J-S67002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHOLEY MCKENZIE A/K/A DANIEL               :
    BROWN                                      :
                                               :   No. 599 EDA 2018
                       Appellant               :

                  Appeal from the PCRA Order January 19, 2018
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): MC-51-CR-0209291-1994


BEFORE:      OTT, J., NICHOLS, J., and STRASSBURGER, J.

MEMORANDUM BY OTT, J.:                              FILED FEBRUARY 13, 2019

        Choley McKenzie a/k/a Daniel Brown (“McKenzie”) appeals from the

order dated January 19, 2018,1 in the Philadelphia County Court of Common

Pleas, dismissing his first petition for collateral relief filed pursuant to the Post

Conviction Relief Act (“PCRA”).2 McKenzie seeks relief from an aggregate term

of two years’ probation after the trial court convicted McKenzie on June 23,

1995, of possession with intent to deliver (marijuana) (“PWID”) and knowingly

and intentionally possessing a controlled substance.3 Contemporaneous with

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   Retired Senior Judge assigned to the Superior Court.

1   The order was filed January 22, 2018.

2   See 42 Pa.C.S. §§ 9541-9546.

3   See 35 P.S. §§ 780-113(a)(30) and (a)(16), respectively.
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this appeal, McKenzie’s counsel filed an application to withdraw from

representation. For the reasons below, we affirm the PCRA court’s order and

grant counsel’s application to withdraw.

       The underlying facts are well known to the parties and we need not

recite them herein. As indicated above, the Honorable Ronald B. Merriweather

found McKenzie guilty of PWID and intentionally possessing a controlled

substance on June 23, 1995.4 McKenzie did not file any post-sentence motions

or a direct appeal. The case apparently went dormant until June 24, 2016,

when McKenzie filed an untitled, pro se document that was treated as a PCRA

petition.5 He subsequently filed numerous pro se petitions on October 16,

2017, and November 2, 2017, referring to a writ of error coram nobis. On

December 14, 2017, McKenzie filed a pro se petition for writ of error coram

nobis.

       During this time, counsel was appointed, who then filed a “no merit”

letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

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

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4 McKenzie claims he pled guilty to the crimes, but the limited docket does
not reflect a guilty plea. See Notice of Court’s Intent to Dismiss Without
Hearing Defendant’s Writ of Coram Nobis Pursuant to Pa.R.Crim.P. 907, at 1
n.2. Nevertheless, this is of no consequence to the disposition of this appeal.

5 The matter was reassigned to the Honorable Lucretia Clemons at this time.
The gist of McKenzie’s argument is that counsel was ineffective for failing to
advise him of the risk of deportation as a non-United States citizen following
his convictions.



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December 12, 2017.           Counsel concluded the petition was untimely and

McKenzie was no longer serving his sentence and, therefore, he did not qualify

for PCRA relief.

       On December 18, 2017, the PCRA court issued a notice of intention to

dismiss McKenzie’s writ of coram nobis,6 without a hearing pursuant to Rule

907. The court also granted counsel’s request to withdraw. McKenzie did not

file a response. On January 19, 2018, the PCRA court dismissed the petition

on the untimeliness and ineligibility grounds.

       On February 12, 2018, McKenzie filed a pro se notice of appeal. On

March 26, 2018, the PCRA court ordered McKenzie to file a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On March

27, 2018, the court appointed new PCRA counsel.         On August 31, 2018,

counsel filed a petition to withdraw and an Anders7 brief with this Court.


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6   The PCRA provides “the sole means of obtaining collateral relief and
encompasses all other common law and statutory remedies of the same
purpose that exist when [the Act] takes effect, including habeas corpus and
coram nobis.”      42 Pa.C.S. § 9542. As noted by the PCRA court, in
Commonwealth v. Descardes, 136 A.3d 493 (Pa. 2016), the Pennsylvania
Supreme Court determined the petitioner’s claim regarding counsel’s
ineffectiveness in advising him regarding possible deportation consequences
of his plea could have been raised in a PCRA petition, and therefore, he was
not entitled to relief via a writ of coram nobis. Descardes, 136 A.3d at 503.
See also Notice of Court’s Intent to Dismiss Without Hearing Defendant’s Writ
of Coram Nobis Pursuant to Pa.R.Crim.P. 907, at 1 n.1.

