealth v. Priovolos, 746 A.2d 621 (Pa. Super. 2000).

II. Facts ,

The following facts were presented by the Commonwealth and admitted as true by

Brown in court. N.T. Trial (02/23/09) 14-18:

At approximately 1 :03AM on June 25, 2007, Brown and codefendant were outside a

local store. Id. at 14. Around the same time, Layee Bility, the victim, parked his car and entered

the store. Id. at 14-15. After watching Bility enter, Brown and codefendant decided to rob him.

Id. at 15. Codefendant had a revolver and Brown retrieved a sawed-off shotgun from around the

comer. Id.

Upon entering the store with their weapons, Brown and codefendant surrounded Bility

and Brown discharged his shotgun. Id. The blast pierced through plexiglass in the store and

injured the owner Lin Liu who was behind the glass. Id. at 15-16. The blast did not hit Bility, but

caused him to fall. Id. at 15. Codefendant subsequently fired into Bility's chest and twice into his

back. Id. at 16. Codefendant then left the store and Brown followed after. Id. Some proceeds

were taken from Bility's body, but some money was left on the ground nearby. Id. The incident

was captured on the store's video surveillance tape. Id.

Liu, the store owner, was able to identify the codefendant, who subsequently identified

Brown. Id. at 16. Brown gave a full confession to homicide detectives admitting his role in the

robbery, his possession of the shotgun, and that the shotgun discharged during the incident. Id. at

4 16-17. In exchange for Brown's admissions, the Commonwealth lowered the original charge

from Murder of the Second Degree to Murder of the Third Degree, Id. at 17. A discussion

ensues.

III. Legal Analysis

A. Brown has waived all issues not properly raised in his l 925(b) Statement.

It is well settled that when the trial court orders an appellant to submit a 1925(b)

Statement, it is a crucial component of the appellate process. Commonwealth v. Lord, 719 A.2d

306, 307 (Pa. 1998). Pa.R.A.P. 1925(b) requires that the statement of issues complained of shall

be concise and set forth only those rulings or errors that appellant intends to challenge.

Pa.R.A.P. 1925(b)( 4)(i). Issues not raised in accordance with the provisions of Pa.R.A.P. I 925(b)

are waived. Pa.R.A.P. 1925(b)(4)(vii).

it is also well settled that when the trial court orders an appellant to submit a 1925(b)

Statement, that statement must indicate, with specificity, the error to be addressed on appeal.

Commonwealth v. McCree, 857 A.2d 188, 192 (Pa. Super. Ct. 2004) (emphasis added).

Furthermore, even if by chance the trial court correctly guesses the issues the appellant raises on

appeal and writes an opinion pursuant to that supposition, the issues are still waived.

Commonwealth v. Heggins, 809 A.2d 908, 911 (Pa. Super. 2002).

Here, in his 1925(b) Statement, Brown did not raise any exceptions to the statute of

limitations contained in 42 Pa.CS. 9545(b). Therefore, all claims regarding the timeliness of

Brown's PCRA Petition are waived. 42 Pa. C.S. § 9545(b)(l). However, Brown did allege an

exception in his untimely Motion to Amend ·his PCRA Petition. The Court understanding that

Brown proceeds pro se, guessed that Brown intended to preserve the claimed exception on

appeal. This is not the Court's usual custom. Even if the Court properly guessed Brown's

5 claimed exception, it is waived on appeal for his failure to comply with Pa.R.A.P. 1925(b). Even

considering the claimed exception, Brown's raised issues are nonetheless without merit.

B. Brown's PCRA Petition is untimely without exception.

Under 42 Pa. CS. §9541 et seq., commonly known as the Post-Conviction Relief Act, a

petitioner must prove by a preponderance of the evidence that his allegations of error have not

been previously litigated or waived in order to be eligible for relief. 42 Pa. C.S. §9543(a)(3). In

addition, a PCRA petition, including a second or subsequent petition, must ordinarily be filed

within one year of the date the underlying judgment becomes final. 42 Pa. C.S. § 9545(b)(l). A

judgment is deemed 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 review." 42 Pa. C.S. § 9545(b)(3) ..

