Com. v. Simone, T (memorandum)

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J.S45041-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. THOMAS SIMONE, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 2473 EDA 2013 Appeal from the PCRA Order August 9, 2013 In the Court of Common Pleas of Bucks County Criminal Division at No(s).: CP-09-CR-0003205-2003 BEFORE: BOWES, WECHT, and FITZGERALD,* JJ. MEMORANDUM BY FITZGERALD, J.: FILED JULY 17, 2014 Appellant, Thomas Simone, appeals from the order of the Bucks County Court of Common Pleas that dismissed his second Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, petition as untimely. Anders 1 brief, and Appellant has filed a pro se Miller v. Alabama, 132 S. Ct. 2455 (2012), and (2) appointed counsel to withdraw. * 1 Former Justice specially assigned to the Superior Court. Anders v. California, 386 U.S. 738 (1967). J.S45041-14 The PCRA court summarized the factual and procedural history of this appeal as follows: The facts underlying this case have previously been set forth by our retired colleague, the Honorable Kenneth G. Biehn, in his Memorandum Opinion dated April 9, 2007, which we now excerpt as follows: and killing of an elderly man whom [Appellant] and his girlfriend, Dawn DAlonzo, were attempting to rob. [Appellant] and DAlonzo were driven by a friend, Paul Miller, to the home of Paul Kallus, an elderly client of DAlonzo. The robbery was to be accomplished through the pretense of Ms. DAlonzo providing prostitution services to the victim. When the victim became suspicious because [Appellant] accompanied DAl DAlonzo demanded payment before the services were rendered, the victim produced a gun. A struggle ensued, the culmination of which was the [Appellant]. These offenses were committed on February 28, 2003[, when Appellant was nineteen years old]. Following an investigation and a jury trial, [Appellant] was found guilty on January 22, 2004 of Murder of the Second Degree, Burglary, Robbery, Theft, and Conspiracy to Commit both Burglary and Theft. On this same date, [Appellant] was sentenced to life imprisonment on Murder of the Second Degree, together with a concurrent sentence of not less than ten (10) nor more than twenty (20) years incarceration for the remainder of the charges. On January 26, 2004, [Appellant] filed a Notice of Appeal to the Superior Court. The Superior Court affirmed was denied by the Supreme Court on September 29, 2005. 28, 2005, as [Appellant] had ninety (90) days after the -2- J.S45041-14 certiorari to the United States Supreme Court. [Appellant] filed his first PCRA Petition on August 7, 2006, alleging ineffective assistance of counsel. On February 26, 2007, the Commonwealth moved to dismiss the PCRA petition without hearing, contending that the petition was meritless and frivolous. [Appellant] filed an March 6, 2007. A hearing was held on March 30, 2007. On April 9, 2007, the court issued an order and opinion [Appellant] filed a Notice of Appeal to the Superior Court. by the Superior Court on August 1, 2008 and his Petition for Allowance of Appeal to the Supreme Court was denied. The instant PCRA petition was filed on August 24, 2012[, within sixty days of the June 25, 2012 decision in Miller]. Thereafter, [Appellant] filed two [pro se] Addendums to his PCRA petition on August 19, 2012 and November 29, 2012, respectively. On January 14, 2013, Elissa Heinrichs, Esquire, was appointed to represent [Appellant]. We scheduled a hearing for August 15, 2013. Thereafter, the PCRA Petition Without a Hearing for Lack of jurisdiction on July 3, 2013. On August 9, 2013, we ordered t Petition be dismissed without a hearing pursuant to Petition were time barred and we lacked jurisdiction. [Appellant] filed a Notice of Appeal to the Superior Court on August 26, 2013. PCRA Ct. Op., 11/20/13, at 1-3 (citation and footnote omitted). This appeal followed. -3- J.S45041-14 At the outset, we note that the PCRA court failed to issue a appointed counsel relied on Anders when seeking withdrawal from this appeal. For the reasons that follow, however, we are compelled to conclude preserve his issues and arguments for appeal, did not infringe upon his rule- Therefore, no appellate relief is due. Pa.R.Crim.P. 907(1) states: the [PCRA] judge shall promptly review the petition, any answer by the attorney for the Commonwealth, and other matters of record relating to the defendant's claim(s). If the judge is satisfied from this review that there are no genuine issues concerning any material fact and that the defendant is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings, the judge shall give notice to the parties