Com. v. Willis, H. ( 2018 )

J-S31036-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HENRY WILLIS :
:
Appellant : No. 2434 EDA 2017
Appeal from the PCRA Order dated July 24, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1303701-2006
BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 27, 2018
Appellant, Henry Willis, appeals from the Order denying his second
Petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546. We affirm.
After a jury convicted Appellant of Possessing a Controlled Substance
with Intent to Deliver and Criminal Use of a Communication Facility,1 the trial
court sentenced Appellant in 2008 to seven and one-half to fifteen years of
incarceration. In a published opinion, this Court denied Appellant’s direct
appeal, and the Pennsylvania Supreme Court denied Appellant’s Petition for
Allowance of Appeal on August 12, 2010. Commonwealth v. Willis, 990
A.2d 773 (Pa. Super. 2010), appeal denied, 4 A.3d 1054 (Pa. 2010). His
____________________________________________
1 35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 7512(a), respectively.
J-S31036-18
Judgment of Sentence, thus, became final on November 10, 2010 when his
time for seeking relief from the United States Supreme Court expired.2
On October 4, 2010, Appellant filed his first PCRA Petition pro se raising
eight ineffective assistance of counsel claims. PCRA Petition, 10/4/10, at 3-
9. The court appointed David S. Rudenstein, Esq., who addressed each of
Appellant’s issues in detail in a Finley/”no merit” letter, and requested leave
to withdraw on March 14, 2011. Commonwealth v. Finley, 550 A.2d 213
(Pa. Super. 1988) (en banc). On April 12, 2012, Appellant filed pro se
objections to counsel’s Finley letter but did not raise any additional claims at
that time.3 The trial court granted counsel’s request on April 8, 2011. On
June 17, 2011, the trial court dismissed Appellant’s PCRA Petition. This Court
affirmed on appeal. Commonwealth v. Willis, 55 A.3d 131 (Pa. Super.
2012). Appellant did not file an appeal.
On August 27, 2012, Appellant filed a second pro se PCRA Petition. The
court appointed present counsel on March 4, 2015, and counsel filed an
Amended PCRA Petition on July 27, 2015. On May 17, 2017, the
____________________________________________
2 See 42 Pa.C.S. § 9545(b)(3) (judgment of sentence becomes final at the
conclusion of direct review or the expiration of time for seeking the review);
U.S.Sup.Ct.R. 13 (“A petition for a writ of certiorari seeking review of a
judgment of a lower state court that is subject to discretionary review by the
state court of last resort is timely when it is filed with the Clerk within 90 days
after entry of the order denying discretionary review.”); Commonwealth v.
Miller, 102 A.3d 988, 993 (Pa. Super. 2014).
3 The issues underlying the ineffectiveness of counsel’s assistance claim in his
first PCRA Petition included challenges to delays in trial and his sentence. See
PCRA Petition, 10/4/10, at 8-9.
-2-
J-S31036-18
Commonwealth filed a Motion to Dismiss Appellant’s Amended PCRA Petition
as untimely. Appellant filed a Second Amended PCRA Petition on June 6,
2017, in which he raised, inter alia, counsel ineffectiveness claims regarding
the delay of trial and Appellant’s sentence. Second Amended PCRA Petition,
6/6/17, at 2-3 (unpaginated). The court issued a Pa.R.Crim.P. 907 Notice and
on July 24, 2017, dismissed the Petition. This appeal followed.
Appellant raises the following issue on appeal:
Did the [l]ower [c]ourt err in dismissing the PCRA petition as
untimely where the issue of prior PCRA counsel’s ineffectiveness
was raised within 60 days of the Superior Court’s decision
affirming a prior PCRA petition?
Appellant’s Brief at 7.
We review the denial of a PCRA Petition to determine whether the record
supports the PCRA court’s findings and whether its order is otherwise free of
legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). Before
addressing the merits of Appellant’s claims, however, we must first determine
whether we have jurisdiction to entertain the underlying PCRA Petition. No
court has jurisdiction to hear an untimely PCRA Petition. Commonwealth v.
Lambert, 884 A.2d 848, 851 (Pa. 2005).
Under the PCRA, any petition “including a second or subsequent petition,
shall be filed within one year of the date the judgment becomes final[.]” 42
Pa.C.S. § 9545(b)(1). A Judgment of Sentence becomes final “at the
conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
-3-
J-S31036-18
expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3). The
PCRA’s timeliness requirements are jurisdictional in nature, and a PCRA court
may not address the merits of the issues raised if the petitioner did not timely
file the PCRA petition. Commonwealth v. Albrecht, 994 A.2d 1091, 1093
(Pa. 2010).
As noted above, Appellant’s Judgment of Sentence became final on
November 10, 2010. Thus, Appellant’s deadline to file a PCRA Petition was
November 10, 2011. 42 Pa.C.S. § 9545(b)(1). Appellant’s second PCRA
Petition, filed August 27, 2012, is, thus, facially untimely.
Here, Appellant asserts that his second PCRA Petition should be
reviewed because it falls within the PCRA’s timeliness exception for newly
discovered facts, 42 Pa.C.S. § 9545(b)(1)(ii). Appellant’s Brief at 11-12.