Here, Brown was sentenced on February 23, 2009. Because Brown did not file a post-

sentence motion or notice of appeal, his sentence became final thirty days from his hearing,

March 25, 2009. 42 Pa. C.S. § 9545(b)(3); Pa.R.A.P. 903. Brown filed his PCRA Petition on

July 6, 2012; over three (3) years after the date of finality. Brown's PCRA Petition is untimely

pursuant to 42 Pa.CS. § 9545(b)(J). Therefore Brown's PCRA claim is untimely.

Despite the one-year filing deadline, the PCRA permits the late filing of a petition where

a petitioner alleges and proves one of three nan-ow exceptions. 42 Pa. C.S. § 9545(b)(l)(i)-(iii).

A petitioner must plead these exceptions explicitly and satisfy the burden of proof; these

exceptions must be raised within sixty (60) days of the date the claim could have been presented.

Id. at§ 9545(b)(2). Outside of these narrow exceptions, Pennsylvania courts have no jurisdiction

to address the substantive merits of PCRA petitions that are untimely without exception.

Commonwealth v. Robinson, 837 A.2d 1157 (Pa. 2003); Commonwealth v. Gamboa-Taylor, 753

A.2d 780, 783 (Pa. 2000) ..

6 Here, Brown claims § 9545(b)(J)(ii) applies - "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." PCRA Pet. Amend. When establishing such a claim, a petitioner must take

reasonable steps to protect his own interests, and explain why he could not have obtained the

alleged new facts earlier to demonstrate due diligence. Commonwealth v. Monaco, 996 A.2d

1076, 1080 (Pa. Super. 2010) (internal citations omitted).

In his 1925(b) Statement, Brown claims that Trial Counsel was ineffective at trial and

abandoned him by not filing a direct appeal. 1925(b) Staement ,r,r 3-4. The Court assumes that

Brown intended to preserve the related issue that his ineffective assistance of counsel claim is

timely pursuant to the after-discovered evidence exception to the statute of limitations. PCRA

Pet. Amend.

Initially, the Court notes that, pursuant to 42 Pa. C.S. § 9545(b)(2), Brown has a burden

of proving that he raised his after-discovered evidence claim within sixty (60) days of the date

the alleged new facts were discovered. In regards to after-discovered evidence and claims of

counsel ineffectiveness, the Court in Commonwealth v. Carr, 768 A.2d 1164, 1165, 1167 (Pa.

Super. 2001), held that a defendant's recent discovery of Trial Counsel's failure to file a direct

appeal on his behalf, does not constitute after-discovered evidence, and that such claims cannot

be used to circumvent the PCRA's statutory time bar. Specifically, the petitioner in Carr argued,

as here, that Trial Counsel failed to file a requested direct appeal. Id. at 1166. In holding that

petitioner's claim did not qualify as after-discovered evidence, the Court stated that, absent a

showing of due diligence, "the mere discovery of trial counsel's failure to file a direct appeal,

after the one-year window to file a PCRA petition, does not place [the petitioner] under

7 subsection 9545(b)(l)(ii)." Id. at 1168. Accordingly, the PCRA Court in Carr Jacked jurisdiction

to entertain [the petitioner's] petition for relief." Id. at 1168.

First, Brown's claim is unavailing under Carr. Brown claims that his counsel was

ineffective for failing to file a direct appeal. Such a claim does not qualify under the after-

discovered evidence exception. Carr, 768 A.2d at 1168. The Court also observes that Brown

did not meet his burden of showing diligence in discovering that Trial Counsel was ineffective at

trial and did not file an appeal. Brown has failed to present to the Court any evidence of any

reason why, through the exercise of due diligence, the fact that counsel was ineffective at trial

and did not file an appeal was not discoverable to him in the three years between his sentencing

and PCRA Petition. Monaco, 996 A.2d at 1080.