7 See Anders v. California, 386 U.S. 738 (1967). As will be discussed infra,
counsel should have filed a “no merit” letter pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc), rather than an Anders brief.

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      Prior to addressing the merits of this appeal, we must first consider

whether counsel has fulfilled the procedural requirements for withdrawal.

“Where counsel seeks to withdraw on appeal from the denial of PCRA relief, a

Turner/Finley ‘no-merit letter’ is the appropriate filing.” Commonwealth

v. Reed, 107 A.3d 137, 139 n.5 (Pa. Super. 2014).                  Pursuant to

Turner/Finley and their progeny:

      Counsel petitioning to withdraw from PCRA representation 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 petitioner wants to
      have reviewed, explaining why and how those issues lack merit,
      and requesting permission to withdraw. Counsel must also send
      to the petitioner: (1) a copy of the “no merit” letter/brief; (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.
                                     ***

      [W]here counsel submits a petition and no-merit letter that …
      satisfy the technical demands of Turner/Finley, the court — trial
      court or this Court — must then conduct its own review of the
      merits of the case. If the court agrees with counsel that the claims
      are without merit, the court will permit counsel to withdraw and
      deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation

omitted).

      Here,   counsel   has   complied   with   the   procedural   aspects   of

Turner/Finley. Although he improperly filed an Anders brief, as opposed to

a “no merit” letter, this Court may accept such a filing “‘[b]ecause an Anders

brief provides greater protection to a defendant.’” Reed, supra, 107 A.3d at


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139 n.5 (quotation omitted). Furthermore, counsel provided McKenzie with a

copy of the brief and the petition to withdraw, and McKenzie was advised of

his right to proceed pro se or with private counsel. See Motion for Leave to

Withdraw as Counsel, 8/31/2018.                McKenzie did not respond to counsel’s

petition, but did file a pro se brief on October 24, 2018, raising his writ of

coram nobis argument again.8 Therefore, we proceed to a consideration of

whether the PCRA court erred in dismissing the petition. See Doty, supra.

       When reviewing an order dismissing a PCRA petition, we must determine

whether the ruling of the PCRA court is supported by record evidence and is

free of legal error.     Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa.

Super. 2010). “Great deference is granted to the findings of the PCRA court,

and these findings will not be disturbed unless they have no support in the

certified record.” Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super.

2011) (citation omitted), appeal denied, 72 A.3d 600 (Pa. 2013).

       “Crucial to the determination of any PCRA appeal is the timeliness of the

underlying petition. Thus, we must first determine whether the instant PCRA

petition was timely filed.” Commonwealth v. Smith, 35 A.3d 766, 768 (Pa.

Super. 2011), appeal denied, 53 A.3d 757 (Pa. 2012).

       The PCRA timeliness requirement … is mandatory and
       jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
       1035, 1038 (Pa. Super. 2007), appeal denied, 597 Pa. 715, 951
       A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa. 1,


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8   See Descardes, supra.

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      753 A.2d 201, 203 (2000)). The court cannot ignore a petition’s
      untimeliness and reach the merits of the petition. Id.

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied,

572 U.S. 1151 (2014). A PCRA petition must be filed within one year of the

date the underlying judgment becomes final. See 42 Pa.C.S. § 9545(b)(1).

A judgment 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

review.”   42 Pa.C.S. § 9545(b)(3); U.S.Sup.Ct. Rule 13.       Moreover, there

exists a proviso to the 1995 amendments to the PCRA that provides a grace

period for petitioners whose judgments became final on or before the January

16, 1996 effective date of the amendments. However, the proviso applies to

first PCRA petitions only, and the petition must be filed by January 16, 1997.

See Commonwealth v. Thomas, 718 A.2d 326 (Pa. Super. 1998) (en banc).

