Com. v. Vargas-Torres, H., Jr. ( 2018 )

J-S58028-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
HECTOR VARGAS-TORRES, JR.,
Appellant No. 652 MDA 2017
Appeal from the PCRA Order March 20, 2017
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0003636-2014
BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 23, 2018
Appellant, Hector Vargas-Torres, Jr., appeals from the order denying his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546. In addition, counsel for Appellant has filed a 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), in
which she requests that she be permitted to withdraw as counsel. We grant
counsel’s application to withdraw and affirm the order of the PCRA court, albeit
on the basis that the PCRA petition is untimely.1
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1 See Commonwealth v. Fisher, 870 A.2d 864, 870 n.11 (Pa. 2005)
(appellate court may affirm the decision of the PCRA court if there is any basis
on the record to support the PCRA court’s action, even if the appellate court
relies on a different basis in its decision to affirm).
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In an unpublished memorandum disposing of Appellant’s direct appeal,
this Court summarized the history of this case as follows:
Appellant was charged in this action with one count of
aggravated harassment by a prisoner, a felony carrying a
maximum sentence of seven years imprisonment. On August 20,
2015, Appellant entered a negotiated guilty plea to a reduced
charge of simple assault (placing someone in fear by physical
menace), in exchange for a sentence of one to two years
imprisonment. The sentence was to “run consecutively to any
sentence that [Appellant was] presently serving.” N.T. Guilty
Plea, 8/20/15, at 5. At that time, Appellant admitted to the
following. On August 21, 2014, he was incarcerated at the State
Correctional Institution--Camp Hill. Appellant had been placing a
covering over his cell door that prevented correctional officers
from viewing the inside of his cell. Appellant continued to place
the obstruction over his cell door even though he had been
repeatedly warned that he was not permitted to do so. On August
21, 2014, Correctional Officer Brent McBeth, as a security
precaution, was installing plexiglass inside Appellant’s cell when
Appellant spit on him, striking Correctional Officer McBeth’s chest
and forearm.
On August 20, 2015, after accepting the guilty plea, the
[trial] court imposed the negotiated sentence of one to two years
in jail, and Appellant was apprised of his post-sentence rights. Id.
at 7-8. On September 8, 2015, Appellant filed a motion seeking
credit for time served from October 21, 2014, when he was
arrested for the present crime, to August 20, 2015. The motion
did not seek any form of PCRA relief, and Appellant did not ask to
file the motion nunc pro tunc.
Following a hearing, the court denied the motion on
November 2, 2015, after the period for filing a direct appeal from
the August 20, 2015 judgment of sentence expired. The court
found that any time Appellant spent in jail prior to August 20,
2015, had been credited to sentences imposed in other matters.
Appellant filed this appeal from the judgment of sentence imposed
on August 20, 2015.
Commonwealth v. Vargas-Torres, 2009 MDA 2015, 159 A.3d 53 (Pa.
Super. filed October 24, 2016) (unpublished memorandum at 1-2).
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Ultimately, we quashed Appellant’s direct appeal as having been untimely
filed. Id. at 5.
On November 16, 2016, Appellant filed the instant PCRA petition, pro
se. On the same day, the PCRA court appointed Katie Maxwell, Esquire, to
represent Appellant. PCRA counsel did not file an amended PCRA petition, but
instead filed a motion requesting the PCRA court to hold a hearing on the
matter. The request for a hearing was granted, and a PCRA hearing was held
on March 20, 2017. At the conclusion of the hearing, the PCRA court entered
an order denying PCRA relief. This timely appeal followed.
On April 13, 2017, the PCRA court entered an order directing Appellant
to file, within twenty-one days, a concise statement of errors pursuant to
pursuant to Pa.R.A.P. 1925(b). On May 5, 2017, PCRA counsel filed a
statement of intent to file a Turner/Finley document. The PCRA court filed
an opinion pursuant to Pa.R.A.P. 1925(a) on May 26, 2017.
