Com. v. Gordon, P. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
PETER GORDON
Appellant No. 1369 MDA 2019
Appeal from the PCRA Order Entered July 10, 2019
In the Court of Common Pleas of Dauphin County
Criminal Division at No: CP-22-CR-0006831-2016
BEFORE: STABILE, J., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY STABILE, J.: FILED DECEMBER 16, 2020
Appellant, Peter Gordon, appeals from an order denying relief under the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541—9546. Appellant
asserts that guilty plea counsel was ineffective for failing to advise of the
consequences that pleading guilty might have on his immigration status. We
affirm.
On May 16, 2017, Appellant, while represented by counsel, entered a
negotiated guilty plea and was sentenced to five years’ probation for Medicaid
fraud (unentitled reimbursement), theft by deception and tampering with
public records.1 During sentencing, guilty plea counsel advised Appellant on
the record that pleading guilty could affect his immigration status. Appellant
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* Retired Senior Judge assigned to the Superior Court.
1 62 Pa.C.S.A. § 1407, 18 Pa.C.S.A. §§ 3922 and 4911, respectively.
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acknowledged that he understood. Counsel asked Appellant if he still wished
to go forward with the plea as outlined, and Appellant stated that he wanted
to continue with the plea. N.T., 5/16/17, at 7-8. Appellant also apologized to
the court and promised not to commit the same conduct again. Id. at 11.
After sentencing, Appellant did not request to withdraw his plea or file
a direct appeal. Accordingly, Appellant’s judgment of sentence became final
on June 15, 2017.
Over one year later, on November 18, 2018, relying on the holding in
Padilla v Kentucky, 559 U.S. 356 (2010) (counsel must inform defendant
whether guilty plea carries risk of deportation), Appellant filed a pro se PCRA
petition alleging that guilty plea counsel was ineffective for failing to advise
him of the immigration consequences of pleading guilty. The PCRA court
appointed counsel, who filed an amended PCRA petition, and the
Commonwealth filed a response. In a memorandum and order dated June 4,
2019, the PCRA court informed Appellant of its intent to dismiss his petition
without a hearing. On July 10, 2019, the court entered an order dismissing
Appellant’s petition. On August 8, 2019, Appellant filed a timely appeal to this
Court. The PCRA court entered a Pa.R.A.P. 1925 statement without ordering
Appellant to file a statement of matters complained of on appeal.
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In this Court, PCRA counsel has filed an Anders2 brief and an application
to withdraw as counsel. On May 28, 2020, due to a defect in PCRA counsel’s
cover letter to Appellant enclosing her application to withdraw (counsel’s
failure to provide proper notice of Appellant’s right to proceed pro se), we filed
a memorandum denying her application without prejudice. We instructed
counsel to send Appellant another letter fully advising him of his immediate
right, either pro se or with privately retained counsel, to file a brief on any
additional points he deems worthy of review. We further directed PCRA
counsel to advise Appellant that he may respond, within thirty days of
counsel’s amended letter, to counsel’s Anders brief.
On June 26, 2020, PCRA counsel filed an amended motion to withdraw
as counsel. Attached to this motion was a letter to Appellant dated June 25,
2020 advising that he could file a supplemental brief, either pro se or through
private counsel, on any points he found worthy of review. Appellant did not
file anything in response to counsel’s June 25, 2020 letter.
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2 Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
apparently in the mistaken belief that an Anders brief is required where
counsel seeks to withdraw on appeal from the denial of PCRA relief. Where
counsel seeks to withdraw on appeal from the denial of PCRA relief, a
Turner/Finley “no-merit letter” is the appropriate filing. Commonwealth
v. Reed, 107 A.3d 137, 139 n.5 (Pa. Super. 2014) (citing Commonwealth
v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc)). Nevertheless, our practice in these
situations is to accept counsel’s Anders brief and evaluate whether it
substantially satisfies Turner/Finley criteria. Commonwealth v. Widgins,
29 A.3d 816, 819 (Pa. Super. 2011).
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We first address whether PCRA counsel has met the Finley
requirements for withdrawing as PCRA counsel. These requirements are as
follows:
(1) PCRA counsel must file a no-merit letter (or in this case, an
Anders brief) that details the nature and extent of counsel's
review of the record, lists the appellate issues, and explains why
those issues are meritless.
(2) PCRA counsel must file an application to withdraw, serve the
PCRA petitioner with the application and the no-merit letter (or
Anders brief), and advise the petitioner that if the Court grants
the motion to withdraw, the petitioner can proceed pro se or hire
his own lawyer.
(3) This Court must independently review the record and agree
that the appeal is meritless.
Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super. 2011). As
discussed in our May 28, 2020 memorandum, PCRA counsel’s Anders brief
substantially complies with Turner/Finley standards. Moreover, counsel
served her Anders brief on Appellant, and in response to our May 28, 2020
memorandum, counsel notified Appellant informing him of his right to file a
supplemental brief pro se or through private counsel.
We turn to the issues raised in this appeal. “On appeal from the denial
of PCRA relief, our standard of review requires us to determine whether the
ruling of the PCRA court is supported by the record and free of legal error.”
Widgins, 29 A.3d at 819. As this Court has explained:
We review an order dismissing a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level. This
review is limited to the findings of the PCRA court and the evidence
of record. We will not disturb a PCRA court’s ruling if it is
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supported by evidence of record and is free of legal error. This
Court may affirm a PCRA court’s decision on any grounds if the
record supports it. Further, we grant great deference to the
factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. However, we
afford no such deference to its legal conclusions. Where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).
Before we may address the merits of this appeal, however, we must
determine whether the PCRA court had jurisdiction to entertain the underlying
PCRA petition. The PCRA contains the following restrictions governing the
timeliness of any PCRA petition.
(b) Time for filing petition.—
(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.
(2) Any petition invoking an exception provided in paragraph (1)
shall be filed within one year of the date the claim could have been
presented.
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(3) For purposes of this subchapter, a judgment 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.A. § 9545(b). Section 9545's timeliness provisions are
jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).
Additionally, “the PCRA confers no authority upon this Court to fashion ad hoc
equitable exceptions to the PCRA time-bar in addition to those exceptions
expressly delineated in the Act.” Commonwealth v. Robinson, 837 A.2d
1157, 1161 (Pa. 2003).
Here, Appellant's judgment of sentence became final on June 15, 2017.
42 Pa.C.S.A. § 9545(b)(3). Thus, Appellant’s PCRA petition filed on November
18, 2018 is facially untimely under the PCRA’s statute of limitations.
Appellant’s petition does not satisfy any of the three exceptions to the
statute of limitations. His claim that guilty plea counsel was ineffective for
failing to advise him of the immigration consequences of pleading guilty does
not raise an issue of government interference or newly discovered evidence.
The third and final exception, which concerns retroactive application of United
States Supreme Court or Pennsylvania Supreme Court decisions recognizing
a constitutional right, only applies when either Court enters a decision after
the limitation period but rules that the decision applies retroactively to cases
on collateral review. Padilla, the decision relied upon by Appellant, was
decided seven years before Appellant’s sentence became final, and eight
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years before the expiration of the PCRA’s statute of limitations. Thus, this
exception does not apply to Appellant.3
Accordingly, we affirm the order dismissing Appellant’s PCRA petition.
Petition to withdraw as counsel granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2020
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3 In any event, both the United States Supreme Court and Pennsylvania
Supreme Court have held that Padilla does not apply retroactively to cases
on collateral review. Chaidez v. United States, 568 U.S. 342 (2013);
Commonwealth v. Descardes, 136 A.3d 493, 496 n.6 (Pa. 2016).
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