J-S43012-16

                                   2016 PA Super 212



COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

QUILIE ZEIGLER

                            Appellant                  No. 2022 MDA 2015


               Appeal from the PCRA Order September 29, 2015
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0002540-2013


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

OPINION BY GANTMAN, P.J.:                        FILED SEPTEMBER 14, 2016

        Appellant, Quilie Zeigler, appeals pro se from the order entered in the

Dauphin County Court of Common Pleas, which denied his third petition filed

under the Post Conviction Relief Act (“PCRA”).1 We affirm.

        The relevant facts and procedural history of this case are as follows.

Upon execution of a search warrant at Appellant’s home on April 3, 2012,

police discovered numerous Oxycodone and Vicodin tablets, cocaine,

marijuana, drug paraphernalia, and firearms.           On December 17, 2013,

Appellant entered a negotiated guilty plea to two counts of possession of a

controlled substance with the intent to deliver (“PWID”) and one count each
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1
    42 Pa.C.S.A. §§ 9541-9546.
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of possession of drug paraphernalia and persons not to possess firearms. In

exchange for Appellant’s guilty plea, the Commonwealth agreed to withdraw

an additional count of PWID and to recommend an aggregate term of five to

ten years’ imprisonment. At the conclusion of the guilty plea hearing, the

court accepted Appellant’s plea as knowing, intelligent, and voluntary, and

imposed the negotiated sentence of an aggregate five to ten years’

imprisonment. Appellant did not pursue direct review.

      On August 6, 2014, Appellant timely filed a pro se PCRA petition,

arguing ineffective assistance of plea counsel for failure to file a suppression

motion.     The court appointed counsel on August 12, 2014, who filed a

motion to withdraw and no-merit letter on September 22, 2014, in

accordance with Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927

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

banc). On October 1, 2014, the court issued notice of its intent to dismiss

Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907, and

granted counsel’s motion to withdraw. Appellant did not respond, and the

court denied PCRA relief on October 28, 2014. Appellant did not appeal that

decision.

      On March 23, 2015, Appellant filed his second PCRA petition pro se,

arguing plea counsel’s ineffectiveness for failure to explain to Appellant the

elements of the crimes charged, and the court’s failure to issue an on-the-

record statement of reasons for the sentence imposed. The court appointed


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counsel on March 31, 2015; but, due to a conflict, the court permitted that

attorney to withdraw and appointed new PCRA counsel on April 22, 2015.

On June 10, 2015, new PCRA counsel filed a motion to withdraw and an

accompanying Turner/Finley no-merit letter. The court issued appropriate

notice per Rule 907 on June 23, 2015, and granted counsel’s motion to

withdraw. Appellant did not respond, and the court denied PCRA relief on

August 3, 2015. Appellant did not appeal that decision.

       Instead, on August 28, 2015, Appellant filed the current, third PCRA

petition pro se, arguing plea counsel’s failure to file a requested direct

appeal on Appellant’s behalf and seeking reinstatement of his direct appeal

rights nunc pro tunc. The court denied PCRA relief on September 29, 2015.2

Appellant filed a timely notice of appeal on October 13, 2015.3 The court did

not order Appellant to file a concise statement of errors complained of on

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2
  The PCRA court failed to issue Rule 907 notice before denying relief.
Nevertheless, Appellant has not raised this issue on appeal, so he waived
any defect in notice.      See Commonwealth v. Taylor, 65 A.3d 462
(Pa.Super. 2013) (explaining appellant’s failure to raise on appeal PCRA
court’s failure to provide Rule 907 notice results in waiver of claim).
Moreover, failure to issue Rule 907 notice is not reversible error where the
record is clear that the petition is untimely. Id.
3
  The notice of appeal purports to stem from an order entered October 4,
2015. No order of that date appears on the docket or in the certified record.
Notably, the proof of service attached to Appellant’s notice of appeal is dated
October 4, 2015. Thus, the record makes clear Appellant intended to appeal
the September 29, 2015 order denying his third PCRA petition, but he
mistakenly noted the date he handed his notice of appeal to prison
authorities for mailing as the date of the order denying PCRA relief.



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appeal pursuant to Pa.R.A.P. 1925(b), and Appellant filed none.

      Appellant raises one issue for our review:

         [PLEA] COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE
         FOR FAILING TO PROPERLY FILE [APPELLANT’S] NOTICE
         OF APPEAL AND PCRA [COUNSEL] FAILED TO ARGUE
         [PLEA] COUNSEL’S INEFFECTIVE[NESS] FOR FAILING TO
         FILE FOR APPEAL ON [APPELLANT’S] BEHALF.

(Appellant’s Brief at 4).

