J. S63043/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA          :     IN THE SUPERIOR COURT OF
                                      :           PENNSYLVANIA
                  v.                  :
                                      :
AVERY LIONAL TURNER, JR.,             :          No. 665 WDA 2017
                                      :
                       Appellant      :


                Appeal from the PCRA Order, April 21, 2017,
           in the Court of Common Pleas of Washington County
             Criminal Division at No. CP-63-CR-0001971-2013


BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED DECEMBER 12, 2017

     Appellant, Avery Lional Turner, Jr., appeals from the April 21, 2017

order of the Court of Common Pleas of Washington County denying his first

petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. After careful review, we affirm.

     The PCRA court provided the following factual and procedural history:

                 On May 22, 2013, members of the Washington
           County Drug Task Force and Pennsylvania State
           Police detained [appellant] pursuant to two arrest
           warrants; one issued each by the East Washington
           Police Department and City of Washington Police
           Department. Following the detention of [appellant,]
           police conducted a warranted search of the hotel
           room where he was found. In their search, police
           discovered 184 packets of heroin, a digital scale, a
           loaded handgun that had been previously reported
           stolen to the East Washington Police Department,
           two boxes of forty-five caliber pistol ammunition,
           and a forty-five caliber pistol magazine loaded with
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          ten rounds of ammunition.       After conducting a
          criminal history check of [appellant], police
          determined that he had been convicted of crimes
          which rendered him ineligible to lawfully possess a
          firearm.

                On June 24, 2013, the Washington County
          Drug Task Force charged [appellant] with the
          following violations:   Possession With Intent to
          Deliver a Controlled Substance (“PWID”), 35 P.S.
          § 780-113(a)(30), Criminal Conspiracy, 18 Pa.C.S.
          § 903(a)(1),   Persons    Not   to    Possess,   Use,
          Manufacture, Control, Sell or Transfer Firearms
          (“Persons Not to Possess”), 18 Pa.C.S. § 6105(a)(1),
          Receiving Stolen Property, 18 Pa.C.S. § 3925(a), and
          Possession of Drug Paraphernalia, 35 P.S. § 780-
          113(a)(32).       On November 20, 2013, the
          Washington County Public Defender’s Office entered
          its appearance on behalf of [appellant] and entered a
          plea of not guilty.    On January 28, 2014, upon
          motion by [appellant] and following a hearing
          thereon, the public defender was permitted to
          withdraw and conflict counsel was appointed.

                 On August 21, 2014, following a plea hearing,
          [appellant] requested more time to consider the
          Commonwealth’s offer. Thereafter, on September 2,
          2014, [appellant] accepted the plea offered at the
          first hearing. In exchange for the Commonwealth
          agreeing to nolle pros the charges of criminal
          conspiracy, possession of drug paraphernalia, and
          numerous charges at two other dockets,[Footnote 1]
          [appellant] entered a negotiated plea of guilty to
          PWID, persons not to possess, and receiving stolen
          property. In accordance with the plea negotiations,
          [appellant] was sentenced to five to ten years of
          incarceration on the persons not to possess
          conviction, two and a half to five years of
          incarceration on the receiving stolen property
          conviction, to run concurrently to the first sentence,
          and five years[’] probation on the PWID conviction,
          to run consecutively to the other sentences. This
          offer was identical to the one presented at
          [appellant’s] prior plea hearing on August 21, 2014,


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           where he asked the court for more time to consider
           the offer. [Appellant] did not file a direct appeal. As
           such, [appellant’s] judgment of sentence became
           final on October 2, 2014.

                 [Footnote 1] Prior to his arrest for the
                 charges subject to this PCRA, [appellant]
                 was charged with Kidnapping, Unlawful
                 Restraint, Terroristic Threats with Intent
                 to Terrorize Another, Simple Assault,
                 Harassment, and Unlawful Restraint at
                 Docket Number 1392 of 2013 and
                 Aggravated Assault at Docket Number
                 1970 of 2013.

                  On or about January 16, 2016, [appellant] filed
           a pro se PCRA petition on the basis of newly
           discovered evidence and ineffective assistance of
           counsel. On January 21, 2016, the court appointed
           attorney Stephen Paul as PCRA counsel. Following
           three filing extensions and two reassignments of
           counsel, J. Andrew Salemme was appointed and filed
           an amended PCRA petition on October 21, 2016,
           alleging therein ineffective assistance of counsel and
           imposition of an illegal sentence.

