J.S04043/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
                                            :
HAAMIR BROWN,                               :
                                            :
                          Appellant         :     No. 1742 EDA 2013


                   Appeal from the PCRA Order May 17, 2013
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-0011354-2009

BEFORE: BENDER, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                   FILED SEPTEMBER 10, 2014

        Appellant, Haamir Brown, takes this appeal pro se from the order of

the Philadelphia County Court of Common Pleas dismissing, as untimely, his

first Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, petition.

Appellant claims he is entitled to relief based on the ineffective assistance of

plea counsel and appointed PCRA counsel. We are constrained to affirm.

        On October 18, 2010, Appellant pleaded guilty to one count each of

conspiracy and possession with intent to deliver cocaine.1       At that time,



*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 903(a)(1); 35 P.S. § 780-113(a)(30). Appellant was arrested

                                      ator, the coconspirator exchanged the
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Appellant was represented by Robert

the terms of the plea agreement, the Commonwealth agreed not to pursue a

mandatory minimum sentence of three years and recommended an

                                                                    See N.T.,

10/18/10, at 3-4; Written Guilty Plea Colloquy, 10/18/10, at 1.        On the



agree with the plea bargain or agreement, I can withdraw my guilty plea and

have a trial before a judge and jury or before

Plea Colloquy at 1.

      When entering his plea, Appellant requested a delay in his surrender

date. The trial court accepted the plea, imposed the negotiated aggregate

sentence, and allowed Appellant to surrender on November 16, 2010. The

court warned him:

         [I]t is very, very important you show up. I have this
         discussion with everybody. I have now given two people
         these maximum sentences, and this [plea agreement] is a

         wa


         am going to vacate your sentence, resentence you, and



money for a package of crack cocaine from Appellant, and the coconspirator
delivered the cocaine to the confidential informant. At the time of his arrest,
Appellant was in possession of $452, including the buy money, 15 packets of

prior convictions for possession with intent to deliver controlled substances,
and prior convictions for simple assault, terroristic threat, and possessing an
instrument of crime.



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        probably give you the maximum.         So it is very, very
        important you show up.

N.T. at 23-24.

     Appellant failed to appear on his surrender date.       The trial court



                        -51-CR-0011354-2009, at 8. The court, on November

17, 2010, issued a bench warrant for Appellant, vacated the negotiated



                               Id. at 8-9. Appellant was not present at this

resentencing proceeding,2 and plea counsel did not file post-sentence

motions or a direct appeal on his behalf. Appellant was taken into custody

more than five months later. On April 27, 2011, the court lifted its bench

warrant with a notation that Appellant was serving the November 17th

sentence imposed in absentia. Id. at 9.

     On January 6, 2012, Appellant filed the pro se PCRA petition giving

rise to this appeal.3     Appellant asserted: (1) the November 17, 2010

sentence constituted a separate, illegal conviction for escape; (2) the trial

court improperly resentenced him in absentia without considering his


2
  A record of the November 17, 2010 resentencing proceeding was not
ordered to be transcribed nor placed in the certified record.
3
  A stamp bearing a mailing date of January 6, 2012, was attached to
          pro se PCRA petition. Therefore, we use that mailing date as the
                                 See Commonwealth v. Little, 716 A.2d
1287, 1288-



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explanations for his failure to surrender; and (3) he was entitled to

enforcement of his previously negotiated two to four year sentence based on



regarding the November 17th resentencing proceeding.4



represent   Appellant.    On   August    29,   2012,   PCRA   counsel   filed   a

Turner/Finley5 letter indicating Appellant was not entitled to relief because

the sentence was within the statutory maximum for the offenses and the

PCRA petition was untimely filed. Letter, John P. Cotter, Esq., to Hon. Glenn

B. Bronson, 8/29/12, at 2.     On November 16, 2012, PCRA counsel filed a

supplemental Turner/Finley letter a                                      pro se

filings, but reaching the same conclusion.     Letter, John P. Cotter, Esq., to

Hon. Glenn B. Bronson, 11/16/12, at 2.

