Com. v. McCrae, G.

• Court: Superior Court of Pennsylvania
• Decided: March 8, 2023
• Docket: 149 MDA 2022
• Status: Unpublished

Opinion

J-S28038-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : GREGORY MCCRAE : : Appellant : No. 149 MDA 2022

Appeal from the PCRA Order Entered January 5, 2022 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0001041-2010

BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY KING, J.: FILED: MARCH 8, 2023

Appellant, Gregory McCrae, appeals from the order entered in the

Luzerne County Court of Common Pleas, which dismissed as untimely his

petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§

9541-9546. We affirm and grant counsel’s petition to withdraw.

The PCRA court set forth the facts and procedural history of this case

as follows.

On May 10, 2010, an information was filed against [Appellant] charging him with two counts of aggravated assault, 18 Pa.C.S.A. § 2702(a)(3). Counsel was appointed to represent [Appellant], and the matter was scheduled for trial. On May 10, 2011, however, the parties entered into a plea agreement whereby (1) the Commonwealth agreed to move to amend Count 2 of the information to aggravated harassment by a prisoner, 18 Pa.C.S.A. § 2703; (2) [Appellant] agreed to plead guilty to Count 1 and the amended Count 2; and (3) the parties agreed that [Appellant] would be sentenced to 2 to 4 years’ imprisonment on Count 1, consecutive to a sentence [Appellant] was already serving, and 2 to 4 years[’] J-S28038-22

imprisonment on Count 2, concurrent to the sentence imposed at Count 1.

Following a full colloquy of [Appellant], the [c]ourt accepted the plea, finding that it was voluntarily and knowingly tendered, and imposed the agreed upon sentence. No post-sentence [motions] were filed by [Appellant], nor did he appeal his judgment of sentence to the Superior Court.

On March 31, 2021, [Appellant] filed a pro se document titled “Motion to Set Aside the Verdict/Plea Based on After- Discovered Evidence Based on the Discovery of Violations of 18 Pa.C.S.A. § 9112(A) and Pa.R.Crim.P. 510(A),” asking the [c]ourt to dismiss with prejudice the criminal information filed to No. 1041 of 2010.” The motion alleged that [Appellant] was eligible for relief based on (a) the ineffectiveness of counsel that undermined the truth determining process, (b) an unlawfully induced guilty plea, and (c) the unavailability at the time of trial of exculpatory evidence.

Construing [Appellant’s] March 31, 2021 motion as a PCRA petition, [the court] appointed Attorney Jeffrey Yelen to represent him on June 1, 2021, and scheduled a hearing. Prior to that hearing, however, Attorney Yelen filed (1) a “no merit” letter, indicating that after reviewing [Appellant’s] file and contacting [Appellant], he had determined that there was no merit to the PCRA petition, and (2) a motion to withdraw as counsel. In a letter to the [c]ourt in support of his motion to withdraw, Attorney Yelen opined that [Appellant’s] PCRA petition was facially untimely and that no exception to the time bar applied, and further, that there was no substantive merit to the allegation raised therein.

Attorney Yelen’s motion to withdraw as counsel was subsequently granted, and the [c]ourt filed a notice of intention to dismiss the PCRA petition pursuant to Pa.R.Crim.P. 907. The notice indicated, inter alia, that [Appellant’s] PCRA petition was facially untimely, and no exception to the time requirements applied. [Appellant] was informed that he had twenty days in which to respond to the Rule 907 notice. Although [Appellant] did not do so,

-2- J-S28038-22

he did submit a response to Attorney Yelen’s request to withdraw as counsel on September 17, 2021, which addressed the untimeliness of the petition and which [the PCRA c]ourt considered. Thereafter, on December 17, 2021, the [PCRA c]ourt dismissed [Appellant’s petition].

(PCRA Court Opinion, 5/3/22, at 1-3) (record citations and footnote

omitted).

On January 12, 2022, Appellant filed a pro se timely notice of appeal.

The court conducted a Grazier1 hearing and appointed counsel to represent

Appellant on appeal. On February 28, 2022, the court directed Appellant to

file a concise statement in accordance with Pa.R.A.P. 1925(b), and Appellant

timely complied on March 19, 2022.

On June 21, 2022, appellate counsel filed a petition for leave to

withdraw and a Turner/Finley2 brief in this Court. Appellant filed a pro se

response to counsel’s petition and brief on July 7, 2022.

Before counsel can be permitted to withdraw from representing a

petitioner under the PCRA, Pennsylvania law requires counsel to file a “no-

merit” brief or letter pursuant to Turner and Finley. Commonwealth v.

