J-S70018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAVID LAWRENCE                             :
                                               :
                       Appellant               :   No. 471 EDA 2018

                 Appeal from the PCRA Order February 2, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0000729-2012


BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                       FILED FEBRUARY 12, 2019

        David Lawrence appeals pro se from the order dismissing as untimely

his petition filed under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-

9546. Lawrence claims PCRA counsel was ineffective, the PCRA court erred in

accepting counsel’s Turner/Finley1 letter, the PCRA court erred in failing to

liberally construe his petition, and the court erred in dismissing his PCRA

petition. We affirm.

        On June 10, 2013, Lawrence entered a negotiated guilty plea to third-

degree murder and possessing instruments of crime.2 That same day, the trial

court sentenced Lawrence to an aggregate term of 22½ to 45 years’
____________________________________________


1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),                        and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

2   18 Pa.C.S.A. §§ 2502(c) and 907(a), respectively.
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imprisonment. Counsel filed an untimely post-sentence motion, which the trial

court denied.3 On April 26, 2017, Lawrence filed a pro se PCRA petition. The

PCRA court appointed counsel, who filed a motion to withdraw as counsel and

a Turner/Finley letter. The letter stated that counsel “reviewed the Quarter

Sessions files, corresponded with Petitioner, reviewed all available Notes of

Testimony (N.T.), and reviewed the applicable law.” Turner/Finley Letter,

filed Oct. 21, 2017, at 1 (italics omitted). Counsel discussed the case’s

procedural history and the law governing the timely filing of PCRA petitions.

Counsel concluded the petition was untimely, and Lawrence could not

establish an exception to the time bar, noting that Lawrence referenced his

guilty plea colloquy in supporting his claim that he satisfied the newly-

discovered fact exception to the PCRA time bar. Id. at 1-3. Further, in his

motion to withdraw, counsel stated he mailed Lawrence a copy of the

Turner/Finley letter and informed him of his right to proceed pro se or with

privately retained counsel, and attached to his motion to withdraw a copy of

the letter he sent to Lawrence. Motion to Withdraw as Counsel, filed Oct. 21,

2017, at 4-5.

       On November 22, 2017, the PCRA court issued notice of its intent to

dismiss the PCRA petition without a hearing pursuant to Pennsylvania Rule of
____________________________________________


3 Both Lawrence and the PCRA court mention a July 8, 2013 pro se
correspondence from Lawrence requesting that the court reconsider his
sentence and requesting to withdraw his guilty plea and a July 9, 2013
response from the court stating the request was untimely. The certified record
does not contain these documents.


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Criminal Procedure 907, reasoning that the petition was untimely. Lawrence

filed a response to the Rule 907 notice, raising, among other issues, PCRA

counsel ineffectiveness. On February 2, 2018, the PCRA court dismissed the

petition and granted counsel’s request to withdraw. Lawrence filed a timely

notice of appeal.

      Lawrence raises the following issues on appeal:

         1. Whether PCRA counsel was ineffective for failing to file an
         amended petition, and identify all of Appellant’s issues
         presented in [Lawrence’s] pro se PCRA Petition.

         2. Whether the PCRA court erred in accepting PCRA
         counsel’s Finley "NO MERIT" Letter where PCRA counsel
         clearly violated precedent rules set forth in [Finley] when
         he failed to identify the issues [Lawrence] wished to raise.

         3. Did the PCRA court err by failing to review [Lawrence’s]
         PCRA Petition under Title 1, Pa.C.S. § 1928, where this
         statute provides the PCRA jurisdiction to liberally con[s]true
         [Lawrence’s] PCRA Petition under the extraordinary
         circumstances set forth therein.

         4. Whether [Lawrence’s] guilty plea is void pursuant to the
         mandates of Commonwealth v. Roundtree, 440 Pa. 199,
         202-203, 269 A.2d 709 (1970), where the Pennsylvania
         Supreme Court held that “It is essential that once the lower
         court learned of petitioner’s statement made to police
         authorities, it was required to advise Appellant that a self-
         defense or assertion of justifiable homicide under 18 Pa.C.S.
         § 505 could entitle him to acquittal.”

Lawrence’s Br. at 2.

      Our standard of review from the denial of post-conviction relief “is

limited to examining whether the PCRA court’s determination is supported by

the evidence of record and whether it is free of legal error.” Commonwealth

v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).

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      In his first two issues, Lawrence claims that PCRA counsel was

ineffective in filing a Turner/Finley letter and a motion to withdraw, and that

the PCRA court erred in granting counsel’s motion to withdraw. Lawrence

properly preserved his claim that PCRA counsel was ineffective, as he raised

the issue in response the PCRA court’s Rule 907 notice. Commonwealth v.

Rykard, 55 A.3d 1177, 1186 (Pa.Super. 2012) (addressing claim PCRA court

erred in granting petition to withdraw where petitioner raised the claim in

response to court’s Rule 907 notice). Further, we will address the issue to

ensure counsel conducted an independent review to determine whether there

were any applicable exceptions to the PCRA time bar. See Commonwealth

v. Smith, 818 A.2d 494, 500-01 (Pa. 2003) (PCRA petitioner entitled to

assistance of counsel for first PCRA petition, even if petition appears untimely,

“to determine whether any exceptions to the one-year time limitation apply”).

      To satisfy the requirements of Turner/Finley, PCRA counsel must

“submit a ‘no-merit’ letter to the trial 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). In addition, PCRA counsel must “send to the

petitioner: (1) a copy of the ‘no-merit’ letter[]; (2) a copy of counsel’s petition

to withdraw; and (3) a statement advising petitioner of the right to proceed

pro se or by new counsel.” Id.




