Com. v. Hamilton, M. ( 2022 )


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  • J-S02012-22
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                       :
    :
    :
    MAURICE HAMILTON                      :
    :
    Appellant           :   No. 2149 EDA 2020
    Appeal from the PCRA Order Entered October 29, 2020
    In the Court of Common Pleas of Philadelphia County Criminal Division at
    No(s): CP-51-CR-0005141-2013
    COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                       :
    :
    :
    MAURICE HAMILTON                      :
    :
    Appellant           :   No. 2150 EDA 2020
    Appeal from the PCRA Order Entered October 29, 2020
    In the Court of Common Pleas of Philadelphia County Criminal Division at
    No(s): CP-51-CR-0005142-2013
    COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                       :
    :
    :
    MAURICE HAMILTON                      :
    :
    Appellant           :   No. 2151 EDA 2020
    Appeal from the PCRA Order Entered October 29, 2020
    In the Court of Common Pleas of Philadelphia County Criminal Division at
    No(s): CP-51-CR-0005143-2013
    COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    J-S02012-22
    :
    v.                                :
    :
    :
    MAURICE HAMILTON                              :
    :
    Appellant                 :     No. 2152 EDA 2020
    Appeal from the PCRA Order Entered October 29, 2020
    In the Court of Common Pleas of Philadelphia County Criminal Division at
    No(s): CP-51-CR-0005144-2013
    BEFORE: OLSON, J., KING, J., and McCAFFERY, J.
    MEMORANDUM BY OLSON, J.:                                 FILED FEBRUARY 11, 2022
    Appellant, Maurice Hamilton, appeals from the order entered on October
    29, 2020, which dismissed his petition filed under the Post Conviction Relief
    Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. In this appeal from the denial of
    PCRA relief, Appellant’s counsel filed a petition to withdraw and a no-merit
    brief pursuant to Commonwealth v. Turner, 
    544 A.2d 927
     (Pa. 1988) and
    Commonwealth v. Finley, 
    550 A.2d 213
     (Pa. Super. 1988) (en banc).1 As
    we     conclude      that   counsel   fulfilled   the    procedural   requirements   of
    Turner/Finley and that this appeal is without merit, we grant counsel’s
    petition to withdraw and affirm the PCRA court’s order denying Appellant
    post-conviction relief.
    ____________________________________________
    1 Although counsel styled his brief as having been filed pursuant to Anders v.
    California, 
    386 U.S. 738
     (1967), we note that an Anders brief governs the
    withdrawal of counsel from direct appeal. Nevertheless, as Anders imposes
    stricter requirements for withdrawal than those set forth in Turner/Finley,
    this Court accepts Anders-compliant briefs in the context of collateral review.
    Commonwealth v. Fusselman, 
    866 A.2d 1109
    , 1111 n.3 (Pa. Super. 2004).
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    J-S02012-22
    On December 20, 2013, Appellant entered a negotiated guilty plea to
    two counts of aggravated assault, two counts of assault of a law enforcement
    officer, and one count of possession of a firearm by a minor.2 During the plea
    colloquy, the Commonwealth summarized the factual basis for Appellant’s
    plea:
    Your Honor, the incident for which [Appellant was] arrested
    and is here before you today took place on [March 28, 2013]
    at about 5:45 in the evening. It began near Broad and
    Wingohocking Streets in the Olney section of Philadelphia.
    At that time [Appellant] was walking with several friends
    toward Broad and Wingohocking. As they got there he met
    up with several other young men, young teenagers, including
    a [15-year-old] named [T.G.]
    The two groups exchanged verbal hostilities, threats between
    one another and an argument but not a physical fight began.
    During that argument [Appellant] was armed with a
    nine-millimeter Glock pistol which he showed to [T.G.] and
    his friends and his teenage cousins who were with him.
    And as a result, [T.G.], who was frightened and felt
    threatened, called his other brother, whose name is [S.C.]
    [S.C.] is 23 years old -- and said there is a young man with
    a gun and that young man had pointed that gun at him at
    Broad and Wingohocking.
    [S.C.] was nearby and [S.C.] also called his father, Raphael
    Hill, and told him what was going on. Mr. Hill was also in the
    neighborhood. [S.C.] quickly walked over to Broad and
    Wingohocking and his father, Mr. Hill, drove -- he was in his
    work van -- to Broad and Wingohocking.
    As they got there he saw [Appellant] armed with what
    appeared to be a pistol. When [S.C.] approached him, he was
    uncertain whether or not it was a real gun or a BB gun and
    ____________________________________________
    2   18 Pa.C.S.A. §§ 2702(a), 2702.1(a), and 6110.1(a), respectively.
    -3-
    J-S02012-22
    attempted to take the gun from [Appellant] who was pointing
    it in his direction. As that happened [Appellant] backed up
    and fired at [S.C.] and the group of other teenagers who were
    there and began to run from Broad and Wingohocking
    northbound on Broad Street.
    [S.C.] pursued him on foot and his father, Mr. Hill, who was
    in his van and had seen everything that happened also began
    to follow him in the van.
