J-S55024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KERRIE LEI GUIRLEO                         :
                                               :
                       Appellant               :   No. 414 WDA 2019

             Appeal from the PCRA Order Entered January 17, 2019
      In the Court of Common Pleas of Fayette County Criminal Division at
                        No(s): CP-26-CR-0001292-2015


BEFORE:      MURRAY, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY McLAUGHLIN, J.:                             FILED JULY 30, 2020

        Kerrie Lei Guirleo appeals from the denial of her petition for relief under

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. This case

returns to us after we remanded for counsel to file either a proper

Turner/Finley brief or an advocate’s brief.1 In response, counsel filed an

Anders2 brief and a petition to withdraw. We grant counsel’s petition and

affirm the order of the PCRA court.

        In August 2016, a jury found Guirleo guilty of persons not to possess,

use, manufacture, control, sell or transfer firearm.3 The trial court sentenced

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super. 1988).
2   Anders v. California, 386 U.S. 738 (1967).
3   See 18 Pa.C.S.A. § 6105(a)(1).
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Guirleo to three and a half to seven years’ incarceration and we affirmed the

judgment of sentence. Commonwealth v. Guirleo, No. 1334 WDA 2016,

2017 WL 2616007 (Pa.Super. filed June 16, 2017). Guirleo did not seek review

with our Supreme Court.

       In December 2018, Guirleo filed the instant PCRA petition claiming her

petition was timely under the governmental interference and newly discovered

fact time-bar exceptions. She alleged that her conviction for possessing a

firearm was illegal because she had not been convicted of the predicate

offense that the prosecution argued at trial, aggravated assault. Rather, the

prosecution in the aggravated assault case had entered a nolle pros.

       The PCRA court issued notice of its intent to dismiss the petition without

a hearing and in January 2019, it dismissed it. See Pa.R.Crim.P. 907. Guirleo

filed this timely appeal. Because she was unrepresented, we remanded for the

PCRA court to hold a Grazier hearing.4 The PCRA court appointed counsel

who, when the case returned to this Court, filed an Anders brief. However,

counsel’s Anders brief was deficient and thus we remanded for counsel to

“file either a petition to withdraw and a fully compliant Turner/Finley no-

merit letter, or an advocate’s brief[.]” Commonwealth v. Guirleo, 2020 WL

86566 at *1 (Pa.Super. filed January 6, 2020) (unpublished memorandum).

       The case now returns to us as counsel has filed a new Anders brief and

a petition to withdraw as counsel. As we explained in our prior memorandum,

____________________________________________


4   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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the proper filing in this case would be a Turner/Finley letter, as counsel

wishes to withdraw in an appeal from the denial of PCRA relief. See Guirleo,

2020 WL 86566, at *1 (citing Commonwealth v. Widgins, 29 A.3d 816, 817

n.2 (Pa.Super. 2011)). Nonetheless, “[b]ecause an Anders brief provides

greater protection to a defendant, this Court may accept an Anders brief in

lieu of a Turner/Finley letter.” Widgins, 29 A.3d at 817. We thus will

analyze whether counsel’s brief meets the standards of Turner/Finley.

      A Turner/Finley brief must: (1) detail the nature and extent of

counsel’s review; (2) list each issue the petitioner wished to have reviewed;

and (3) an explanation of why the petitioner’s issues were meritless.

Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009). “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.” Commonwealth v. Wrecks,

931 A.2d 717, 721 (Pa.Super. 2007). If counsel has met the above

requirements, we then conduct an independent review of the petitioner’s

issues to determine if they are in fact meritless. Commonwealth v. Muzzy,

141 A.3d 509, 511 (Pa.Super. 2016). If we conclude that the claims are

meritless, we then grant counsel’s petition to withdraw. Id.

      Here, counsel has complied with the requirement of Turner/Finley. He

details the nature and extent of his review, including “a thorough review and

conscientious examination of the record, . . . a review of the official file, a

reading of the Notice of Appeal, [and] research and review of the applicable

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case law and statutes[.]” Anders Br. at 6. Counsel also lists all the issues

Guirleo wishes to have reviewed and provides a statement advising Guirleo of

her right to proceed pro se or to retain counsel. Having satisfied the procedural

requirements of Turner/Finley, we now conduct an independent review of

the issues counsel has identified.

