J-S06014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
             v.                           :
                                          :
                                          :
KEITH BREWINGTON                          :
                                          :
                   Appellant              :    No. 3076 EDA 2016

                 Appeal from the PCRA Order August 9, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0517441-1989


BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                         FILED SEPTEMBER 19, 2018

      Keith Brewington appeals from the order of August 9, 2016, dismissing

his serial PCRA petition as untimely. We affirm.

      Appellant pleaded guilty on April 2, 1992, to, inter alia, homicide, for

the murder of Thomas Dinan, which occurred on March 2, 1989. This plea

followed his conviction for first-degree homicide in another case. Appellant

did not file a direct appeal, and pursued collateral relief in a petition filed in

1993, which was not resolved until 1999. That petition was denied following

an evidentiary hearing.    We affirmed, and we adopt the history set forth

therein:

      On April 2, 1992, appellant, who had already been convicted of
      first-degree murder in an unrelated case, entered a plea of nolo
      contendere. In return for his plea and his cooperation in any
      investigations involving his cohorts to the crimes, the
      Commonwealth agreed to not seek the death penalty, to
      recommend that his sentence of life imprisonment be ordered to
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      run concurrently with the sentence for the prior murder
      conviction, and to support any petition for commutation filed by
      appellant. Appellant signed a written memorandum of agreement
      detailing the terms set forth above and, at the plea hearing, he
      again agreed to the terms of the agreement.

Commonwealth v. Brewington, 1047 Philadelphia 1998 (Pa.Super. 1999)

(unpublished memorandum at 1).

      We begin by noting that what is at issue in this appeal is somewhat

confusing. On April 6, 2009, Appellant filed a pro se PCRA petition, which is

not in the certified record. On December 10, 2010, a dismissal notice under

907 was noted on the docket. Appellant responded on January 11, 2011.

      The next entry on the docket is a PCRA petition filed August 23, 2012.

This petition is in the certified record, and Appellant captioned that

document as a supplemental petition, presumably referring to the 2009

petition.   That petition raised numerous sentencing claims, all of which

pertained to Miller v. Alabama, 567 U.S. 460 (2012). The court took no

action on this petition until 2016, when Appellant filed, on March 23, another

pro se PCRA petition. Within, Appellant alleged that he was entitled to relief

pursuant to Montgomery v. Louisiana, 136 S.Ct. 718 (2016), which held

that States must give retroactive effect to Miller.

      The PCRA court issued a notice of intent to dismiss on June 1, 2016,

stating, in pertinent part: “The court has reviewed your PCRA petition (and

supplemental    petitions)   challenging   the   unlawfulness   of   your   nolo

contendere plea and the Commonwealth’s performance pursuant thereto



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. . . .   Your petition, filed on April 6, 2009, was . . . untimely by

approximately sixteen years.”   Notice of Intent to Dismiss, 6/1/16, at 1

(emphasis added).

     The PCRA court’s reference to the petition filed April 6, 2009

demonstrates that the PCRA court viewed the August 23, 2012, and March

23, 2016, petitions as amending the earlier 2009 petition. Thus, the PCRA

court viewed this case as involving one petition twice amended. The notice

of intent to dismiss stated that Appellant failed to plead and prove any

exception to the time-bar. Appellant did not file a response, and the court

entered an order dismissing the petition on August 9, 2016.

     Appellant filed a notice of appeal, docketed September 12, 2016,

which is four days after the expiration of the applicable thirty-day period.

The Commonwealth states that this appeal must be quashed. We decline to

do so. As our Supreme Court has stated:

     The pro se prisoner's state of incarceration prohibits him from
     directly filing an appeal with the appellate court and prohibits
     any monitoring of the filing process. Therefore, we now hold that
     in the interest of fairness, a pro se prisoner's appeal shall be
     deemed to be filed on the date that he delivers the appeal to
     prison authorities and/or places his notice of appeal in the
     institutional mailbox.

