Com. v. Brown, T.

J-S08010-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

TYREE BROWN, :

:

Appellant : No. 1228 EDA 2014

Appeal from the PCRA Order March 17, 2014,

Court of Common Pleas, Philadelphia County,

Criminal Division at No. CP-51-CR-0011343-2007

BEFORE: DONOHUE, WECHT and JENKINS, JJ.

MEMORANDUM BY DONOHUE, J.: FILED FEBRUARY 13, 2015

Tyree Brown (“Brown”) appeals the March 17, 2014 order entered by

the Philadelphia County Court of Common Pleas, Criminal Division,

dismissing his petition filed pursuant to the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-46, as untimely. We affirm.

The trial court aptly summarized the relevant facts and procedural

history of this case as follows:

On February 23, 2009, pursuant to negotiation

between the parties, Brown pled guilty to the

following offenses: Murder of the Third Degree

(“Murder”), 18 Pa.C.S. § 2502(c); Robbery –

Threatening Serious Bodily Injury (“Robbery”),

18 Pa.C.S. § 3701(a)(1)(ii); and Criminal Conspiracy

– Engaging in Murder of the Third Degree

(“Conspiracy”), 18 Pa.C.S. § 903(a)(1). On February

23, 2009, the [c]ourt sentenced Brown to the

following terms of incarceration: twenty to forty

(20-40) years [of] incarceration for Murder,

consecutive to eight to twenty (8-20) years [of]

J-S08010-15

incarceration for Robbery to run concurrently with

eight to twenty (8-20) years [of] incarceration for

Conspiracy. Brown was represented by Daniel

Stevenson, Esquire at trial. Because Brown did not

file a post-sentence motion or notice of appeal, his

sentence became final thirty days from sentencing,

March 25, 2009. 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P.

903.

Brown allegedly asked Trial Counsel to file an appeal

on the date of his sentencing, February 23, 2009.

PCRA Pet. at 2. Brown allegedly never heard from

Trial Counsel and wrote a letter inquiring about the

status of his appeal on March 25, 2009. Id.

Attached to Brown’s PCRA Petition was a letter

appearing to be from Brown to Trial Counsel. PCRA

Pet. (Ex. A). Contrary to his claim that he sent a

letter March 25, 2009, the letter attached to his

petition is dated March 5, 2009, and indicates that it

was Brown’s second letter to Trial Counsel although

Brown’s Petition is silent regarding other letters. Id.

Approximately three years later, on March 19, 2012,

Brown alleges that he wrote the Superior Court of

Pennsylvania to inquire about the status of his

appeal. PCRA Pet. at 2. On June 4, 2012, Brown

was allegedly informed by the Prothonotary’s Office

of the Superior Court that they had no appeal on file.

Id. Brown attached the alleged letter from the

Prothonotary’s Office to his Petition. PCRA Pet. (Ex.

A).

On July 6, 2012, Brown untimely filed a pro se PCRA

Petition, therein asking the [c]ourt to reinstate his

appeal rights because Trial Counsel was ineffective

and abandoned him because counsel did not file

Brown’s requested appeal. Brown’s sentence

became final on March 25, 2009 as no motion or

notice of appeal was filed. 42 Pa.C.S. § 9545(b)(3);

Pa.R.A.P. 903. Brown then had one year, until

March 25, 2010, to file a PCRA Petition. 42 Pa.C.S. §

9545(b)(1). Thus, Brown’s pro se PCRA Petition on

July 6, 2012 was more than two years after the

-2-

J-S08010-15

statute of limitations expired and more than three

years after his sentence became final.

On August 9, 2012, Brown filed an untimely Motion

to Amend his pro se PCRA Petition, characterizing his

claim as one upon which the facts were unknown to

him and could not have been ascertained by the

exercise of due diligence. PCRA Pet. Amend. Brown

further claimed that since he was not aware of the

facts until he received notice from the Prothonotary’s

Office of the Superior Court on June 4, 2012, his

claim was presented well within 60 days. Id. On

May 5, 2013, Brown was appointed PCRA Counsel,

John P. Cotter, Esquire.

On September 24, 2013, PCRA Counsel, acting in

accordance with Commonwealth v. Finley, 550

A.2d 213 (Pa. Super. 1988), filed a Motion to

Withdraw as Counsel and a letter stating that the

issues raised in Brown’s pro se PCRA petition were

meritless and that no issues of arguable merit could

be raised in a counseled petition.

On January 13, 2014, after conducting its own

independent review of the record, this [c]ourt agreed

with PCRA Counsel and issued Notice of Intent to

Dismiss pursuant to Pa.R.Crim.P. 907. Brown filed

his response on February 7, 2014. The [c]ourt

formally dismissed Brown’s PCRA petition by order

dated March 17, 2014 and granted PCRA Counsel

leave to withdraw from further representation of

Brown.

On April 10, 2014, Brown timely filed a Notice of

Appeal to the Superior Court. On April 17, 2014, the

[c]ourt ordered Brown to file a Concise Statement of

Matters Complained of pursuant to Pa.R.A.P. 1925(b)

(“1925(b) Statement”). On May 7, 2014, Brown

complied and filed his 1925(b) Statement[.]