Second, Brown did not meet his burden of showing that he raised his after-discovered

evidence claim within sixty (60) days of the date the alleged new facts were discovered. 42

Pa.C.S. § 9545(b)(2). Brown's initial PCRA Petition filed July 6, 2012 merely made a claim of

ineffective counsel. Brown did not characterize his claim as an after-discovered evidence claim

until he filed a Motion to Amend his original Petition on August 9, 2012. August 9, 2012 was 66

days from which Brown claims he first learned Trial Counsel abandoned him. PCRA Pet. Thus,

Brown has failed to meet the sixty (60) day timeliness requirement for his claim that Trial

Counsel ineffectiveness is after-discovered evidence. Without explanation or excuse, Brown

waited three years to write the Superior Court after Trial Counsel failed to respond to his letter.

Brown could have and should have inquired much sooner. Brown's claim of after-discovered

evidence fails.

C. Brown's claim that his sentence was improper is without merit.

Brown claims the trial court erred in imposing his sentence of 28-60 years where

Brown's "ranking was a 2 under the sentencing guidelines, where the sentence on such ranking

8 was at 96 months, and, where the court failed to provide contemporaneous written statement of

its reason(s) for imposing a term exceeding the guidelines" thus violating Commonwealth v.

Mickell, 598 A.2d 1003 (Pa. Super. 1991). 1925(b) Statement ,i 5.

In reviewing Brown's untimely PCRA Petition and his Motion to Amend, the Court finds

that Brown raised the claim of illegal sentence for the first time in his 1925(b) Statement. Id.;

PCRA Pet.; PCRA Pet. Amend. Therefore, pursuant to Pa.R.A.P. 302(a), issues not raised in the

lower court are waived and cannot be raised for the first time on appeal.

Brown's claim of illegality of sentence is also untimely. He has not alleged or attempted

to prove any§ 9545(b)(l) exceptions to the one-year deadline for this claim. PCRA Pet; 1925(b)

Statement. The claim is therefore also time-barred and without merit.

While not required to do so, the Court reviewed Brown's claim and determined his

sentence was proper. Brown's prior record score was "2," but his offense gravity score was "14"

for Murder in the Third Degree pursuant to 204 Pa. Code § 303.15. Brown's claim that the

maximum sentence allowed was 96 months is incorrect. According to the sentencing matrix in

204 Pa. Code§ 303.16(a), a prior record score of"2" and an offense gravity score of "14" has a

96-year statutory limit. Therefore, Brown's sentence of 28-60 years was proper as it is well

below the 96-year statutory limit.

D. PCRA Counsel properly and effectively investigated Brown's PCRA petition.

Brown claims PCRA counsel was ineffective in failing to properly investigate Brown's

issues and file a properly amended petition as required under Martinez v. Ryan, 132 S.Ct. 1309

(2012) and Commonwealth v. Grant, 813 A.2d 726 (Pa. Super. 2002). 1925(b) Statement ,i 2.

Brown also claims the PCRA court erred in accepting PCRA Counsel's "no merit" letter and

9 failing to require Counsel to properly represent Brown as mandated by Evitts v. Lucey, 105 S.Ct.

830 (1985) and Commonwealth v. Priovolos, 746 A.2d 621 (Pa. Super. 2000). 1925(b) Statement

A PCRA petitioner is entitled to have counsel appointed on a first PCRA Petition to make

a determination as to whether the claim has merit. Commonwealth v. Ferguson, 722 A.2d 177

(Pa. Super. Ct. 1998). Pursuant to Finley, 550 A.2d 213, and Commonwealth v. Turner, 544

A.2d 927 (Pa. Super. Ct. 1988), if, after due investigation, appointed PCRA counsel believes that

no merit for any PCRA claim exists, counsel may petition to withdraw his appearance.

Upon independent review, if the Court agrees that PCRA counsel has satisfied the

requirements laid out in Finley concerning counsel's review of the file, and agrees with the

conclusion that no merit exists as to the issues raised in the prose PCRA Petition, the court may

permit PCRA counsel to withdraw and dismiss the petition without a hearing. Commonwealth v.

Glover, 738 A.2d 397, 420 (Pa.Super. Ct. 1999).