Smith v. Pennsylvania Bd. of Prob. & Parole, 683 A.2d 278, 281 (Pa.

1996).

     Presently, the PCRA court states that the notice of appeal was

postmarked on September 12.        The notice of appeal contains a hand


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notation by Appellant indicating that he initiated the procedure of having the

appeal delivered through the prison system. Since the notice of appeal was

filed within days of the thirty-day deadline, we elect to deem it timely and

address the merits of this appeal.

       The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b)

statement, and filed an opinion. Appellant’s brief is difficult to decipher, but

he appears to raise two claims:

       Did the P.C.R.A. trial judge Leon W. Tucker abuse his authority,
       discretion, violate his oath of office, the rules of professional
       conduct, the code of ethics, and violate this petitioner's United
       States, federal, & Pennsylvania constitutional, and due process
       rights?

       Did P.C.R.A. trial judge Leon W. Tucker error in deeming
       petitioner's appeal untimely filed?

Appellant’s brief at 1-2.1

       We apply the following principles to our review of the PCRA court’s

order.

       Our standard of review examines “whether the PCRA court's
       determination is supported by the evidence of record and free of
       legal error. We grant great deference to the PCRA court's
       findings, and we will not disturb those findings unless they are
       unsupported by the certified record.” Commonwealth v. Holt,
       175 A.3d 1014, 1017 (Pa.Super. 2017) (citation omitted). A
       PCRA petition must be filed within one year of the date the
       judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1).
       “This time constraint is jurisdictional in nature, and is not subject
       to tolling or other equitable considerations.” Commonwealth v.
____________________________________________


1 These pages are not consecutively paginated, as the brief includes an
appendix between these claims.



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     Spotz, ––– Pa. ––––, 171 A.3d 675, 678 (2017) (citation
     omitted). The time bar can “only be overcome by satisfaction of
     one of the three statutory exceptions codified at 42 Pa.C.S. §
     9545(b)(1)(i)–(iii).” Id. “Questions regarding the scope of the
     statutory exceptions to the PCRA's jurisdictional time-bar raise
     questions of law; accordingly, our standard of review is de
     novo.” Commonwealth v. Chester, 586 Pa. 468, 895 A.2d
     520, 522 n.1 (2006).

Commonwealth v. Robinson, 185 A.3d 1055, 1058–59 (Pa.Super. 2018)

(en banc).

     Appellant’s assertion that the PCRA court “abuse[d] his authority” is

followed by this argument.

     Clearly, trial judge Leon W. Tucker, violated his Oath of office,
     the rules of Professional Conduct, and Ethics, as well this
     Petitioner Keith Brewington's United States, Federal, and
     Pen[n]sylvania Constitutional, and Due Process Rights when he
     u[n]reasonably, and improperly upon receiving petitioner
     Brewington's (hereto attached as Appendix "A") "Motion of
     Petitioner for Enforcement, and Specific Performance of
     Negotiated Plea Agreement and/or Withdraw[a]l of Negotiated
     Nolo-Contendre Plea Due to Breach of Plea Agreement, and/or
     Plea Agreement Procur[]ed through Fraud"[,] turned it into a
     P.C.R.A. appeal, then i[m]properly played the role of the District
     Attorney     and     researched,   and    investigated     petitioner
     Brewington's case looking for reason(s) to dismiss, and deny
     petitioner's motion. Petitioner Brewington states, and ask "If the
     role of the trial Judge (Leon W. Tucker) is the trier of fact, and is
     to remain impartial, and unbias[ed], and only to rule upon what
     is presented to him from the defendant, and the opposition, (i.e.
     District Attorney), and then make a judgment, so if the trial
     Judge cannot do research, and/or investigation into a
     defendant's case to find issues, or evidence to say he deserves a
     evidentiary hearing, or a new trial, then how can Judge Tucker
     then do research, and investigation of a defendant's case to
     deny, and dismiss petitioner's case especially when the District
     Attorney's office filed, and said nothing in opposition? The clear,
     and plain answer is a Judge cannot, and is not permitted to do
     so, thus what Judge Tucker did was, and is highly improper,
     unreasonable, & prejudicial to petitioner Keith Brewington, as

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      well any other defendant that this was done to. As well by Judge
      Tucker doing this he unreasonably denied petitioner's motion,
      and violated his United States, Federal, and Pennsylvania
      Constitutional, and Due Process Rights, and also improperly
      denied him access to the courts in the process.

