Com. v. Prado, J. ( 2016 )

J-S69007-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JORGE PRADO
Appellant No. 2162 MDA 2015
Appeal from the PCRA Order November 5, 2015
In the Court of Common Pleas of York County
Criminal Division at Nos: CP-67-CR-0006485-2012; and CP-67-CR-
0002643-2014
BEFORE: STABILE, DUBOW, and PLATT, * JJ.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 22, 2016
Appellant, Jorge Prado, appeals from the November 5, 2015 order of
the Court of Common Pleas of York County (“PCRA court”), denying relief
under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46.
Appellate counsel has filed an Anders1 brief and requested permission to
withdraw. Upon review, we quash the appeal, and dismiss counsel’s petition
to withdraw.
Stemming from an incident on August 20, 2012, Appellant pled guilty
to driving under the influence (“DUI”)2 on December 7, 2012, in docket CP-
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Anders v. California, 386 U.S. 738 (1967).
2
75 Pa.C.S.A. § 3802(b).
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67-CR-006485-2012. Appellant was sentenced to five years of intermediate
punishment with the first 45 days at the York County Prison followed by 90
days of house arrest/electronic monitoring. As the result of an incident on
March 23, 2014, Appellant pled guilty to DUI and driving under suspension,
DUI related (“DUS”)3 on August 18, 2014, in docket CP-67-CR-002643-
2014. As part of a negotiated sentence, Appellant was sentenced to an
aggregate sentence of 15-63 months at a state correctional institute (“SCI”)
on the new charges. The same date, the trial court revoked Appellant’s
intermediate punishment sentence in CP-67-CR-006485-2012 and sentenced
Appellant to 30-60 months at a SCI. Appellant did not file any post-
sentence motions or a direct appeal.
On March 31, 2015, Appellant filed a timely pro se PCRA petition
alleging ineffective assistance of counsel. Appellant was appointed PCRA
counsel, who filed an amended PCRA petition on May 15, 2015, asserting
trial counsel was ineffective for failing to file post-sentence motions and a
notice of appeal. The PCRA court filed a notice of intent to dismiss on May
22, 2015, and Appellant filed a response on June 12, 2015. A hearing was
held on Appellant’s amended PCRA petition on November 5, 2015, at the
conclusion of which the PCRA court denied Appellant’s petition.
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3
75 Pa.C.S.A. §§ 3082(c) and 1543(b)(1.1)(i), respectively.
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Appellant filed a notice of appeal on December 10, 2015. On
December 11, 2015, the PCRA court directed Appellant to file a concise
statement of matters complained of on appeal. On December 28, 2015,
Appellant filed a motion to withdraw appeal, which the PCRA court dismissed
on January 4, 2016. On February 29, 2016, Appellant filed a concise
statement of matters complained of on appeal. The PCRA court issued an
opinion on March 22, 2016.
Appellant’s counsel filed, in this Court, a petition to withdraw as
counsel and an Anders brief,4 wherein counsel raises one issue for review:
I. Whether the Appellant’s appeal contending the PCRA
court erred by dismissing his PCRA [p]etition is
wholly frivolous and without arguable merit within
the meaning of Anders v. California, 368 U.S. 728(1967); Commonwealth v. McClendon, 434 A.2d
1185 (Pa. 1981); and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
Anders Brief at 6. Further, counsel’s Anders Brief addresses the merits of
Appellant’s claim, whether trial counsel was ineffective for failing to file post-
sentence motions.
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4
Anders v. California, 386 U.S. 738 (1967), set forth the requirements to
withdraw on direct appeal, which are more stringent than the Turner/Finley
requirements that apply on collateral appeal. See Widgins, 29 A.3d at 817
n.2. “Because an Anders brief provides greater protection to a defendant,
this Court may accept an Anders brief in lieu of a Turner/Finley letter.”
Id.
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Before we may consider these issues, we must first address whether
counsel’s Anders brief satisfies the following requirements:
(1) provide a summary of the procedural history and
facts, with citations to the record;
(2) refer to anything in the record counsel believes
arguably supports the appeal;
(3) set forth counsel’s conclusion that the appeal is
frivolous; and
(4) state counsel’s reasons for concluding that the
appeal is frivolous. Counsel should articulate the
relevant facts of record, controlling case law, and/or
statutes on point that have led to the conclusion that
the appeal is frivolous.
Santiago, 978 A.2d at 361. Furthermore, counsel must “provide a copy of
the Anders petition and brief to appellant, advising the appellant of the right
to retain new counsel, proceed pro se or raise any additional points worthy
of this Court’s attention.” Commonwealth v. Flowers, 113 A.3d 1246,
1248 (Pa. Super. 2015) (quoting Commonwealth v. Woods, 939 A.2d
896, 898 (Pa. Super. 2007)).
While Appellate counsel indicated the procedural history in his Anders
brief, he neglected to note that the instant appeal is untimely. Appellant’s
PCRA petition was denied on November 5, 2015. A notice of appeal must
“be filed within 30 days after the entry of the order from which the appeal is
taken.” Pa.R.A.P. 903. Appellant’s final date to file a notice of appeal was
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December 7, 2015.5 Appellant filed a notice of appeal on December 10,
2015; therefore, Appellant’s appeal was untimely. See Pa.R.A.P. 903.
Accordingly, we must quash this untimely appeal.
Appeal quashed. Petition to withdraw dismissed as moot.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2016
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5
The mechanical run date for Appellant to file a notice of appeal (30 days
after November 5, 2015) was Saturday, December 5, 2015; therefore, the
final day Appellant could file the notice was Monday, December 7, 2015.
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