Com. v. Sutton, H.

• Court: Superior Court of Pennsylvania
• Decided: June 26, 2019
• Docket: 1676 WDA 2018
• Status: Unpublished

Opinion

J-S27037-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : HEATH LEE SUTTON : : Appellant : No. 1676 WDA 2018

Appeal from the PCRA Order Entered October 24, 2018 In the Court of Common Pleas of Crawford County Criminal Division at No(s): CP-20-CR-0000234-2016

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : HEATH LEE SUTTON : : Appellant : No. 1677 WDA 2018

Appeal from the PCRA Order Entered October 24, 2018 In the Court of Common Pleas of Crawford County Criminal Division at No(s): CP-20-CR-0000235-2016

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : HEATH LEE SUTTON : : Appellant : No. 1678 WDA 2018

Appeal from the PCRA Order Entered October 24, 2018 In the Court of Common Pleas of Crawford County Criminal Division at No(s): CP-20-CR-0000286-2016

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

____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S27037-19

MEMORANDUM BY COLINS, J.: FILED JUNE 26, 2019

Appellant, Heath Lee Sutton, appeals from orders in three criminal

proceedings that dismissed his petitions for relief pursuant to the Post

Conviction Relief Act (PCRA)1 as untimely. Counsel for Appellant has filed an

application to withdraw and a brief concluding that these appeals present no

issues of any arguable merit. After careful review, we grant counsel’s

application to withdraw and affirm the orders dismissing Appellant’s PCRA

petitions.

In 2016, the Commonwealth filed three criminal informations against

Appellant, Criminal Actions Nos. CP-20-CR-0000234-2016 (CR 234-2016),

CP-20-CR-0000235-2016 (CR 235-2016), and CP-20-CR-0000286-2016 (CR

286-2016). CR 234-2016 charged Appellant with two counts of arson, one

count of risking a catastrophe, and one count of criminal mischief2 for setting

a fire in a building. CR 235-2016 charged Appellant with one count of criminal

trespass, two counts of access device fraud, and six counts of receiving stolen

property,3 based on allegations that he entered another individual’s residence

without permission, used two individuals’ credit cards and bank card to make

____________________________________________

1 42 Pa.C.S. §§ 9541–9546. 2 18 Pa.C.S. §§ 3301(a)(1)(i) and (c)(2), 3302(b), and 3304(a)(1), respectively. 3 18 Pa.C.S. §§ 3503(a)(1)(i), 4106(a)(1)(ii), and 3925(a), respectively.

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multiple purchases without authorization, and had stolen credit and bank

cards, check books, and Social Security cards in his possession. CR 286-2016

charged Appellant with one count of arson, one count of disorderly conduct,

and one count of criminal mischief4 for setting fire to a car. Each of the

informations was signed by the District Attorney of Crawford County. An

amended information signed by an assistant district attorney was filed in CR

286-2016 that reduced the arson charge for the car fire from a first-degree

felony to a third-degree felony5 and made no changes to the disorderly

conduct and criminal mischief counts.

On May 26, 2016, Appellant pled guilty to second-degree felony arson

in CR 234-2016 for setting the building fire, one count of access device fraud

in CR 235-2016 for using a credit card to make $1,438.03 in unauthorized

purchases, and criminal mischief in CR 286-2016 for the car fire. N.T.,

5/26/16, at 5-14. On November 22, 2016, the trial court sentenced Appellant

to an aggregate sentence of 40 months to 10 years in prison, consisting of

concurrent sentences of 40 months to 10 years for the CR 234-2016 arson

conviction with credit for 277 days of presentence incarceration, 30 months

to 7 years for the CR 235-2016 access device fraud conviction, and 9 to 24

months for the CR 286-2016 criminal mischief conviction, plus fines and

4 18 Pa.C.S. §§ 3301(a)(1)(i), 5503(a)(4), and 3304(a)(1), respectively. 5 18 Pa.C.S. § 3301(d)(2).