Appellant’s brief at 1.

      This is the extent of Appellant’s argument, and he offers no further

explanation as to how the PCRA court erred in dismissing his petition. As a

result, we could find his claim waived for failing to develop a proper

argument.     Commonwealth v. Walter, 966 A.2d 560, 566 (Pa. 2009)

(claims may be waived where brief fails to develop an argument with

citations or argument). However, the timeliness of a PCRA petition is a legal

inquiry that we review de novo, and Appellant’s confusing presentation has

not impeded our resolution of that question.

      As stated, the PCRA court viewed all of these petitions as one

overarching petition, starting with the April 6, 2009 petition, as later

amended by the 2012 and 2016 documents.            Appellant’s judgment of

sentence became final long ago, and, for those petitions which are subject to

the PCRA, he was therefore required to plead and prove an exception to the

one-year time bar. 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 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)-(iii). Additionally, any petition seeking to invoke

one of these three exceptions “shall be filed within 60 days of the date the

claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).

      There is an analytical difficulty in treating all of these documents as

one petition raising several claims.          This point is demonstrated by

Appellant’s March 23, 2016 petition, which correctly noted that the United

States   Supreme    Court   held   in    Montgomery     that    Miller   applied

retroactively. A PCRA petitioner therefore had sixty days from the date of

Montgomery to seek relief pursuant to the 42 Pa.C.S. § 9545(b)(1)(iii)

exception.    See Commonwealth v. Secreti, 134 A.3d 77, 82–83

(Pa.Super. 2016) (“The date of the Montgomery decision (January 25,

2016, as revised on January 27, 2016) will control for purposes of the 60–

day rule in Section 9545(b)(2).”). If Appellant has a viable Miller claim, his

March 23, 2016 petition would qualify as an exception to the time-bar.

Simultaneously, the timeliness of that petition could not revive other

collateral claims, such as ineffective assistance of counsel.    Therefore, the

PCRA court erroneously treated the later petitions as amending the 2009

document.




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      This case in truth involves serial petitions, not one petition as modified

by later petitions.        In Commonwealth v. Montgomery, 181 A.3d 359

(Pa.Super. 2018) (en banc), we held that PCRA courts are not jurisdictionally

barred from considering serial PCRA petitions, provided that there is not a

pending appeal of a PCRA petition. We therefore elect to view the instant

order as denying three petitions, which we shall address separately.

August 23, 2012, and March 23, 2016 petitions

      For ease of disposition, we address first the 2012 and 2016 petitions.

Additionally, we consider these two petitions together, since the former

petition   sought     to    invoke   Miller,   while   the     latter   petition   cited

Montgomery, which gave retroactive effect to Miller. Therefore, the two

petitions present the same question: Is Appellant entitled to relief under

Miller?

      The March 23, 2016 petition was timely filed pursuant to Secreti,

supra. However, this petition was correctly dismissed as untimely because

Miller’s holding applies only to persons who were under the age of eighteen

at the time of their crimes. Appellant was over eighteen when he committed

the homicide at issue in this case. Thus, Appellant’s argument is that the

logic of Miller’s holding should extend to him.              Our Court has cogently

explained why this claim fails.

      [E]ven though he filed within 60 days of the Miller decision,
      Appellant's petition did not satisfy the jurisdictional requirements
      of Section 9545 because the petition did not present a claim
      falling within the ambit of the Supreme Court's decision

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      in Miller and therefore does not fall under the “newly recognized
      constitutional right” exception in Section 9545(b)(1)(iii).

            ....

