J-S74035-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH                          OF :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                             :        PENNSYLVANIA
                                             :
                                             :
                v.                           :
                                             :
                                             :
    BARTHANIEL TOUCHSTONE                    :
    THORNTON                                 :   No. 2301 EDA 2016
                                             :
                       Appellant

                    Appeal from the PCRA Order June 2, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0014585-2008


BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                           FILED JANUARY 19, 2018

        Appellant, Barthaniel Touchstone Thornton, appeals from the order

entered June 2, 2016, dismissing as untimely his petition for collateral relief

filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

We affirm.

        On May 21, 2009, Appellant proceeded to a waiver trial and was found

guilty of aggravated assault, firearms not be carried without a license, carrying

firearms in public on the streets of Philadelphia, possession of an instrument

of crime, simple assault, and recklessly endangering another person.1          On

September 24, 2009, Appellant was sentenced to serve an aggregate term of

fifteen to thirty years of incarceration. Appellant did not file a direct appeal.

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1
    18 Pa.C.S. §§ 2702(a), 6106(a)(1), 6108, 907(a), 2701(a), and 2705.
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       On February 11, 2011, Appellant filed a petition for writ of habeas corpus

with the Pennsylvania Supreme Court, which the court denied.                See

Commonwealth v. Thornton, 29 A.3d 1156 (Pa. 2011).

       On August 3, 2012, Appellant pro se filed a PCRA petition. In February

2014, David Scott Rudenstein, Esq. was appointed as counsel.2 In January

2016, Mr. Rudenstein filed a Turner/Finley “no merit” letter and motion to

withdraw.3 On April 29, 2016, Appellant filed a response in opposition.

       Upon consideration of Mr. Rudenstein’s Turner/Finley letter, the PCRA

court issued Rule 907 notice of its intent to dismiss Appellant’s petition on May

4, 2016. The Honorable Joan A. Brown accepted the Turner/Finley letter

and dismissed Appellant’s petition on June 2, 2016. No action was taken on

the motion to withdraw.          Thereafter, this matter was transferred to the

Honorable Leon W. Tucker.



____________________________________________


2
  Appellant filed a series of supplemental pro se correspondences before and
after counsel was appointed. “‘The Rules of Criminal Procedure contemplate
that amendments to pending PCRA petitions are to be “freely allowed to
achieve substantial justice,’ Pa.R.Crim.P. 905(A), but Rule 905 amendments
are not ‘self-authorizing’ such that a petitioner may simply ‘amend’ a
pending petition with a supplemental pleading.” Commonwealth v. Mason,
130 A.3d 601, 653 n. 19 (Pa. 2015) (citing Commonwealth v. Porter, 35
A.3d 4, 12 (Pa. 2012)). “[A]mendment is permitted only by direction or leave
of the PCRA court.” Porter, 35 A.3d at 12. There is no indication that
Appellant requested the PCRA court consider the amendments, nor any
indication that the court granted Appellant leave to amend his initial PCRA
petition. See Porter, supra.

3
 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988).

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      On June 27, 2016, Appellant pro se filed a notice of appeal. During the

pendency of the appeal, Judge Tucker undertook a separate review of the

Turner/Finley letter. Thereafter, Judge Tucker sent a letter to this Court

seeking remand for appointment of new counsel stating: “[W]e believe Mr.

Thornton should be represented by counsel, as there may be substantive

issues of merit that should be resolved on appeal.” Letter from Judge Tucker

to Deputy Prothonotary of the Superior Court, 2/6/2017.

      On February 22, 2017, this Court remanded the appeal to the PCRA

court for thirty (30) days for a determination to resolve the lack of disposition

on the motion to withdraw filed by PCRA counsel, David Scott Rudenstein,

Esq. See Pa. Super. Order, 2/22/2017. On May 3, 2017, Judge Tucker issued

an order that permitted PCRA counsel to withdraw and appointed Michael P.

Marryshow, Esq. to represent Appellant on appeal.         See PCRA Ct. Order,

5/3/2017.    Mr. Marryshow filed a brief with this Court purporting to raise

claims under the auspices of a direct appeal. This was error as the PCRA court

never authorized Appellant to file a direct appeal nunc pro tunc.

      Furthermore, “‘[a]mong the related but distinct rules which make up the

law of the case doctrine’ is the rule that ‘upon transfer of a matter between

trial judges of coordinate jurisdiction, the transferee trial court may not alter

the resolution of a legal question previously decided by the transferor trial

court.’”   Commonwealth v. King, 999 A.2d 598, 600 (Pa. Super. 2010)

(quoting Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995)).



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     The various rules which make up the law of the case doctrine not
     only serve to promote the goal of judicial economy (as does
     the coordinate jurisdiction rule) but also operate to (1) to protect
     the settled expectations of the parties; (2) to insure uniformity of
     decision; (3) to maintain consistency during the course of a single
     case; (4) to effectuate the proper and streamlined administration
     of justice; and (5) to bring litigation to an end.... The various
     policies which motivated the development of these rules and
     which continue to motivate the enduring existence of both
     the coordinate jurisdiction rule and the law of the case doctrine
     are of paramount importance in the context of a criminal
     proceeding where the criminal defendant and his counsel must be
     allowed to proceed to trial with an established trial strategy and
     with the security of knowing, for example, that he either will or
     will not be permitted to represent himself or that his pre-trial
     statements either will or will not be introduced against him at trial.
     In this regard, these rules seek to ensure fundamental fairness in
     the justice system by preventing a party aggrieved by one judge's
     interlocutory order to attack that decision by seeking and securing
     relief from a different judge of the same court, thereby forcing
     one's opponent to shift the focus of his trial strategy in the matter.