      On December 7, 2012, the PCRA court issued a Pa.R.Crim.P. 907

notice of its intent to dismiss App

Appellant filed a pro se response to the Rule 907 notice, alleging, inter alia,



supplemental pro se objection asserting the discovery of new evidence,


4
  Appellant did not request a withdrawal of his guilty plea to the underlying
drug charges or a reinstatement of his direct appeal rights.
5
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).




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namely,     newspaper     articles   regarding     alleged   malfeasance   in   the

Philadelphia Police Narcotics Unit.6 On January 23, 2013, PCRA counsel filed



discovered evidence.      However, on March 13, 2013, PCRA counsel filed

another Turner/Finley



implicated in the reported malfeasance. Letter, John P. Cotter, Esq., to Hon.

Glenn B. Bronson, dated 3/12/13, at 2.

      The PCRA court, on March 28, 2013, again issued a Rule 907 notice of



Appellant   filed   a   pro   se

ineffectiveness and requesting an evidentiary hearing to consider whether he

was entitled to a two to four year sentence. The court, on May 17, 2013,

entered an order permitting PCRA counsel to withdraw and dismissing

                                                 appeal followed.7

      Appellant presents the following question in his pro se brief:

             Did the PCRA Court abuse its discretion and err[ ] when
          the court failed to conduct a cause hearing to determine if
          absentia was warranted; and further err in (1) sentencing

6
  Appellant, in his pro se brief in this Court, does not argue his discovery of
these newspaper articles entitles him to substantive relief or relief from the
PCRA time-bar. Therefore, any claim based on these articles has been
abandoned.
7
 The PCRA court did not order the filing of a Pa.R.A.P. 1925(b) statement,
but prepared an opinion in support of its decision.



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           Appellant to . . . 10 to 20 years for escape a distinct crime
           that was not proven; (2) not finding plea counsel
           ineffective in advising Appellant he had an extension to
           surrender; and PCRA counsel was ineffective for failing to
           raise this claim?

Appellan



first hold a hearing to determine when the one year [PCRA time bar] actually

started because he has been charged and convicted of a new Charge of

                                         Id. at 12 (emphasis in original).   He

insists he had a reasonable explanation for his failure to surrender on

November 16, 2010, i.e. he was caring for his daughter. Id. at 11. He also

claims plea counsel led him to believe the trial court extended his surrender

date past November 16, 2010. Id.         Additionally, Appellant alleged he was

unaware that the trial court resentenced him to a ten to twenty year

sentence until November 1, 2011, approximately seven months after he was

taken into custody and nearly one year after the sentence was imposed.

See id.

that PCRA counsel was ineffective for failing to investigate his claims. We



time-

alleged ineffectiveness.


           is whether the determination of the PCRA court is
           supported by the evidence of record and is free of legal



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         unless there is no support for the findings in the certified
         record.

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)

                                ay affirm the decision of the [PCRA] court if




Commonwealth v. Blackwell, 936 A.2d 497, 499 (Pa. Super. 2007)

(citation omitted).

      It is well settled that

         no court has jurisdiction to hear an untimely PCRA petition.
         The most recent amendments to the PCRA, effective
         January 16, 1996, provide that a PCRA petition, including a
         second or subsequent petition, shall be filed within one
         year of the date the underlying judgment becomes final. A

         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 three statutory exceptions to the timeliness
         provisions in the PCRA allow for very limited circumstances
         under which the late filing of a petition will be excused. 42
         Pa.C.S.[ ] § 9545(b)(1).        To invoke an exception, a
         petition must allege and the petitioner must prove:

               (i) the failure to raise a 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.[ ] § 9545(b)(1)(i)-
         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


Commonwealth v. Pollard, 911 A.2d 1005, 1007 (Pa. Super. 2006) (some

citations omitted).   The Pennsylvania Supreme Court has emphasized that

                                                              ad hoc equitable

exceptions to the PCRA time-bar in addition to those exceptions expressly

                           Commonwealth v. Robinson, 837 A.2d 1157,

1162 (Pa. 2003) (citations omitted).

      However, this Court has observed,



         indigent petitioner is entitled to appointment of counsel on
         his first PCRA petition, even where the petition appears
         untimely on its face. In such cases, counsel is appointed
         principally to determine whether the petition is indeed
         untimely, and if so, whether any exception to the
         timeliness requirements of 42 Pa.C.S.[ ] § 9545(b) applies.