      As a prefatory matter, we put to rest any concern about whether

Appellant’s appeal from the order denying his third PCRA petition should be

quashed because he filed his current PCRA petition before the expiration of

the time to appeal from the order denying his prior PCRA petition. For the

following reasons, we hold Appellant had the choice to appeal from the order

denying his second PCRA petition or to file a third PCRA petition within the

thirty day appeal period.    Appellant simply cannot do both, i.e., file an

appeal and file a subsequent PCRA petition contemporaneously, because

prevailing law requires that the subsequent petition must give way to a

pending appeal from the order denying a prior petition.

      Pennsylvania law makes clear: “[W]hen an appellant’s PCRA

appeal is pending before a court, a subsequent PCRA petition cannot be

filed until the resolution of review of the pending PCRA petition by the

highest state court in which review is sought, or upon the expiration of the

time for seeking such review.” Commonwealth v. Lark, 560 Pa. 487, 493,

746 A.2d 585, 588 (2000) (emphasis added).         Significantly, our Supreme


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Court has stated: “Lark holds only that a PCRA trial court cannot entertain a

new PCRA petition when a prior petition is still under review on appeal….”

Commonwealth v. Porter, 613 Pa. 510, 527, 35 A.3d 4, 14 (2012)

(explaining Lark does not address PCRA court’s authority where no appeal

is pending).   See also Commonwealth v. Whitney, 572 Pa. 468, 817

A.2d 473 (2003) (holding Lark is inapplicable when no appeal is presently

pending, even where parallel habeas corpus is proceeding in federal court).

      Instantly, the PCRA court denied Appellant’s second PCRA petition on

August 3, 2015. Instead of filing an appeal, Appellant chose to file a third

PCRA petition on August 28, 2015, within the time for taking an appeal.

Because Appellant did not seek review from the denial of his second PCRA

petition, he had no appeal pending when he filed his third PCRA petition on

August 28, 2015. Lark does not apply in this situation. Likewise, Lark did

not require Appellant to wait until the 30-day appeal period had expired on

September 2, 2015, before he could file his third PCRA petition. Thus, we

decline to deem Appellant’s current PCRA petition as prematurely filed. See

Lark, supra. See also Porter, supra; Whitney, supra. If Appellant had

then filed an appeal on or before September 2, 2015, the appeal would take

precedence and his current petition would be subject to dismissal under the

Lark rule. The PCRA court, however, denied Appellant’s current petition on

September 29, 2015, and he timely filed his appeal on October 13, 2015.

Therefore, Appellant’s appeal is properly before us.


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      Nevertheless, the timeliness of a PCRA petition is also a jurisdictional

requisite.   Commonwealth v. Turner, 73 A.3d 1283 (Pa.Super. 2013),

appeal denied, 625 Pa. 649, 91 A.3d 162 (2014). A PCRA petition, including

a second or subsequent petition, shall be filed within one year of the date

the underlying judgment of sentence becomes final.              42 Pa.C.S.A. §

9545(b)(1). A judgment of sentence 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.”        42 Pa.C.S.A. § 9545(b)(3).       The three

statutory exceptions to the timeliness provisions in the PCRA allow for very

limited circumstances under which the late filing of a petition will be

excused.     42 Pa.C.S.A. § 9545(b)(1).      To invoke an exception, a petition

must allege and the petitioner must prove:

           (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)(i)-(iii).      A PCRA petitioner must present his


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claimed exception within sixty days of the date the claim first could have

been presented.      42 Pa.C.S.A. § 9545(b)(2).      “As such, when a PCRA

petition is not filed within one year of the expiration of direct review, or not

eligible for one of the three limited exceptions, or entitled to one of the

exceptions, but not filed within 60 days of the date that the claim could have

been first brought, the [PCRA] court has no power to address the

substantive merits of a petitioner’s PCRA claims.”        Commonwealth v.

Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783 (2000).

      Here, the court sentenced Appellant on December 17, 2013. He did

not pursue direct review. So, Appellant’s judgment of sentence became final

on or about January 16, 2014, upon expiration of the time to file a notice of

appeal with the Superior Court.      See Pa.R.A.P. 903(a) (stating notice of

appeal shall be filed within 30 days after entry of order from which appeal is

taken). Thus, Appellant’s current PCRA petition, filed on August 28, 2015, is

patently untimely.    See 42 Pa.C.S.A. § 9545(b)(1).         Appellant fails to

acknowledge the untimeliness of his petition or invoke any exception.

Appellant’s claim of plea counsel’s ineffectiveness does not satisfy an

exception to the PCRA time bar. See Gamboa-Taylor, supra (explaining

general rule that claim of ineffective assistance of counsel does not save

otherwise untimely PCRA petition for review on merits).          Consequently,

Appellant’s third PCRA petition remains untimely. Accordingly, we affirm.




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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/14/2016




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