Com. v. Fisher, T. ( 2017 )

J-S44012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TERRENCE FISHER,
Appellant No. 2520 EDA 2016
Appeal from the PCRA Order Entered July 11, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0906001-2005
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 25, 2017
Appellant, Terrence Fisher, appeals pro se from the post-conviction
court’s July 11, 2016 order denying, as untimely, his petition filed under the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful
review, we affirm.
The facts of Appellant’s case are unnecessary to our disposition of his
appeal. The PCRA court summarized the procedural history of this case, as
follows:
Appellant was on supervision following a bench trial before
the Honorable Earl W. Trent. Appellant was convicted on the
charges of simple assault and terroristic threats and [was]
sentenced to six to twenty[-]three months[’ incarceration]
followed by three years of reporting probation. Appellant filed
his notice of appeal to the Superior Court on May 25, 2005.
Appellant’s sentence was affirmed on June 10, 2008.
[Commonwealth v. Fisher, 959 A.2d 459 (Pa. Super. 2008)
(unpublished memorandum).] On March 4[,] 2009, Judge Trent
revoked probation and deferred sentencing for presentence
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reports. On November 10, 2009, Judge Trent resentenced
Appellant to five years of reporting probation. Appellant filed a
reconsideration petition, which was denied without a hearing.
No direct appeal was filed. Appellant filed a petition under the
[PCRA] to reinstate his appellate rights nunc pro tunc, which was
granted on February 4, 2010. Appellant’s second judgment of
sentence was affirmed on June 6, 2011. [Commonwealth v.
Fisher, 31 A.3d 735 (Pa. Super. 2011) (unpublished
memorandum).] On September 17, 2012, Judge Trent revoked
probation and resentenced Appellant to eighteen to thirty-six
months of incarceration, followed by two years of reporting
probation. Appellant’s motion for reconsideration was denied
and Appellant filed [a] notice of appeal on November 20, 2012.
Our Superior Court quashed the appeal as untimely on May 7,
2013. [Commonwealth v. Fisher, No. 3281 EDA 2012, per
curiam order (Pa. Super. filed May 7, 2013).]
Appellant filed his second petition under the [PCRA] on
December 23, 2013[, and counsel was appointed]. In the
interim, jurisdiction over Appellant’s supervision was transferred
to this court when Judge Trent attained Senior Judge status. On
May 5, 2016, Appellant was found in direct violation due to a
new conviction for driving under the influence, and probation
was revoked. Appellant was resentenced to a period of two
years of reporting probation.
On May 17, 2016, appointed [PCRA] counsel filed with this
court a 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),] and a motion to
withdraw as counsel. On May 31, 2016, this court mailed a
Notice of Intent to Dismiss pursuant to Pa.R.Crim.P. 907. On
July 11, 2016, this court dismissed Appellant’s petition pursuant
to the Finley letter and granted counsel’s motion to withdraw.
Appellant filed [a] Notice of Appeal on July 28, 2016. On August
24, 2016, this court ordered Appellant to file a concise
Statement of Matters Complained of on Appeal pursuant to
Pa.R.A.P 1925(b). On September 20, 2016, Appellant filed his
1925(b) Statement of Errors Complained of on Appeal
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(hereinafter Statement) and avers the following (spelling errors
have been corrected for readability):[1]
…
This is an appeal of a judgment handed down on July
11, 2012. A concise statement of errors that I complained
of in original filing.
Ineffective Assistance of Counsel:
After a guilty finding in VOP hearing 9-17-12 I informed
the court and defenders association that I wanted to
appeal. Public defender Nina Carter said she would
comply. Having been sent upstate (Housed at Graterford)
and my prior experiences with Defenders Asso. I decided
to file on my own. Fully expecting my appeal to be denied
because of being represented by Defenders. However my
appeal was granted. Public Defenders never filed appeal.
Improper Obstruction by Govt Official:
By "Not" filing a timely appeal when asked to,
Defenders Asso. In effect obstructed my chances at a full
and fair decision in the appellate process. Had I had not
filed on my own, my right to challenge would have been
lost. I would have been forced to live with what I felt was
a wrong decision.
Imposing of a sentence greater than the maximum:
As the defendant, I never accused the court of imposing
a sentence greater than the maximum. My argument was
that the Defenders Asso. Never argued for something
inbetween my original sentence of 6-23 & 3 years
probation and my 2012 18-36 & 2 years probation.
Defenders Asso. Never argued basic law such as: This was
an at the time a 7 year old case, or that defendant was a
Non-violent offender, in addition to the fact that the
defendant was a NON Felon. The never argued 11 1/2 to
____________________________________________
1
We have reproduced the trial court’s quotation of Appellant’s Rule 1925(b)
statement verbatim.
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23 was more in line with the violation Defenders did not
have my best interests at heart!
