Com. v. Rose, R.

• Court: Superior Court of Pennsylvania
• Decided: November 14, 2018
• Docket: 1538 WDA 2017
• Status: Unpublished

Opinion

J-S50008-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RAYMOND ROSE : : Appellant : No. 1538 WDA 2017

Appeal from the PCRA Order August 25, 2016 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0003092-2004

BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 14, 2018

Raymond Rose appeals from the August 25, 2016 order denying PCRA

relief. Counsel for Appellant, Emily M. Merski, Esquire, has filed a no-merit

brief pursuant to Anders v. California, 386 U.S. 738 (1967) and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), and an application

to withdraw as counsel.1 We grant counsel permission to withdraw, and

affirm.

____________________________________________

1 In a petition to withdraw from representation in a PCRA action, counsel is supposed to follow the procedures set forth in Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc), not the requirements of Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which govern withdrawals from representation on direct appeal. However, since the requirements of Anders are more stringent, we overlook the improper styling. Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super. 2004). J-S50008-18

We summarize the underlying facts as originally set forth by the trial

court. On December 1, 2004, Appellant pled guilty to one count each of

involuntary deviate sexual intercourse and endangering welfare of children,

and two counts each of indecent assault and corruption of minors. The

charges stemmed from sexual acts Appellant engaged in with his eleven-year-

old daughter in March and June of 2002, and in June of 2004, and

inappropriate touching of his daughter and her step-sister when they were

thirteen and fifteen years old respectively. He was sentenced to an aggregate

term of imprisonment of thirteen to thirty-two years.

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

Thereafter, he filed a timely PCRA petition seeking reinstatement of his direct

appeal rights, which was granted. On direct appeal, he challenged the

discretionary aspects of his sentence, and charged counsel with

ineffectiveness in failing to file a post-sentence motion preserving such claims.

This Court found the sentencing claims waived for failure to preserve them in

a post-sentence motion, dismissed the ineffectiveness claim without prejudice

to raise it on collateral review, and affirmed the judgment of sentence.

Commonwealth v. Rose, 932 A.2d 262 (Pa.Super. 2007) (unpublished

memorandum).

Appellant filed a timely pro se PCRA petition on September 12, 2007,

alleging therein that counsel was ineffective in failing to file a requested post-

sentence motion preserving his right to challenge his sentence. Counsel was

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appointed, and he filed a supplemental petition averring that Appellant should

be afforded permission to file a nunc pro tunc post-sentence motion, as well

as reinstatement of his appellate rights. The Commonwealth consented to the

nunc pro tunc reinstatement of Appellant’s right to file a post-sentence motion

and direct appeal, and the court so ordered on November 21, 2007.

Appellant’s subsequent motion for reconsideration of sentence nunc pro tunc

was denied on November 28, 2007, and this Court affirmed on appeal.

Commonwealth v. Rose, 961 A.2d 1282 (Pa.Super. 2008) (unpublished

On March 21, 2016, Appellant filed the instant motion for post-

conviction relief. Since it was patently untimely, he invoked the timeliness

exception for newly recognized constitutional rights, citing Alleyne v. United

States, 570 U.S. 99 (2013), and Montgomery v. Louisiana, 136 S. Ct. 718

(2016). The court appointed counsel, who filed a no-merit brief pursuant to

Commonwealth v. Turner, 944 A.2d 947 (Pa. 1988), and an application for

leave to withdraw. The PCRA court denied permission to withdraw.

Thereafter, it issued Pa.R.A.P. 907 notice of its intent to dismiss the PCRA

petition as untimely, and dismissed the petition on August 23, 2016. Appellant

appealed, and this Court quashed the appeal on May 26, 2017, as Appellant

had filed a pro se brief while he was technically still represented by counsel.

Commonwealth v. Rose, 170 A.3d 1262 (Pa.Super. 2017) (unpublished

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Appellant filed another pro se PCRA petition within sixty days alleging

abandonment of counsel and seeking restoration of his appellate rights nunc

pro tunc pursuant to the procedure outlined in Commonwealth v. Bennett,

930 A.2d 1264 (Pa. 2007). The PCRA court granted reinstatement of

Appellant’s appellate rights by order dated September 7, 2017, appointed new

counsel, and directed counsel to perfect the appeal within twenty days.

Counsel filed a notice of appeal on Appellant’s behalf, and complied with the

court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. The court filed its Rule 1925(a) opinion. Thereafter,

counsel sought and was granted permission to withdraw, and Attorney Merski

entered her appearance on Appellant’s behalf. A timely appeal to this Court

was filed, but when Appellant failed to file a brief, this Court suspended the

briefing schedule, and remanded the record to the PCRA court for a

determination whether counsel had abandoned Appellant. Having determined

that counsel had not abandoned Appellant, and that the brief was not filed

due to inadvertence, the instant appeal proceeded. Counsel filed what was

styled as an Anders brief. She subsequently filed a petition for leave to

withdraw with this Court, together with a copy of the notice of rights letter

sent to Appellant.2 Appellant did not file a response.