    As [Appellant] was pursued by . . . [S.C. and] Mr. Hill in [the]
    van, [Appellant] turned and fired again at the van, which was
    being driven by Mr. Hill.
    Police officers Timothy Auty . . . and Chad Gugger . . . were
    approximately one block away as this was taking place.
    That's right at the intersection of 15th and Wingohocking.
    They both heard the gunshots from a block away and looked
    down Wingohocking toward Broad and were able to see
    [Appellant] running up Broad Street followed by [S.C.] and
    Mr. Hill.
    They immediately began to pursue and follow the van. As
    they continued up Broad Street, [Appellant] turned on to Old
    York Road. He then turned and fired directly at the van, as
    well as the officers who were immediately behind the van on
    Old York Road, and continued to run on Old York Road toward
    Courtland Street.
    Ultimately, near the intersection of Old York Road and
    Courtland the officers got out of their vehicles, drew their
    service pistols and pointed them at [Appellant] and
    demanded several times that he stop. After they demanded
    that several times he ultimately stopped and put down his
    weapon.
    Recovered from [Appellant] was a nine[-]millimeter
    semiautomatic pistol loaded with eight live rounds.
    Recovered from his pocket were four additional
    nine[-]millimeter bullets. And recovered from the direction
    of travel and the path of the incident were six fired
    nine[-]millimeter cartridge cases.
    -4-
    J-S02012-22
    [Appellant] ultimately gave a statement to detectives
    indicating that as he turned he saw police officers Auty and
    Gugger. He was aware that they were police officers and he
    fired directly at them and he was then arrested.
    N.T. Guilty Plea Hearing, 12/20/13, at 17-20.
    The trial court accepted Appellant’s guilty plea and, on December 20,
    2013, the trial court sentenced Appellant to serve the negotiated term of
    seven to 16 years in prison, followed by two years of probation, for the
    convictions. See id. at 13 and 32. Appellant did not file a notice of appeal
    from his judgment of sentence.
    On April 2, 2018, Appellant filed a pro se PCRA petition and claimed that
    he was entitled to post-conviction collateral relief due to unspecified claims
    that his counsel was ineffective and that his guilty plea was unlawfully induced.
    See PCRA Petition, 4/2/18, at 2.       The PCRA court appointed counsel to
    represent Appellant during the proceedings and counsel filed an amended
    petition, claiming that Appellant’s PCRA petition was timely under the
    governmental interference exception to the PCRA’s one-year time-bar.
    Specifically, Appellant claimed that he was placed “in solitary confinement
    immediately upon incarceration in state custody and remained there for years
    without access to assistance in filing his [PCRA] petition.” Amended PCRA
    Petition, 1/31/19, at 2. Appellant also claimed that he is functionally illiterate
    and that the prison prevented him from doing legal research by limiting his
    access to the prison library. See id. at 3.
    On September 14, 2020, the PCRA court provided Appellant with notice
    that it intended to dismiss his petition in 20 days, without holding a hearing,
    -5-
    J-S02012-22
    as the petition was untimely. PCRA Court Notice, 9/14/20, at 1; see also
    Pa.R.Crim.P. 907(1). The PCRA court finally dismissed Appellant’s petition on
    October 29, 2020 and Appellant filed a timely notice of appeal. In this appeal,
    Appellant’s counsel filed a petition to withdraw as counsel and a no-merit brief
    pursuant to Turner/Finley.      Counsel presents the following issue in the
    Turner/Finley brief:
    Did not the [PCRA] court err in denying Appellant’s untimely
    petition under the [PCRA] where no statutory timeliness
    exception applied?
    Appellant’s Brief at 4.
    Prior to addressing the merits of the issue raised in the Turner/Finley
    brief, we must determine whether counsel met the procedural requirements
    necessary to withdraw. Counsel seeking to withdraw in PCRA proceedings
    must review the case zealously. Turner/Finley counsel
    must then submit a “no-merit” letter to the [PCRA] court, or
    brief on appeal to this Court, detailing the nature and extent
    of counsel’s diligent review of the case, listing the issues
    which petitioner wants to have reviewed, explaining why and
    how those issues lack merit, and requesting permission to
    withdraw.
    Counsel 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.
    Where counsel submits a petition and no-merit letter that
    satisfy the technical demands of Turner/Finley, the court —
    [the PCRA] court or this Court — must then conduct its own
    review of the merits of the case. If the court agrees with
    counsel that the claims are without merit, the court will
    permit counsel to withdraw and deny relief.
    -6-
    J-S02012-22
    Commonwealth v. Muzzy, 
    141 A.3d 509
    , 510–511 (Pa. Super. 2016)
    (citations and corrections omitted).
    Here, counsel fulfilled the procedural requirements necessary for
    withdrawing as PCRA counsel.      We thus turn to the claim raised in the
    Turner/Finley brief.
    “We review a ruling by the PCRA court to determine whether it is
    supported by the record and is free of legal error. Our standard of review of
    a PCRA court's legal conclusions is de novo.” Commonwealth v. Cousar,
    