of the intention to dismiss the petition and shall state in the notice the reasons for the dismissal. The defendant may respond to the proposed dismissal within 20 days of the date of the notice. The judge thereafter shall order the petition dismissed, grant leave to file an amended petition, or direct that the proceedings continue. Pa.R.Crim.P. 907(1) (emphasis added). The notice procedures and opportunity for response set forth in Rule 907(1) are particularly important because claims of ineffective assistance of PCRA counsel should be raised in the PCRA court and generally cannot be -4- J.S45041-14 raised for the first time on appeal. See Commonwealth v. Pitts, 981 A.2d 875, 879-80 nn.3-4 (Pa. 2009). Nevertheless, our Court has stated: Although the notice requirement set forth in Rule 907 has been held to be mandatory, [a petitioner who has] not objected to its omission . . . has waived the issue. Moreover, the Supreme Court has indicated . . . that when a PCRA petition is untimely filed, the failure to provide such notice is not reversible error. Commonwealth v. Boyd, 923 A.2d 513, 514 n.1 (Pa. Super. 2007); see also Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014). Anders brief, we grounded in Anders, but rather Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). See Commonwealth v. Wrecks, 931 A.2d 717, 720-22 (Pa. Super. 2007) (noting that Anders and Turner/Finley cousin Turner/Finley: Turner/Finley counsel must review the case zealously. Turner/Finley letter to the trial court, or brief on appeal to this Court, detailing the nature and e 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. Counsel must also send to the petitioner: (1) a copy of to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel. If counsel fails to satisfy the foregoing technical prerequisites of Turner/Finley, the court will not reach -5- J.S45041-14 the merits of the underlying claims but, rather, will merely court will then take appropriate steps, such as directing counsel to file a proper Turner/Finley request or an advoca Id. at 721 (citations omitted); accord Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011). Furthermore, once counsel is appointed in court], thereby engendering the reliance of both his client and the court, Commonwealth v. Hampton, 718 A.2d 1250, 1254 (Pa. Super. 1988). However, in an appeal from an order denying PCRA relief, compliance with Anders generally suffices to meet the requirement of the Turner/Finley procedures for a PCRA. See Widgins, 29 A.3d at 817 n.2. This is so because Anders right to counsel on direct appeal, while Turner/Finley is an extension of a -based right to counsel. See id.; Wrecks, 931 A.2d at 720-22 Mindful of the forgoing principles, we reiterate that the PCRA court did not issue a Rule 907(1) notice of intent to dismiss the underlying petition, Anders is frivolous. Moreover, Appellant, acting pro se, filed a response in this Court arguing, in part and for the first time on appeal, that appointed -6- J.S45041-14 counsel was ineffective in the underlying PCRA proceeding. In support of his claim of ineffective assistance of appointed counsel, Appellant correctly observes that appointed counsel took no actions of record in the PCRA court to advance his claims or certify their lack of merit until this appeal. Lastly, we note that Appellant did not object to the absence of a Rule 907(1) notice. In light of the unique circumstances of this case, we conclude that ce of a Rule 907(1) notice has waived that procedural defect for the purposes of this appeal, and, in any event, was not reversible error. See Lawson, 90 A.3d at 5; Boyd, 923 907(1) the PCRA court, Appellant was precluded from properly preserving his pro se arguments while this case was in the PCRA court. Anders Moreover, appointed was the first opportunity for Appellant to raise his pro se pro se Anders adequate substitute for a Turner/Finley letter, (2) whether Appellant is entitled to relief from the PCRA time-bar based on Miller, and (3) whether appointed counsel was ineffective for failing to advance his arguments in the PCRA court. -7- J.S45041-14 F she asserted that she reviewed the record, found no issues of arguable merit, and believed an appeal to be wholly frivolous. See Pet. for Leave to 4, at ¶ 2. She also stated that she sent a letter to Appellant and attached a copy of that letter to her petition. Id. at ¶ 5, Ex. A. The letter identified the threshold issue in the PCRA court tition was timely filed. Id. Miller to create an exception to the one-year pro se or with private counsel. Id. Anders more thorough review of Miller and our case law considering the import of