                  On May 16, 2017, [the PCRA] court filed a
           Notice of Intent to Dismiss based on a lack of
           jurisdiction. On April 3, 2017, [a]ppellant filed a
           response to the Notice of Intent to Dismiss, wherein
           he restated the arguments made in his PCRA petition
           and brief. On April 21, 2017, the [PCRA] court
           entered an order denying [appellant’s] PCRA
           petition. On May 3, 2017, [a]ppellant filed a Notice
           of Appeal to the Pennsylvania Superior Court. On
           May 4, 2017, the [PCRA] court entered an order
           directing [a]ppellant to file a concise statement of
           matters complained of on appeal within twenty-one
           days of the entry of the Order, which [a]ppellant
           filed on May 18, 2017.

PCRA court opinion, 6/28/17 at 1-3.

     Appellant raises the following issues for our review:


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            1.     Is the PCRA time-bar unconstitutional as
                   applied in this case where the defendant’s
                   counsel patently erred in advising him to plead
                   guilty based on the erroneous belief that
                   mandatory minimum sentences could be
                   applied in this case?

            2.     Was [appellant’s] plea unknowing where plea
                   counsel erroneously advised him to plead
                   guilty due to the applicability of mandatory
                   minimum sentences that could not be applied
                   because they had been ruled unconstitutional
                   in their entirety?

            3.     Did the [PCRA] Court err in declining to find
                   that the writ of coram nobis applied herein,
                   where due to the ineffective assistance of
                   counsel, [appellant] entered a guilty plea
                   based on a factual and legal mistake[,] i.e.,
                   the applicability of mandatory minimum
                   sentences?

            4.     Whether the [PCRA] Court erred in failing to
                   apply the constitutional or statutory writ of
                   habeas corpus where [appellant] entered a
                   guilty plea based on ineffective assistance of
                   counsel and his substantive and procedural due
                   process rights would be violated if he could not
                   be afforded a remedy under the facts of this
                   case?

            5.     Did the PCRA court err in failing to find that
                   [appellant’s] PCRA petition can be construed as
                   timely filed under the new constitutional rule
                   that applies retroactively exception pursuant to
                   Commonwealth v. Wolfe, 140 A.3d 651 (Pa.
                   2016)?

Appellant’s brief at 4.

      PCRA petitions are subject to the following standard of review:

            “[A]s a general proposition, we review a denial of
            PCRA relief to determine whether the findings of the


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          PCRA court are supported by the record and free of
          legal error.” Commonwealth v. Dennis, 609 Pa.
          442, 17 A.3d 297, 301 (Pa. 2011) (citation omitted).
          A PCRA court’s credibility findings are to be accorded
          great deference, and where supported by the record,
          such determinations are binding on a reviewing
          court. Id. at 305 (citations omitted). To obtain
          PCRA relief, appellant must plead and prove by a
          preponderance of the evidence: (1) his conviction or
          sentence resulted from one or more of the errors
          enumerated in 42 Pa.C.S. § 9543(a)(2); (2) his
          claims have not been previously litigated or waived,
          id. § 9543(a)(3); and (3) “the failure to litigate the
          issue prior to or during trial . . . or on direct appeal
          could not have been the result of any rational,
          strategic or tactical decision by counsel[.]”          Id.
          § 9543(a)(4). An issue is previously litigated if “the
          highest appellate court in which [appellant] could
          have had review as a matter of right has ruled on
          the merits of the issue[.]” Id. § 9544(a)(2). “[A]n
          issue is waived if [appellant] could have raised it but
          failed to do so before trial, at trial, . . . on appeal or
          in a prior state postconviction proceeding.”          Id.
          § 9544(b).

Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).

          A PCRA petition, including a second or subsequent
          petition, must be filed within one year of the date
          that judgment of sentence becomes final. 42 Pa.C.S.
          § 9545(b)(1).        A judgment becomes final for
          purposes of the PCRA “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.”            42 Pa.C.S.
          § 9545(b)(3). PCRA time limits are jurisdiction in
          nature, implicating a court’s very power to
          adjudicate a controversy. Commonwealth v. Fahy,
          558 Pa. 313, 737 A.2d 214 (1999). According, the
          “period for filing a PCRA petition is not subject to the
          doctrine of equitable tolling,” instead, the time for
          filing a PCRA petition can be extended only if the
          PCRA permits it to be extended, i.e., by operation of


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           one of the statutorily enumerated exceptions to the
           PCRA time-bar. Id. at 329, 737 A.2d at 222.

Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014), cert. denied, 135

S.Ct. 707 (2014). Before we can begin to address appellant’s issues on the

merits, we must first determine whether we have jurisdiction to do so.

     As noted above, a PCRA petitioner has one year from the date his or

her judgment of sentence becomes final in which to file a PCRA petition.

This court has held the following regarding when a judgment of sentence

becomes final:

           The plain language of the PCRA provides that a
           judgment of sentence becomes final at the
           conclusion of direct review or when the time for
           seeking direct review expires. See 42 Pa.C.S.A.
           § 9545(b)(3).     In fixing the date upon which a
           judgment of sentence becomes final, the PCRA does
           not refer to the conclusion of collateral review or the
           time for appealing a collateral review determination.
           Thus, the plain language of the PCRA statute shows
           that a judgment of sentence becomes final
           immediately upon expiration of the time for seeking
           direct review, even if other collateral proceedings are
           still ongoing.     As this result is not absurd or
           unreasonable, we may not look for further
           manifestations     of   legislative   intent.      See
           Commonwealth v. Hall, 80 A.3d 1204, 1211 (Pa.
           2013) (internal quotation marks omitted) (We may
           “look beyond the plain language of the statute only
           when words are unclear or ambiguous, or the plain
           meaning would lead to a result that is absurd,
           impossible of execution or unreasonable.”).

Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa.Super. 2014).

     In the instant case, the trial court sentenced appellant to a term of

5-10 years’ incarceration on September 2, 2014. Appellant did not file any


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post-sentence motions, nor did he file a direct appeal to this court.

Accordingly, appellant’s judgment of sentence became final on October 2,

2014.1   Appellant filed the instant petition on January 19, 2016 -- over

15 months after his judgment of sentence became final and over 3 months

after a PCRA petition could be considered timely.           See 42 Pa.C.S.A.

§ 9545(b)(1).

     As noted above, the PCRA does enumerate exceptions to the one-year

requirement. A petitioner may file a petition under the PCRA after one year

has passed from the final judgment of sentence under the following

circumstances:

           (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)(iii). Any claims made under this exception must

be filed “within 60 days of the date the claim could have been presented.”

42 Pa.C.S.A. § 9545(b)(2).

     In his first issue for our review, appellant avers that “the PCRA time

bar is unconstitutional as applied in this case where [appellant’s] counsel

patently erred in advising him to plead guilty based on the erroneous belief


1
 The Pennsylvania Rules of Appellate Procedure require a notice of appeal to
be filed within 30 days of the imposition of the judgment of sentence in open
court in criminal cases in which no post-sentence motion has been filed.
Pa.R.A.P. 903(c)(3).


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that mandatory minimum sentences could be applied.” (Appellant’s brief at

15.)   Issues 2-4 are also based in allegations of ineffective assistance of

counsel. Ineffective assistance of counsel is not an exception to the PCRA’s

timeliness requirements.

            It is well settled that allegations of ineffective
            assistance of counsel will not overcome the
            jurisdictional timeliness requirements of the PCRA.
            See Commonwealth v. Pursell, 561 Pa. 214, 749
            A.2d 911, 915-916 (2000) (holding a petitioner’s
            claim in a second PCRA petition, that all prior counsel
            rendered ineffective assistance, did not invoke
            timeliness exception, as “government officials” did
            not     include   defense    counsel);     see     also
            Commonwealth v. Gamboa-Taylor, 562 Pa. 70,
            753 A.2d 780, 785-786 (2000) (finding that the
            “fact” that current counsel discovered prior PCRA
            counsel failed to develop issue of trial counsel’s
            ineffectiveness was not after-discovered evidence
            exception to time-bar); Commonwealth v. Lark,
            560 Pa. 487, 746 A.2d 585, 589 (2000) (holding that
            allegation of ineffectiveness is not sufficient
            justification to overcome otherwise untimely PCRA
            claims).

Commonwealth         v.   Wharton,   886   A.2d   1120,    1127   (Pa.   2005).

Accordingly, we do not have jurisdiction to review appellant’s first four issues

as they are facially untimely and do not fall under any of the exceptions to

the PCRA time-bar.

       Before we can determine whether appellant’s fifth issue falls under an

exception to the PCRA’s time bar, we must first determine whether

appellant’s fifth issue is ripe for our review. Appellant filed a pro se PCRA

petition on January 16, 2016.        The PCRA court appointed counsel on



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January 21, 2016, and ordered counsel to file an amended PCRA petition.

