Com. v. Pickens, T. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TROY PICKENS :
:
Appellant : No. 540 EDA 2021
Appeal from the PCRA Order Entered February 25, 2021
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0003698-2017
BEFORE: PANELLA, P.J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 18, 2022
Troy Pickens appeals from the order, entered in the Court of Common
Pleas of Montgomery County, denying, without a hearing, his petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.
After careful review, we quash.
Pickens, initially represented by Megan Schanbacher, Esquire, was
found guilty, after a non-jury trial, of five counts each of dealing in the
proceeds of unlawful activity, see 18 Pa.C.S.A. § 5111, tampering with public
records or information, see id. at § 4911, tampering with records or
information, see id. at § 4104, and securing execution of documents by
deception, see id. at § 4114. On January 3, 2019, the trial court sentenced
Pickens, in the aggregate, to 49 to 98 months in prison, followed by five years
of probation, as well as restitution.
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Pickens, then represented by Michael Quinn, Esquire, filed timely post-
sentence motions on January 11, 2019, seeking to modify his sentence and
restitution. On February 8, 2019, the trial court granted the motion to modify
restitution and denied the motion to modify sentence.
Pickens filed an untimely pro se notice of appeal of April 23, 2019,1
which this Court ultimately quashed on March 26, 2020. See
Commonwealth v. Pickens, 229 A.3d 371 (Pa. Super. Filed March 26, 2020)
(unpublished memorandum). Subsequently, on April 13, 2020, Pickens filed
the instant, pro se PCRA petition. The PCRA court appointed counsel, who
ultimately filed a “no merit” letter pursuant to Turner/Finley2 and moved to
withdraw from representation. On January 29, 2021, the PCRA court issued
a Pa.R.Crim.P. 907 notice of its intent to dismiss Pickens’ PCRA petition and
granted PCRA counsel’s motion to withdraw. Pickens filed two pro se
responses, and on February 25, 2021, the PCRA court dismissed Pickens’
petition. Pickens filed a notice of appeal and complied with Pa.R.A.P. 1925(b).
Prior to addressing Pickens’s claims, we must determine whether we
have jurisdiction over this appeal. See Commonwealth v. Laird, 201 A.3d
160, 161-62 (Pa. Super. 2018) (“[T]he PCRA time limitations implicate our
____________________________________________
1On June 21, 2019, Pickens filed a second untimely notice of appeal in which
he purported to correct the order from which he appealed. However, this
Court quashed Pickens’s second notice of appeal in a per curiam order on
September 23, 2019.
2Commonwealth v. Turner, 554 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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jurisdiction and may not be altered or disregarded in order to address the
merits of the petition.”); see also 42 Pa.C.S.A. § 9545(b)(1) (PCRA requires
a petition, including a second or subsequent petition, to be filed within one
year of the date the underlying judgment becomes final).
Generally, to obtain review of a PCRA petition filed more than one year
after the sentence became final; the petitioner must allege and prove at least
one of the three timeliness exceptions. See 42 Pa.C.S.A. §§ 9545(b)(1)(i)-
(iii). “[W]hen a PCRA petition is not filed within one year of the expiration of
direct review, or not eligible for one of the three limited exceptions . . . the
trial court has no power to address the substantive merits of the petitioner’s
PCRA claims.” Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa.
2000). We can sua sponte raise the timeliness of a PCRA petition because it
implicates the court’s jurisdiction. See Commonwealth v. Hutchins, 760
A.2d 50, 52 (Pa. Super. 2000).
Instantly, Pickens’ judgment of sentence became final on March 11,
2019, when the time to file a direct appeal expired. See 42 Pa.C.S.A. §
9545(b)(3); Pickens, supra; see also Commonwealth v. Ballance, 209
A.3d 1027, 1032-33 (Pa. Super. 2019) (concluding that when petitioner’s
direct appeal had been quashed, the PCRA’s one-year requirement begins
from date judgment of sentence became final, not from quashal of direct
appeal). Thus, Pickens had one year, or until March 11, 2020, to timely file
his first PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1); Ballance, supra.
Accordingly, Pickens’ PCRA petition, filed on April 23, 2020, is facially
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untimely. Moreover, our review of Pickens’ PCRA petition reveals that he has
not pled and proven any of the timeliness exceptions to our jurisdiction.
Accordingly, we are constrained to quash this appeal.3
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/18/2022
____________________________________________
3 We observe that on February 23, 2021, Pickens filed a pro se “motion to
correct amended petition response to 907(1) intent to dismiss” in which he
challenged, for the first time, Attorney Quinn’s effectiveness with regard to
perfecting a direct appeal. Pro Se Filing, 2/3/21. Nevertheless, Pickens did
not request the requisite leave to amend his underlying pro se PCRA petition.
See Commonwealth v. Rykard, 55 A.3d 1177, 1192 (Pa. Super. 2012)
(petitioner must request leave in Rule 907 response to amend petition to raise
new trial counsel ineffectiveness claims not originally included in PCRA
petition); Cf. Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021) (PCRA
petitioner may raise claims challenging PCRA counsel’s ineffectiveness at
first opportunity, even on appeal). Thus, Pickens did not properly seek leave
to amend his PCRA petition, and accordingly, we cannot address that claim
either.
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