      Counsel raises the following issues in his Anders brief:

         I.     Whether the fact that [Guirleo’s] charge of aggravated
                assault in case No. 762 of 1998 was nolle prossed
                permits her to carry a firearm and thereby qualified
                for the newly discovered evidence exception?

         II.    Whether the public defender’s office failure to meet
                with [Guirleo] prior to trial and failure to spend
                sufficient time preparing for the case for trial qualified
                for the newly discovered evidence exception?

         III.   Whether the trial court’s denial of [Guirleo’s] request
                for discover and motion for transcripts and documents
                constitutes interference by government officials
                preventing [Guirleo] from filing her PCRA petition
                within the one year time limitation?

         IV.    Whether the Fayette County District Attorney’s Office
                failure to provide [Guirleo] in discovery a transcript of
                her prior record constitutes interference by
                government officials preventing [Guirleo] from filing
                her PCRA petition within the one year time limitation?

Anders Br. at 2.

      Because we conclude that Guirleo’s PCRA petition was untimely, we do

not address these issues on the merits. The PCRA’s time-bar is jurisdictional,

and “Pennsylvania courts may not entertain untimely PCRA petitions.”

Commonwealth v. Edmiston, 65 A.3d 339, 346 (Pa. 2013).



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      A petitioner has one year from the date the judgment of sentence

becomes final to file a PCRA petition, unless an exception applies. 42 Pa.C.S.A.

§ 9545(b)(1). A judgment of sentence becomes 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.” Id. at § 9545(b)(3). Should a petitioner file a

petition beyond the one-year time bar, she must plead and prove at least one

of the time-bar exceptions. These exceptions are:

         (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 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.

Id. at § 9545(b)(1)(i)-(iii). The petitioner must raise the claim within one year

from the time the claim could have been raised. See id. at § 9545(b)(2).

      Here, Guirleo’s judgment of sentence became final on July 17, 2017, as

the 30-day deadline to file a petition to appeal with our Supreme Court fell on

a Sunday. See Pa.R.A.P. 1113(a); 1 Pa.C.S.A. § 1908. Thus, she had until

July 17, 2018, to file a timely PCRA petition. The instant petition filed in



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December 2018 is facially untimely. As such, Guirleo bore the burden of

pleading and proving at least one of the time-bar exceptions. See

Commonwealth v. Smith, 121 A.3d 1049, 1054 (Pa.Super. 2015).

      In her petition, Guirleo alleged the governmental interference and newly

discovered   fact   exceptions.   Regarding   the   governmental   interference

exception, she alleged the following:

         1) Exhibits included in which the judge denied discovery and
            transcripts in order to complete this PCRA; finally
            obtaining information directly from Ms. Snyder.

         2) Miscarriage of justice/ actual innocence, [Guirleo] never
            convicted in previous case prosecutor informing jury
            about.

PCRA Petition, at 3 (unnecessary capitalization removed). For the newly

discovered fact exception, she alleged the following:

         1) The government was withholding exculpatory evidence in
            which could have proved by innocence. Due to my
            attorney’s ineffectiveness in requesting it, I was
            convicted.

         2) Serial ineffectiveness

         3) Counsel never proffered plea bargain in which proves
            ineffectiveness.

Id. (unnecessary capitalization removed).

      In order to satisfy the governmental interference exception, the

petitioner must plead and prove “the failure to previously raise the claim was

the result of interference by governmental officials, and the information could

not have been obtained earlier with the exercise of due diligence.”


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Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008). The newly

discovered fact exception requires the petitioner to plead and prove that “the

facts upon with the claim was predicated were unknown” and “could not have

been ascertained by the exercise of due diligence.” Commonwealth v.

Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (quoting 42 Pa.C.S.A. §

9545(b)(1)(ii)) (emphasis omitted). Due diligence “‘does not require perfect

vigilance and punctilious care, but merely a showing the party has put forth

reasonable effort’ to obtain the information upon which a claim is based.”

Commonwealth v. Cox,           146   A.3d   221,   230    (Pa.   2016)   (quoting

Commonwealth v. Edmiston, 65 A.3d 339, 348 (Pa. 2013)).

      Here, Guirleo fails to plead sufficient facts to establish either exception.

Guirleo fails to explain why she could not, with due diligence, have learned

sooner that she allegedly was not convicted of the predicate crime of

aggravated assault. Her ineffectiveness claims are not “facts” for purposes of

the newly discovered fact exception. Having failed to plead and prove any

time-bar exception, we affirm the order dismissing her PCRA petition.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/30/2020


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