Com. v. Brown, T.

J-S50042-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

THOMAS BROWN

Appellant No. 72 EDA 2017

Appeal from the PCRA Order December 12, 2016

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0003491-2001, CP-23-CR-0004401-

2005, CP-23-CR-0007989-2006, CP-23-CR-0006693-2008

BEFORE: PANELLA, J., MOULTON, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.: FILED SEPTEMBER 21, 2017

Appellant, Thomas Brown, appeals from the order entered December

12, 2016, denying as untimely his petition for collateral relief filed under the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

On December 3, 2001, at criminal information number CP-23-CR-

0003491-2001, Appellant pleaded guilty to one count of possession with

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intent to deliver. On April 7, 2003, Appellant was sentenced to nine to

twenty-three months of intermediate punishment. Appellant did not appeal

from the judgment of sentence. After bench warrants were issued,

Appellant received two additional intermediate punishment sentences on

November 26, 2002, and April 7, 2003.

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See 35 P.S. §§ 780-113(a)(30).

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On July 17, 2007, at criminal information numbers CP-23-CR-

0007989-2006 and CP-23-CR-0004401-2005, Appellant pleaded guilty to

two counts of possession with intent to deliver. On October 21, 2008,

Appellant was sentenced to an aggregate of five to ten years of

incarceration, followed by five years of probation. Appellant did not appeal

from the judgment of sentence.

On March 11, 2009, at criminal information number CP-23-CR-

0006693-2008, Appellant pleaded guilty to two counts of PWID. He was

sentenced to two concurrent counts of twenty-four to forty-eight months of

incarceration. Appellant did not appeal from the judgment of sentence.

On March 17, 2016, Appellant pro se filed a petition seeking PCRA

relief. In Appellant’s petition, he admitted he was no longer incarcerated at

criminal information numbers 3491-2001, 4401-2005, and 7989-2006.

Counsel was appointed and, in September 2016, filed a Turner/Finley2

letter, averring that 1) Appellant’s petition was untimely, and 2) Appellant

was no longer in custody on criminal information numbers 3491-2001, 44-

01-2005, and 7989-2006. The court granted counsel’s petition to withdraw.

On October 20, 2016, the court issued notice pursuant to Pa.R.Crim.P.

907 that Appellant’s petition would be dismissed without a hearing.

Appellant requested time to respond to the notice and Finley letter, and the

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See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998);

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1998).

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court granted an extension. Appellant pro se filed a response, and

thereafter, the court formally dismissed Appellant’s petition as untimely.

Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal. The PCRA court issued a

responsive opinion.

On appeal, Appellant raises the following issues for our review,

rephrased for clarity:

1. The lower court abused its discretion by not allowing Appellant

to respond to its notice Pa.R.Crim.P. 907.3

2. PCRA counsel provided ineffective assistance by filing a Finley

letter.

3. Appellant’s guilty plea was not entered knowingly,

intelligently, or voluntarily, and all previous counsel were

ineffective for failing to preserve this issue for Appellant.

See Appellant’s Brief at 5.

We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by the evidence of

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,

1170 (Pa. 2007). We afford the court’s findings deference unless there is no

support for them in the certified record. Commonwealth v. Brown, 48

A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,

995 A.2d 1184, 1189 (Pa. Super. 2010)).

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3

The record indicates Appellant was given and took advantage of the

opportunity to respond.

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To be eligible for PCRA relief, an Appellant must, at the time relief is

granted, be currently serving a sentence of imprisonment, probation, or

parole for the crime. See Commonwealth v. Turner, 80 A.3d 754 (Pa.

2013); see also Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa.

1997); 42 Pa.C.S. § 9543(a)(1)(i) (emphasis added). It is unclear from the

record whether Appellant is still serving his sentences. In Appellant’s PCRA

petition, he claimed that he has completed his sentences at docket numbers

CP-23-CR-0003491-2001, CP-23-CR-0004401-2005, and CP-23-CR-

0007989-2006. If so, he is no longer eligible for PCRA relief at those

dockets. It is equally unclear from the record whether Appellant is still

serving his sentence at CP-23-CR-0006693-2008. His correspondence

indicates that he is in federal custody, and he has made no assertions as to

his sentence at this docket number. If Appellant has completed his sentence

then, likewise, he is not eligible for PCRA relief. Regardless of the status of

his incarceration, Appellant’s petition is untimely.

The PCRA time limitations implicate our jurisdiction and may not be

altered or disregarded in order to address the merits of his claims. See

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the

PCRA, any petition for relief, including second and subsequent petitions,

must be filed within one year of the date on which the judgment of sentence

becomes final. Id. There are three exceptions:

(i) the failure to raise the claim previously was the result of

interference by government officials with the presentation of the

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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 these

exceptions “shall be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v.

Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).

Appellant’s petition is untimely.4 Accordingly, in order to reach the

merits of his issues, he must plead and prove one of the exceptions to the

time bar. See Bennett, 930 A.2d at 1267. Appellant has failed to plead or

allege any of the three exceptions. Instead, he argues that the untimeliness

of his petition is excused by equitable tolling, a concept our courts do not

recognize in the context of PCRA time limitations. See, e.g.,

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4

Appellant’s judgment of sentences became final at 3491-2001 on May 7,

2003; at 4401-2005 and 79890-2006 on November 21, 2008; and at 6693-

2008, on April 10, 2009, at the expiration of his thirty days to file a direct

appeal. See Pa.R.A.P. 903; see also Concordia, 97 A.3d at 366; see also

42 Pa.C.S. § 9545(b)(3) (a judgment of sentence becomes final at the

conclusion of direct review or the expiration of the time for seeking the

review). Thus, Appellant’s petition is untimely by over eleven, six, and five

years, respectively.

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Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014) (noting that the PCRA

time limitations period is not subject to the doctrine of equitable tolling).

Accordingly, the PCRA court’s determination that Appellant’s petition is

untimely and meets no timeliness exception is supported by the record and

free of legal error. Ragan, 923 A.2d at 1170.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/21/2017

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