Commonwealth v. Wrecks

931 A.2d 717, 2007 Pa. Super. 239, 2007 Pa. Super. LEXIS 2602
CourtSuperior Court of Pennsylvania
DecidedAugust 14, 2007
StatusPublished
Cited by803 cases

This text of 931 A.2d 717 (Commonwealth v. Wrecks) 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
Commonwealth v. Wrecks, 931 A.2d 717, 2007 Pa. Super. 239, 2007 Pa. Super. LEXIS 2602 (Pa. Ct. App. 2007).

Opinion

OPINION BY

COLVILLE, J.:

¶ 1 This case is an appeal arising from Appellant’s 1996 judgment of sentence. His counsel has filed a brief and petition to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging that the appeal is wholly frivolous. We decline to rule on counsel’s petition at this time and remand for supplementation of the certified record.

Facts

¶ 2 Appellant pled guilty to robbery and other charges in 1995. The court sentenced him in February 1996. He filed neither post-sentence motions nor a direct appeal. The docket reveals that, in 2006, Appellant filed a pro se post-sentence motion which the trial court denied. The motion is not in the certified record. The trial court’s opinion discusses some or all of what may have been Appellant’s claims, but ultimately concludes that Appellant’s post-sentence motion was untimely. After the court dismissed the motion, Appellant filed this appeal.

Legal Principles

¶ 3 Post-Sentence Motions/Direct Appeal. A defendant has ten days after the imposition of sentence to file a post-sentence motion. Pa.R.Crim.P. 720(A)(1).1 An untimely post-sentence motion does not preserve issues for appeal. Common[720]*720wealth v. Hockenberry, 455 Pa.Super. 626, 689 A.2d 283, 288 (1997).

¶ 4 If no post-sentence motion is filed within the ten-day time period, the defendant has thirty days from sentencing to file a direct appeal. Pa.R.Crim.P. 720(A)(3).2 This Court does not have jurisdiction to hear an untimely appeal. Commonwealth v. Green, 862 A.2d 613, 615 (Pa.Super.2004).

¶ 5 Post Conviction Relief Act. Despite the ten-day time limit for post-sentence motions, there are occasions when such motions may be treated as petitions under the Post Conviction Relief Act (PCRA). See Commonwealth v. Guthrie, 749 A.2d 502, 503 (Pa.Super.2000) (holding that, once the time periods for a post-sentence motion and appeal have expired, an untimely post-sentence motion may be treated as a PCRA petition). The content of the motion—just exactly what is pled and requested therein—is relevant to deciding whether to treat the motion as a collateral petition. See Commonwealth v. Lutz, 788 A.2d 993, 996 n. 7 (Pa.Super.2001) (holding that, generally, a filing that raises issues cognizable under the PCRA will be considered a PCRA petition while a filing requesting relief outside the PCRA will not be so treated).

¶ 6 Even the PCRA, however, has time restrictions. Generally, a PCRA petition must be filed within one year of the date when the petitioner’s judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). For PCRA purposes, a judgment of sentence becomes final at the conclusion of direct review, including discretionary review in the U.S. and Pennsylvania Supreme Courts, or the expiration of time for seeking such review. Id. at (b)(3).

¶7 There are exceptions to the general one-year filing deadline for the PCRA. They appear at 42 Pa.C.S.A. § 9545(b)(l)(i), (ii), (iii), and relate to governmental interference preventing a timely filing, discovery of previously unknown and non-ascertainable bases for relief, and newly recognized retroactive constitutional rights. If a petitioner alleges and proves one or more of those exceptions, an otherwise late PCRA petition may be accepted as being timely. Id. Even still, a petition alleging an exception must be filed within sixty days of when it first could have been presented. Id. at (b)(2). If a petition is filed beyond the PCRA filing deadline and not pursuant to an exception, the PCRA court lacks jurisdiction to entertain the petition. Commonwealth v. Abu-Jamal, 574 Pa. 724, 833 A.2d 719, 723, 724 (2003); 42 Pa.C.S.A. § 9545(b)(1), (2).

¶ 8 Direct Appeal Counsel’s Request to Withdraw. Direct appeal counsel seeking to withdraw under Anders must file a petition averring that, after a conscientious examination of the record, counsel finds the appeal to be wholly frivolous. Anders, 386 U.S. at 744, 87 S.Ct. 1396. Counsel must also file an Anders brief setting forth issues that might arguably support the appeal along with any other issues necessary for the effective appellate presentation thereof. Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa.Super.1997). A proper Anders brief does not explain why the issues are frivolous and does not develop arguments against the appellant’s interests. Smith, 700 A.2d at 1304. Rather, the brief articulates the issues in neutral form, cites relevant legal authorities, references appropriate portions in the record to aid our review, and concludes that, after a thorough review of the record, the appeal is wholly frivolous. Id. at 1303-05.

[721]*721¶ 9 Anders counsel must also provide a copy of the Anders petition and brief to the appellant, advising the appellant of the right to retain new counsel, proceed pro se or raise any additional points worthy of this Court’s attention. Commonwealth v. Flores, 909 A.2d 387, 389 (Pa.Super.2006) (overruled on other grounds by Commonwealth v. Goodwin, 2007 PA Super 180, 928 A.2d 287).

¶ 10 If counsel does not fulfill the aforesaid technical requirements of Anders, this Court will deny the petition to withdraw and remand the case with appropriate instructions {e.g., directing counsel either to comply with Anders or file an advocate’s brief on Appellant’s behalf). See Smith, 700 A.2d at 1303-05. By contrast, if counsel’s petition and brief satisfy Anders, we will then undertake our own review of the appeal to determine if it is wholly frivolous. Flores, 909 A.2d at 389. If the appeal is frivolous, we will grant the withdrawal petition and affirm the judgment of sentence. Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185, 1188 (1981). However, if there are non-frivolous issues, we will deny the petition and remand for the filing of an advocate’s brief. Commonwealth v. Kearns, 896 A.2d 640, 647 (Pa.Super.2006).

¶ 11 PCRA Counsel’s Request to Withdraw. Counsel petitioning to withdraw from PCRA representation must proceed not under Anders but under Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988). Similar to the

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Cite This Page — Counsel Stack

Bluebook (online)
931 A.2d 717, 2007 Pa. Super. 239, 2007 Pa. Super. LEXIS 2602, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-wrecks-pasuperct-2007.