Com. v. Ash, W. ( 2018 )

J-S56041-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM ASH, :
:
Appellant : No. 220 MDA 2018
Appeal from the PCRA Order December 27, 2017
in the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0000126-2012,
CP-40-CR-0000127-2012
BEFORE: GANTMAN, P.J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 12, 2018
William Ash (“Ash”) appeals from the Order dismissing his second
Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).
See 42 Pa.C.S.A. §§ 9541-9546. Additionally, Ash’s court-appointed counsel,
Paul Galante, Esquire (“Attorney Galante”), has filed an Application to
Withdraw as counsel and an accompanying “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). We grant Attorney
Galante’s Application to Withdraw and affirm the PCRA court’s Order.
On October 9, 2014, Ash pled guilty at numerous criminal informations,
including to retail theft at CP-40-CR-0000126-2012 (“126-2012”) and CP-40-
CR-0000127-2012 (“127-2012”), respectively. On March 12, 2015, the trial
court sentenced Ash to 11 to 30 months in prison at 126-2012, and 11 to 30
J-S56041-18
months in prison at 127-2012, with the sentences to be served consecutively.1
Ash did not file a direct appeal.
On August 2, 2016, Ash filed his first PCRA Petition. The PCRA court
appointed Ash counsel. Thereafter, on December 21, 2016 Ash withdrew his
first PCRA Petition. On June 15, 2017, Ash filed the instant PCRA Petition,
arguing that the trial court improperly classified as a repeat felony offender
(“RFEL”) in calculating his prior record score at sentencing. The PCRA court
appointed Attorney Galante as counsel. Following a hearing, the PCRA court
dismissed Ash’s second Petition as untimely filed. Ash filed a timely Notice of
Appeal.
Prior to addressing Ash’s appeal, we must address Attorney Galante’s
Application to Withdraw. Where counsel seeks to withdraw on collateral
appeal, the procedure outlined in Turner/Finley must be followed. In
Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009), our Supreme Court
explained that “[i]ndependent review of the record by competent counsel is
required before withdrawal is permitted.” Id. at 876 n.1. Independent review
requires the following:
1) A “no-merit” letter by PCRA counsel detailing the nature and
extent of his review;
2) The “no-merit” letter by PCRA counsel listing each issue the
petitioner wished to have reviewed;
____________________________________________
1On August 1, 2016, Ash filed a Motion to clarify his sentence. The trial court
confirmed that it had imposed an aggregate sentence of 22 to 60 months in
prison.
-2-
J-S56041-18
3) The PCRA counsel’s “explanation,” in the “no-merit” letter, of
why petitioner’s issues were meritless;
4) The PCRA court conducting its own independent review of the
record; and
5) The PCRA court agreeing with counsel that the petition was
meritless.
Id. (citation and brackets omitted). Further, we note that the Pitts Court did
not expressly overrule the additional requirement imposed by this Court in
Commonwealth v. Friend, 896 A.2d 607, 615 (Pa. Super. 2006), stating,
“[c]ounsel must also send to the petitioner: (1) a copy of the
‘no[-]merit’ letter/brief; (2) a copy of counsel’s petition to withdraw; and (3)
a statement advising petitioner of the right to proceed pro se or by new
counsel.” Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012)
(citation omitted).
Here, in his Turner/Finley brief, Attorney Galante described the extent
of his review, identified the issues that Ash sought to raise, and explained why
the issues lack merit. In addition, Attorney Galante provided Ash with notice
of his intention to seek permission to withdraw from representation and a copy
of the “no-merit” brief and Application to Withdraw as Counsel, and advised
Ash of his rights in lieu of representation.2 Thus, we conclude that Attorney
____________________________________________
2We note that Attorney Galante did not initially comply with the requirements
of Friend. However, following an Order from this Court, Attorney Galante has
now complied with the Friend requirements.
-3-
J-S56041-18
Galante has complied with the requirements necessary to withdraw as
counsel. See Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa.
Super. 2003) (stating that substantial compliance with requirements to
withdraw as counsel will satisfy the Turner/Finley criteria). We now
independently review Ash’s claims to ascertain whether they lack merit.3
We review an order dismissing a petition under the PCRA in
the light most favorable to the prevailing party at the PCRA
level. This review is limited to the findings of the PCRA court and
the evidence of record. We will not disturb a PCRA court’s ruling
if it is supported by evidence of record and is free of legal error.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
Initially, we note that under the PCRA, any PCRA petition shall be filed
within one year of the date the judgment becomes final. 42 Pa.C.S.A.
§ 9545(b)(1). The PCRA’s timeliness requirements are jurisdictional in nature,
and a court may not address the merits of the issues raised if the PCRA petition
was not timely filed. See Commonwealth v. Albrecht, 994 A.2d 1091, 1093
(Pa. 2010).
____________________________________________
3 Ash did not file a separate pro se brief, nor did he retain alternate counsel
for this appeal.
-4-
J-S56041-18
Here, because Ash did not file a direct appeal, his judgment of sentence
became final on April 13, 2015.4 See Pa.R.A.P. 903(a). Thus, Ash’s PCRA
Petition, filed on June 15, 2017, is facially untimely under the PCRA.
However, Pennsylvania courts may consider an untimely petition if the
appellant can explicitly plead and prove one of the three exceptions set forth
under 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any petition invoking one of these
exceptions “shall be filed within 60 days of the date the claim could have been
presented.” 42 Pa.C.S.A. § 9545(b)(2); Albrecht, 994 A.2d at 1094.
Ash failed to properly plead and prove any exceptions to the timeliness
requirement. See 42 Pa.C.S.A. § 9545(b)(1); see also Commonwealth v.
Wharton, 886 A.2d 1120, 1126 (Pa. 2005) (stating that it is petitioner’s
burden to acknowledge that the PCRA petition under review is untimely and
plead and prove that one of the exceptions to the time bar applies). 5 Thus,
the PCRA court properly dismissed the Petition.
____________________________________________
4We note that the thirtieth day after sentencing fell on Saturday, April 11,
2015. See 1 Pa.C.S.A. § 1908 (extending deadline to first non-holiday
weekday if final date falls on a weekend or holiday).
5 Ash’s claim regarding the RFEL designation in his prior record score
challenges the discretionary aspects of his sentence. See Commonwealth
v. Spenny, 128 A.3d 234, 241 (Pa. Super. 2015). Challenges to the
discretionary aspects of a sentence “are not cognizable under the PCRA.”
Commonwealth v. Fowler, 930 A.2d 586, 593 (Pa. Super. 2007). Further,
to the extent Ash raises an ineffective assistance of counsel claim, such a
claim does not implicate a timeliness exception. See Wharton, 886 A.2d at
1127 (stating that “allegations of ineffective assistance of counsel will not
overcome the jurisdictional timeliness requirements of the PCRA.”).
-5-
J-S56041-18
Moreover, our independent review of the record has revealed no
meritorious claims that Ash could have raised on appeal, and we agree with
Attorney Galante that this appeal lacks merit. Accordingly, we affirm the
dismissal of Ash’s PCRA Petition and grant Attorney Galante’s Application to
Withdraw as Counsel.
Application to Withdraw as Counsel granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2018
-6-