Disregarding of a vacated sentence order:
Exculpatory Evidence unavailable at time of trial:
My July 8 2012 guilty plea in Montco (CP-46-CR-3869-
12) was vacated byJudge Braxton on Dec 27, 2012. Upon
my return to Graterford on Dec 28, 2012 I informed any
and everyone in authority of the vacated sentence order.
Nothing was done. I than contacted the court by mail in
writing and made the court aware of the sentence being
vacated, still nothing was done to remedy the situation.
The vacated sentence order should have been remanded
back for resentencing at the least.
PCRA Court Opinion, 12/21/16, at 1-3 (footnotes omitted) (quoting
Appellant’s Pa.R.A.P. 1925(b) statement, 9/20/16, at 1-2 (unnumbered)).
Now, on appeal, we begin by recognizing that Appellant’s pro se brief
does not comport with the Pennsylvania Rules of Appellate Procedure.
Namely, Appellant does not include in his brief any of the sections required
by Rules 2114 through 2118 (Statement of Jurisdiction, Order or Other
Determination in Question, Statement of Questions Involved, Statement of
the Case, Summary of Argument). Moreover, in the four pages of
handwritten argument constituting the entirety of his appellate brief, he has
not delineated any issues as required by Rule 2119. Appellant’s failure to
comply with this Court’s briefing rules hinders our meaningful review of his
claims. However, because we can ascertain - from our review of his brief
and the record as a whole - what issues he is asserting, we will not quash
his appeal on this basis.
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Nevertheless, we cannot ignore that all of Appellant’s issues are
waived, with the exception of his non-waivable challenge to the legality of
his sentence, because his pro se Rule 1925(b) statement was filed 6 days
late. The PCRA court’s order directing Appellant to file a Rule 1925(b)
statement was issued on Wednesday, August 24, 2016. That order explicitly
stated that Appellant had 21 days within which to file his concise statement,
making it due on Wednesday, September 14, 2016. The order also notified
him that the “[f]ailure to comply with any portion of this Order may be
considered by the Appellate Court as a waiver of all objections to any order,
ruling, or other matters complained of on appeal.” Rule 1925(b) Order,
8/24/16, at 1. Nevertheless, Appellant’s Rule 1925(b) statement was not
filed until Tuesday, September 20, 2016. Appellant did not provide any
documentation to demonstrate when he mailed that statement, so as to
prove that it was timely under the “prisoner mailbox rule.” See
Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011)
(“Under the prisoner mailbox rule, we deem a pro se document filed on the
date it is placed in the hands of prison authorities for mailing.”); see also
Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (stating that the
appellate courts are “inclined to accept any reasonably verifiable evidence of
the date that the prisoner deposits the [document] with the prison
authorities[,]” including a “cash slip” from prison authorities, an “affidavit
attesting the date of deposit” or “evidence of internal operating procedures”
regarding the mail delivery in the prison and by the local mail carrier).
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Consequently, we must deem all of Appellant’s issues - except for his non-
waivable challenge to the legality of his sentence - waived for our review.
See Commonwealth v. Boniella, 158 A.3d 162, 164 (Pa. Super. 2017)
(finding that a pro se appellant, who “cannot be ineffective on his or her own
behalf[,]” waives his or her issues by filing an untimely Rule 1925(b)
statement, even if the court addresses the issues in its opinion).
In any event, even if Appellant had filed a timely Rule 1925(b)
statement, none of his claims would entitle him to relief. This Court’s
standard of review regarding an order denying a petition under the PCRA is
whether the determination of the PCRA court is supported by the evidence of
record and is free of legal error. Commonwealth v. Ragan, 923 A.2d
1169, 1170 (Pa. 2007).
We must begin by addressing the timeliness of Appellant’s petition,
because the PCRA time limitations implicate our jurisdiction and may not be
altered or disregarded in order to address the merits of a petition.
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (stating
PCRA time limitations implicate our jurisdiction and may not be altered or
disregarded to address the merits of the petition). Under the PCRA, any
petition for post-conviction relief, including a second or subsequent one,
must be filed within one year of the date the judgment of sentence becomes
final, unless one of the following exceptions set forth in 42 Pa.C.S. §
9545(b)(1)(i)-(iii) applies:
(b) Time for filing petition.--
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(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition
alleges and the petitioner proves that:
(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 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)-(iii). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Appellant’s judgment of sentence became final on October 17,
2012, at the expiration of the thirty-day time-period for seeking review with
this Court; therefore, Appellant had until October 17, 2013 to file a timely
PCRA petition. See Commonwealth v. Brown, 943 A.2d 264, 268 (Pa.
