Com. v. Roberts, J.

• Court: Superior Court of Pennsylvania
• Decided: May 4, 2021
• Docket: 590 WDA 2020
• Status: Unpublished

Opinion

J-A02011-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHNNY RAY ROBERTS : : Appellant : No. 590 WDA 2020

Appeal from the PCRA Order Entered May 18, 2020 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0002155-2008

BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM BY BOWES, J.: FILED: May 4, 2021

Johnny Ray Roberts appeals from the May 18, 2020 order dismissing his

petition filed pursuant to the Post Conviction Relief Act (“PCRA). Counsel has

filed a Turner/Finley1 no-merit brief and application to withdraw. After

thorough review, we grant counsel permission to withdraw and affirm the

denial of PCRA relief.

The charges against Appellant stem from a shooting incident in the

parking lot outside the Steppin’ Out Lounge in Erie, Pennsylvania, on July 27,

2008. Appellant fired four gunshots at two persons in a vehicle, striking the

passenger in the head and chest. On January 20, 2009, a jury found Appellant

guilty of attempted homicide, aggravated assault, two counts of recklessly

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1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). J-A02011-21

endangering another person (“REAP”), and possession of an instrument of

crime.

The trial court sentenced Appellant to an aggregate sentence of twenty-

five to fifty years of incarceration. His sentence reflected a twenty-five-year

mandatory minimum sentence pursuant to 42 Pa.C.S. § 9714 for attempted

homicide with two prior convictions for crimes of violence. Appellant’s post-

sentence motion was denied, and this Court affirmed judgment of sentence

on February 5, 2010. See Commonwealth v. Roberts, 996 A.2d 14

(Pa.Super. 2010) (unpublished memorandum). Appellant did not seek

allowance of appeal to the Supreme Court. On February 3, 2011, Appellant

filed a timely PCRA petition and counsel was appointed. Following the denial

of relief, Appellant appealed to this Court. That appeal was dismissed for

failure to comply with Pa.R.A.P. 3517. See Order, 7/18/11, at 1.

The instant PCRA petition, Appellant’s second, was filed on November 7,

2019. In the pro se petition, Appellant contended that his sentence exceeded

the lawful maximum as a result of a sentence reduction he received in an

unrelated federal case based on the United States Supreme Court decision in

Johnson v. United States, 135 S.Ct. 2551 (2015), holding that the Armed

Career Criminal Act was unconstitutionally vague. See Correspondence from

Federal Public Defender, Exhibit A to PCRA Petition.2 Appellant averred that

2The correspondence indicates that Appellant’s original sentence of 188 months of incarceration and five years of supervised release in the unrelated

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he no longer qualified as an armed career criminal, and that his twenty-five-

year mandatory sentence herein was illegal. Furthermore, he pled that the

April 8, 2019 decision in his federal case rendered the instant petition timely.

The trial court appointed Michael Harmon, Esquire as counsel. On

January 2, 2020, counsel filed a petition to withdraw and Turner/Finley no-

merit letter. On April 20, 2020, the PCRA Court issued Pa.R.Crim.P. 907

“Notice of Intent to Dismiss” Appellant’s PCRA petition and, thereafter,

dismissed the petition on May 18, 2020. The court did not rule on counsel’s

motion seeking leave to withdraw.

Attorney Harmon filed a timely appeal on Appellant’s behalf, and both

Appellant and the trial court complied with Pa.R.A.P. 1925. On appeal,

Counsel filed a Turner/Finley letter brief and no-merit letter, and a petition

to withdraw as counsel. On September 24, 2020, Appellant filed an objection

and response to the dismissal of his PCRA petition in the court of common

pleas, which was forwarded to counsel. On October 12, 2020, Appellant filed

a pro se request for a Grazier hearing.3 The Clerk of Courts forwarded these

documents to counsel.

federal case was reduced to fifty-one months of incarceration and three years of supervised release.

