J-S09020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

THOMAS SCOTT DRASS,

                         Appellant                 No. 1030 WDA 2014


                Appeal from the PCRA Order June 10, 2014
               In the Court of Common Pleas of Blair County
            Criminal Division at No(s): CP-07-CR-0001007-2005


BEFORE: FORD ELLIOTT, P.J.E., BOWES, and ALLEN, JJ.

MEMORANDUM BY BOWES, J.:                          FILED AUGUST 18, 2015

      Thomas Scott Drass appeals from the June 10, 2014 order dismissing

his second PCRA petition as untimely filed.    In a prior memorandum, we

directed counsel to either file an advocate’s brief or a petition to withdraw

and no-merit brief pursuant to Commonwealth v. Turner, 544 A.2d 927

(Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988)

(en banc) (“Turner/Finley”). Counsel has filed a compliant Turner/Finley

request to withdraw. Accordingly, we grant counsel permission to withdraw

and affirm the denial of PCRA relief.

      On January 5, 2005, Appellant arrived at his maternal grandparents’

home, and shot his grandfather, Dwayne Chamberlain, at point blank range.

Appellant had purchased the shotgun and ammunition used in the shooting

earlier that day.   On September 25, 2006, Appellant pled guilty to third-
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degree murder, and, three days later, he was sentenced to twenty to forty

years incarceration. The sentencing court had the benefit of a presentence

report.    In the ensuing direct appeal, Appellant claimed that his sentence

was excessive given “his history of mental illness and lack of a prior criminal

record.”    Commonwealth      v.   Drass,   935   A.2d   9   (Pa.Super.   2007)

(unpublished memorandum at 2). We rejected Appellant’s challenge to the

discretionary aspects of his sentence and affirmed on August 6, 2007, id.,

and Appellant did not seek allowance of appeal with our Supreme Court.

      The following month, Appellant filed a timely PCRA petition. Counsel

was appointed and filed an amended PCRA petition. Appellant claimed that

his guilty plea was induced by ineffective assistance of counsel.           The

Commonwealth sought a first-degree murder conviction but agreed to allow

Appellant to plead guilty to third-degree murder after plea counsel obtained

a psychological evaluation by       Dr.   Joseph Antonowicz, whose        report

supported a diminished capacity defense. See Trial Court Opinion, 9/8/08,

at 4-5. After an evidentiary hearing, PCRA relief was denied on September

8, 2008. Appellant did not file an appeal from the denial of PCRA relief.

      On July 24, 2013, Appellant filed a motion seeking modification of his

sentence, for appointment of counsel, and requesting permission to proceed

in forma pauperis. Appellant sought a reduction in his sentence due to his

mental health issues and lack of a prior criminal record, which he asserted

were not revealed to the sentencing court. Appellant also claimed that he

was on drugs when he killed his grandfather and that he expected a lesser

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sentence when he tendered an open guilty plea to third-degree murder. The

trial court properly treated the motion for modification of sentence as a

PCRA petition and then granted Appellant the right to proceed in forma

pauperis.     The     PCRA     court     appointed    counsel,1        and,   over    the

Commonwealth’s objection, held a hearing, which was not transcribed.

       Thereafter, the PCRA court denied relief based upon the untimeliness

of the 2013 petition.      This appeal followed.      As noted, counsel has filed a

petition to withdraw and accompanying no-merit brief establishing why

Appellant is not entitled to PCRA relief.            The “Turner/Finley decisions

provide     the   manner     for   post-conviction    counsel     to    withdraw     from

representation.”       Commonwealth v. Rykard, 55 A.3d 1177, 1184

(Pa.Super. 2012).        As we articulated in Rykard, id, at 1184 (footnote

omitted):


____________________________________________


1
  We note that Pa.R.Crim.P. 904(D) provides, “On a second or subsequent
petition, when an unrepresented defendant satisfies the judge that the
defendant is unable to afford or otherwise procure counsel, and an
evidentiary hearing is required as provided in Rule 908, the judge shall
appoint counsel to represent the defendant.” Except as provided in
Pa.R.Crim.P. 907, a hearing under Pa.R.Crim.P. 908 is mandated, in
pertinent part, when “the petition for post-conviction relief or the
Commonwealth's answer, if any, raises material issues of fact.”
Pa.R.Crim.P. 908(A)(2). Under Pa.R.Crim.P. 907, the PCRA court may deny
PCRA relief without a hearing, if, after review of the pleadings, it “is satisfied
. . . 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[.]” Pa.R.Crim.P. Rule
907(1).



