J-S50019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DARRELL WAYNE LEWIS A/K/A                  :
    KEITH FORTUNA                              :
                                               :   No. 1885 WDA 2017
                       Appellant               :

                 Appeal from the PCRA Order December 7, 2017
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0001975-2015


BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY OTT, J.:                             FILED SEPTEMBER 24, 2018

        Darrell Wayne Lewis a/k/a Keith Fortuna (“Lewis”) appeals from the

order entered December 7, 2017, in the Allegheny County Court of Common

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

Conviction Relief Act (“PCRA”).1         Lewis seeks relief from the judgment of

sentence of an aggregate 10 years’ probation, imposed following his guilty

plea to one count each of aggravated assault and endangering the welfare of

a child2 for injuries sustained by his then four and one-half month old daughter

while she was in his care. Concomitant with this appeal, counsel has filed a


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1   42 Pa.C.S. §§ 9541-9546.

2   See 18 Pa.C.S. §§ 2702(a)(8) and 4304, respectively.
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petition to withdraw and a Turner/Finley3 “no merit” letter.         Because we

conclude the PCRA petition was untimely filed, we affirm, and grant counsel’s

petition to withdraw.

       The facts underlying Lewis’ guilty plea are well known to the parties,

and we need not recite them in detail herein. In summary, the victim, Lewis’

four and one-half month old daughter, sustained burns to her face while she

was in his care. Lewis admitted he was responsible for the injuries, which he

claimed occurred when he placed a hot wash cloth on her face during a bath.

See N.T., 3/9/2016, at 8. One of the victim’s treating physicians reported

“she believed the burns to be caused by a hot liquid” being dripped down the

infant’s cheek. Id. Lewis was subsequently charged with aggravated assault

and endangering the welfare of a child.4

       On March 9, 2016, Lewis entered a negotiated guilty plea to both

charges. In exchange for the plea, the Commonwealth agreed to a sentence

of probation. Following a hearing, the trial court accepted Lewis’ guilty plea

and imposed consecutive sentences of five years’ probation for each offense.

No direct appeal was filed.

       On June 8, 2017, Lewis filed a pro se document in the trial court entitled,

“Petition for Reduction or Suspension of Sentence.” He claimed he was “over
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3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

4 The child’s mother was also arrested. Both parents tested positive for
opiates at a shelter hearing for the victim. See N.T., 3/9/2016, at 8.


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charged” with aggravated assault, and agreed to plead guilty upon the

condition that he would be sentenced to “a probation term of 1-2 [years] with

[the aggravated assault charge] dropped.”           Petition for Reduction or

Suspension of Sentence, 6/8/2017, at 2. The trial court considered Lewis’

request for relief to be a PCRA petition, and, consequently, appointed counsel

to represent him. See Order, 7/11/2017.

       On August 8, 2017, PCRA counsel filed a motion for leave to withdraw,

concluding Lewis’ petition was both untimely filed and meritless. Thereafter,

on September 7, 2017, the PCRA court issued notice of its intent to dismiss

the petition without first conducting an evidentiary hearing pursuant to

Pa.R.Crim.P. 907. No response was filed to the Rule 907 notice. Accordingly,

on December 7, 2017, the court entered an order dismissing the petition.

Although the PCRA court agreed with counsel’s assessment of Lewis’ potential

claims, it denied counsel’s motion to withdraw. This timely appeal followed. 5

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

whether counsel has fulfilled the procedural requirements for withdrawal.

Commonwealth v. Muzzy, 141 A.3d 509, 510 (Pa. Super. 2016). 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
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5 Counsel attached to her notice of appeal a concise statement of errors
complained of on appeal, pursuant to Pa.R.A.P. 1925(b).

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      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, our review reveals counsel has substantially complied with the

procedural aspects of Turner/Finley. Although she filed a brief, as opposed

to a “no merit” letter, counsel’s brief properly lists the issues Lewis wishes to

be reviewed, as well as two procedural claims raised solely by counsel, and

explains why they are meritless.     See Lewis’ Brief at 8-21.     Furthermore,

counsel provided Lewis with a copy of the brief and the petition to withdraw,

and advised him of his right to proceed pro se or with private counsel. See

Application for Leave to Withdraw as Counsel Under Turner and Finley,

6/18/2018. Lewis has not responded to counsel’s petition.         Therefore, we

proceed to a consideration of whether the PCRA court erred in dismissing the

petition. See Doty, supra.

      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”


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Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted). Here, the PCRA court determined,

inter alia, that Lewis’ petition was untimely filed.6 We agree. 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).

       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,
       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,

134 S.Ct. 2695 (U.S. 2014).

       Lewis’ judgment of sentence was final on April 8, 2016, 30 days after

the trial court imposed sentence and Lewis neglected to file a direct appeal.

See Pa.R.A.P. 903(a); 42 Pa.C.S. § 9545(b)(3). Therefore, he had until April

8, 2017, to file a timely PCRA petition. The one before us, filed June 8, 2017,

is patently untimely.




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6 We note the court also addressed the merits of Lewis’ underlying contentions
in its opinion. However, our Supreme Court has stated “[a] PCRA court may
not examine the merits of a petition that is untimely.” Commonwealth v.
Abu-Jamal, 833 A.2d 719, 726 (Pa. 2003).