Here, after conducting its own review of the record, the Court agreed with PCRA

Counsel and found the issues raised in Brown's pro se PCRA Petition to be without merit

because the sentence given was legal and Brown's PCRA was untimely. Therefore, the Court

properly dismissed Brown's prose PCRA Petition and granted appointed PCRA counsel leave to

withdraw.

E. The Court properly dismissed the action without holding an evidentiary hearing.

Brown argues that he was entitled to an evidentiary hearing in light of Martinez v. Ryan,

132 S.Ct. 1309 (2012) and Commonwealth v. Grant, 813 A.2d 726 (Pa. Super. 2002). 1925(b)

Statement � 1.

10 Under the Pennsylvania Rules of Criminal Procedure, a trial court may dismiss a PCRA

petition without a hearing only if the Court determines that there are no genuine issues of

material fact and that the defendant is not entitled to post-conviction collateral relief, and no

purpose would be served by any further proceedings. Pa.R.Crim.P. 907. There is no absolute

right to an evidentiary hearing on a PCRA petition. Commonwealth v. Jones, 942 A.2d 903, 906

(Pa. Super. 2008). Here, the Court determined that there are not genuine issues of material fact;

Brown's claims are time-barred. There is no dispute of fact regarding the untimeliness of

Brown's PCRA Petition. Brown is not entitled to post-conviction collateral relief.

IV. Conclusion

Brown has waived numerous claims in his 1925(b) Statement by raising them for the first

time on appeal or by not alleging exceptions to the statute of limitations. Despite waiving most

of them, the Court found Brown's claims to be without merit nonetheless. Upon independent

review of the record, this Court agreed with appointed PCRA counsel that Brown's prose PCRA

Petition lacked merit. As no issues of material facts existed, no evidentiary hearing was required.

This Cami's ruling should stand.

11 COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY CRIMINAL TRIAL DIVISION

COMMONWEALTH V. TYREE BROWN, CP-51-CR- 0011343-2007, 1228 EDA 2014

Opinion

PROOF OF SERVICE

I hereby certify that I am this day serving the foregoing Court Order upon the person(s) and in the manner indicated below, which service satisfies the requirements of PA.R.CRIM.P. 114:

Defense Counsel/Party: John P. Cotter, Esquire 2541 S. Broad Street Philadelphia, Pa 19148

Type of Service: ( ) Personal ( X ) First Class Mail ( ) Other

District Attorney: Hugh Bums, Jr., Esquire PCRA Unit, District Attorney's Office Widener Building 3 South Penn Sq. Philadelphia, PA 19107

Type of Service: ( ) Personal ( X) First Class Mail ( ) Other

Petitioner: Mr. Tyree Brown HY-1394 SCI Forest PO Box 945 Marienville, PA 16239-0307

Type of Service: ( ) Personal ( ) First Class Mail ( X ) Certified Mail

Dated: /' /2 I/ f l-/

12 Circulated 08/21/2018 04:24 PM

Received COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY DEC 15 2017 FIRST JUDICIAL DISTRICT OF PENNSYLVANIA Office of Judicial Records CRIMINAL TRIAL DIVISION Appeal�ost Trial

COMMONWEALTH OF PENNSYLVANIA

Superior Court No. v. 2699 EDA 2017

TYREE BROWN CP-51-CR-OO 11343-2007

This appeal comes before the Superior Court following the dismissal of a Post Conviction

Relief Act1 ("PCRA") petition filed on October 22, 2015 by Tyree J. Brown (hereinafter

"Petitioner").

On February 23, 2009, pursuant to negotiation between the parties, Petitioner entered a

guilty plea on the charges of third degree murder2, robbery', and criminal conspiracy". On

February 23, 2009, this court sentenced Petitioner to twenty to forty (20-40) years

incarceration for murder, consecutive to eight to twenty (8-20) years incarceration for

robbery to run concurrently with eight t� twenty (8-20) years incarceration for conspiracy.