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restitution for all three convictions. CR 234-2016 Sentence Order; CR 235-

2016 Sentence Order; CR 286-2016 Sentence Order. On November 28, 2016,

Appellant filed a post sentence motion in CR 234-2016 seeking 67 days of

additional credit for presentence incarceration, which the trial court granted

on December 1, 2016. Appellant filed no appeal from any of the judgments

of sentence.

On May 18, 2018, more than one year and five months after the appeal

period expired, Appellant filed identical pro se PCRA petitions in all three

proceedings. In these PCRA petitions, Appellant asserted claims that his trial

counsel was ineffective, that his guilty pleas were allegedly not knowing and

intelligent, and that the prosecutions in which he pled guilty were unlawful

under Commonwealth v. Dupree, 434 A.2d 201 (Pa. Super. 1981), in which

this Court held that an information signed by an assistant district attorney was

invalid unless the assistant district attorney was authorized to act for the

district attorney by a written designation filed with the clerk of court. PCRA

Petitions at 4, 8. Appellant asserted in the PCRA petitions that his failure to

file within one year after final judgment was excused by government failure

to disclose the facts on which the petitions were based and his lack of

knowledge of those facts, but did not plead the date or dates when he learned

of those facts or when he made efforts to learn of those facts. Id. at 3-4.

Counsel was appointed to represent Appellant on the PCRA petitions and

represented Appellant before the PCRA court.

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On October 1, 2018, the PCRA court issued memoranda and orders

notifying the parties of its intent to dismiss the PCRA petitions as untimely

without a hearing and giving Appellant 20 days to submit responses

demonstrating that the PCRA petitions were not untimely. Appellant

submitted nothing in response that set forth when he made efforts to learn

the facts that he claimed were newly discovered or showing that he could not

have learned those facts in time to file timely PCRA petitions.

On October 24, 2018, the PCRA entered orders dismissing the PCRA

petitions as untimely. Appellant, represented by counsel, filed three timely

appeals from those orders, which have been consolidated by this Court. In

March 2019, counsel filed and served on Appellant an application to withdraw

and a letter explaining his conclusion that the appeals are without merit

because the PCRA petitions were filed more than one year after the judgments

of sentence became final and no exception to the one-year time limit applied.

Counsel also filed and served on Appellant a “Turner/Finley6 Brief” in which

he analyzed whether there was any basis on which Appellant’s PCRA petitions

could be held timely. Appellant has not filed any pro se response to counsel’s

application to withdraw or brief. The Commonwealth filed a brief in support

of the PCRA court’s orders.

6Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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Before this Court can consider the merits of these appeals, we must first

determine whether counsel has satisfied all of the requirements that court-

appointed counsel must meet before leave to withdraw may be granted in a

PCRA appeal. Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super.

2016); Commonwealth v. Freeland, 106 A.3d 768, 774 (Pa. Super. 2014);

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012). To withdraw

from representing a PCRA petitioner in a collateral attack on his criminal

conviction, counsel must file a no-merit letter, send the petitioner copies of

the application to withdraw and no-merit letter, and advise petitioner of his

right to proceed pro se or with a privately retained attorney. Walters, 135

A.3d at 591; Freeland, 106 A.3d at 774-75; Doty, 48 A.3d at 454. The no-

merit letter must set forth: 1) the nature and extent of counsel’s review of the

case; 2) each issue that the petitioner wishes to raise on appeal; and 3)

counsel’s explanation of why each of those issues is meritless.

Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009);

Commonwealth v. Turner, 544 A.2d 927, 928-29 (Pa. 1988);

Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super. 2011).

If counsel has satisfied the above requirements, this Court must then

conduct its own review of the record and render an independent judgment as

to whether the appeal is without merit. Walters, 135 A.3d at 591; Doty, 48

A.3d at 454.

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Here, counsel provided Appellant a copy of the no-merit brief and a

letter explaining why the appeals lack merit and advising Appellant of his right

either to retain new counsel or proceed pro se. Although counsel here filed a

brief with this Court, rather than a no-merit letter, that can satisfy counsel’s

obligations, provided that the brief contains all the information that must be

included in a no-merit letter. Widgins, 29 A.3d at 817 n.2. We conclude that

it does. Counsel’s brief discusses the time limit imposed by the PCRA and the

exceptions to that time limit and explains why all issues that Appellant has

sought to raise in these appeals are time-barred. We therefore conduct our

own review and independently determine whether Appellant’s PCRA petitions

were barred as untimely.