The PCRA court granted appellant’s motions to extend time for filing a PCRA

petition on April 13, June 8, and September 14, 2016.        Appellant filed an

amended PCRA petition on October 21, 2016.              Subsequent to when

appellant’s pro se PCRA petition was filed, but prior to the filing of

appellant’s amended PCRA petition, our supreme court announced its

decision in Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016),2 on

June 20, 2016.

      Our supreme court has held that “when an appellant’s PCRA appeal is

pending before a court, a subsequent PCRA petition cannot be filed until the

resolution of review of the previous PCRA petition . . .” Commonwealth v.

Lark, 746 A.2d 585, 588 (Pa. 2000). The court, however, further noted that

its holding did not “preclude a trial court from granting leave to amend a

PCRA petition that is currently pending before that court. Id., n.2.

      The standard governing amendments to PCRA petitions is a liberal

one. Indeed, our supreme court has stated the following:

            Our criminal procedure rules reflect that the PCRA
            judge “may grant leave to amend . . . a petition for
            post-conviction collateral relief at any time,” and that
            amendment “shall be freely allowed to achieve
            substantial justice.”      Pa.R.Crim.P. 905(a); see
            Commonwealth v. Williams, 828 A.2d 981, 993

2
 In Wolfe, our supreme court held that Pennsylvania’s mandatory minimum
sentencing scheme pertaining to individuals convicted of crimes involving
child victims was unconstitutional on its face because it created a “distinct
and aggravated crime” not determined by the fact-finder. Id. at 661, 663.
A more detailed discussion of Wolfe is found below.


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           (Pa. 2003) (noting that the criminal procedural rules
           contemplate a “liberal amendment” policy for PCRA
           petitions). Nevertheless, it is clear from the rule’s
           text that leave to amend must be sought and
           obtained, and hence, amendments are not
           self-authorizing.  Commonwealth v. Porter, 35
           A.3d 4, 12 (Pa. 2012).        Thus, for example, a
           petitioner may not “simply ‘amend’ a pending
           petition with a supplemental pleading.” Id. Rather,
           Rule 905 “explicitly states that amendment is
           permitted only by direction or leave of the PCRA
           court. Id.; see also Williams, 828 A.2d at 988
           (indicating that the PCRA court retains discretion
           whether or not to grant a motion to amend a
           post-conviction petition). It follows that petitioners
           may not automatically “amend” their PCRA petitions
           via responsive pleadings.

Commonwealth v. Baumhammers, 92 A.3d 708, 730 (Pa. 2014).               Put

another way, Rule 905 permits appointed counsel to, “in the exercise of his

or her professional judgment,” raise additional issues beyond what were

raised in the petitioner’s pro se petition. Commonwealth v. Padden, 783

A.2d 299, 308 (Pa.Super. 2001).

     In cases in which a new constitutional rule is averred, a petitioner is

required to demonstrate that the new constitutional rule has been

recognized by either the Supreme Court of the United States or by the

Supreme Court of Pennsylvania and held to be applied retroactively.

Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002).

           The language “has been held” is in the past tense.
           These words mean that the action has already
           occurred, i.e. “that court” has already held the new
           constitutional right to be retroactive to cases on
           collateral review. By employing the past tense in
           writing this provision, the legislature clearly


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             intended that the right was already recognized
             at the time the petition was filed.

Id. (emphasis added).

      The General Assembly’s intent, however, is unclear as to whether the

constitutional right must have been recognized at the time the pro se

petition was filed, or at the time the amended petition was filed.                  To

ascertain the General Assembly’s intent, we shall first look to a PCRA

petitioner’s right to counsel for an initial PCRA petition.

      It is well settled that a PCRA petitioner has a right to the assistance of

counsel   for   his    or   her   initial   PCRA     petition.   Pa.R.Crim.P.   904(c),

Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa.Super. 2009)

(en banc).

             When appointed, counsel’s duty is to either
             (1) amend the petitioner’s pro se Petition and
             present the petitioner’s claims in acceptable legal
             terms, or (2) certify that the claims lack merit by
             complying        with      the       mandates        of
             Turner/Finley.[Footnote 6] “If appointed counsel
             fails to take either of these steps, our courts have
             not hesitated to find that the petition was effectively
             uncounseled.” [Commonwealth v. Powell, 787
             A.2d 1017, 1019 (Pa.Super. 2001)] (citation
             omitted).

                      [Footnote   6]   Commonwealth   v.
                      Turner, 544 A.2d 297 (Pa. 1988);
                      Commonwealth v. Finley, 550 A.2d
                      213 (Pa.Super. 1988) (en banc).