Karanicolas, 836 A.2d 940, 947 (Pa.Super. 2003).

[C]ounsel must…submit a “no-merit” letter to the [PCRA] court, or brief on appeal to this Court, detailing the nature and extent of counsel’s diligent review of the case, listing ____________________________________________

1 Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).

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).

-3- J-S28038-22

the issues which the petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007). Counsel

must also send to the petitioner a copy of the “no-merit” letter or brief and

motion to withdraw and advise petitioner of his right to proceed pro se or

with privately retained counsel. Id. “Substantial compliance with these

requirements will satisfy the criteria.” Karanicolas, supra at 947.

Instantly, appellate counsel filed a motion to withdraw as counsel and

a Turner/Finley brief detailing the nature of counsel’s review and explaining

why Appellant’s issues lack merit. Counsel’s brief also demonstrates he

reviewed the certified record and found no meritorious issues for appeal.

Counsel notified Appellant of counsel’s request to withdraw and advised

Appellant regarding his rights. Thus, counsel substantially complied with the

Turner/Finley requirements. See Wrecks, supra; Karanicolas, supra.

Accordingly, we proceed with our independent assessment. See Turner,

supra at 494-95, 544 A.2d at 928-29 (stating appellate court must conduct

independent analysis and agree with counsel that appeal is frivolous).

Counsel raises the following issue on Appellant’s behalf:

Whether the court erred in dismissing the PCRA Petition as untimely[?]

(Turner/Finley Brief at 1).

As the timeliness of a PCRA petition is separate from the merits of the

petitioner’s underlying claim, we must first determine whether the petition is

-4- J-S28038-22

timely filed. Commonwealth v. Brensinger, 218 A.3d 440, 447-48

(Pa.Super. 2019) (en banc) (citing Commonwealth v. Stokes, 598 Pa.

574, 959 A.2d 306 (2008)). The timeliness of a PCRA petition is a

jurisdictional prerequisite. Commonwealth v. Zeigler, 148 A.3d 849

(Pa.Super. 2016). Pennsylvania law makes clear that no court has

jurisdiction to hear an untimely PCRA petition. Commonwealth v.

Robinson, 575 Pa. 500, 837 A.2d 1157 (2003).

It is well-settled that the PCRA is intended to be the sole means of

achieving post-conviction relief. Commonwealth v. Taylor, 65 A.3d 462,

465 (Pa.Super. 2013) (citing 42 Pa.C.S.A. § 9542). If an issue is cognizable

under the PCRA, the issue must be raised in a timely PCRA petition.

“[R]egardless of how a petition is titled, courts are to treat a petition filed

after a judgment of sentence becomes final as a PCRA petition if it requests

relief contemplated by the PCRA.” Commonwealth v. Fantauzzi, 275 A.3d

986, 995 (Pa.Super. 2022), appeal denied, No. 317 MAL 2022, 2022 WL

17422510 (Pa. Dec. 6, 2022) (citing Commonwealth v. Wrecks, 934 A.2d

1287, 1289 (Pa.Super. 2007)). See also Commonwealth v. Torres, 223

A.3d 715, 716 (Pa.Super. 2019) (stating: “so long as a pleading falls within

the ambit of the PCRA, the court should treat any pleading filed after the

judgment of sentence is final as a PCRA petition”).

A PCRA petition shall be filed within one year of the date the

underlying judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1).

-5- J-S28038-22

A judgment of sentence 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

the review.” 42 Pa.C.S.A. § 9545(b)(3). To obtain merits review of a PCRA

petition filed more than one year after the judgment of sentence became

final, the petitioner must allege and prove at least one of the three

exceptions to the PCRA time-bar outlined in 42 Pa.C.S.A. § 9545(b)(1)(i-iii).3

Here, Appellant filed the instant “motion to set aside the verdict/plea

based on after-discovered evidence” on March 31, 2021. In his response to

counsel’s no-merit brief, Appellant insists he is not subject to the PCRA time

bar and claims that the court erred in construing his petition under the

____________________________________________

3 These exceptions are:

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.A. § 9545(b)(1)(i)-(iii).

-6- J-S28038-22

confines of the PCRA. (Response to No Merit Brief, filed 7/7/22, at

unnumbered page 2). Nevertheless, because Appellant is requesting relief

contemplated by the PCRA, we conclude that Appellant’s current petition is

subject to review within the PCRA, and therefore must comply with the PCRA

time limits. See 42 Pa.C.S.A. § 9543(a)(2)(ii), (iii), (vi) (describing claims

of ineffective assistance of counsel, challenges to validity of guilty plea, and

assertions of exculpatory evidence unavailable at time of trial as falling

under parameters of PCRA). See also Fantauzzi, supra at 995.