Counsel for Appellant presents two issues for our review:

2 The Commonwealth notified this Court that it did not intend to file a responsive brief.

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A. Whether the PCRA court erred when it denied the Appellant’s PCRA petition filed March 29, 2016 after the Appellant asserted a newly[-]recognized constitutional right based on the reasoning in Alleyne v. U.S., 133 S. Ct. 2151 (2013) and Montgomery v. Louisiana, 136 S. Ct. 718 (2016)?

B. Whether the PCRA court abused its discretion when it denied the Appellant an evidentiary hearing on the merits of the PCRA petition?

Anders brief at 3.

Before we may reach the merits of the appeal, we must first determine

whether counsel has complied with the technical requirements of Turner

and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

As we held in Commonwealth v. Wrecks, 931 A.2d 717 (Pa.Super. 2007),

Turner/Finley counsel must review the case zealously. Turner/Finley counsel must then submit a “no-merit” letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel’s diligent review of the case, listing the issues which the petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.

Counsel must also send to the petitioner: (1) a copy of the “no- merit” letter/brief; (2) a copy of counsel’s petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel.

If counsel fails to satisfy the foregoing technical prerequisites of Turner/Finley, the court will not reach the merits of the underlying claims but, rather, will merely deny counsel’s request to withdraw. Upon doing so, the court will then take appropriate steps, such as directing counsel to file a proper Turner/Finley request or an advocate’s brief.

However, where counsel submits a petition and no-merit letter that do satisfy the technical demands of Turner/Finley, the court—trial court or this Court—must then conduct its own review of the merits of the case. If the court agrees with counsel that

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the claims are without merit, the court will permit counsel to withdraw and deny relief. By contrast, if the claims appear to have merit, the court will deny counsel’s request and grant relief, or at least instruct counsel to file an advocate's brief.

Id. at 721 (citations omitted).

Counsel described her review of the record, addressed the issues

Appellant raised in his petition, and explained why they lacked merit. She

forwarded to Appellant a copy of the brief and her application to withdraw,

and correctly advised him of his rights. Thus, we find that counsel has

substantially complied with the technical requirements of Turner and Finley.

Accordingly, we will review the merits of the issues contained in counsel’s

brief.

On appeal from the denial of PCRA relief, our standard of review compels

us to determine whether the ruling of the PCRA court is supported by the

record and free of legal error. Commonwealth v. Lesko, 15 A.3d 345, 358

(Pa. 2011). We will review an order dismissing a PCRA petition in the light

most favorable to the prevailing party at the PCRA level. Commonwealth v.

Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012).

The trial court dismissed Appellant’s PCRA petition as untimely. PCRA

counsel concurred in that assessment in her no-merit brief. Since the

timeliness of the petition is jurisdictional, we cannot reach the merits of the

issues unless the petition was timely filed. Generally, a petition for relief under

the PCRA, including a second or subsequent petition, must be filed within one

year of the date the judgment of sentence is final unless the petition alleges,

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and the petitioner proves, that an exception to the time for filing the petition

is met, and that the claim was raised within sixty days of the date on which it

became available. 42 Pa.C.S. § 9545(b)(1), (2). Appellant’s judgment of

sentence became final on September 14, 2008. The instant petition filed in

2016 is patently untimely unless one of the three exceptions to the time bar

was pled and proven.

Appellant invoked the exception for newly-recognized constitutional

rights, citing the United States Supreme Court decisions in Montgomery and

Alleyne. 42 Pa.C.S. § 9545(b)(1)(iii). He asserted that these decisions

created newly-recognized constitutional rights that were held to be

retroactively applied. As the PCRA court and PCRA counsel duly noted,

however, Appellant could not avail himself of the benefit of Alleyne. That

decision was rendered three years before the instant petition was filed, and

furthermore, it was not held by either the United States or Pennsylvania

Supreme Courts to apply retroactively to cases where judgment of sentence

had become final. See Commonwealth v. Newman, 99 A.3d 86 (Pa.Super.

2014); see also Commonwealth v. Ruiz, 131 A.3d 54 (Pa.Super. 2015)

(noting that Newman did not invalidate a mandatory minimum sentence

presented in an untimely PCRA petition).

Appellant’s reliance upon Montgomery is also misplaced. In

Montgomery, the United States Supreme Court held that its ruling in Miller

v. Alabama, 132 S. Ct. 2455 (2012), which announced a new substantive

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rule, was to be applied retroactively to juvenile offenders sentenced to life

imprisonment without possibility of parole for homicide. Appellant was not

convicted of homicide nor sentenced to life imprisonment without possibility

of parole, and thus, Montgomery does not apply on the facts herein.

For these reasons, we find that the PCRA court properly determined that

Appellant’s PCRA petition was facially untimely, and further, that it failed to

satisfy an exception to the timeliness requirement. Thus, the PCRA court was

without jurisdiction to entertain the merits of Appellant’s PCRA claims, and

properly dismissed the petition without a hearing. Accordingly, we agree with

PCRA counsel that Appellant has no meritorious claims, and grant her leave

to withdraw.

Application of Emily M. Merski, Esquire to withdraw as counsel is

granted. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/14/2018

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