Com. v. Garcia, P. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
PELO H. GARCIA :
: No. 305 EDA 2017
Appellant :
Appeal from the PCRA Order December 21, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0746321-1991
BEFORE: PANELLA, J., STABILE, J., and PLATT, J.
JUDGMENT ORDER BY PANELLA, J. FILED APRIL 11, 2018
Pelo Garcia appeals the order denying his second petition filed under the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Additionally,
Garcia’s counsel, J. Matthew Wolfe, Esquire, has filed a petition to withdraw
from representation1 and a brief pursuant to Anders v. California, 386 U.S.
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 Retired Senior Judge assigned to the Superior Court.
1 The PCRA court appointed Attorney Wolfe who later filed an amended
petition. In its order dismissing the amended petition the court stated,
“Petitioner was not entitled to the appointment of counsel in a second or
subsequent PCRA proceeding.” Order, 12/21/16. And the court permitted
counsel to withdraw. See id. Despite the language in the order, Attorney
Wolfe filed a notice of appeal and seeks to withdraw in this Court. As discussed
in this summary decision, we will permit withdrawal.
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738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).2
We affirm the order and grant Attorney Wolfe leave to withdraw.
Garcia filed his pro se second PCRA petition on June 28, 2012—17½
years after his judgment of sentence became final.
The timing of a petition “is a threshold question implicating our subject
matter jurisdiction and ability to grant the requested relief.” Commonwealth
v. Whitney, 817 A.2d 473, 478 (Pa. 2003) (citations omitted). A petition must
be filed within one year of the date the judgment is final unless the petition
alleges, and the petitioner proves, an exception to the timeliness requirement.
See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
Counsel has identified one argument Garcia believes constitutes a valid
exception to the time bar and entitles him to relief: that Garcia filed his pro
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2 The dictates of Anders apply only on direct appeal, not on collateral review.
Counsel files an Anders brief on direct appeal when he determines the appeal
is “wholly frivolous.” Id., at 744. When counsel seeks to withdraw from
representation on collateral appeal, the dictates of Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc), apply and counsel files a “no-merit” letter.
We, however, may accept an Anders brief in lieu of a Turner/Finley “no-
merit” letter because an Anders brief provides greater protection to a
defendant. See, e.g., Commonwealth v. Reed, 107 A.3d 137, 139 n.5 (Pa.
Super. 2014). We will regard the Anders brief as a Turner/Finley brief.
Attorney Wolfe has complied with all of the requirements of Anders as
articulated in Santiago. See 978 A.2d at 361. Additionally, he confirms he
sent a copy of the Anders brief as well as a letter explaining to Garcia that
he has the right to proceed pro se or the right to retain new counsel. Counsel
has appended a copy of the letter to his petition to withdraw as counsel. See
Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010).
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se petition within 60 days of “learning about” the Supreme Court’s decision in
Lafler v. Cooper, 566 U.S. 156 (2012), thus satisfying § 9545(b)(1)(iii). We
agree with counsel that this issue has no merit.
Lafler did not create a new constitutional right. See Commonwealth
v. Feliciano, 69 A.3d 1270, 1277 (Pa. Super. 2013). The decision “simply
applied the Sixth Amendment right to counsel, and the Strickland test for
demonstrating counsel’s ineffectiveness, to the particular circumstances at
hand, i.e. where counsel’s conduct resulted in a plea offer lapsing or being
rejected to the defendant’s detriment.” Id. Thus, it cannot be relied on to
satisfy the timeliness exception of § 9545(b)(1)(iii). See id.
After examining the issues contained in the brief and undertaking our
independent review of the record, we concur with counsel’s assessment that
the appeal fails to raise an issue of merit.3
Order affirmed. Petition to withdraw as counsel granted.
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3 The Legislature provided a one-year grace period (January 16, 1996–January
16, 1997) to first-time PCRA petitioners whose judgments of sentence became
final prior to the effective date of the amended Act. See Commonwealth v.
Alcorn, 703 A.2d 1054 (Pa. Super. 1997). The grace period does not apply
here.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/18
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