The trial court sentenced Appellant on May 10, 2011. Appellant did

not file post-sentence motions or a direct appeal. Accordingly, Appellant’s

judgment of sentence became final 30 days later, on June 9, 2011. See

Pa.R.A.P. 903(a). Hence, Appellant had until June 9, 2012, to file a timely

PCRA petition. The instant petition, filed nearly a decade after the judgment

of sentence became final, is patently untimely. See 42 Pa.C.S.A. §

9545(b)(1). Therefore, for the court to have jurisdiction over Appellant’s

claim, Appellant must prove he is eligible under one of the three exceptions

to the PCRA’s time-bar. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

In his response to PCRA counsel’s request to withdraw, Appellant

claimed that he was entitled to application of the “newly-discovered facts”

exception to the PCRA time bar based on a February 15, 2021 order

directing Appellant to be fingerprinted. Appellant claims that this recent

order to be fingerprinted proves that Appellant was not fingerprinted when

-7- J-S28038-22

he was originally charged and constitutes “exculpatory evidence.”4

(Response to Request to Withdraw, filed 9/17/21, at ¶4). Appellant

acknowledges that he knew of the alleged error at the time of his guilty plea,

but Appellant claims that he did not have evidence proving that he was not

fingerprinted until he received the recent order directing him to be

fingerprinted. Appellant concludes that he fulfilled the requirements of the

newly-discovered facts exception to the time bar, and the PCRA court erred

by dismissing his petition as untimely filed. We disagree.

To meet the “newly-discovered facts” timeliness exception set forth in

Section 9545(b)(1)(ii), a petitioner must demonstrate “he did not know the

facts upon which he based his petition and could not have learned those

facts earlier by the exercise of due diligence.” Commonwealth v. Brown,

111 A.3d 171, 176 (Pa.Super. 2015), appeal denied, 633 Pa. 761, 125 A.3d

1197 (2015). “The focus of the exception is on [the] newly discovered facts,

not on a newly discovered or newly willing source for previously known

facts.” Commonwealth v. Burton, 638 Pa. 687, 704, 158 A.3d 618, 629

(2017) (internal citation and quotation marks omitted). Due diligence

requires that the petitioner “take reasonable steps to protect his own

4 Appellant insists that the fact that he was not fingerprinted after his arrest is a violation under 18 Pa.C.S.A. § 9112(a) (governing mandatory fingerprinting within 48 hours of arrest) and Pa.R.Crim.P. 510(C)(2) (requiring order directing defendant to submit to fingerprinting to be attached to summons for preliminary hearing).

-8- J-S28038-22

interests.” Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.Super.

2010), appeal denied, 610 Pa. 607, 20 A.3d 1210 (2011) (citations omitted).

However, it does not require “perfect vigilance nor punctilious care, but

rather it requires reasonable efforts by a petitioner, based on the particular

circumstances to uncover facts that may support a claim for collateral relief.”

Commonwealth v. Shiloh, 170 A.3d 553, 558 (Pa.Super. 2017) (citation

omitted). As such, “the due diligence inquiry is fact-sensitive and dependent

upon the circumstances presented.” Id.

Upon review, we agree with the PCRA court that Appellant has not

satisfied the requirements for the newly-discovered fact exception to the

PCRA time bar. Appellant admits that he knew he had not been

fingerprinted at the time of his plea and that he asked plea counsel to look

into his claim of a procedural violation prior to entering his plea. (Response

to Request to Withdraw at ¶5). Hence, Appellant’s proffered “new” fact was

known to him in 2011, and Appellant cannot establish applicability of the

exception based on a new source (i.e., the order directing him to be

fingerprinted) for that fact. See Burton, supra. Moreover, Appellant has

not shown that he could not have uncovered proof of his not having been

fingerprinted earlier with the exercise of due diligence. See Monaco,

supra. As such, he failed to meet his burden of proving applicability of an

exception to the PCRA time bar.

Our independent review does not reveal any applicable timeliness

-9- J-S28038-22

exceptions or other non-frivolous issues. See Turner, supra. Accordingly,

we affirm the court’s order dismissing the petition as untimely and grant

appellate counsel’s petition to withdraw.

Order affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/8/2023

- 10 -