Miller with respect to the PCRA timeliness requirements. Therefore, despite Anders, we conclude she substantially complied with the procedural requirements of Turner/Finley. See Widgins, 29 A.3d at 817 n.2, 819. Second, Appellant identifies several arguments in his pro se response s that (1) Miller should apply to a defendant who was nineteen years old because Pennsylvania law defines an adult as an individual who is twenty-one years old or older, (2) equal protection demands that those with undeveloped brains similar to an eighteen year old be treated the same as an eighteen year old, and (3) there -8- J.S45041-14 are no penological interests in distinguishing between a defendant who is eighteen years old or younger and those older than eighteen years old. thdraw and Br., 4/10/14, at 1-5. pro se arguments and appointed 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. The there is no support for the findings in the certified record. . . . Pennsylvania law makes clear that no court has jurisdiction to hear an untimely PCRA petition. Statutory time restrictions are mandatory and jurisdictional in nature, and may not be altered or disregarded to reach the merits of the claims raised in the petition. Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa. Super. 2013) (citations omitted). The timeliness provisions of the PCRA are as follows: (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; -9- J.S45041-14 (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 60 days of the date the claim could have been presented. 42 Pa.C.S. § 9545(b)(1),(2). pro se PCRA petition, filed in August of 2012, was untimely on its face because year from that date to file a facially timely petition. Moreover, there is no dispute that 42 Pa.C.S. § 9545(b)(1)(iii) provides the sole basis for avoiding the PCRA time bar in this case.2 See Cintora, 69 A.3d at 763 (reiterating that judicial decisions are not newly discovered facts under Section 9545(b)(1)(ii)). The Pennsylvania Supreme Court has noted: Subsection (iii) of Section 9545 has two requirements. First, it provides that the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or this court after the time provided in this section. Second, it provides that the right 2 It is further undisputed that Appellant filed the instant petition within sixty days of the Miller decision. See 42 Pa.C.S. § 9545(b)(2). - 10 - J.S45041-14 tense. These words mean that the action has already constitutional right to be retroactive to cases on collateral review. By employing the past tense in writing this provision, the legislature clearly intended that the right was already recognized at the time the petition was filed. Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002). Instantly, appointed counsel correctly identified and applied our case law holding that that Miller did not create a timeliness exception to the PCRA for petitioners who were over eighteen years old when they committed the underlying crime. See Cintora, 69 A.3d at 764. Moreover, as noted by Cintora and as dictated by Abdul-Salaam - recognized constitutional right should be extended to others does not Id. pro se arguments in this appeal that he should be entitled to the benefits of Miller despite the fact he was nineteen years old at the time of the murder warrants no relief from the PCRA time bar. Lastly, Appellant raises pro se ineffectiveness. He observes that appointed counsel took no actions of record in the PCRA court. No relief is due. It is well settled that Appellant will only be entitled to relief if he can show: (1) actions or inaction was not the product of a reasonable - 11 - J.S45041-14 strategic decision; and, (3) that he suffered prejudice Commonwealth v. Pursell, 724 A.2d 293, 304 (Pa. 1999) (citation Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa. 2008) (citation omitted). of record after her appointment was problematic,3 we have concluded that Appellant was not entitled to relief from the PC Therefore, Appellant cannot prove prejudice i.e., that the outcome of the underlying PCRA proceeding would have been different and his claims of ineffective assistance of PCRA counsel must fail. See Dennis, 950 A.2d at 954. Therefore, we find no basis to conclude that Appellant was entitled to See Pursell, 724 A.2d at 303-04 (noting no remand is necessary where it is clear from existing record that ineffectiveness claim is meritless). Order affirmed. 3 with him, apprised him of the relevant law, and apprised him of her concern t requirements. - 12 - J.S45041-14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/17/2014 - 13 -

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