Petitioner did not file any post-sentence motions or appeal his judgment of sentence thus

Petitioner's sentence became final on March 25, 2009, thirty (30) days after sentencing.5

On July 16, 2012, three years after his judgment of sentence became final, Petitioner filed

his first PCRA petition claiming ineffective assistance of trial counsel. On January 13, 2014,

CP-51-CR-0011343·2007 Comm. v. Brown. Tyree J. Opirueo 142 Pa. C.S. §§ 9541-9546 (West 2016).

IIIII II IIII IIIII I I IIIIII 2 18 Pa. C.S. § 2502(c) (West 2016). 3 18 Pa. C.S. § 3701(a)(l)(ii) (West 2016). 4 80.44354661 18 Pa. C.S. § 903(a)(l) (West 2016.) 5 42 Pa. C.S. § 9545 (b)(3); Pa. R.A.P. 903 (West 2016). the Honorable Judge Leon W. Tucker issued a "notice of intent to dismiss" ("907 notice")

pursuant to Pa. R. Crim. P. Rule 907. The PCRA court formally dismissed the petition on

March 17, 2014. The Superior Court of Pen�sylvania affirmed the denial of the PCRA

petition on February 13, 2015. Commonwealth 11. Brown, 120 A.3d 381 (Pa. Super2014). On

January 30, 2015 the Pennsylvania Supreme Court denied a petition for allowance of appeal.

Commonwealth v. Brown, 117 A.3d 1280 (Pa. 20 I 5).

The Petitioner filed the instant untimely prose PCRA, his second, on October 22, 20 I 5.

Petitioner subsequently filed two amended PCRA petitions on January 14, 2016, and July 20,

2016. The court issued a 907 notice on May 31, 2017, and formally dismissed the petition as

untimely on July 13, 20 I 7.

On August I 0, 2017, Petitioner filed a Notice of Appeal to the Superior Court of

Pennsylvania. On September 6, 2017 the court ordered Petitioner to file a Concise Statement of

Matters Complained of On Appeal ("1925(b) Statement") pursuant to Pa.R.A.P. J925(b). On

September l 9, 2017, Petitioner complied and filed his 1925(b) Statement wherein stating the

following claims of error verbatim:

I. PCRA and Sentencing court failed to acknowledge petitioner falls under the exception of9545(b)(l)(ii) due to him being abandoned by trial counsel. Finding that counsel's "Abandonment" can be a newly discovered fact for purposes of timeliness exception.

2. Sentencing judge failed to acknowledge that petitioner was clearly abandoned in the most crucial phase of a possible appeal when petitioner clearly asked for an appeal on his behalf in open court.

3. Sentencing judge failed to order counsel to file Ander's Brief before he could officially be dismissed from representation of the petitioner.

4. Sentencing judge failed to protect petitioner from excepting [sic] an illegal negotiated plea where the sentence of CRIMINAL CONSPIRACY and 3rt1 DECREE MURDER should have merged for sentencing instead of being ran consecutive.

2 5. Sentencing judge, counsel, or district attorney failed to explain the elements of the charges that it is impossible to commit CRIMINAL CONSPIRACY to commit 3rd DEGREE MURDER. And Commonwealth must prove that petitioner conspired to commit an unintentional act.

6. Double jeopardy is prohibited by the U.S. constitution [sic]. The Supreme court [sic] has held that the Double Jeopardy clause protects against multiple punishments for the same offense. Petitioner is being punished for 3rt1 DEGREE MURDER and also for CRIMINAL CONSPIRACY, ROBBERY [sic] ·

7. Counsel failed to properly investigate a more considerable plea where the petitioner had a prior record score ofa (2) and a gravity score of a (14). And is now sentenced in the (REYOC) repeated violent offender category.

8. Counsel Ineffective for failing to submit requested appeal when petitioner clearly wanted to exercise his right to do so.

9. PCRA counsel Ineffective for failing to argue that sentencing counsels actions were so unreasonable that no competent attorney would have chosen it, and that the timeliness of the petition should have been challenged.

I 0. Petitioner had no reason to believe he was abandoned the counsel who was suppose [sic] to be protecting his constitutional right to an appeal. And petitioner has no access to "Public Records" to learn of it.