Trial Court Opinion, 7/21/14, at 1-3.

-3-

J-S08010-15

“Pennsylvania law makes clear no court has jurisdiction to hear an

untimely PCRA petition.” Commonwealth v. Monaco, 996 A.2d 1076,

1079 (Pa. Super. 2010) (quoting Commonwealth v. Robinson, 837 A.2d

1157, 1161 (Pa. 2003)). A petitioner must file a PCRA petition within one

year of the date on which the petitioner’s judgment became final, unless one

of the three following statutory exceptions applies:

(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). A petitioner must file a petition invoking one of

these exceptions “within 60 days of the date the claim could have been

presented.” 42 Pa.C.S.A. § 9545(b)(2). If a petition is untimely, and the

petitioner has not pled and proven any exception, “‘neither this Court nor

the trial court has jurisdiction over the petition. Without jurisdiction, we

simply do not have the legal authority to address the substantive claims.’”

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

-4-

J-S08010-15

Here, Brown’s PCRA petition, as the trial court points out, is facially

untimely. “A judgment is deemed 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.’” Monaco, 996 A.2d at 1079 (quoting 42 Pa.C.S.A. §

9545(b)(3)). The trial court entered Brown’s judgment of sentence on

February 23, 2009. Brown filed no post-sentence motions or a direct

appeal. Therefore, Brown’s judgment of sentence became final thirty days

from February 23, 2009, or March 25, 2009. See Pa.R.A.P. 903(a) (“Except

as otherwise prescribed by this rule, the notice of appeal … shall be filed

within 30 days after the entry of the order from which the appeal is taken.”).

Under section 9545(b)(1), Brown needed to file a PCRA petition one year

from March 25, 2009, or March 25, 2010. Brown did not file his PCRA

petition until July 6, 2012. Accordingly, we are without jurisdiction to decide

Brown’s appeal unless he pled and proved one of the three timeliness

exceptions of section 9545(b)(1). See Derrickson, 923 A.2d at 468.

In this case, Brown pled the exception under section 9545(b)(1)(ii),

averring that he did not know that his trial counsel did not file a direct

appeal on his behalf until June 4, 2012, well within sixty days of when he

filed his PCRA petition. Amended PCRA Petition, 8/9/12, ¶ 1. However,

Brown has failed to raise this issue in his 1925(b) statement and in his

appellate brief on appeal. In Commonwealth v. Hill, 16 A.3d 484 (Pa.

-5-

J-S08010-15

2011), our Supreme Court stated the following with respect to waiver under

Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure:

Our jurisprudence is clear and well-settled, and

firmly establishes that: Rule 1925(b) sets out a

simple bright-line rule, which obligates an appellant

to file and serve a Rule 1925(b) statement, when so

ordered; any issues not raised in a Rule 1925(b)

statement will be deemed waived; the courts lack

the authority to countenance deviations from the

Rule’s terms; the Rule’s provisions are not subject to

ad hoc exceptions or selective enforcement;

appellants and their counsel are responsible for

complying with the Rule’s requirements; Rule 1925

violations may be raised by the appellate court sua

sponte, and the Rule applies notwithstanding an

appellee’s request not to enforce it; and, if Rule

1925 is not clear as to what is required of an

appellant, on-the-record actions taken by the

appellant aimed at compliance may satisfy the Rule.

Id. at 494 (footnote omitted). Accordingly, Brown has waived the issue on

appeal.

Moreover, even if Brown had successfully preserved his argument that

his PCRA petition meets the timeliness exception of 9545(b)(1)(ii), we find

that it is without merit. In Commonwealth v. Carr, 768 A.2d 1164, 1168

(Pa. Super. 2001), our Court held the following:

Trial counsel’s failure to file a direct appeal was

discoverable during Appellant’s one-year window to

file a timely PCRA petition. In fact, the expiration of

Appellant’s time to file a direct appeal initiated the

PCRA’s one-year clock. Thus, Appellant had a full

year to learn if a direct appeal had been filed on his

behalf. A phone call to his attorney or the clerk of

courts would have readily revealed that no appeal

had been filed. Due diligence requires that Appellant

-6-

J-S08010-15

take such steps to protect his own interests. The

mere fact that Appellant alleges his trial counsel was

ineffective for not filing his appeal does not save his

petition from the PCRA’s timeliness requirements.

Id. at 1168. Here, Brown allegedly contacted trial counsel inquiring about

the status of his appeal in March 2009. Although he allegedly got no

response, he waited almost three years to make further inquiry to the

Superior Court regarding the status of his appeal. These facts establish his

lack of diligence. Therefore, Brown has failed to plead and prove an

exception under section 9545(b)(1), and we are without jurisdiction to

address the merits of his appeal.

Brown filed a motion to dismiss the Commonwealth’s brief because the

Commonwealth filed its brief late, after already having received one

extension to file a brief. Given our disposition of this appeal, we deny

Brown’s motion as moot. See Commonwealth v. Bricker, 41 A.3d 872,

881 (Pa. Super. 2012) (“An issue before a court is moot if in ruling upon the

issue the court cannot enter an order that has any legal force or effect.”).

Order affirmed. Motion to dismiss the Commonwealth’s brief denied as

moot.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/13/2015

-7-