      Appellant      argues     that     he      nevertheless      may
      invoke Miller because he was a “technical juvenile,” and he
      relies on neuroscientific theories regarding immature brain
      development to support his claim that he is eligible for relief.
      But, rather than presenting an argument that is within the scope
      of the Miller decision, this argument by Appellant seeks
      an extension of Miller to persons convicted of murder who
      were older at the time of their crimes than the class of
      defendants subject to the Miller holding. See Appellant's Brief at
      3-7.

      We rejected reliance on this same argument for purposes of
      Section 9545(b)(1)(iii) in Commonwealth v. Cintora, 69 A.3d
      759 (Pa.Super.2013). The defendants in Cintora were 19 and
      21 years old at the times of their crimes, but they argued
      that Miller should apply to them and others “whose brains were
      not fully developed at the time of their crimes.” Id. at 764. We
      stated     that “[a]   contention   that    a  newly-recognized
      constitutional right should be extended to others does not
      render [a] petition [seeking such an expansion of the right]
      timely pursuant to section 9545(b)(1)(iii).” Id. (emphasis in
      original).

Commonwealth v. Furgess, 149 A.3d 90, 93–94 (Pa.Super. 2016)

(emphases in original).

      Therefore, the PCRA court correctly dismissed the serial petitions

seeking to raise the Miller claims, since those claims do not surmount the

one-year time bar.

The April 6, 2009 petition

      We now address the 2009 petition.        This document is not in the

certified record, but our review of the entire record supports the notion that


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the document included in Appendix A of Appellant’s brief is a copy of the

April 6, 2009 petition.2 The 2009 petition generically sought to attack the

validity   of   Appellant’s    1992    nolo    contendere   plea.   The   transcript

demonstrates the following.           The trial court asked the parties about the

status of Appellant’s case, and trial counsel informed the court that he had

recommended to Appellant that he accept the Commonwealth’s offer.                As

our prior disposition in 1999 stated, Appellant agreed to plead nolo

contendere to first-degree homicide. In exchange, the Commonwealth did

not seek the death penalty, and agreed, inter alia, to support any petition

for commutation.

       During the plea discussion, the judge engaged Appellant in a

conversation, which included Appellant asking, “When the sentence is
____________________________________________


2 We note that attaching materials to the brief as an appendix is not a
substitute for ensuring that the certified record contains the necessary
material. As we have stated:

       This Court may review and consider only items which have been
       duly certified in the record on appeal. Furthermore, a document
       not filed of record does not become part of the certified record
       by merely making a reproduction and placing that reproduction
       in the reproduced record. For purposes of appellate review,
       what is not of record does not exist.

Rosselli v. Rosselli, 750 A.2d 355, 359 (Pa.Super. 2000) (citations
omitted). Herein, the Commonwealth’s brief discusses the merits of the
claims contained within the petition. We therefore consider the material in
the reproduced record. Commonwealth v. Brown, 52 A.3d 1139, 1145
n.4 (Pa. 2012) (“[T]he written plea colloquy is contained only within the
Reproduced Record; however, the accuracy of the reproduction has not been
disputed and, thus, we may consider it.”) (citation omitted).



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commuted, when does that take place?” The judge replied, “I can’t tell you.

It could be 12 years. It could be 15 years. It could be 18 years.” N.T. Plea,

4/2/92, at 12.   The court took a recess for lunch, and, when the parties

reconvened, Appellant entered a plea of nolo contendere.        The trial court

closed the proceedings by stating, “You will get out before you are even

middle-aged, and when you get out, you will have something to work with.”

Id. at 45.

      Turning to the legal arguments, Appellant raised a number of

challenges to his plea, which may be summarized as follows: the trial judge

impermissibly participated in his plea negotiations, causing him to enter an

involuntary plea. Recognizing that the time to raise that issue has long since

passed, Appellant states that “all prior P.C.R.A. counsels were ineffective

(denied petitioner effective assistance) for failing to raise trial judge’s

(illegal/improper participation)[.]” Appellant’s brief at 6 (unpaginated).