11. Evidentiary hearing should be granted to establish on record if petitioners right to appeal was unlawfully violated by counsel. And should they be reinstated NUNC PRO TUNC.

II. Discussion The PCRA court properly dismissed Petitioner's "Petition for Post Conviction Collateral

Relief' as it was untimely filed without exception and this court was without jurisdiction to

make a determination on the merits of the claim.

Under 42 Pa. Cons. Stat. §§ 9541-9546, commonly known as the Post Conviction Relief Act,

a petitioner is required to plead and prove by a preponderance of the evidence that he was

3 convicted or sentenced as a result of one of the grounds enumerated in subsection (a)(2) to obtai.n

post-conviction relief. 42 Pa. C.S. § 9543(a)(2). He must also prove the claimed errors were not

previously litigated or waived and "the failure to litigate. the issue prior to or during trial, ... or

on direct appeal could not have been the result of any rational, strategic or tactical decision by

counsel." Id. § 9543(a)(4). An issue is considered previously litigated if "the highest appellate

court in which the petitioner could have had review as a matter of right has ruled on the merits of

the issue." Id. § 9544(a)(2). An issue is considered waived "if the petitioner could have raised it

but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post

conviction proceeding." Id. § 9544(b).

A. The PCRA Court was without jurisdiction to make a determination on the merits of the PCRA petition because it was manifestly untimely without exception. A petitioner must file a PCRA petition, including second and subsequent petitions, within

one year of the date when the judgment becomes final. 42 Pa. C.S. § 9545(b). A judgment is

considered final at the close of direct review or when the time to seek review expires. Id. §

9545(b)(3). There are three exceptions to the one-year time limitation:

(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.

4 Id. § 9545(b)(l ). Pennsylvania courts have no jurisdiction to address the substantive merits of

PCRA petitions that are untimely without exception. See e.g. Commonwealth. v. Robinson, 837

A.2d 1157, I 163 (Pa. 2003); Commonwealth v. /-la/I, 771 A.2d 1232, 1234 (Pa. 200 I)

("Pennsylvania courts lack jurisdiction to entertain untimely PCRA petitions.'} Even if the

petitioner is serving an illegal sentence, which is reviewable under the PCRA, his claim is still

subject to the time limitations under the PCRA. Commonwealth v. Fahy, 73 7 A.2d 214, 223 (Pa.

1999).

Petitioner's judgment of sentence became final March 25,. 2009, thirty (30) days after the

entry of his negotiated guilty plea on February 23, 2009. The instant petition, Petitioner's second,

filed October 22, 2015, was manifestly untimely by approximately six (6) years. I

l. Petitioner has failed to establish a timeliness exception for his untimely petition.

Petitioner attempts to establish an exception for his untimely petition under the "newly

discovered fact" exception of the PCRA. Petitioner contends the PCRA and sentencing courts

failed to acknowledge abandonment by counsel was a newly-discovered fact for the purposes of

the timeliness exception. (1925(b) Statement 1 1 ); 42 Pa. C.S. § 9545(b)(l )(ii). However,

Petitioner previously argued this precise issue on appeal of his first PCRA petition in 2014.

To be eligible for post-conviction relief, the petitioner must establish that his claims have

not been previously litigated or waived. id. 9543 § (a)(3). An issue has been previously litigated

when "it has been raised and decided in a proceeding collaterallyattacking the conviction or

sentence." Id. 9544 § (a)(3).

Petitioner's claim of abandonment of trial counsel was previously litigated in his first

PCRA petition in 2014 and the Superior Court affirmed the dismissal of this exact claim. The

5 PCRA court found that: 1. Petitioner's claim of ineffective assistance of counsel for failure to file

a direct appeal on Petitioner's behalf did not constitute a newly-discovered fact for the purposes

of circumventing the PCRA statutory time bar; and 2. Petitioner did not meet his burden of

showing that he raised the newly-discovered fact within sixty (60) days of the date the alleged

new facts were discovered as required by§ 9545(b)(l )(ii). Commonwealth of Pennsylvania v.