Commonwealth v. Cherry, 155 A.3d 1080, 1083 (Pa.Super. 2017).




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      We find that by amending a PCRA petition to include a decision

potentially    creating   a   new   constitutional   rule   that   was   announced

subsequent to the petitioner’s pro se PCRA petition, appellant’s PCRA

counsel was fulfilling his duty to amend appellant’s pro se petition in order

to present the claim in acceptable legal terms by pleading the existence of a

potential new constitutional rule.3 Moreover, it is in the sound discretion of

the PCRA court to grant leave to amend a PCRA petition.4

      Here, the PCRA court entered an order appointing PCRA counsel for

appellant and simultaneously granted leave to either amend appellant’s

pro se PCRA petition or file a Turner/Finley letter.          While appellant had

leave to amend his PCRA petition, our supreme court announced its decision

in Wolfe, which appellant subsequently incorporated into his amended PCRA

petition.     We, therefore, find that appellant’s fifth issue of whether our

supreme court recognized a new constitutional rule in Wolfe, that was also



3
  We only acknowledge that this is the basis of appellant’s argument under
his fifth issue. We do not offer any analysis as to the merits of appellant’s
underlying claim.
4
  See also Commonwealth v. Melvin, 2017 WL 4159284 (Pa.Super.
September 20, 2017). In Melvin, the defendant filed a serial PCRA petition
on May 23, 2012. Id. at *2. On June 25, 2012, the Supreme Court of the
United States announced its decision in Miller v. Alabama, 567 U.S. 460
(2012), which held mandatory sentences of life imprisonment without the
possibility of parole for juvenile offenders to be unconstitutional. In light of
the Supreme Court’s holding in Miller, the defendant amended his PCRA
petition. The PCRA court granted the defendant’s amended PCRA petition on
September 30, 2012, due to the Supreme Court’s decision in Miller.
Melvin, 2017 WL 4159284 at *3.


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held to be applied retroactively, is ripe for our review.        We must first,

however, determine whether we have the jurisdiction to decide the issue on

its merit.

      Appellant   avers    that   our     supreme   court   recognized   a    new

constitutional rule that was applied retroactively through its decision in

Wolfe. Specifically, appellant contends that Wolfe,

             ...    declared that no         mandatory     minimum
             punishment could be imposed even if the individual
             admitted the triggering facts or those facts were
             determined by a fact-finder beyond a reasonable
             doubt. The Wolfe decision was decided based on
             constitutional severability principles and announced a
             new Pennsylvania constitutional rule.       Because it
             prohibits a punishment on a class of offenders[,] it is
             a substantive ruling.

Appellant’s brief at 12.

      In order to determine whether appellant has met an exception to the

PCRA time-bar, we must first determine whether the holding announced by

our supreme court in Wolfe created a new constitutional rule that was held

by the court to apply retroactively.       See 42 Pa.C.S.A. § 9545(b)(iii).    In

Wolfe, there is no question that a new constitutional rule was announced.

Our supreme court held that in light of the Supreme Court of the United

States’ holding in Alleyne v. United States, 133 S.Ct. 2151 (2013),

Pennsylvania’s mandatory minimum sentencing scheme under 42 Pa.C.S.A.




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§ 97185 was “irremediably unconstitutional on its face, non-severable, and

void.”      Wolfe, 140 A.3d at 663.       Specifically, the court found that

Section 9718 included a factor that served to enhance a defendant’s

sentence, thus creating a “distinct and aggravated crime,” which the

Supreme Court of the United States found to be unconstitutional.        Id. at

661, citing Alleyne, 133 S.Ct. at 2163.

         Upon review of our supreme court’s decision in Wolfe, the court did

not hold its decision to be retroactive to cases pending on collateral appeal.

See Abdul-Salaam, 812 A.2d at 501, 42 Pa.C.S.A. § 9545(b)(iii).

Accordingly, we do not have jurisdiction to consider appellant’s fifth issue on

appeal, as his PCRA petition is facially untimely.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 12/12/2017



5
  Section 9718 created mandatory minimum sentences for individuals
convicted of certain crimes in which children were the victims. 42 Pa. C.S.A.
§ 9718. The mandatory minimum sentence was contingent upon the age of
the victim, e.g., an individual convicted of aggravated assault faced a
mandatory minimum of not less than two years’ imprisonment if the victim
was under 16 years of age, while an individual convicted of aggravated
assault faced a mandatory minimum of not less than five years’
imprisonment if the victim was under 13 years of age. Id.


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