      The PCRA subsumes all requests for post-conviction relief for which it

offers a remedy. Commonwealth v. Turner, 80 A.3d 754, 770 (Pa. 2013).

Clearly, the PCRA offered a remedy for these claims. See Commonwealth

v. Johnson, 875 A.2d 328, 332 (Pa.Super. 2005) (considering under the

PCRA claims that trial counsel ineffectively failed to act when trial judge

actively pressured the defendant to accept a plea offer). Thus, these claims

were subject to the PCRA. Appellant cannot evade the time-bar by asserting

that all prior attorneys rendered ineffective assistance by neglecting this


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issue. Commonwealth v. Robinson, 139 A.3d 178, 186 (Pa. 2016) (“[I]t

is   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.”).

      Finally, Appellant’s petition claimed that he was entitled to specific

performance as called for by the plea bargain. As the Commonwealth’s brief

states, it agreed to the following:

      In return for his plea and cooperation in any investigations
      involving Troy Williams and his associates, the Commonwealth
      agreed to forfeit its right to seek the death penalty, to
      recommend that defendant's sentence of life-imprisonment be
      ordered to run concurrently with the sentence for the prior
      murder conviction, [and] to support a petition for commutation
      filed by defendant by informing the Parole Board of defendant's
      cooperation in its investigations[.]

Commonwealth’s brief at 3.

      Appellant sought specific performance of these terms, namely, its

support for a petition for commutation.        We find that this claim was not

subject to the PCRA.        In Commonwealth v. Partee, 86 A.3d 245

(Pa.Super. 2014), the appellant filed a petition seeking enforcement of his

plea bargain with respect to how long he was required to register as a sex

offender.   The trial court treated the petition as subject to the PCRA, and

dismissed on timeliness grounds. We disagreed.

      We note that the within petition is not an attack on
      Appellant's sentence, nor is he alleging that he is innocent of
      the offenses of which he was convicted. Appellant is not
      asserting that his conviction or sentence resulted from a
      violation of the Constitution, ineffective assistance of counsel, an

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       unlawfully-induced plea, obstruction by government officials of
       his right to appeal, newly-discovered evidence, an illegal
       sentence, or a lack of jurisdiction. 42 Pa.C.S. § 9543(a)(2). In
       short, we agree with Appellant that his claim does not fall within
       the scope of the PCRA and should not be reviewed under the
       standard applicable to the dismissal of PCRA petitions.

Id. at 247 (emphasis added).

       To the extent that Appellant’s petition sought this relief as an

alternative to his involuntary plea claim, the same is true herein. Thus, the

PCRA court erred by treating this claim as part of the PCRA proceedings.3

Nonetheless, Appellant is not entitled to relief, and the PCRA court therefore

did not err in dismissing the petition.

       Assuming arguendo that the trial court could enter an order directing

the Commonwealth to support his efforts to have his sentence commuted,

Appellant breached his end of the bargain.         As the Commonwealth’s brief

notes:

       [Appellant], however, ignores that the Commonwealth promised
       such support in return for his cooperation in any investigations
       involving Troy Williams and his associates, and the support
       would consist of its informing the Parole Board of that
       cooperation (N.T. 4/2/92, 3, 19-20, 42). As defendant himself
       has conceded under oath, after he entered his nolo contendere
       plea he refused to assist the Commonwealth in its investigations
       (N.T. 5/7/97, 94-96).

Commonwealth’s brief at 10.
____________________________________________


3 We assume without deciding that the trial court erred in failing to parse out
the claims. Our research has not discovered any case involving a petition
that raised mixed claims in which some were subject to the PCRA, but others
were not.



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     We agree that Appellant is not entitled to specific performance

because Appellant breached the agreement by failing to cooperate. Id. at

250 (“[H]aving failed to abide by the terms of the plea bargain, that

agreement is no longer in effect, and hence, [Partee] is not entitled to

specific performance.”).

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/18




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