2008) (“[I]n circumstances in which no timely direct appeal is filed relative
to a judgment of sentence, and direct review is therefore unavailable, the
one-year period allowed for the filing of a post-conviction petition
commences upon the actual expiration of the time period allowed for seeking
direct review, as specified in the PCRA.”). Appellant did not file his petition
until December 23, 2013. Accordingly, for this Court to have jurisdiction to
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review the merits of his claims, Appellant must prove that he meets one of
the exceptions to the timeliness requirements set forth in 42 Pa.C.S. §
9545(b).
Appellant has failed to meet this burden. First, in his PCRA petition,
Appellant argued that his November 10, 2009 sentence was illegal.
Appellant has seemingly abandoned this claim on appeal, and even in his
petition, he made no attempt to plead or prove that this argument meets a
timeliness exception. Therefore, we have no jurisdiction to review his
legality of sentencing issue. See Commonwealth v. Fahy, 737 A.2d 214,
223 (Pa. 1999) (holding that claims challenging the legality of sentence are
subject to review within PCRA, but must first satisfy the PCRA’s time limits).
Appellant also argues that his direct appeal counsel was ineffective for
not filing a timely notice of appeal from his September 17, 2012 judgment of
sentence. Claims of ineffectiveness do not, in and of themselves, satisfy a
timeliness requirement of the PCRA. See Commonwealth v. Wharton,
886 A.2d 1120, 1127 (Pa. 2005) (“It is well settled that allegations of
ineffective assistance of counsel will not overcome the jurisdictional
timeliness requirements of the PCRA.”) (citations omitted). Moreover, while
Appellant avers that his ineffectiveness claim satisfies the ‘governmental
interference’ exception to the PCRA’s one-year time-bar, section 9545(b)(4)
explicitly states that, “[f]or purposes of this subchapter, ‘government
officials’ shall not include defense counsel, whether appointed or retained.”
42 Pa.C.S. § 9545(b)(4); see also Commonwealth v. Yarris, 731 A.2d
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581, 587 (Pa. 1999) (holding that based on the explicit language of section
9545(b)(4), the timeliness exception of “[s]ection 9545(b)(1)(i) does not
operate to save [an a]ppellant’s claims of ineffective assistance of counsel
from the bar of untimeliness.”). Thus, we would conclude that Appellant’s
ineffectiveness claim does not meet any of the above-stated timeliness
exceptions.
Next, Appellant avers that he meets the after-discovered evidence
exception of section 9545(b)(1)(ii) based on an order purportedly entered on
December 27, 2012, by The Honorable John L. Braxton of the Court of
Common Pleas of Montgomery County. In that order, Judge Braxton vacates
a judgment of sentence imposed upon Appellant in Montgomery County on
July 9, 2012. Appellant does not explain how this decision by Judge Braxton
in a seemingly unrelated, Montgomery County case would warrant any relief
in his instant Philadelphia County case. He also does not discuss why he
waited until December 23, 2013 to assert this claim in his PCRA petition,
when the order underlying it was issued nearly a year earlier. Thus,
Appellant is unable to demonstrate that he satisfied the 60-day requirement
of section 9545(b)(2).
Additionally, to the extent that Appellant suggests, for the first time on
appeal, that his PCRA counsel acted ineffectively in representing him during
the litigation of the instant petition, we would be constrained to conclude
that he did not preserve this argument before the PCRA court. Namely,
Appellant did not file any response to counsel’s Turner/Finley no-merit
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letter, or to the PCRA court’s Rule 907 notice. Thus, he cannot raise a claim
of PCRA counsel’s ineffectiveness for the first time on appeal. See
Commonwealth v. Ford, 44 A.3d 1190, 1197-1201 (Pa. Super. 2012)
(relying on, inter alia, Commonwealth v. Pitts, 981 A.2d 875, 879 n.3 (Pa.
2009), to hold that a claim of PCRA counsel’s ineffectiveness cannot be
raised for the first time on appeal”).
Finally, we must deem meritless Appellant’s contention that his current
petition was simply an ‘extension’ of his previously-filed, timely PCRA
petition that was filed in January of 2010 (in which Appellant sought, and
was granted, the restoration of his direct appeal rights from his November
10, 2009 judgment of sentence). Our Supreme Court has explicitly rejected
the ‘extension theory,’ by which an untimely, serial petition is treated as if it
is merely an ‘extension’ of a timely, but previously decided, first petition.
See Commonwealth v. Robinson, 837 A.2d 1157, 1163 (Pa. 2003)
(expressly disapproving of the ‘extension theory’ created by this Court in
Commonwealth v. Leasa, 759 A.2d 941 (Pa. Super. 2000), and
Commonwealth v. Peterson, 756 A.2d 687 (Pa. Super. 2000)).
Accordingly, Appellant cannot rely on the ‘extension theory’ to obtain relief
in the untimely-filed petition before us now.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2017
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