J-S53033-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                    Appellee               :
                                           :
              v.                           :
                                           :
 KEVIN COIT                                :
                                           :
                    Appellant              :       No. 2979 EDA 2017

                Appeal from the PCRA Order August 11, 2017
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0001938-2012,
                           CP-51-CR-0012646-2011


BEFORE:     GANTMAN, P.J., OTT, J., and PLATT*, J.

MEMORANDUM BY GANTMAN, P.J.:                       FILED OCTOBER 09, 2018

      Appellant, Kevin Coit, appeals from the order entered in the Philadelphia

County Court of Common Pleas, which denied his first petition filed under the

Post Conviction Relief Act at 42 Pa.C.S.A. §§ 9541-9546. We affirm and grant

counsel’s petition to withdraw.

      The PCRA court opinion sets forth the relevant facts and procedural

history of this case as follows:

          On February 13, 2013, [Appellant] appeared before this
          court and entered a negotiated guilty plea to two robberies.

          CP 51-CR-0012646-2011 occurred on July 31, 2011 at a bar
          on the 4200 block of North 8th Street, Philadelphia, at 11:50
          p.m. [Appellant] and a companion entered the bar, fired
          gunshots, and demanded that the employees give them
          cash from the register. They also took a purse from a
          patron.

          CP 51-CR-00[01938-2012] occurred on October 18, 2011,
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       at 11:25 p.m., at Lober and Dorset Streets in Philadelphia.
       [Appellant] stopped a vehicle, pointed a gun at the two
       passengers inside the vehicle, threatened to blow their
       heads off, and ordered them to remove part of their
       clothing, give the clothing to him, and leave their valuables
       inside the garments.

       At the guilty-plea colloquy, the [c]ourt advised [Appellant]
       that pursuant to the plea agreement, [Appellant] was to
       plead guilty to two counts of robbery as a felony of the first
       degree, criminal conspiracy as a felony of the first degree,
       and possession of an instrument of crime. The negotiated
       sentence would be concurrent terms of incarceration of five
       to ten years on one robbery and four to ten years on the
       other robbery. …

       [Appellant] stated that he was 22 years old, had completed
       the 11th grade, and was not under the influence of drugs,
       alcohol or medication. [Appellant] said that he had never
       been treated for a mental illness.

       [Appellant] was informed that he had the absolute right to
       plead not guilty and go to trial and that by pleading guilty
       he was giving up his right to confront and cross-examine
       witnesses against him, call witnesses in his behalf, and
       testify or not testify.

       [Appellant] was further informed that at trial, the
       Commonwealth had the burden to prove the charges beyond
       reasonable doubt, that he had the right to a jury trial or a
       bench trial and that a jury verdict would have to be
       unanimous.

       [Appellant] stated that he understood that by pleading
       guilty he was giving up his right to litigate pre-trial motions
       to    suppress    physical    evidence,     statements      and
       identifications.

       [Appellant] had separate attorneys for each case.
       [Appellant] stated that he had spoken with his attorneys and
       was satisfied with their representation. Each attorney
       stated that he or she had discussed with [Appellant] his right
       to plead not guilty and go trial. Each attorney stated that
       [Appellant] appeared to understand his rights.           Each

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         attorney stated that he or she believed that [Appellant] was
         competent and qualified to enter the negotiated plea.

         [Appellant] acknowledged that by pleading guilty he was
         giving up his right to appeal except for the voluntariness of
         the plea, the jurisdiction of the court and the legality of the
         sentence. [Appellant] acknowledged that by pleading guilty
         he was giving up any defense of justification.

         As to each case, the prosecutor read a summary of the
         evidence. The [c]ourt asked [Appellant] whether he was
         able to hear and understand the facts as summarized by the
         prosecutor. [Appellant] said that he did. The [c]ourt asked
         whether what the prosecutor had summarized was
         “essentially” what had happened. [Appellant] said that it
         was. The [c]ourt accepted the guilty pleas. The [c]ourt
         sentenced [Appellant] to an aggregate [term] of five to ten
         years of incarceration, as set forth in the plea agreement.

         [Appellant] did not file a motion to withdraw his guilty plea.
         [Appellant] did not file a notice of appeal to the Superior
         Court.

         On December 16, 2014, [Appellant] filed a pro se PCRA
         Petition. [Appellant] alleged that his sentence was illegal
         and that counsel had not properly advised him of his
         options. [Counsel] was appointed to represent [Appellant].
         On May [26], 2016, [counsel] filed an Amended PCRA
         Petition, alleging that the plea was unlawfully induced and
         that guilty plea counsel were ineffective for allowing
         [Appellant] to enter an involuntary plea.

         [Appellant’s] PCRA Petition was properly dismissed as
         untimely.

(PCRA Court Opinion, filed January 10, 2018, at 1-5) (internal citations

omitted). Additional procedural history of the case includes the following. On

July 11, 2017, the PCRA court issued notice of its intent to dismiss the petition

without a hearing, per Pa.R.Crim.P. 907, and formally dismissed the petition

as untimely on August 14, 2017. Appellant timely filed a notice of appeal on

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September 11, 2017. The court ordered Appellant on December 18, 2017, to

file a concise statement of errors complained of on appeal, per Pa.R.A.P.

1925(b); counsel timely complied on Monday, January 8, 2018.

       Preliminarily, counsel has filed a “no-merit” letter/brief on appeal and a

petition to withdraw as counsel,1 pursuant to Commonwealth v. Turner,

518 Pa. 491, 544 A.2d 927 (1988); Commonwealth v. Finley, 550 A.2d 213

(1988). Before counsel can withdraw representation under the PCRA, the law

requires counsel to satisfy the mandates of Turner/Finley. Commonwealth

v. Karanicolas, 836 A.2d 940, 947 (Pa.Super. 2003).

