Commonwealth v. William

1

COMMONWEALTH OF PENNSYLVANIA v. ERIC WILLIAM Appellant

No. 2294 EDA 2022

No. J-S42012-23

Superior Court of Pennsylvania

December 22, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the PCRA Order Entered July 19, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003947-2017

Benjamin D. Kohler, Esq.

BEFORE: BOWES, J., STABILE, J., and DUBOW, J.

MEMORANDUM

BOWES J.

Eric William appeals pro se from the order that dismissed as untimely his petition filed pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.

While Appellant was in prison awaiting trial on charges of murder he snuck into the cell of the murder victim's stepfather and stabbed him in the face, neck, and testicles. For that assault, Appellant pled guilty on March 5, 2018, to attempted murder and received a negotiated sentence of ten to twenty years of incarceration to run concurrently with his life sentence for the murder.

On direct appeal, Appellant contended that he had been coerced into pleading guilty and the trial court erred in failing to appoint substitute counsel at Appellant's request. On August 27, 2019, this Court affirmed the judgment of sentence. See Commonwealth v. William, 221 A.3d 313, 314 (Pa.Super. 2019) (non-precedential decision). Specifically, we held that Appellant waived his claim that his plea was not knowing and voluntary by not raising it in the trial court. Id. (non-precedential decision at 4-5). We addressed his challenge to the court's refusal to appoint new counsel as follows:

Here, during the guilty plea hearing, the court addressed Appellant's motion to substitute counsel. Appellant explained that he was dissatisfied with counsel's representation because he did not receive full discovery and did not adequately discuss defense strategy. Appellant characterized the relationship as "eroding" and "not a good relationship."

The trial court informed Appellant that if that were true [it] would not accept the plea. Counsel then stated that he represented Appellant during the unrelated murder trial, talked about this incident extensively during the trial, and went over photographs, videos, and other discovery. The court then explained that it did not hear anything indicating that counsel was not prepared, so it denied the motion to substitute counsel. Finally, the trial court again asked Appellant whether he was satisfied with counsel's representation, to which Appellant responded "Yes."

Upon review, we conclude that because Appellant did not show irreconcilable differences between himself and counsel, the trial court did not abuse its discretion in denying Appellant's motion to substitute counsel.

Id. (non-precedential decision at 5-6 (cleaned up).

Since Appellant did not seek review in our Supreme Court, his judgment of sentence became final on September 26, 2019. On October 31, 2020, more than one year after his judgment of sentence became final, Appellant filed a motion for an extension of time to file a PCRA petition, citing his limited access to the prison library due to the COVID-19 pandemic. See Motion for Extension of Time, 10/31/20, at 1.^[1] No action was taken upon the motion.

On February 10, 2021, Appellant filed a pro se PCRA petition raising claims that plea counsel was ineffective.^[2] The PCRA court appointed counsel, followed by substitute counsel, who filed a request to withdraw and no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).^[3] Therein, counsel tacitly acknowledged that Appellant's petition was untimely pursuant to the PCRA's one-year time bar. See Finley Letter Brief, 5/9/22, at 2-3 (citing 42 Pa.C.S. § 9545). Rather than address the possible application of timeliness exceptions, counsel opted to "proceed as though the court granted the [motion for an] extension of time to file," and explained the lack of merit in Appellant's substantive claims. Id. at 3.

The PCRA court issued notice of its intention to dismiss Appellant's PCRA petition as untimely, stating that the circumstances related to the pandemic and the various emergency orders concerning the suspension of filing deadlines in the spring of 2020 did not prevent Appellant from filing a timely PCRA petition.^[4] See Pa.R.Crim.P. 907 Notice, 6/17/22, at ¶¶ 15-20. The PCRA court further agreed with counsel that the substantive issues Appellant sought to raise were meritless. Id. at ¶¶ 21-27. Accordingly, the court purported to notify Appellant that it intended to dismiss his petition without a hearing as both untimely and meritless and advised him that he had twenty days to file a response. Id. at ¶ 30-31. However, the docket does not indicate that the notice was served upon Appellant, and he filed no response.

