Com. v. Showers, M.

• Court: Superior Court of Pennsylvania
• Decided: October 18, 2018
• Docket: 426 EDA 2018
• Status: Unpublished

Opinion

J-S48012-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL SHOWERS, : : Appellant : No. 426 EDA 2018

Appeal from the PCRA Order December 4, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0012440-2013

BEFORE: DUBOW, J., MURRAY, J., and PLATT, J.*

MEMORANDUM BY DUBOW, J.: FILED OCTOBER 18, 2018

Appellant, Michael Showers, appeals pro se from the Order entered in

the Philadelphia County Court of Common Pleas dismissing his first Petition

filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.

Because Appellant filed his PCRA Petition prior to the finality of his Judgment

of Sentence, the Petition was a legal nullity. The PCRA court’s Order from

which this Appeal is taken is, likewise, a legal nullity. We, thus, quash this

appeal.

After a jury convicted Appellant of Robbery, the court sentenced

Appellant to a term of 25 to 50 years’ incarceration. On January 18, 2017,

this Court affirmed Appellant’s sentence.1 Appellant did not seek review with

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1Commonwealth v. Showers, No. 3431 EDA 2015 (Pa. Super. Jan. 18, 2017) (unpublished memorandum).

____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S48012-18

the Pennsylvania Supreme Court. Thus, Appellant’s Judgment of Sentence

became final on February 17, 2017.2

During the pendency of his direct appeal, and nearly one year prior to

the Judgment of Sentence becoming final, Appellant filed a “Notice of

Ineffective Assistance of Counsel,” which the court of common pleas docketed

as a PCRA Petition on February 29, 2016. Although filed prematurely, the

court did not quash the Petition.3

On March 31, 2017, six weeks after the Judgment of Sentence became

final, the trial court appointed PCRA counsel to represent Appellant on his

2016 PCRA Petition. On December 4, 2017, counsel filed a Turner/Finley4

letter and a Motion to Withdraw. That same day, the court filed a Pa.R.Crim.P.

907 Notice of its intent to dismiss the Petition without a hearing. On January

23, 2018, the PCRA court dismissed Appellant’s PCRA Petition. Appellant

appealed to this Court.

Appellant presents numerous issues for our review. Before addressing

the merits of the issues, we must first determine whether we have jurisdiction

to entertain the underlying PCRA Petition. See Commonwealth v. Hackett, ____________________________________________

2 See 42 Pa.C.S. § 9545(b)(3) (judgment of sentence becomes final at the conclusion of direct review or the expiration of time for seeking the review).

3 As discussed infra, because Appellant had filed a direct appeal to this Court, the court of common pleas no longer had jurisdiction and the “PCRA Petition” was, thus, a legal nullity.

4 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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956 A.2d 978, 983 (Pa. 2008) (explaining that the timeliness of a PCRA

Petition is a jurisdictional requisite).

Under the PCRA, any Petition “shall be filed within one year of the date

the judgment becomes final[.]” 42 Pa.C.S. § 9545(b)(1). The “one-year time

period allowed for the filing of a post-conviction relief act petition

commences” at the conclusion of direct review or the expiration of time for

seeking the review. Commonwealth v. Brown, 943 A.2d 264, 268 (Pa.

2008) (emphasis added); 42 Pa.C.S. § 9545(b)(3). Thus, a PCRA Petition

“may only be filed” when the Judgment of Sentence has become final.

Commonwealth v. Leslie, 757 A.2d 984, 985 (Pa. Super. 2000).

It is “well settled that there is no generalized equitable exception to the

jurisdictional one-year time bar pertaining to post-conviction petitions.”

Brown, supra at 267, citing Commonwealth v. Robinson, 837 A.2d 1157,

1161 (Pa. 2003). Because there are no exceptions to the PCRA’s time

requirements, a petition filed before the one-year time period after the

Judgment of Sentence becomes final is not legally cognizable.

In Leslie, the defendant had filed a pro se PCRA petition shortly before

he filed a direct appeal to this Court. This Court held that the trial court erred

in failing to dismiss the PCRA petition as premature, and in proceeding on the

merits of the petition. Leslie, 757 A.2d at 985–86.

Here, Appellant filed his PCRA Petition after filing the notice of his direct

appeal when the court clearly had no jurisdiction. Case law is clear that a

premature PCRA petition filed during the pendency of a direct appeal must be

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quashed. See Commonwealth v. Seay, 814 A.2d 1240, 1241 (Pa. Super.

2003) (concluding that when a direct appeal is still pending, a premature PCRA

petition must be quashed); Commonwealth v. Kubis, 808 A.2d 196, 198

n.4 (Pa. Super. 2002) (observing that where an appellant filed a petition

seeking post-conviction collateral relief while his direct appeal was still

pending, that first Petition cannot constitute a PCRA petition). Cf.

Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999) (observing that “a

jurisdictional time limitation is not subject to equitable principles such as

tolling except as provided by statute.”). “Where there is no jurisdiction, there

is no authority to pronounce judgment.” Commonwealth v. Martinez, 141

A.3d 485, 490–91 (Pa. Super. 2016) (citation omitted).

Because Appellant filed his PCRA Petition prior to the finality of his

Judgment of Sentence, the filing was a legal nullity and the court lacked the

authority to consider it. Accordingly, we must quash this Appeal.

Appeal quashed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/18/18

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