Com. v. Hewlett, R.

• Court: Superior Court of Pennsylvania
• Decided: December 23, 2020
• Docket: 164 EDA 2020
• Status: Unpublished

Opinion

J-S40021-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : RICHARD HEWLETT : : Appellant : No. 164 EDA 2020

Appeal from the PCRA Order Entered December 6, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000583-2015

BEFORE: SHOGAN, J., KING, J., and COLINS, J.*

MEMORANDUM BY KING, J.: FILED DECEMBER 23, 2020

Appellant, Richard Hewlett, appeals from the order entered in the

Philadelphia County Court of Common Pleas, dismissing his first petition under

the Post Conviction Relief Act (“PCRA”).1 After careful review, we are

constrained to quash this appeal.

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

September 4, 2015, a jury convicted Appellant of aggravated assault and

carrying a firearm without a license. That same day, at a bench trial, the court

found Appellant guilty on a related count of persons not to possess firearms.

On November 6, 2015, the court sentenced Appellant to an aggregate term of

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* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S.A. §§ 9541-9546. J-S40021-20

thirteen and one-half (13½) to twenty-seven (27) years’ imprisonment. This

Court affirmed the judgment of sentence on June 5, 2018. See

Commonwealth v. Hewlett, 189 A.3d 1004 (Pa.Super. 2018), appeal

denied, 649 Pa. 641, 197 A.3d 1176 (2018).

On June 20, 2018, direct appeal counsel timely filed a petition for

allowance of appeal on Appellant’s behalf. While the petition remained

pending with our Supreme Court, and despite having counsel of record,

Appellant filed a pro se PCRA petition on June 22, 2018.2 The PCRA court

appointed current counsel (“PCRA counsel”) and continued the matter. On

August 17, 2018, the court continued the matter once more. The

corresponding docket entry for the continuance noted, “[Appellant] has an

outstanding allocatur petition. Relisted for status 11/30/18[.]” (Court of

Common Pleas Docket Entry, 8/17/18).

On November 20, 2018, our Supreme Court denied Appellant’s petition

for allowance of appeal. Thereafter, Appellant proceeded to litigate his PCRA

petition. The Commonwealth filed a motion to dismiss on September 20,

2 The record does not indicate that the court forwarded Appellant’s pro se filing to counsel of record. See Pa.R.Crim.P. 576(A)(4) (stating in any case in which defendant is represented by attorney, if defendant submits written motion, notice or document that has not been signed by defendant’s attorney, clerk of courts shall accept it for filing and forward copy of time-stamped document to defendant’s attorney and attorney for Commonwealth within 10 days of receipt).

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2019.3 On September 27, 2019, the court issued Pa.R.Crim.P. 907 notice of

its intent to dismiss Appellant’s petition without a hearing. Appellant did not

respond to the Rule 907 notice, and the court dismissed his petition on

December 6, 2019.

Appellant timely filed a notice of appeal on December 31, 2019. 4 The

court did not order Appellant to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal, and none was filed.

Appellant now raises one issue for our review:

Was trial counsel ineffective when he failed to appeal the issue regarding “abuse of discretion” as it relates to [Appellant’s] sentence of 13½-27 years?

(Appellant’s Brief at 5).

As a prefatory matter, we must consider whether the PCRA court had

jurisdiction to address Appellant’s claims. See Commonwealth v. Albrecht,

606 Pa. 64, 994 A.2d 1091 (2010) (reiterating that PCRA’s time restrictions

are jurisdictional in nature). “[T]here is no generalized equitable exception to

the jurisdictional … time bar pertaining to post-conviction petitions.”

3 The Commonwealth’s motion indicated PCRA counsel filed an amended petition on Appellant’s behalf on June 19, 2019. (See Motion to Dismiss, filed 9/20/19, at 6). Significantly, the amended petition does not appear in the certified record, and the filing is not memorialized on the PCRA court’s docket.

4The notice of appeal contained a typographical error regarding the date of entry for the order denying PCRA relief. (See Notice of Appeal, filed 12/31/19).

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Commonwealth v. Harris, 972 A.2d 1196, 1200 (Pa.Super. 2009) (quoting

Commonwealth v. Brown, 596 Pa. 354, 360, 943 A.2d 264, 267 (2008)).

“A petition for post-conviction collateral relief shall be filed within one

year of the date the judgment becomes final, except as otherwise provided by

statute.” Pa.R.Crim.P. 901(A). See also 42 Pa.C.S.A. § 9545(b)(1). A

judgment of sentence becomes 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.A. § 9545(b)(3). “A PCRA petition may only be filed after

an appellant has waived or exhausted his direct appeal rights.”

Commonwealth v. Leslie, 757 A.2d 984, 985 (Pa.Super. 2000) (emphasis

in original).

“The PCRA provides petitioners with a means of collateral review, but

has no applicability until the judgment of sentence becomes final.”

Commonwealth v. Kubis, 808 A.2d 196, 198 n.4 (Pa.Super. 2002), appeal

denied, 572 Pa. 700, 813 A.2d 839 (2002). See also Commonwealth v.

Seay, 814 A.2d 1240 (Pa.Super. 2003) (confirming that PCRA petition is

premature if filed while direct appeal remains pending). “If a petition is filed

while a direct appeal is pending, the PCRA court should dismiss it without

prejudice towards the petitioner’s right to file a petition once his direct appeal

rights have been exhausted.” Commonwealth v. Williams, 215 A.3d 1019,

1023 (Pa.Super. 2019).

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Instantly, Appellant’s judgment of sentence became final on or about

February 18, 2019, ninety days after our Supreme Court denied Appellant’s

petition for allowance of appeal. See U.S.Sup.Ct.R. 13 (stating appellant must

file petition for writ of certiorari with United States Supreme Court within

ninety (90) days after entry of judgment by state court of last resort).

Appellant filed the current PCRA petition on June 22, 2018, during the

pendency of his direct appeal. Because Appellant filed the petition before his

judgment of sentence was final, the PCRA court lacked authority to consider

it and should have dismissed it without prejudice. See Albrecht, supra;

Williams, supra. Accordingly, we are constrained to quash this appeal.5 See

Seay, supra at 1241 (concluding Superior Court was required to quash appeal

from denial of PCRA relief, because PCRA petition was premature).

Appeal quashed. Jurisdiction relinquished.

5 Because the PCRA has no applicability until the judgment of sentence becomes final, this Court has determined that a “premature petition does not constitute a first PCRA petition.” Kubis, supra at 198 n.4. Therefore, Appellant still has the opportunity to file a first, counseled (albeit facially untimely) PCRA petition, as the current record does not demonstrate that counsel properly filed an amended petition. See id. See also Commonwealth v. Ramos, 14 A.3d 894, 896 (Pa.Super. 2011) (holding first-time petitioner for post-conviction review whose petition appears untimely on its face is entitled to representation for assistance in determining whether the petition is timely or whether any exception to the normal time requirements is applicable).

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/23/2020

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