Tyree Brown, 2014 Trial Court Opinion at 6-7. Thus, Petitioner does not meet the newly-

discovered fact exception for the purposes of circumventing the PCRA statutory time-bar.

Additionally, Petitioner's multiple claims of ineffective assistance and abandonment of

trial counsel in his f92S(b) Statement were previously litigated in his 2014 appeal. ( 1925(b)

Staternent j'[ I, 2, and 8.) Therefore, pursuant to the PCRA, Petitioner is ineligible for relief on

his previously litigated claims. 42 Pa. C.S. § 9543(a)(3).

2. The remainder of Petitioner's claims arc untimely without exception and waived.

The remainder of Petitioner's claims, �13-7 and 9-10 are untimely without exception and

waived. (I 92S(b) Statement). In addition to the specific rules on waiver under the PCRA,

petitioners must also comply with the Pennsylvania Rules of Appellate Procedure. Specifically

"issues not raised in the lower court are waived and cannot be raised for the first time on appeal."

Pa. R.A.P. 302(a).

In reviewing Petitioner's untimely PCR.A petition and subsequent motions to amend, the

court finds that Petitioner's claims in �ii 3-7, 9 and 10 were raised for the first time in Petitioner's

1925(b) Statement. Pursuant to Pa. R.A.P. 302(a) these issues cannot be raised for the first time

on appeal and are therefore waived. Furthermore, the aforementioned claims are untimely

6 without exception because they were not raised within one year of Petitioner's judgment

becoming final as required by the PCRA. 42 Pa. C.S. § 9545(b).

B. The PCRA Court properly dismissed Petitioner's claim without an evidcntiary hearing. Petitioner argues that he was entitled to an evidentiary hearing to establish if his right to

appeal was unlawfully violated by counsel. ( I 925(b) Statement i11 I). However, the right to an

evidentiary hearing is not absolute and the court determined an evidentiary hearing was not

warranted as there was no genuine issues of material fact in dispute.

A court may dismiss a petition without an evidentiary hearing when "there are no genuine

issues concerning any material fact and that the defendant is not entitled to post-conviction

collateral relief, and no purpose would be served by any further proceedings." Pa. R. Crim. P.

907( I) (West 2016). It is at the discretion of the PCRA court to grant an evidentiary hearing and

the court may properly deny a request for a hearing when the claims presented are patently

frivolous and without support in the record or other evidence. Commonwealth v. Jordan, 772

A.2d 1011, IO 14 (Pa. Super. 200 l ). If the record reveals that there are no genuine issues of

material fact regarding one of petitioner's substantive claims, then an evidentiary hearing will

not serve any purpose. See e.g. Commonwealth v. Payne, 794 A.2d 902 (Pa. Super 2002)

(holding the PCRA court did not err in the denial of a PCRA evidentiary hearing because

petitioner's substantive claims should be decided on the existing record).

Here, the court determined that there are no genuine issues of material fact, Petitioner's

claim is untimely without exception. There are no disputes of fact regarding the timeliness of

Petitioner's PCRA petition therefore Petitioner is not entitled to an evidentiary hearing.

7 Ill. Conclusion

Petitioner has failed to establish an exception for his untimely petition. For the reasons set

forth above, Petitioner's petition was denied as untimely.

Supervising udge, Criminal Division

AIV

8 COURT Of COMMON PLEAS OF PHILADELPHIA COUNTY CRIMINAL TRIAL DIVISION

COMMONWEALTH v. TYREE BROWN, CP-51-CR-0011343-2007

I hereby certify that I am this day serving the foregoing Court Order upon the person(s) and in the manner indicated below, in accordance with the requirements of PA. R.CRJM.P. 114:

Petitioner: Mr. Tyree Brown #HYl394 SCI Coal Township I Kelley Drive Coal Township, PA 17866- I 020

Type a/Service: ( ) Personal ( ) First Class Mail (X) Certified

District Attorney: Robin Godfrey, Esquire PCRA Unit, District Attorney's Office Widener Building 3 South Penn Square Philadelphia, PA 19107

Type a/Service: ( ) Personal (X) First Class Mail. ( ) Other