On July 19, 2022, the PCRA court signed two orders dismissing Appellant's PCRA petition, one of which included the required notice informing Appellant that he had thirty days to appeal the dismissal. See Pa.R.Crim.P. 907(4). The other noted counsel's absence from that day's proceeding, but did not address the pending withdrawal request. There is no indication on the docket that either order was served upon Appellant by certified mail, return receipt requested, as mandated by Rule 907(4). However, the docket indicates that service in some form was made upon Appellant on August 16, 2022.

Appellant filed a timely pro se notice of appeal no later than August 24, 2022.^[5] The PCRA court issued an opinion on September 7, 2022. The docket does not reflect that the opinion was served upon Appellant or his counsel, who had not yet received permission to withdraw. Although not ordered to do so, the following week, Appellant pro se filed a statement of errors complained of on appeal claiming, inter alia, that the PCRA court erred in ruling his petition untimely and that PCRA counsel was ineffective in filing to amend the petition to assert a timeliness exception. The PCRA court did not file a new opinion in response to Appellant's concise statement.

This Court remanded the case for the PCRA court to rule upon counsel's withdrawal request, which it granted by order of February 15, 2023.^[6] The parties thereafter filed their respective briefs. Appellant presents the following questions for our review:

1. Whether guilty-plea counsel was ineffective for failing to obtain [Appellant]'s case discovery prior to advising the defendant to plea[d] guilty?

2. Whether guilty-plea counsel was ineffective when he failed to investigate?

3. Whether guilty-plea counsel was ineffective when he advised [Appellant] to commit perjury in order to receive Commonwealth's plea offering?

4. Whether PCRA counsel was ineffective when he failed to amend [Appellant]'s PCRA petition to include a timeliness exception provided by 42 Pa.C.S. § 9545(b)(1)(i)-(iii)?

Appellant's brief at 3.

We begin with a review of the applicable law. "In general, we review an order dismissing or denying a PCRA petition as to whether the findings of the PCRA court are supported by the record and are free from legal error." Commonwealth v. Howard, 285 A.3d 652, 657 (Pa.Super. 2022) (cleaned up). "It is an appellant's burden to persuade us that the PCRA court erred and that relief is due." Commonwealth v. Stansbury, 219 A.3d 157, 161 (Pa.Super. 2019) (cleaned up).

It is well-settled "that the timeliness of a PCRA petition is jurisdictional and that if the petition is untimely, courts lack jurisdiction over the petition and cannot grant relief." Commonwealth v. Fantauzzi, 275 A.3d 986, 994 (Pa.Super. 2022). Therefore, we must first consider whether the PCRA court correctly ruled that Appellant's claim was untimely filed.

The PCRA provides as follows, in pertinent part, regarding the time for filing a petition:

Any petition [filed pursuant to the PCRA], including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:

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

42 Pa.C.S. § 9545(b)(1). Further, a petition invoking a timeliness exception "shall be filed within one year of the date the claim could have been presented." 42 Pa.C.S. § 9545(b)(2).

Appellant did not plead an exception in his pro se PCRA petition. Instead, he addresses the timeliness of his petition on appeal by asserting that PCRA counsel was ineffective for not amending the petition to assert that the governmental interference timeliness exception applied. See Appellant's brief at 20-25. Therefore, we address that claim before examining the timeliness of the underlying petition.

Pursuant to our Supreme Court's decision in Commonwealth v Bradley, 261 A.3d 381 (Pa. 2021), "a PCRA petitioner may, after a PCRA court denies relief, and after obtaining new counsel or acting pro se, raise claims of PCRA counsel's ineffectiveness at the first opportunity to do so, even if on appeal." Id. at 401. Since, as detailed above, there is no indication that Appellant was served with the PCRA court's Pa.R.Crim.P. 907 notice, and Appellant did not...