3 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). By order dated November 12, 2020, this Court denied Appellant’s motion for a Grazier hearing. We held that Appellant’s request to invoke his right to self- representation was untimely since appellate briefs had already been filed. See Commonwealth v. Rogers, 645 A.2d 223, 224 (Pa. 1994).

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Counsel identifies one issue that Appellant wishes us to review:

Whether the Trial Court erred in sentencing Appellant to a mandatory minimum sentence of 25 -to -50 years pursuant to 42 Pa.C.S. § 9714(a)(2), based on the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (US 2015), which held that the Armed Career Criminal Act was unconstitutionally vague.

Turner/Finley No-Merit letter brief at 7.

In an appeal from the PCRA court’s determination, we review “the

court’s findings of fact to determine whether they are supported by the record,

and review its conclusions of law to determine whether they are free from

legal error.” Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa.Super.

2014) (citation omitted). Our scope of review is limited to the findings of the

PCRA court and the evidence of record, viewed in the light most favorable to

the prevailing party at the trial level. Id.

Where, as here, counsel has proceeded pursuant to Turner/Finley, we

must first determine if he has complied with those procedural requirements.

When counsel seeks to withdraw from PCRA representation, counsel must first

conduct an independent review of the record. Commonwealth v. Pitts, 981

A.2d 875, 876 n.1 (Pa. 2009). Following that review, counsel must file a “no-

merit” letter detailing the nature and extent of his review and list each issue

the petitioner wishes to have examined, explaining why those issues are

meritless. In ruling on whether counsel may withdraw, the court must conduct

its own independent evaluation of the record and agree with counsel that the

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petition is without merit. See Pitts, supra at 876 n.1; Commonwealth v.

Rykard, 55 A.3d 1177, 1184 (Pa.Super. 2012).

On September 11, 2020, counsel informed Appellant that he had

reviewed the PCRA claim asserted on appeal and concluded that it failed to

state a colorable claim for relief under the Act. He apprised Appellant that he

had filed with this Court a Turner/Finley brief and an Application for Leave

to Withdraw as Counsel and provided a copy of each to Appellant. He

explained that this Court would conduct its own review, and if it determined

that there was no merit in the petition, it could grant counsel’s application to

withdraw. Finally, counsel notified Appellant that he “now [has] the right to

proceed pro se or with the assistance of privately-retained counsel.”

Correspondence, 1/6/20, at 1. After review of the record, we find that counsel

complied with the procedural/technical requirements of Turner and Finley.

With regard to the substantive requirements of Turner/Finley, counsel

addressed the only issue raised by Appellant in his Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. In support of his position that

there was no merit to Appellant’s claim, counsel attached the PCRA court’s

Notice of Intent to Dismiss Appellant's PCRA Petition dated April 17, 2020, as

“Exhibit A,” and Counsel’s January 6, 2020 No-Merit Letter filed in the PCRA

court as “Exhibit B.” The substance of counsel’s argument is that the petition

is facially untimely and that no timeliness exception is applicable. Counsel

maintains that the Supreme Court decision in Johnson, which allegedly

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conferred an after-recognized constitutional right, was rendered more than

sixty days prior to the filing of the instant petition. In addition, counsel notes

that the Supreme Court rejected the notion that Johnson rendered the

petitioner’s PCRA petition timely in Commonwealth v. Spotz, 171 A.3d 675

(Pa. 2017) (holding that Johnson has not been held to apply to Pennsylvania

statutes). Hence, counsel maintained that Appellant had failed to assert a

colorable claim under the PCRA.

We conclude that counsel complied with the substantive Turner/Finley

requirements. Hence, we will proceed with our independent review of the

record. Preliminarily, we must first ascertain whether the petition was timely

filed, as we lack jurisdiction over an untimely petition. Commonwealth v.

Callahan, 101 A.3d 118 (Pa.Super. 2014) (courts do not have jurisdiction

over an untimely PCRA petition). All PCRA petitions must be filed within one

year of the date when a defendant’s judgment of sentence becomes final. 42

Pa.C.S. § 9545(b)(1). “A judgment 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 the review.” Callahan, supra, at 122 (quoting 42 Pa.C.S. §

9545(b)(3)).