On June 26, 2017, PCRA counsel filed a no-merit letter with this Court
requesting permission to withdraw. However, PCRA counsel did not attach a
copy of the letter advising Appellant of his rights pursuant to Commonwealth
v. Friend, 896 A.2d 607, 614 (Pa. Super. 2006), regarding notifying Appellant
of his right to proceed pro se or proceed with a private attorney. See
Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011) (applying
Friend).
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Cognizant of this deficiency, this Court entered an order on June 30,
2017, directing PCRA counsel to notify Appellant as required by the relevant
case law, and to file a copy of the notification with this Court within ten days.
PCRA counsel failed to comply with our directive, and on July 13, 2017, we
issued a second order reminding counsel of her obligation and directing her to
file a copy of the notification within seven days. Again, PCRA counsel failed
to comply with our order.
On July 27, 2017, PCRA counsel filed a motion seeking a continuance in
which to file with this Court the required notification to Appellant. Also on July
27, 2017, this Court entered an order granting the continuance and directing
that the notification be filed on or before August 3, 2017. The record was
devoid of any evidence that PCRA counsel complied with this Court’s directive.
Therefore, on January 3, 2018, this panel entered an order directing
PCRA counsel to file with this Court a copy of the letter notifying Appellant of
his immediate right to proceed pro se or with newly retained counsel within
fourteen days of the date of the order. PCRA counsel has complied with our
directive. Appellant has not filed a response with this Court. This matter is
now ripe for our disposition.2
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2 We note our displeasure with the fact that PCRA counsel repeatedly ignored
the directives of this Court. We warn counsel, as we did in our Order dated
January 3, 2018, that failure to comply with this Court’s orders may ultimately
result in the withholding of counsel fees and referral for disciplinary action.
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Prior to addressing the merits of Appellant’s claim on appeal, we must
first decide whether counsel has fulfilled the procedural requirements for
withdrawing her representation. Commonwealth v. Daniels, 947 A.2d 795,
797 (Pa. Super. 2008). This Court has listed the following conditions to be
met by counsel in seeking to withdraw in a collateral appeal:
Counsel petitioning to withdraw from PCRA representation
must proceed ... under [Turner, supra and Finley, supra and]
... must review the case zealously. Turner/Finley counsel must
then submit a “no-merit” letter to the trial 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.
***
[W]here counsel submits a petition and no-merit letter that
... satisfy the technical demands of Turner/Finley, the court-trial
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.
Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation
omitted) (brackets in original).
In the application filed with this Court, counsel explained that she had
been appointed to represent Appellant at the PCRA proceedings and that she
reviewed the case, evaluated the issues, conducted an independent review of
the record, and concluded there were no issues of merit. Counsel also listed
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the issues relevant to this appeal in her no-merit letter and explained why the
appeal is without merit. In addition, counsel averred that she served upon
Appellant a copy of the application to withdraw, the “no-merit” letter, and a
letter addressed to Appellant accompanying those documents. Thus, we will
allow counsel to withdraw if, after our review, we conclude that the issues
relevant to this appeal lack merit.
We have discerned the following issues noted by PCRA counsel on behalf
of Appellant in the Turner/Finley letter: whether trial counsel was ineffective
for proceeding with Appellant’s preliminary hearing in the absence of an
assistant district attorney; whether trial counsel was ineffective for failing to
obtain a video of the incident; and whether Appellant’s negotiated guilty plea
was knowingly, intelligently, and voluntarily entered due to trial counsel’s
ineffective assistance. Turner/Finley Letter, at 2.
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)
(en banc)). This Court is limited to determining whether the evidence of
record supports the conclusions of the PCRA court and whether the ruling is
free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.
Super. 2012). We grant great deference to the PCRA court’s findings that are
supported in the record and will not disturb them unless they have no support
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in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.
Super. 2014).
