Com. v. Torres, R. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RICARDO ANTONIO TORRES :
:
Appellant : No. 1472 WDA 2022
Appeal from the PCRA Order Entered November 22, 2022
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000582-2019
BEFORE: LAZARUS, J., OLSON, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: July 28, 2023
Appellant, Ricardo Antonio Torres, appeals from the order of the Erie
County Court of Common Pleas, which dismissed as untimely his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”).1 PCRA counsel filed a
petition to withdraw as counsel, and a Turner/Finley “no merit” brief with
this Court.2 We affirm the PCRA court’s order and grant counsel’s petition to
withdraw.
The relevant facts and procedural history of this case are as follows. On
October 15, 2019, Appellant entered a negotiated guilty plea to robbery,
conspiracy to commit arson, and firearms not to be carried without a license.
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1 42 Pa.C.S.A. §§ 9541-9546.
2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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In exchange for the plea, the Commonwealth agreed to nolle prosequi the
remaining thirty-seven counts. The conviction arose from Appellant’s acts of
threatening the victim with a gun, telling the victim that Appellant would kill
him and his dog, and tying up the victim and removing items from the victim’s
house. In conspiracy with another person, Appellant then poured gasoline
throughout the victim’s house and set it on fire.
The court sentenced Appellant on December 5, 2019, to an aggregate
term of 12 to 24 years of incarceration. Appellant did not file a post-sentence
motion or direct appeal. He filed the instant PCRA petition on June 30, 2022,
claiming that he did not start the fire or possess a firearm, and raising claims
of ineffective assistance of counsel and an unlawfully induced plea. The PCRA
court appointed counsel, who filed a petition to withdraw as counsel and “no-
merit” letter on October 13, 2022, explaining that he believed the petition was
untimely and no exception to the PCRA’s time-bar applied.
The PCRA court denied the petition for leave to withdraw as counsel on
October 13, 2022. The court issued notice of its intent to dismiss the petition
without a hearing on October 24, 2022. On November 22, 2022, the PCRA
court dismissed the PCRA petition as untimely. On December 19, 2022,
Appellant filed a timely notice of appeal. The PCRA court subsequently ordered
Appellant to file a statement of errors complained of on appeal per Pa.R.A.P.
1925(b). On January 9, 2023, counsel filed a statement of intent to file a
Turner/Finley brief. On March 21, 2023, counsel filed a petition for leave to
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withdraw as counsel with this Court, together with a Turner/Finley “no-
merit” brief.
Preliminarily, before counsel can withdraw representation under the
PCRA, the law requires counsel to satisfy the mandates of Turner/Finley.
Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa.Super. 2003).
Turner/Finley counsel must review the case zealously.
Turner/Finley counsel must then submit a “no-merit” letter
to the [PCRA] 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 the petitioner wants to
have reviewed, explaining why and how those issues lack
merit, and requesting permission to withdraw.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007).
Additionally, counsel must contemporaneously serve on the appellant copies
of the “no-merit” letter or brief, the petition to withdraw, and a letter advising
the appellant that he has the immediate right to file a brief in this Court pro
se or with new privately-retained counsel. Commonwealth v. Muzzy, 141
A.3d 509 (Pa.Super. 2016). “Substantial compliance with these requirements
will satisfy the criteria.” Karanicolas, supra at 947.
Instantly, appellate counsel submitted a Turner/Finley brief on appeal
and a petition to withdraw as counsel. Both the brief and counsel’s petition
to withdraw demonstrate he has made a conscientious examination of the
record in this case and determined the appeal is wholly frivolous. Counsel
notified Appellant of counsel’s request to withdraw, advised Appellant of his
right to retain new counsel and/or raise any points he might deem worthy of
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consideration, and furnished Appellant with a copy of the petition and the brief
prepared for this appeal. Thus, counsel has substantially complied with the
technical requirements of Turner/Finley. Karanicolas, supra at 947.
Accordingly, we proceed with our independent assessment. See Turner,
supra at 494-95, 544 A.2d at 928-29 (stating appellate court must conduct
independent analysis and agree with counsel that appeal is frivolous).
Counsel raises the following issue on Appellant’s behalf:
A. Whether Appellant has stated a cognizable claim for relief
under the PCRA given a patent untimely filing with no
foundation for any statutory exception?
(Turner/Finley Brief at 2).3
As the timeliness of a PCRA petition is separate from the merits of the
petitioner’s underlying claim, we must first determine whether the petition is
timely filed. Commonwealth v. Brensinger, 218 A.3d 440, 447-48
(Pa.Super. 2019) (en banc) (citing Commonwealth v. Stokes, 598 Pa. 574,
959 A.2d 306 (2008)). The timeliness of a PCRA petition is a jurisdictional
requisite. Commonwealth v. Hackett, 598 Pa. 350, 359, 956 A.2d 978, 983
(2008), cert. denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009).
A PCRA petition, including a second or subsequent petition, shall be filed
within one year of the date the underlying judgment becomes final. 42
Pa.C.S.A. § 9545(b)(1). A judgment is deemed final “at the conclusion of
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3 Appellant has not responded to the Turner/Finley brief pro se or with newly
retained private counsel.
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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)(3).
The three statutory exceptions to the timeliness provisions in the PCRA
allow for very limited circumstances under which the late filing of a petition
will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a petition
must allege and the petitioner must prove:
(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.A. § 9545(b)(1)(i)-(iii). Additionally, a PCRA petitioner must
present his claimed exception within one year of the date the claim first could
have been presented. 42 Pa.C.S.A. § 9545(b)(2). A PCRA petitioner bears
the burden of pleading and proving the applicability of an exception to the
PCRA time bar. Commonwealth v. Spotz, 642 Pa. 717, 723, 171 A.3d 675,
678 (2017).
Instantly, Appellant’s judgment of sentence became final on January 4,
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2020, after the time in which to file a direct appeal with this Court expired.
See Pa.R.A.P. 903(c)(3). Appellant filed the current PCRA petition on June
30, 2022, which is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1).
Significantly, Appellant did not allege any exception to the PCRA time-bar in
his pro se PCRA petition (see PCRA Petition, filed 6/30/22, at 3), and
appointed counsel failed to discern any good faith basis to allege any such
exception.4 Therefore, Appellant has failed to meet his burden of proving
applicability of a time bar exception. See Spotz, supra. Following our
independent review of the record, we agree with counsel that the appeal is
frivolous. See Turner, supra. Accordingly, we affirm the PCRA court’s order
denying relief and grant counsel’s petition to withdraw.
Order affirmed; counsel’s petition to withdraw is granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2023
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4 Appellant’s allegations of ineffectiveness do not satisfy any of the exceptions
to the time-bar. See generally 42 Pa.C.S.A. § 9545(b)(4) (stating that for
purposes of this subchapter, “government officials” shall not include defense
counsel, whether appointed or retained); Commonwealth v. Bennett, 593
Pa. 382, 930 A.2d 1264 (2007) (holding that allegation of counsel’s
ineffectiveness cannot be invoked as “new fact” exception to time-bar, except
where counsel abandons client on appeal).
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