Com. v. Norris, B.

Superior Court of Pennsylvania

Com. v. Norris, B.

DecidedMarch 17, 2016

Docket2512 EDA 2015

StatusUnpublished

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Com. v. Norris, B., (Pa. Ct. App. 2016).

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Opinion

J.S23032/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : BRUCE NORRIS, : : Appellant : : No. 2512 EDA 2015

Appeal from the PCRA Order July 14, 2015 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0618592-1975

BEFORE: PANELLA, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED MARCH 17, 2016

Appellant, Bruce Norris, appeals pro se from the order entered in the

Philadelphia County Court of Common Pleas dismissing his Post Conviction

Relief Act1 (“PCRA”) petition based upon Counsel’s Finley2 letter and

untimeliness. Appellant claims that the petition was timely under the

PCRA’s “newly recognized constitutional right” exception in 42 Pa.C.S. §

9545(b)(1)(iii), following the decisions of the United States Supreme Court

in Lafler v. Cooper, 132 S. Ct. 1376 (2012), and Missouri v. Frye, 132 S.

Ct. 1399 (2012). He avers that he filed his pro se PCRA petition within sixty

* Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541-9546. 2 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc); see also Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988). J.S23032/16

days of March 21, 2012, the date the Supreme Court rendered its decisions

in Lafler and Frye. We affirm.

We adopt the facts and procedural history set forth in the PCRA court’s

opinion.3 See PCRA Ct. Op., 8/28/15, at 1-3. Appellant timely appealed

from the order dismissing the instant petition.4

Appellant raises the following issue in his pro se brief:

Was Appellant deprived of effective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States and article I, Section 9 of the Pennsylvania Constitution when his trial counsel failed to advise him fully regarding an offer from the Commonwealth that would have allowed him to plead guilty in exchange for a sentence of 25 years?

Appellant’s Brief at 3.

This Court has stated:

Our standard of review of the denial of a PCRA petition is limited to examining whether the court’s rulings are supported by the evidence of record and free of legal error. This Court treats the findings of the PCRA court with deference if the record supports those findings. It is an appellant’s burden to persuade this Court that the PCRA court erred and that relief is due.

* * *

3 We note that the reconstructed certified record in the case sub judice only contains documents related to the instant PCRA petition. The docket indicates that the pro se PCRA petition was filed on April 18, 2012. It is not contained in the certified record. Given our disposition, this is of no moment. 4 The PCRA court did not issue a Pa.R.A.P. 1925(b) order.

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The PCRA time limitations, and exceptions thereto, are set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii). That section states:

(b) Time for filing petition.—

(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:

(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.

To invoke one of these exceptions, the petitioner must plead it and satisfy the burden of proof. Additionally, any exception must be raised within sixty days of the date that the claim could have been presented. 42 Pa.C.S.A § 9545(b)(2). Our Supreme Court “has repeatedly stated that the PCRA timeliness requirements are jurisdictional in nature and, accordingly, a PCRA court cannot hear untimely PCRA petitions.”

Commonwealth v. Feliciano, 69 A.3d 1270, 1274-75 (Pa. Super. 2013)

(some citations omitted). “[A] judgment becomes final at the conclusion of

direct review, including discretionary review in . . . Supreme Court of

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Pennsylvania, or at the expiration of time for seeking the review.” 42

Pa.C.S. § 9545(b)(3).

Appellant filed the instant serial PCRA petition on April 18, 2012, thus

it is patently untimely. See 42 Pa.C.S. § 9545(b)(1). Therefore, we

determine whether, as averred by Appellant, any timeliness exception

applies in this case.

The PCRA court court concluded that the decisions of the United States

Supreme Court in Lafler and Frye did not create a new constitutional right

to overcome the time-bar. See PCRA Ct. Op. at 6. The Feliciano Court

considered this precise issue as follows:

“The right to effective assistance of counsel during the plea bargaining process has been recognized for decades.” Commonwealth v. Lewis, 63 A.3d 1274, 1280 (Pa. Super. 2013) (citing Hill v. Lockhart, [ ] 106 S. Ct. 366, [ ] (1985) (holding that “the two-part Strickland [v. Washington], [ ] 104 S. Ct. 2052 [ ][(1984)], test applies to challenges to guilty pleas based on the ineffective assistance of counsel”); Padilla v. Kentucky, [ ] 130 S. Ct. 1473 [ ] (2010) (“Before deciding whether to plead guilty, a defendant is entitled to the effective assistance of competent counsel.”)). In Frye, the United State Supreme Court merely clarified that this well-established right “extends to the negotiation and consideration of plea offers that lapse or are rejected.” Frye, 132 S. Ct. at 1404 (emphasis added). In other words, the Frye Court held “that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” Id. at 1408. In determining whether counsel has satisfied this obligation, the two-part test set forth in Strickland applies. See id. at 1409. In Lafler, the Court explained that to meet the prejudice prong of the Strickland test where the alleged

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ineffectiveness of counsel involves the defendant’s rejection of a plea offer, the defendant must show,

that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.

Lafler, 132 S. Ct. at 1385.

It is apparent that neither Frye nor Lafler created a new constitutional right. Instead, these decisions simply applied the Sixth Amendment right to counsel, and the Strickland test for demonstrating counsel’s ineffectiveness, to the particular circumstances at hand, i.e. where counsel’s conduct resulted in a plea offer lapsing or being rejected to the defendant’s detriment.

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