    154 A.3d 287
    , 296 (Pa. 2017) (citations omitted).
    The PCRA contains a jurisdictional time-bar, which is subject to limited
    statutory exceptions.    This time-bar demands that “any PCRA petition,
    including a second or subsequent petition, [] be filed within one year of the
    date that the petitioner’s judgment of sentence becomes final, unless [the]
    petitioner pleads [and] proves that one of the [three] exceptions to the
    timeliness requirement . . . is applicable.” Commonwealth v. McKeever,
    
    947 A.2d 782
    , 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b). Further, since
    the time-bar implicates the subject matter jurisdiction of our courts, we are
    required to first determine the timeliness of a petition before we consider the
    underlying claims. Commonwealth v. Yarris, 
    731 A.2d 581
    , 586 (Pa. 1999).
    Our Supreme Court has explained:
    the PCRA timeliness requirements are jurisdictional in nature
    and, accordingly, a PCRA court is precluded from considering
    untimely PCRA petitions. See, e.g., Commonwealth v.
    Murray, 
    753 A.2d 201
    , 203 (Pa. 2000) (stating that “given
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    J-S02012-22
    the fact that the PCRA's timeliness requirements are
    mandatory and jurisdictional in nature, no court may properly
    disregard or alter them in order to reach the merits of the
    claims raised in a PCRA petition that is filed in an untimely
    manner”); Commonwealth v. Fahy, 
    737 A.2d 214
    , 220 (Pa.
    1999) (holding that where a petitioner fails to satisfy the
    PCRA time requirements, this Court has no jurisdiction to
    entertain the petition). [The Pennsylvania Supreme Court
    has] also held that even where the PCRA court does not
    address the applicability of the PCRA timing mandate, th[e
    court would] consider the issue sua sponte, as it is a
    threshold question implicating our subject matter jurisdiction
    and ability to grant the requested relief.
    Commonwealth v. Whitney, 
    817 A.2d 473
    , 475-476 (Pa. 2003).
    The trial court sentenced Appellant on December 20, 2013.           Since
    Appellant did not file a direct appeal, Appellant’s judgment of sentence
    became final at the end of the day on January 21, 2014, which was 30
    computable days after his judgment of sentence was imposed and the time
    for filing a notice of appeal to this Court expired.        See 42 Pa.C.S.A.
    § 9545(b)(3); Pa.R.A.P. 903(a); 1 Pa.C.S.A. § 1908. Appellant then had until
    January 21, 2015 to file a timely PCRA petition. 42 Pa.C.S.A. § 9545(b)(1).
    As Appellant did not file his current petition until April 2, 2018, the current
    petition is manifestly untimely and the burden thus fell upon Appellant to plead
    and prove that one of the enumerated exceptions to the one-year time-bar
    applied to his case.   See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.
    Perrin, 
    947 A.2d 1284
    , 1286 (Pa. Super. 2008) (to properly invoke a
    statutory exception to the one-year time-bar, the PCRA demands that the
    petitioner properly plead and prove all required elements of the relied-upon
    exception).
    -8-
    J-S02012-22
    Appellant claims that his petition is timely because it falls within the
    governmental interference exception to the PCRA’s one-year time-bar. The
    governmental interference exception provides:
    (1) Any petition under this subchapter, 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[.]
    ...
    (2) Any petition invoking an exception provided in paragraph
    (1) shall be filed within one year of the date the claim could
    have been presented.
    42 Pa.C.S.A. § 9545(b).3              To successfully invoke the governmental
    interference exception, a “petitioner must plead and prove the failure to
    previously raise the [underlying] claim was the result of interference by
    government officials, and the information could not have been obtained earlier
    ____________________________________________
    3 Prior to December 24, 2018, Section 9545(b)(2) read: “Any petition invoking
    an exception provided in paragraph (1) shall be filed within 60 days of the
    date the claim could have been presented.” See 42 Pa.C.S.A. § 9545(b)(2)
    (effective to December 23, 2018). However, effective December 24, 2018,
    the legislature amended Section 9545(b)(2) to provide for a one-year
    time-limitation. 42 Pa.C.S.A. § 9545(b)(2) (effective December 24, 2018).
    This current version of Section 9545(b)(2) applies to “claims arising on
    [December] 24, 2017 or thereafter.” See id. at Comment.
    -9-
    J-S02012-22
    with the exercise of due diligence.”     Commonwealth v. Abu-Jamal, 
    941 A.2d 1263
    , 1268 (Pa. 2008).
    Although Appellant loosely asserts that “governmental interference”
    precluded him from asserting his underlying, collateral claims in a timely
    manner, he fails to specifically assert an actual, underlying claim and he does
    not assert illegality on the part of the government. These omissions are fatal
    to Appellant’s appeal. See 42 Pa.C.S.A. § 9545(b)(2)(i) (explaining that the
    alleged governmental interference must violate the laws and Constitution of
    this Commonwealth or the United States of America); Commonwealth v.
    Chimenti, 
    218 A.3d 963
    , 975 (Pa. Super. 2019) (“the proper question with
    respect to Subsection 9545(b)(1)(i)'s timeliness exception is whether the
    government interfered with [an a]ppellant's ability to present his claim”)
    (emphasis added); see also Commonwealth v. Rizvi, 
    166 A.3d 344
    ,
    348-349 (Pa. Super. 2017); Commonwealth v. Bankhead, 
    217 A.3d 1245
    (Pa. Super. 2019) (explaining that, while Bankhead asserted that he was
    “unable at times to access the prison library,” his petition did not qualify under
    the governmental interference exception to the PCRA time-bar “without an
    assertion of illegality on the part of government officials”). Thus, Appellant's
    failure to plead or prove an applicable exception to the PCRA's time-bar
    deprives this Court of jurisdiction to consider the merits of Appellant’s claims.
    After review, we conclude that counsel complied with the procedural
    requirements for withdrawing as counsel and, under Turner/Finley, the issue
    Appellant wished to pursue in his PCRA petition has no merit. Accordingly, we
    - 10 -
    J-S02012-22
    grant counsel's petition to withdraw and affirm the order denying Appellant
    post-conviction collateral relief.
    Petition to withdraw as counsel granted. Order affirmed. Jurisdiction
    relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/11/2022
    - 11 -
    

Document Info

Docket Number: 2149 EDA 2020

Judges: Olson, J.

Filed Date: 2/11/2022

Precedential Status: Precedential

Modified Date: 2/11/2022