Com. v. Womack, C.

Superior Court of Pennsylvania

Com. v. Womack, C.

DecidedSeptember 5, 2023

Docket1416 EDA 2022

StatusUnpublished

This text of Com. v. Womack, C. (Com. v. Womack, C.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Com. v. Womack, C., (Pa. Ct. App. 2023).

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Opinion

J-S18006-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHRISTIAN WOMACK : : Appellant : No. 1416 EDA 2022

Appeal from the PCRA Order Entered May 5, 2022 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0002911-2006

BEFORE: PANELLA, P.J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.: FILED SEPTEMBER 5, 2023

Christian Womack appeals from the order dismissing his petition

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. Additionally, Womack’s appointed counsel, Stephen Molineux, Esq., has

requested permission to withdraw from this matter and filed a

Turner/Finley1 letter brief. After careful review, we grant attorney Molineux

permission to withdraw and affirm.

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 Counsel petitioning to withdraw from PCRA representation is required to proceed under Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). Counsel must review the record, submit a “no-merit” letter evaluating the issues the petitioner wishes to address and explaining their lack of merit, request permission to withdraw, and send the “no-merit” letter and petition to withdraw to their client along with an explanation of their right to proceed pro se. J-S18006-23

On August 13, 2007, Womack pled guilty to receiving stolen property

and criminal conspiracy. See Judgment of Sentence, 8/13/07. He was

immediately sentenced to ten months to twenty-three months’ incarceration

to be followed by two years of probation, and was scheduled to report for his

sentence on September 4, 2007. See id. Womack filed pro se petitions for a

writ of error of coram nobis on May 8 and June 15, 2020. The court treated

the filings as a PCRA petition and appointed Scott Galloway, Esq., to represent

Womack. Attorney Galloway filed an amended petition and the PCRA court

dismissed the petition without a hearing.

Womack filed a pro se appeal, and the PCRA court subsequently granted

attorney Galloway permission to withdraw his appearance in this matter.2

Upon receipt of Womack’s pro se appeal, this Court noted that there was no

indication that Attorney Galloway had withdrawn pursuant to Turner/Finley,

and directed the PCRA court to determine whether Womack was entitled to

counsel on appeal. See Order, 7/18/22, at ¶ 2.

The PCRA court subsequently appointed attorney Molineux as counsel

for this appeal. See Trial Court Order, 10/17/22. As noted, attorney Molineux

then filed a letter brief pursuant to Turner/Finley and an application to

withdraw as counsel. Womack then filed an application to proceed pro se. This

Court denied that application, permitting Womack to file a response to

2 Womack’s notice of appeal constitutes an exception to the general prohibition

against “hybrid” representation. See Commonwealth v. Williams, 151 A.3d 621, 624 (Pa. Super. 2016).

-2- J-S18006-23

counsel’s Turner/Finley brief and application to withdraw. See Order,

3/6/23. Womack did not file a response.

In counsel’s Turner/Finley letter brief he evaluated the one issue that

Womack wished to raise: whether trial counsel was ineffective for failing to be

present at the time of Womack’s guilty plea. See Turner Letter at 3.

Before addressing the merits of the issue, we will address attorney

Molineux’s request to withdraw. Counsel seeking to withdraw under

Turner/Finley must complete a comprehensive review of the case before

submitting a brief to this Court, detailing their review, explaining why the

petitioner’s intended issues lack merit and asking to withdraw. See

Commonwealth v. Reed, 107 A.3d 137, 140 (Pa. Super. 2014). Counsel

must send the petitioner a copy of the brief, their petition to withdraw and an

explanation of their right to proceed pro se or with new counsel. See id. When

we find counsel has satisfied the technical demands of Turner/Finley, we

must conduct our own review of the merits of the case. See id.

Our review of the record shows that attorney Molineux complied with

the Turner/Finley requirements. He evaluated the merits of Womack’s

ineffectiveness claim despite finding it time-barred and finding Womack

ineligible for PCRA relief because he is no longer serving his sentence in this

case. See Turner Brief at 6-8. Attorney Molineux then sent all the required

materials to Womack.

We therefore turn to the merits of Womack’s petition. When we review

an order dismissing a PCRA petition we determine whether the decision is

-3- J-S18006-23

supported by the record and free of legal error. See Commonwealth v.

Jarosz, 152 A.3d 344, 350 (Pa. Super. 2016). Here, the PCRA court

determined it lacked jurisdiction to consider Womack’s petition because the

petition was untimely, and he was not eligible for relief because he was no

longer serving his sentence in this case. See PCRA Court Opinion, 6/1/22, at

3-4.

A PCRA petition must be filed within the one-year period immediately

following the date on which the judgment of sentence becomes final. See

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). This

time-bar implicates our jurisdiction, we may not ignore it to assess the merits

of a petition. See id. A judgment of sentence becomes final when the direct

review is complete or the time for seeking direct review expires. See id.

Our review of the record reflects that Womack’s judgment of sentence

was imposed on August 13, 2007, and became final on September 12, 2007,

when he failed to file a direct appeal to this Court. See Pa.R.A.P. 903(a). He

then had until September 12, 2008, to file a timely PCRA petition. Womack’s

pro se petitions were filed in May and June of 2020, making them patently

untimely.

Nevertheless, a petitioner may overcome the time-bar when they allege

in the petition and prove one of three exceptions. See Hernandez, 79 A.3d

649, 651 (Pa. Super. 2013). These exceptions include: that the claim was not

raised previously due to interference by government officials; that the

petitioner previously did not know, and could not have known through due

-4- J-S18006-23

diligence, the facts of the claim earlier; and that the petitioner is asserting a

right which has been recognized since the judgment of sentence became final

and has been held to apply retroactively. See 42 Pa.C.S.A. § 9545 (b)(1)(i)-

(iii). In order to successfully avail oneself of an exception to the time-bar, the

petitioner must show that he raised his claim within sixty days of discovering

the claim. See Hernandez, 79 A.3d 649, 652 (Pa. Super. 2013).

Here, Womack’s pro se petitions and PCRA counsel’s amended petition

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