The PCRA provides that “[a]ny petition under this subchapter, including

a second or subsequent petition, shall be filed within one year of the date the

judgment becomes final.” 42 Pa.C.S. § 9545(b)(1). A PCRA petition may be

filed beyond the one-year time period only if the convicted defendant pleads

and proves one of the following three exceptions:

(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

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of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.

Id. The PCRA’s time limit is mandatory and jurisdictional, and a court may

not ignore it and reach the merits of an untimely PCRA petition, even where

the convicted defendant claims that his counsel was ineffective and that his

sentence is illegal. Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999);

Commonwealth v. Whiteman, 204 A.3d 448, 450-51 (Pa. Super. 2019);

Commonwealth v. Laird, 201 A.3d 160, 162-63 (Pa. Super. 2018)

Commonwealth v. Jackson, 30 A.3d 516, 519-23 (Pa. Super. 2011).

Appellant was sentenced in all three proceedings on November 22, 2016

and filed no direct appeal in any of the cases. The judgments of sentence in

CR 235-2016 and CR 286-2016 therefore became final on December 22, 2016,

and the judgment of sentence in CR 234-2016 became final on January 3,

2017, 30 days after the trial court granted his post sentence motion.

Accordingly, Appellant’s PCRA petitions, filed in May 2018, over a year and

five months later, were untimely unless Appellant alleged and proved one of

the three limited exceptions set forth in Subsection 9545(b)(1)(i)-(iii).

Appellant did not plead in his PCRA petitions or submit to the PCRA court

any basis on which it could find that any of these exceptions were satisfied.

Appellant alleged that the Court of Common Pleas and the district attorney’s

office did not disclose the facts on which the petitions were based and that the

district attorney’s office did not promptly respond to requests that he filed

under the Right to Know Law, 65 P.S. §§ 67.101-67.3104. PCRA Petitions at

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3. Appellant also alleged that his trial counsel was ineffective for failure to

uncover the facts on which the petitions were based and that he did not learn

of those facts through his own investigation in time to file PCRA petitions

within the one-year time limit. Id.

The only facts that Appellant set forth as a basis for his PCRA claims,

however, were that the criminal informations were allegedly signed by an

assistant district attorney, rather than the district attorney, and that the

prosecutions were invalid under a 1981 decision of this Court. PCRA Petitions

at 4, 8. These are matters that were in existence long before the one-year

time limit for filing PCRA petitions expired. Indeed, it appears that Appellant

had actual access to the informations in CR 234-2016 and CR 235-2016 and

the amended information in CR 286-2016 at the time of his guilty pleas, as he

signed a statement of his plea on each of these informations on May 26, 2016.

CR 234-2016 Criminal Information at 3; CR 235-2016 Criminal Information at

3; CR 286-2016 Amended Criminal Information at 2.

Moreover, Appellant did not state in his petitions or in any submission

to the PCRA court when he learned of these facts, how he came to learn of

these facts, or when he made efforts to discover these facts. Mere allegations

that a PCRA petitioner did not learn of facts until shortly before the PCRA

petition was filed, without any allegations showing timely efforts or inability

to discover that information earlier, are insufficient to bring a petitions within

the PCRA’s timeliness exceptions. Commonwealth v. Sanchez, 204 A.3d

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524, 526-27 (Pa. Super. 2019); Commonwealth v. Pew, 189 A.3d 486, 489-

90 (Pa. Super. 2018); Commonwealth v. Perrin, 947 A.2d 1284, 1286-87

(Pa. Super. 2008); Commonwealth v. Taylor, 933 A.2d 1035, 1040-41 (Pa.

Super. 2007).

Because Appellant did not satisfy an exception to the PCRA’s one-year

time limit, his PCRA petitions were barred as untimely. Accordingly, we grant

counsel’s application to withdraw and affirm the PCRA court’s orders

dismissing Appellant’s PCRA petitions.

Orders affirmed. Application to withdraw as counsel granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/26/2019

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