Specifically, Appellant argues that trial counsel was ineffective because he
failed to raise the delay of trial and challenge Appellant’s sentence, and that
the first opportunity he had to raise these arguments was only after this Court
denied his first PCRA Petition. Id. Accordingly, Appellant contends that the
second PCRA Petition is timely under 42 Pa.C.S. § 9545(b)(1)(ii) and 42
Pa.C.S. § 9545(b)(2) because it was filed within sixty days of discovering that
these issues had not been raised by counsel when the Superior Court affirmed
the dismissal of his first PCRA Petition on July 11, 2012. We disagree.
The law presumes counsel has rendered effective assistance.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). The
-4-
J-S31036-18
burden of demonstrating ineffectiveness rests on Appellant. Id. To satisfy
this burden, Appellant must plead and prove by a preponderance of the
evidence that: “(1) his underlying claim is of arguable merit; (2) the particular
course of conduct pursued by counsel did not have some reasonable basis
designed to effectuate his interests; and, (3) but for counsel's ineffectiveness,
there is a reasonable probability that the outcome of the challenged
proceeding would have been different.” Commonwealth v. Fulton, 830 A.2d
567, 572 (Pa. 2003). Failure to satisfy any prong of the test will result in
rejection of the appellant's ineffective assistance of counsel claim.
Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).
In the instant appeal, Appellant raises what he purports to be a layered
ineffectiveness claim. Appellant’s Brief at 12. Specifically, he asserts that
both trial counsel and his first PCRA counsel were ineffective for not raising
the issues contained in Appellant’s second PCRA Petition. Our Supreme Court
has set forth the proper framework for alleging a layered ineffective assistance
of counsel claim in the context of the PCRA:
[I]n order for a petitioner to properly raise and prevail on a layered
ineffectiveness claim, sufficient to warrant relief if meritorious, he
must plead, present, and prove the ineffectiveness of Counsel
2 (appellate counsel), which as we have seen, necessarily reaches
back to the actions of Counsel 1 (trial counsel). To preserve
(plead and present) a claim that Counsel 2 was ineffective in our
hypothetical situation, the petitioner must: (1) plead, in his PCRA
petition, that Counsel 2 was ineffective for failing to allege that
Counsel 1 was ineffective for not [taking the suggested actions],
see Commonwealth v. Marrero, [] 748 A.2d 202, 203, n. 1 (Pa.
2000); and (2) present argument on, i.e., develop, each prong
-5-
J-S31036-18
of the Pierce test as to Counsel 2's representation, in his briefs or
other court memoranda.
Commonwealth v. McGill, 832 A.2d 1014, 1022 (Pa. 2003) (emphasis in
original).
Although layered ineffectiveness claims may be raised in a PCRA
petition, the PCRA’s timeliness requirements still apply. Commonwealth v.
Pursell, 749 A.2d 911, 915-16 (Pa. 2000); see also Commonwealth v.
Paddy, 15 A.3d 431, 443-44 (Pa. 2011) (outlining requirements for
preserving layered ineffectiveness of counsel claims under the PCRA). Claims
of ineffectiveness of PCRA counsel cannot be raised for the first time after a
notice of appeal has been taken from the underlying PCRA matter unless there
is recognition of a constitutional right to effective collateral review counsel.
Commonwealth v. Ford, 44 A.3d 1190, 1201 (Pa. Super. 2012). A
petitioner must allege any claims of ineffectiveness of PCRA counsel in a
response to the court's notice of intent to dismiss when counsel files a
Turner/Finley no-merit letter to the PCRA court. Id. at 1198.
In addition, our Supreme Court has held that “subsequent counsel's
review of previous counsel's representation and a conclusion that previous
counsel was ineffective is not a newly discovered ‘fact’ entitling Appellant to
the benefit of the [PCRA’s timeliness] exception” provided in Section
9545(b)(1)(ii). Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785 (Pa.
2000); see also Commonwealth v. Lark, 746 A.2d 585, 589 (Pa. 2000)
(holding that an allegation of counsel ineffectiveness is not sufficient
-6-
J-S31036-18
justification to overcome otherwise untimely PCRA claims). See also
Commonwealth v. Pursell, 749 A.2d 911, 916-17 (Pa. 2000) (rejecting a
claim based on the newly discovered facts exception to the PCRA’s time bar
when the “facts” which formed the bases of the claim were alleged to have
been unknown until petitioner was advised of them by current counsel).
Because case law provides that counsel ineffectiveness is not a “new
fact” so as to render this second Petition timely, Appellant has failed to plead
and prove an exception to the PCRA’s time bar.4
The PCRA court properly determined that Appellant’s PCRA Petition was
untimely filed and failed to satisfy the “discovered fact” exception to the
PCRA’s timeliness requirements. The PCRA court was, thus, without
jurisdiction to entertain Appellant’s second PCRA Petition and properly
dismissed the Petition.5
Order affirmed.
____________________________________________
4 Moreover, it is disingenuous, at best, for Appellant to argue that he was
unaware of either the trial delay or sentence before he filed the instant Petition
because Appellant acknowledges in his Brief that he became aware of his
present claims when his first PCRA counsel filed his Finley letter in 2011.
Appellant’s Brief at 12.
5 Moreover, Appellant fails to develop his ineffectiveness claims with analysis
of the three-prong ineffectiveness test, fails to cite the record, and fails to cite
authority in support of his claims. Thus, even if an exception to the PCRA’s
time bar did apply, Appellant has waived his ineffectiveness claims. See
Commonwealth v. Perez, 93 A.3d 829, 838 (Pa. 2014) (finding that claims
failing to advance developed argument or cite supporting authorities and
record are waived).
-7-
J-S31036-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/27/18
-8-