In this case, we affirmed Appellant's sentence on February 5, 2010. He

did not seek further review, and thus, his judgment of sentence became final

thirty days later, on March 7, 2010. Appellant had until March 7, 2011, to file

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a timely PCRA petition. The present petition, which was filed on November 7,

2019, is facially untimely.

There are three exceptions to the one-year time bar set forth in 42

Pa.C.S. § 9545(b)(1)(i-iii):

(1) Interference by government officials in the presentation of the claim;

(2) Newly-discovered facts; and

(3) An after-recognized constitutional right.

Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa.Super. 2012). The

petitioner has the burden of pleading and proving the applicability of any

exception. 42 Pa.C.S. § 9545(b)(1). Furthermore, a petition stating claims

that arose before December 24, 2017, and invoking one or more of the

exceptions must have been filed within sixty days of the date the claim first

could have been presented. 42 Pa.C.S. § 9545(b)(2).4

Appellant asserts that the instant petition filed on November 7, 2019 is

timely as measured from the April 8, 2019 decision in his federal case.

However, the time limit for filing a PCRA petition is calculated based on the

date when the new substantive right is recognized and held to be retroactive.

4 The statute was amended in 2018 to expand the time for filing a petition invoking a timeliness exception. The amendment, inter alia, substituted “within one year” for “within 60 days” in 42 Pa.C.S. § 9545(b)(2); and Section 3 of Act 2018-146 provided that this amendment “shall apply only to claims arising one year before the effective date of this section or thereafter.”

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The constitutional right at issue herein was allegedly recognized in Johnson,

supra, which was decided on June 26, 2015.5 The PCRA court correctly

examined whether Appellant’s assertion that the United States Supreme Court

created a new constitutional right in Johnson would satisfy the timeliness

exception for an after-recognized constitutional right. See PCRA Court

Opinion, 4/11/20, at 3. Appellant’s petition, which was filed four years after

Johnson, is untimely as it was not filed within sixty days of that decision.

Furthermore, the PCRA court concluded that “while Johnson created a

new constitutional right for federal defendants sentenced pursuant to federal

statutes, that right was not applicable to” Appellant. Id. The court relied

upon Commonwealth v. Spotz, 171 A.3d 675, 681 (Pa. 2017), in which our

Supreme Court held that the United States Supreme Court’s decisions in

Johnson and Welch do not satisfy the newly-recognized constitutional right

exception to the time limit prescribed by the PCRA. For purposes of the

timeliness exceptions, the asserted newly-created constitutional right must

benefit the petitioner. The Spotz Court rejected the notion that Johnson

created a new constitutional right for defendants who, like Spotz and

Appellant, had been sentenced in state court pursuant to a Pennsylvania

5 Johnson’s holding that the residual clause of the Armed Career Criminal Act of 1984, 18 U.S.C.S. § 924(e)(2)(B)(ii), was void for vagueness, was held on April 18, 2016, to be a new substantive rule retroactive to those whose judgments of sentence had become final in Welch v. United States, 136 S.Ct. 1257 (2016).

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statute. See Spotz, supra at 681-82 (finding nothing in Johnson which

suggested that the rule extends to state prisoners and holding that since

neither Johnson nor Welch created a constitutional right that applied

retroactively to Spotz, the timeliness exception did not apply).

Our independent review of the record confirms that Appellant’s petition

is untimely under Spotz and cannot afford him relief. Thus, we concur with

counsel’s assessment that this petition lacks merit. See Rykard, supra at

1184 (providing that before we can authorize an attorney’s withdrawal, we

must conduct an independent review of the record and agree with counsel’s

assessment that the petition lacked merit). Accordingly, we find that the PCRA

court did not abuse its discretion in dismissing the petition.

Application to Withdraw of Michael Harmon, Esquire is granted. Order

affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/4/2021

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