      Instantly, McKenzie’s judgment of sentence became final on July 23,

1995, at the expiration of the time in which he had to file a direct appeal.

Moreover, pursuant to the 1995 amendments, he had until January 16, 1997,

to file a timely PCRA petition, making McKenzie’s June 24, 2016, petition

patently untimely.

      However, pursuant to 42 Pa.C.S. § 9545, an otherwise untimely petition

is not time-barred if a petitioner pleads and proves the applicability of one of

three time-for-filing exceptions:




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       (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. §§ 9545(b)(1)(i)-(iii). Further, any petition invoking one of these

exceptions must be filed “within 60 days of the date the claim could have been

presented.” Id. at § 9545(b)(2). Here, McKenzie fails to assert any reason

why his petition falls within one of the exceptions to the timeliness

requirement.9 Accordingly, the PCRA court was correct in finding his petition

was untimely filed.

       Likewise, the PCRA court properly determined McKenzie failed to plead

and prove that he is eligible for relief pursuant to 42 Pa.C.S. 9543(a)(1), which

provides, in pertinent part, as follows:


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9 In his December 14, 2017, filing, McKenzie claims he “recently discovered”
there was no warrant to search or arrest him, which suggests the 42 Pa.C.S.
§§ 9545(b)(1)(ii) exception. Petitioner’s Amendment to Writ of Error Coram
Nobis, 12/14/2017, at 14. However, as pointed out by the PCRA court,
McKenzie does not explain how this information could not have been
discovered during his trial, and more importantly, it is unrelated to his
ineffective assistance of counsel claim regarding the immigration
consequences of his convictions. See Notice of Court’s Intent to Dismiss
Without Hearing Defendant’s Writ of Coram Nobis Pursuant to Pa.R.Crim.P.
907, at 3 n.4.

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      (a) General rule.--To be eligible for relief under this subchapter,
      the petitioner must plead and prove by a preponderance of the
      evidence all of the following:

         (1) That the petitioner has been convicted of a crime under
         the laws of this Commonwealth and is at the time relief
         is granted:

              (i)  currently serving  a   sentence   of
              imprisonment, probation or parole for the
              crime;

              (ii) awaiting execution of a sentence of death for
              the crime; or

              (iii) serving a sentence which must expire before
              the person may commence serving the disputed
              sentence.

42 Pa.C.S. § 9543(a)(1)(i)-(iii) (emphasis added).        In the present case,

McKenzie failed to demonstrate that he is still serving a sentence for the

convictions which he is appealing.

      As previously indicated, McKenzie was sentenced to two years of

probation on June 23, 1995, which naturally terminated on June 23, 1997.

See Docket Entry, 5/9/2005 (“PROBATION CASE TERMINATION”). McKenzie

does not suggest or provide any evidence that he is still serving a sentence of

probation for this specific case. Therefore, he is not entitled to PCRA relief.

      Because we conclude the PCRA court did not err (1) in determining that

McKenzie’s petition, and subsequent filings, was actually a request for PCRA

relief; and (2) in finding that McKenzie’s petition was untimely filed and he




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was ineligible for relief, we affirm the order of the PCRA court and grant

counsel’s motion to withdraw as counsel.10

       Order affirmed. Motion to withdraw as counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/13/19




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10  In its Rule 1925(a) opinion, the PCRA court indicated McKenzie’s issues on
appeal should be waived for failure to file a concise statement as directed to
do so in its March 26, 2018, order. See Opinion, 6/22/2018, at 1. While we
recognized that the bright line rule regarding concise statements should be
strictly adhered to, see Commonwealth v. Castillo, 888 A.2d 775 (Pa.
2005), we think the error is largely attributable to the appointment of new
PCRA counsel after the order was entered and counsel’s decision to file a
petition to withdraw. Accordingly, we decline to find waiver in this appeal.
Moreover, we “may affirm the lower court on any basis, even one not
considered or presented in the court below.” Commonwealth v. Burns, 988
A.2d 684, 690 n.6 (Pa. Super. 2009), appeal denied, 8 A.3d 341 (Pa. 2010).

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