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        Nevertheless, an untimely PCRA petition may still be considered if one

of the three time for filing exceptions applies.7            See 42 Pa.C.S. §

9545(b)(1)(i)-(iii).    A PCRA petition alleging any of the exceptions under

Section 9545(b)(1) must be filed within 60 days of when the PCRA claim could

have first been brought. 42 Pa.C.S. § 9545(b)(2).

        Here, the pro se document filed by Lewis does not invoke any of the

time for filing exceptions, nor does counsel assert that any of the exceptions

apply.    See Petition for Reduction or Suspension of Sentence, 6/8/2017;



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7   Section 9545(b) provides, in relevant part:

        (1) Any petition under this subchapter, including a second or
        subsequent petition, shall be filed within one year of the date the
        judgment becomes final, unless the petition alleges and the
        petitioner proves that:

           (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).




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Lewis’ Brief at 19-21. Upon our independent review, we conclude that neither

of the claims Lewis seeks to litigate – the sufficiency of the evidence

supporting the charge of aggravated assault and the voluntariness of his plea

– implicate any of the timing exceptions. Lewis does not contend that (1)

interference by governmental officials prevented him from raising the claims

previously, (2) either issue involves recently discovered facts that could not

have been uncovered previously with the exercise of due diligence, or (3) he

is entitled to relief pursuant to newly recognized constitutional right. See 42

Pa.C.S. § 9545(b)(1)(i)-(iii).   Indeed, Lewis knew, or could have readily

ascertained, at the time of his guilty plea, that the incident “was ruled an

accident by Mercy Hospital Burn Unit.” Petition for Reduction or Suspension

of Sentence, 6/8/2017, at 2. Moreover, as soon as the trial court imposed an

aggregate sentence of 10 years’ probation, Lewis knew the court did not abide

by what he contends was an agreement that he would serve only one to two

years’ probation. See id. Therefore, Lewis cannot establish the applicability

of any of the timing exceptions in Subsection 9545(b)(1).

      We note PCRA counsel addressed the following two additional claims in

her “no merit” brief: (1) the PCRA court failed to follow proper Tuner/Finley

procedure when it agreed with her analysis of Lewis’ claims, but denied her

motion to withdraw; and (2) this Court must “excuse waiver of any objections

[Lewis] could/would have filed,” if not for the PCRA court’s failure to follow

proper procedure, which led to confusion as to the status of Lewis’


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representation.      Lewis’ Brief at 10-13.      Counsel ultimately determined,

however, that both errors were harmless because the petition was untimely

filed.

         The PCRA court explained the reason underlying its denial of counsel’s

motion to withdraw as follows:

                The crux of Lewis’ position appears to be that his lawyer’s
         motion to withdraw should have been granted soon after the Court
         issued its Notice of Intent to Dismiss where it expressed
         concurrence with counsel’s review of the matter. The record
         supports the conclusion that counsel’s motion to withdraw was not
         ruled upon. It has been this Court’s experience that there are
         times that the pro se litigant in responding to a Notice of Intent to
         Dismiss will bring forth an issue that the lawyer did not. When
         that happens, the Court does not want to get into the quagmire
         of having to re-appoint the recently departed lawyer to then
         provide a counseled exploration of the new issue. So, the Court
         has taken the approach that withdraw requests will not be granted
         unless and until the defendant responds to the Notice or, after a
         sufficient time has lapsed, and no response is received.
         Furthermore, the Court’s experience has been that the elementary
         steps to perfecting an appeal are very burdensome for a pro se
         litigant to accomplish. As such, it has become the Court’s practice
         to grant motions to withdraw after the appeal has been docketed.

               … Filing a motion to withdraw does not terminate counsel’s
         obligations to [her] client. The obligations only end when the
         motion is granted. If there was any confusion, that was the fault
         of counsel and Mr. Lewis.

PCRA Court Opinion, 6/6/2018, at 2.

         Our review of the relevant case law reveals no requirement that a court

must grant PCRA counsel’s petition to withdraw upon its determination that

the issues raised in the petition are meritless. Here, the PCRA court provided

a reasoned explanation for its denial of counsel’s motion.            Furthermore,

neither Lewis nor counsel has demonstrated that Lewis was prejudiced by the

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court’s actions.   Accordingly, we conclude the court’s denial of counsel’s

request to withdraw, if erroneous, was harmless. Furthermore, with respect

to counsel’s request that we find any potential responses to the Rule 907

notice not waived (due to the fact that there was confusion regarding counsel’s

continued representation), we emphasize that Lewis has provided no

potentially waived claims either through counsel, or in a response to counsel’s

Turner/Finley “no merit” brief. Therefore, again, any error on the part of

the PCRA court was harmless.

      Accordingly, because we conclude Lewis’ PCRA petition was untimely

filed, and Lewis failed to invoke any of the time for filing exceptions, we affirm

the order of the PCRA court denying relief.       Furthermore, we grant PCRA

counsel’s petition to withdraw.

      Order affirmed. Petition to withdraw as counsel granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/2018




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