         PCRA petition is not limited to the mere naming of an
         attorney. To have any meaning, the rule also requires
         appointed counsel to provide meaningful representation.




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Commonwealth v. Perez, 799 A.2d 848 (Pa. Super. 2002) (citations

omitted).

        Instantly, the trial court sentenced Appellant on October 16, 2010, to



                                                                             to

appear for his surrender date, the court, on November 17, 2010, vacated

the October 16th sentence and resentenced Appellant in absentia to ten to

                               five times the length of the original sentence.

The conviction challenged by Appellant thus became final on December 17,

2010, when the time for taking an appeal to this Court expired.8         See 42

Pa.C.S. § 9545(b)(1), (3).       Consequently, Appellant had until Monday,

December 19, 2011, to file a PCRA petition within the one-year time

requirement. See 1 Pa.C.S. 1908 (setting rules for calculation of time); 42

Pa.C.S. § 9545(b)(1).       Appellant, however, filed his first pro se PCRA

                                                                              -

year period expired. Therefore, his petition was untimely on its face.



responses, his brief, and the record, we are compelled to conclude that the

instant petition is untimely. Assuming arguendo, Appellant did not discover


8
    Both PCRA counsel and the PCRA court appeared to have used the October

petition.




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that he had been resentenced in absentia to a ten to twenty year sentence

until November 1, 2011, see PCRA Pet., 1/6/12, at 3, he had sixty days

from the time of the discovery of that fact to file a timely petition. See 42

Pa.C.S. § 9545(b)(1)(ii), (2); Commonwealth v. Wilson, 824 A.2d 331,

336 n.9 (Pa. Super. 2003) (noting sixty day period in subsection 9545(b)(2)

begins to run from moment previously unknown fact was discovered).

Therefore, even if Appellant alleged the discovery of previously unknown

fact i.e.

proceeding he was required to file a PCRA petition by December 31, 2011.

                                   pro se petition, filed on January 6, 2012,

did not fall within the exception created by Section 9545(b)(1)(ii). See 42

Pa.C.S. § 9545(b)(1)(ii), (2); Wilson, 824 A.2d at 336 n.9.

      Moreover, because the timeliness of a PCRA petition is jurisdictional,

                                                                        ailed

to protect his interests and rights at the resentencing hearing. 9      See

Pollard, 911 A.2d at 1007. Similarly, we cannot, under the PCRA, consider

whether the trial court possessed the authority to resentence Appellant to a

9
                                           ovember 17, 2010 resentencing
proceeding constituted a separate, uncharged conviction for escape is belied
by the record. Appellant, when entering his plea to the underlying drug
offenses, sought an extension of time to surrender and begin service of his
two to four year sentence. The trial court, after accepting the plea and

request but warned him that he could be resentenced up to the maximum
sentence if he did not comply with the surrender date.        Appellant




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ten to twenty year sentence after it previously accepted and sentenced him

to the negotiated two to four year sentence.           See id.; see also

Commonwealth v. Baroni

that structural errors can never be deemed harmless does not serve to

create                                                     Commonwealth

v. Fahy

always subject to review within the PCRA, claims must still first satisfy the



that Appellant did not establish an exception to the PCRA time-bar.

      Lastly, Appellant contends that PCRA counsel was ineffective because

he failed to interview plea counsel. Appellant preserved this claim of PCRA

cou

them in this appeal. See Commonwealth v. Pitts, 981 A.2d 875, 880 n.4

(Pa. 2009).



only be entitled to relief if he can show: (1) that his claim has arguable



reasonable strategic decision; and, (3) that he suffered prejudice because of

                               Commonwealth v. Pursell, 724 A.2d 293,

304 (Pa. 1999).   Prejudice, for the purposes of a claim of ineffectiveness,

requires a petitioner to demonstrate a reasonable possibility that the




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outcome of the proceeding        instantly, the PCRA proceeding   would be

different. See id.

      As noted above, our review reveals no basis in the record to assert an

exception to the PCRA time-

counsel should have investigated the merits of his claim by contacting plea

counsel fails to establish any prejudice.10

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/10/2014




10




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