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      The PCRA court found PCRA counsel was not ineffective, noting counsel

accurately and adequately addressed the fact that Lawrence’s claims do not

satisfy the PCRA time bar exceptions. Trial Court Opinion, filed Jun. 26, 2018,

at 3 (“1925(a) Op.”). The court found that counsel complied with the

requirements of Turner/Finley by detailing the nature and extent of his

review and explaining why the issues were meritless. Id. at 6. Counsel also

mailed Lawrence a copy of his motion to withdraw and Turner/Finley letter,

and informed Lawrence that he could proceed pro se or with retained counsel.

Id. Further, the court found that, because counsel had concluded the PCRA

petition was untimely,     counsel    was not required      to   discuss   in   his

Turner/Finley letter the merits of the underlying PCRA claims. Id. at 3. We

agree, and conclude the PCRA court did not err in finding PCRA counsel was

not ineffective and in granting the petition to withdraw.

      We next address Lawrence’s claim the PCRA court erred in dismissing

his PCRA petition.

      The timeliness of a PCRA petition is jurisdictional. A PCRA petition “shall

be filed within one year of the date the judgment becomes final.” 42 Pa.C.S.A.

§ 9545(b)(1). A judgment 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 the

review.” 42 Pa.C.S.A. § 9545(b)(3).

      The trial court sentenced Lawrence on June 10, 2013, and he did not

file a notice of appeal. Further, his untimely post-sentence motion did not toll

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the statute of limitations. See Commonwealth v. Capaldi, 112 A.3d 1242,

1244 (Pa.Super. 2015). His conviction therefore became final on July 10,

2013, 30 days after entry of the judgment of sentence. To be timely, Lawrence

was required to file his PCRA petition by July 10, 2014. See 42 Pa.C.S.A. §

9545(b)(1). His current petition, filed on April 26, 2017, is therefore facially

untimely.

       To overcome the one-year time bar, Lawrence bore the burden of

pleading and proving one of the three exceptions: (i) unconstitutional

interference by government officials; (ii) newly discovered facts that he could

not have previously ascertained with due diligence; or (iii) a newly recognized

constitutional right that has been held to apply retroactively. See 42 Pa.C.S.A.

§ 9545(b)(1)(i)-(iii). Further, the petition must have been “filed within 60 days

of the date the claim could have been presented.” See 42 Pa.C.S.A. §

9545(b)(2) (amended 2018).4

       Lawrence claims he satisfies the newly-discovered fact exception to the

PCRA time bar because he did not know that he could file a claim under the

PCRA. He claims he was illiterate and that no one informed him that he had a

right to file a petition under the PCRA. He references the notes of testimony

from his guilty plea, which include statements that Lawrence stopped

____________________________________________


4Effective December 24, 2018, the PCRA statute was amended to provide that
petitioners must file a claim “within one year of the date the claim could have
been presented.” This amendment, however, applies to claims arising on or
after December 24, 2017. Lawrence, therefore, was required to file his claim
within 60 days of the date on which the claim could have been presented.

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attending formal education somewhere between the fourth and sixth grade.

Lawrence’s Br. at 7-8.

      Lawrence’s discovery that the PCRA statute exists is not a “fact,” as

contemplated by the exception. See Commonwealth v. Watts, 23 A.3d 980,

986-87 (Pa. 2011) (discussing difference between law and fact and finding a

Pennsylvania Supreme Court decision was not a “new fact” under Section

9545(b)(1)(ii)). Further, even if this discovery was a new fact, we agree with

the PCRA court that Lawrence failed to satisfy the due diligence requirement

of Section 9545(b)(2). The court found that Lawrence failed “to explain why,

even with his difficulties, he did not seek information on his options for

collateral relief any earlier,” and he failed to state when or how he learned

about the PCRA statute. See 1925(a) Op. at 8-9; Commonwealth v. Rizvi,

166 A.3d 344, 349 (Pa.Super. 2017) (finding petition failed to establish due

diligence in regards to alleged governmental interference where record

contained no information that petitioner attempted to discuss concerns with

prison personnel, family, friends, or lawyer to determine whether any rights

were at his disposal). We conclude the PCRA court did not err in finding

Lawrence failed to plead sufficient facts to establish that he acted with due

diligence.

      Further, to the extent Lawrence asserts counsel ineffectiveness caused

his untimely filing because counsel failed to inform him of his PCRA rights,

counsel ineffectiveness cannot establish an exception to the time-bar. See

Commonwealth v. Robinson, 139 A.3d 178, 186 (Pa. 2016) (noting “it is

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well-settled that couching a petitioner’s claims in terms of ineffectiveness will

not save an otherwise untimely filed petition from the application of the time

restrictions of the PCRA”).

      Accordingly, we conclude that the PCRA court did not err in concluding

Lawrence filed an untimely PCRA petition and failed to establish any exception

to the time bar.

      Lawrence also claims the court erred in applying the time bar because,

in doing so, it failed to liberally construe the PCRA statute pursuant to 1

Pa.C.S.A. § 1928(c).

      Section 1928 governs the construction of statutes and, for statutes like

the PCRA that are not enumerated in Section 1928(b), it states that courts

must construe the statutes liberally. 1 Pa.C.S.A. § 1928(c). The PCRA court

found that this claim lacked merit because the Pennsylvania Supreme Court

has concluded that “[t]he PCRA’s timeliness requirements are jurisdictional in

nature and must be strictly construed.” 1925(a) Op. We agree and conclude

the court did not err in applying the PCRA time bar to Lawrence’s petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/19

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