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           The holdings of those cases mandate an independent
     review of the record by competent counsel before a PCRA court
     or appellate court can authorize an attorney's withdrawal. The
     necessary independent review requires counsel to file a “no-
     merit” letter detailing the nature and extent of his review and list
     each issue the petitioner wishes to have examined, explaining
     why those issues are meritless. The PCRA court, or an appellate
     court if the no-merit letter is filed before it, see Turner, supra,
     then must conduct its own independent evaluation of the record
     and agree with counsel that the petition is without merit. See
     [Commonwealth v.] Pitts, [981 A.2d 875], 876 n.1. [Pa.
     2009].

           In Commonwealth v. Friend, 896 A.2d 607 (Pa.Super.
     2006) abrogated in part by Pitts, supra, this Court imposed
     additional requirements on counsel that closely track the
     procedure for withdrawing on direct appeal. Pursuant to Friend,
     counsel is required to contemporaneously serve upon his client
     his no-merit letter and application to withdraw along with a
     statement that if the court granted counsel's withdrawal request,
     the client may proceed pro se or with a privately retained
     attorney. Though Chief Justice Castille noted in Pitts that this
     Court is not authorized to craft procedural rules, the Court did
     not overturn this aspect of Friend as those prerequisites did not
     apply to the petitioner in Pitts. See Pitts, supra at 881
     (Castille, C.J. concurring).

     In this case, counsel filed a petition to withdraw together with a brief

establishing that the present PCRA petition is untimely as to the issues

Appellant seeks to raise. As indicated in the petition to withdraw and letter

attached thereto, counsel sent Appellant a copy of the petition and the brief

and advised him of his right to continue pro se or hire a private attorney.

Counsel reviewed Appellant’s case and researched the law and concluded

that Appellant cannot obtain PCRA relief on his claims, as outlined in the

argument presented in the brief.       Thus, counsel’s withdrawal request

satisfies Turner/Finley.

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      Initially, we outline the applicable principles regarding our review of

the PCRA court’s determinations herein:

           An appellate court reviews the PCRA court's findings of fact to
      determine whether they are supported by the record, and reviews
      its conclusions of law to determine whether they are free from
      legal error. The scope of review is limited to the findings of the
      PCRA court and the evidence of record, viewed in the light most
      favorable to the prevailing party at the trial level.

Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa.Super. 2014)

(citation omitted).

      All PCRA petitions must be filed within one year of when a defendant’s

judgment of sentence becomes final.        42 Pa.C.S. § 9545(b)(1).      If the

petition is untimely, we lack jurisdiction. Commonwealth v. Callahan, 101

A.3d 118 (Pa.Super. 2014) (courts do not have jurisdiction over an untimely

PCRA).     “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.” Id. at 122 (quoting 42 Pa.C.S. § 9545(b)(3)). In this case, we

affirmed Appellant’s sentence on August 6, 2007, and he did not seek

further review. Hence, his judgment of sentence became final on September

5, 2007.    Appellant had until September 5, 2008 to file a timely PCRA

petition and his present one, which was filed on July 24, 2013, failed to

satisfy that time limitation.

      There are three exceptions to the one-year time bar: when the

government has interfered with the defendant’s ability to present the claim,

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when the defendant has recently discovered the facts upon which his PCRA

claim is predicated, or when either our Supreme Court or the United States

Supreme Court has recognized a new constitutional right and made that

right retroactive.   42 Pa.C.S. § 9545(b)(1)(i-iii).    Commonwealth v.

Brandon, 51 A.3d 231, 233-34 (Pa.Super. 2012) (“There are three

exceptions to this [one-year] time requirement: (1) interference by

government officials in the presentation of the claim; (2) newly discovered

facts; and (3) an after-recognized constitutional right.”). The defendant has

the burden of pleading and proving the applicability of any exception.    42

Pa.C.S. § 9545(b)(1).

      Appellant seeks to withdraw his guilty plea based upon his mental

health issues and the fact that he was medicated when he tendered his

guilty plea.   He also claims that the sentence was in excess of what he

believed he would receive given his mental health issues, prior record score,

and plea counsel’s representations.       These claims do not satisfy any

exception to the PCRA. All these facts were within Appellant’s knowledge as

of the date his judgment of sentence was imposed. Our independent review

of the record confirms that Appellant’s averments in his PCRA petition cannot

afford him relief.   Hence, we concur both with counsel’s assessment that

there is no merit to his request for PCRA relief.   The PCRA court did not

abuse its discretion in dismissing Appellant’s second PCRA petition as

untimely.


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     Petition of Paul M. Puskar, Esquire, to withdraw is granted.   Order

affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/18/2015




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