          …Turner/Finley counsel must review the case zealously.
          Turner/Finley counsel must then submit a “no-merit”
          letter to the trial court, or brief on appeal to this Court,
          detailing the nature and extent of counsel’s diligent review
          of the case, listing the issues which the petitioner wants to
          have reviewed, explaining why and how those issues lack
          merit, and requesting permission to withdraw.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007).

Withdrawal     as   counsel     in   this   context   also   includes   certain   notice

requirements: Counsel must contemporaneously serve on Appellant copies of

the “no-merit” letter or brief, the petition to withdraw, and a letter with a

statement advising Appellant that he has the immediate right to file a brief in

this Court pro se or with new privately-retained counsel within 30 days.

Commonwealth v. Muzzy, 141 A.3d 509 (Pa.Super. 2016). To withdraw,


____________________________________________


1This Court later directed counsel to file an amended petition to withdraw,
which counsel has done.

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counsel must assure this Court of counsel’s compliance with these technical

requirements. Id.

       Instantly, counsel’s amended petition to withdraw states he has made

a conscientious examination of the record in this case and determined the

appeal is totally frivolous. In the withdrawal petition, via the transmittal letter

attached as Exhibit A, counsel also confirmed he served the Commonwealth

and Appellant with a copy of the Turner/Finley Letter Brief and counsel’s

petition to withdraw, and advised Appellant of his right to proceed immediately

pro se or with privately retained counsel to file a brief within thirty (30) days

and raise any additional points Appellant’s deems worthy of review. In his

Turner/Finley brief on appeal, counsel listed the issue Appellant wished to

raise and explains that Appellant’s PCRA petition is untimely, without any valid

exception to the statutory time bar, and why the issue raised would not merit

relief in any event. Thus, appellate counsel has now substantially complied

with   the   Turner/Finley     requirements.       See    Karanicolas,     supra.

Accordingly, we proceed to an independent evaluation. See Turner, supra

at 494-95, 544 A.2d at 928-29 (stating appellate court must conduct

independent analysis and agree with counsel that appeal is frivolous).

Appellant has not responded to counsel’s petition.

       Appellant raises one issue in the Turner/Finley brief:

         WHETHER PLEA COUNSEL RENDERED INEFFECTIVE
         ASSISTANCE WHICH RESULTED IN APPELLANT ENTERING
         AN INVOLUNTARY AND UNLAWFULLY INDUCED GUILTY
         PLEA?

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(Turner/Finley Brief at 5).

      Initially, the timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008), cert.

denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009).

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

PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 508, 837 A.2d

1157, 1161 (2003).     The PCRA requires a petition, including a second or

subsequent petition, to be filed within one year of the date the underlying

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

is 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 review.” 42 Pa.C.S.A. §

9545(b)(3).

      Generally, to obtain merits review of a PCRA petition filed more than

one year after the judgment of sentence became final, the petitioner must

allege and prove at least one of the three timeliness exceptions.        See 42

Pa.C.S.A. § 9545(b)(1)(i)-(iii). The petitioner must allege and 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

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         (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) (emphasis added). “[W]hen 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 trial 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). Counsel, who is appointed to represent a PCRA

petitioner on any petition that is untimely on its face, has the initial duty to

consider the timeliness of the petition, investigate whether the petition is

actually untimely, and if so, whether any of the statutory exceptions to the

time bar applies to the petitioner’s case. See generally Commonwealth v.

Smith, 572 Pa. 572, 818 A.2d 494 (2003).

      Instantly, on February 13, 2013, the trial court accepted Appellant’s plea

and, in accordance with the agreement, imposed the agreed-upon sentence

of five to ten years’ incarceration. Appellant filed no post-sentence motion or

direct appeal. Therefore, the judgment of sentence became final on or about

Monday, March 17, 2013, when the 30-day appeal period expired. See 42

Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(c)(3). Thus, Appellant had until March

17, 2014, to file a timely PCRA petition. Appellant filed his first petition on

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December 16, 2014, which is patently untimely, claiming his plea counsel gave

Appellant erroneous advice regarding the plea deal.            Appellant’s bare

ineffectiveness of counsel claim does not satisfy an exception to the timeliness

requirements of the PCRA. See Commonwealth v. Wharton, 584 Pa. 576,

588, 886 A.2d 1120, 1127 (2005) (stating generally that bare “allegations of

ineffective assistance of counsel will not overcome the jurisdictional timeliness

requirements of the PCRA”); Gamboa-Taylor, supra at 80, 753 A.2d at 785

(holding standard ineffectiveness of counsel claims generally do not constitute

exceptions to PCRA time requirements).         Compare Commonwealth v.

Bennett, 593 Pa. 382, 930 A.2d 1264 (2007) (identifying very limited

exception to Gamboa-Taylor line of cases on this point, where counsel

abandoned petitioner on appeal, abandonment was unknown to petitioner,

and petitioner filed for PCRA relief within sixty days of learning of counsel’s

abandonment; this exception is viewed under “new fact” exception) and more

recently Commonwealth v. Peterson, ___ Pa. ___, ___ A.3d ___, 2018 WL

4515440 (filed September 21, 2018) (applying Bennett to petitioner’s case,

where he promptly filed second PCRA petition upon learning that counsel had

filed petitioner’s first PCRA petition one day late, causing loss of petitioner’s

PCRA review rights; affirming PCRA court’s restoration of rights upon

petitioner’s proof of “new fact” and due diligence).

      Following our independent review of the record, we conclude Appellant’s

petition met no statutory exception and remains time barred. Thus, we agree


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with counsel that Appellant’s appeal is frivolous. Accordingly, we affirm and

grant counsel’s petition to withdraw.

      Order affirmed; counsel’s petition to withdraw is granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/9/18




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