However, as a prefatory matter, we must address whether Appellant
satisfied the timeliness requirements of the PCRA. 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 expiration of time for seeking the review.” 42 Pa.C.S.
§ 9545(b)(3). This time requirement is mandatory and jurisdictional in
nature, and the court may not ignore it in order to reach the merits of the
petition. Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa. Super. 2013).
An untimely petition may be received when the petition alleges, and the
petitioner proves, that any of the three limited exceptions to the time for filing
the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii), is met. 3 A
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3 The exceptions to the timeliness requirement are:
(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;
(ii) the facts upon which the claim is predicated were unknown
to the petitioner and could not have been ascertained by the
exercise of due diligence; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or the
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petition invoking one of these exceptions must be filed within sixty days of the
date the claim could first have been presented. 42 Pa.C.S. § 9545(b)(2). In
order to be entitled to the exceptions to the PCRA’s one-year filing deadline,
“the petitioner must plead and prove specific facts that demonstrate his claim
was raised within the sixty-day time frame” under section 9545(b)(2).
Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa. Super. 2001).
Our review of the record reflects that Appellant’s judgment of sentence
became final on Monday, September 21, 2015,4 thirty days after the trial court
imposed the judgment of sentence, and Appellant failed to file a timely direct
appeal with this Court. 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a). See
Commonwealth v. Hutchins, 760 A.2d 50, 54 (Pa. Super. 2000) (reiterating
that judgment of sentence becomes final upon conclusion of direct review or
upon expiration of time for seeking review and holding the appellant’s
judgment of sentence became final after the expiration of the thirty-day period
in which the appellant was permitted to seek further review in our Supreme
Court). See also Vargas-Torres, 2009 MDA 2015 (unpublished
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Supreme Court of Pennsylvania after the time period provided in
this section and has been held by that court to apply retroactively.
42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).
4 We note that a direct appeal needed to be filed on or before Monday,
September 21, 2015, because September 19, 2015, was a Saturday. See 1
Pa.C.S. § 1908 (stating that, for computations of time, whenever the last day
of any such period shall fall on Saturday or Sunday, or a legal holiday, such
day shall be omitted from the computation). See also Pa.R.A.P. 107;
Pa.R.A.P. 903, note.
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memorandum at 5) (quashing Appellant’s direct appeal as having been
untimely filed). Thus, in order to be timely under the PCRA, Appellant needed
to file his PCRA petition on or before September 21, 2016. Appellant did not
file the PCRA petition until November 16, 2016. Accordingly, the instant PCRA
petition is patently untimely.
As stated, if a petitioner does not file a timely PCRA petition, his petition
may nevertheless be received under any of the three limited exceptions to the
timeliness requirements of the PCRA. 42 Pa.C.S. § 9545(b)(1). If a petitioner
asserts one of these exceptions, he must file his petition within sixty days of
the date that the exception could be asserted. 42 Pa.C.S. § 9545(b)(2).
Appellant does not specifically allege that the delay in filing his PCRA
petition was due to interference by governmental officials, that the facts
underlying his petition were unknown to him and could not have been
ascertained by the exercise of due diligence, or that the right he has asserted
is a retroactive constitutional right. 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Thus,
Appellant fails to invoke any of the timeliness exceptions contained in the
PCRA. Therefore, the instant PCRA petition remains time-barred.
In conclusion, because Appellant’s PCRA petition was untimely and no
exceptions apply, the PCRA court lacked jurisdiction to address the issues
presented and grant relief. See Commonwealth v. Fairiror, 809 A.2d 396,
398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to hear
untimely petition). Likewise, we lack the authority to address the merits of
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any substantive claims raised in the PCRA petition. See Commonwealth v.
Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (“[J]urisdictional time limits go to
a court’s right or competency to adjudicate a controversy.”). Furthermore,
upon our independent review, no relief is due. Having determined that
Appellant is not entitled to PCRA relief, we allow counsel to withdraw under
the precepts of Turner/Finley.
Application to withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/23/2018
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