Com. v. Palmer, B.

Opinion

J-S27025-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRIANNE PALMER : : Appellant : No. 419 WDA 2021

Appeal from the Order Entered March 29, 2021 In the Court of Common Pleas of Cambria County Criminal Division at No(s): CP-11-CR-0000148-2016

BEFORE: OLSON, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY NICHOLS, J.: FILED: NOVEMBER 12, 2021

Appellant Brianne Palmer appeals from the order dismissing her third

Post Conviction Relief Act1 (PCRA) petition as untimely. Appellant argues that

the PCRA court erred in rejecting her substantive claims of ineffective

assistance by plea counsel and in treating her filing as a PCRA petition, rather

than a petition for writ of habeas corpus. Following our review of the record,

we affirm on the basis of the PCRA court’s opinion.

Briefly, on December 20, 2016, the trial court sentenced Appellant to an

aggregate term of twenty-two-and-a-half to forty-five years’ imprisonment

after she pled guilty to third-degree murder and related offenses. Appellant

did not file post-sentence motions or a direct appeal. Appellant subsequently ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546. J-S27025-21

filed two petitions for PCRA relief. Appellant withdrew her first petition, and

the PCRA court dismissed the second as untimely. See PCRA Ct. Order & Op.,

3/29/21, at 3.

On March 8, 2021, Appellant filed the instant petition, which she labeled

as a petition for writ of habeas corpus. On March 11, 2021, the PCRA court

issued a Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s petition. On

March 29, 2021, the PCRA court docketed Appellant’s Rule 907 response,

which reiterated that she was not proceeding under the PCRA and, instead,

“elect[ed] to proceed on the habeas option.” Appellant’s Resp., 3/29/21, at

1. In the event that her petition was dismissed, Appellant requested that the

PCRA court treat her Rule 907 filing as a notice of appeal. Id. at 2. That

same day, the PCRA court issued an order dismissing Appellant’s petition.

The PCRA court accepted Appellant’s filing as a timely notice of appeal

and subsequently issued a Rule 1925(a) opinion incorporating its March 29,

2021 order and opinion dismissing Appellant’s petition, and reiterated that

Appellant was not entitled to relief.2 See Rule 1925(a) Op., 4/22/21, at 1-2.

On appeal, Appellant raises the following issues for review:

1. Whether plea was irrational, involuntary and whether a rational jurist would have found [Appellant] guilty, essentially due to ineffective assistance of counsel?

2. The [PCRA] court improperly denied her fundamental fairness by declaring habeas corpus was proper relief, then denied her

____________________________________________

2 Therein, the PCRA court addressed the errors identified by Appellant in her

March 29, 2021 filing.

-2- J-S27025-21

habeas petition based on an untimely PCRA, which is by definition an unconstitutional bill of attainder?

Appellant’s Brief at 3-4 (unpaginated) (some formatting altered, sub-

arguments omitted).

After reviewing the record, the parties’ briefs, and the well-reasoned

conclusions of the PCRA court, we affirm on the basis of the PCRA court’s

opinion. See PCRA Ct. Order & Op., 3/29/21, at 1-5. Specifically, we agree

with the PCRA court that Appellant’s filing must be treated as a PCRA petition

and, in any event, her constitutional challenge to the applicability of the PCRA

is meritless. See id. Therefore, the PCRA court properly dismissed

Appellant’s petition as untimely.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/12/2021

-3- Circulated 10/28/2021 10:35 AM