Commonwealth v. Santiago, 822 A.2d 716, 724 (Pa. Super. 2003)

(quoting Starr, 664 A.2d at 1331).

     The PCRA court’s decision to dismiss on the basis of PCRA counsel’s

Turner/Finley letter was akin to a disposition of a legal question. See Rule

907 Notice, 5/4/2016. It is well-established that:

     [w]hen “counsel determines that the issues raised under the
     PC[R]A are meritless, and when the PC[R]A court concurs, counsel
     will be permitted to withdraw and the petitioner may proceed pro
     se, or by privately retained counsel, or not at all.” Turner, 544
     A.2d at 928-929 (emphasis added); see also Commonwealth v.
     Finley, 550 A.2d 213 215 (Pa. Super. 1988) (en banc) (“Once
     counsel for the petitioner determine that the issues raised under
     the PC[R]A are ‘meritless,’ and the PC[R]A court concurs, counsel
     will be permitted to withdraw and the petitioner may proceed on
     his own or with the aid of private counsel to pursue a review of
     the ruling entered, if he/she so wishes.” (citing Turner, supra)
     (emphasis added).

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         We therefore conclude that, when counsel has been appointed
      to represent a petitioner in post-conviction proceedings as a
      matter of right under the rules of criminal procedure and when
      that right has been fully vindicated by counsel being permitted to
      withdraw under the procedure authorized in Turner, new counsel
      shall not be appointed and the petitioner, or appellant, must
      thereafter look to his or her own resources for whatever further
      proceedings there might be.

Commonwealth v. Maple, 559 A.2d 953, 956 (Pa. Super. 1989) (footnote

omitted).

      Judge Tucker’s decision to appoint Mr. Marryshow as appellate counsel

was in direct conflict with the dismissal of Appellant’s petition based on a

Turner/Finley letter and, curiously, Judge Tucker’s decision to permit Mr.

Rudenstein to withdraw. Even if Judge Tucker did not agree with the initial

determination of the PCRA court, Judge Tucker was barred from appointing

appellate counsel by the coordinate jurisdiction rule.        Id.; see also

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012). We note

further that, by appointing appellate counsel in a PCRA matter deemed by the

PCRA court to be meritless, this violation of the coordinate jurisdiction rule

resulted in a waste of judicial resources. See Starr, 664 A.2d at 1331.

      Notwithstanding this error, we consider the brief filed by Mr. Marryshow

on Appellant’s behalf. On appeal, Appellant raises the following issue:


      Did the trial court err in sentencing Appellant on a second strike
      mandatory minimum sentence without first providing Appellant’s
      complete record of previous convictions to Appellant?

Appellant's Br. at 3 (unnecessary capitalization removed).


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      Essentially, Appellant challenges the legality of his sentence. According

to Appellant, he was not provided with copies of his prior convictions or

notified of the Commonwealth’s intent to seek the mandatory minimum of ten

to twenty years of incarceration for aggravated assault. See Appellant's Br.

at 8 (citing 42 Pa.C.S. § 9741(d)).

         Our standard of review of the denial of a PCRA petition is
      limited to examining whether the evidence of record supports the
      court's determination and whether its decision is free of legal
      error. This Court grants great deference to the findings of the
      PCRA court if the record contains any support for those
      findings. [A] petitioner is not entitled to a PCRA hearing as a
      matter of right; the PCRA court can decline to hold a hearing if
      there is no genuine issue concerning any material fact and the
      petitioner is not entitled to post-conviction collateral relief, and no
      purpose would be served by any further proceedings. A reviewing
      court on appeal must examine each of the issues raised in the
      PCRA petition in light of the record in order to determine whether
      the PCRA court erred in concluding that there were no genuine
      issues of material fact and in denying relief without an evidentiary
      hearing.

Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa. Super. 2015), appeal

denied, 136 A.3d 981 (Pa. 2016) (internal citations and quotation marks

omitted).

      Initially, we examine the timeliness of Appellant’s petition.      Although

illegal sentencing issues cannot be waived, they must be presented in a timely

PCRA petition. Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa. Super.

2013). As we have explained:

         The filing mandates of the PCRA are jurisdictional in nature and
      are strictly construed. The question of whether a petition is timely
      raises a question of law. Where the petitioner raises questions of
      law, our standard of review is de novo and our scope of review

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       plenary. An untimely petition renders this Court without
       jurisdiction to afford relief.

          A petition for relief under the PCRA must be filed within one
       year of the date the PCRA petitioner's judgment of sentence
       becomes final unless the petitioner alleges and proves that an
       exception to the one-year time-bar is met. 42 Pa.C.S. § 9545.

Taylor, 65 A.3d at 468 (citations omitted).

       There are three exceptions:

       (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).         Any petition attempting to invoke these

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

presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000).

       The instant PCRA petition was filed on August 3, 2012, more than three

years after the judgment became final.4            Further, Appellant has neither

____________________________________________


4
 Appellant’s petition is patently untimely. Appellant’s judgment of sentence
became final on October 26, 2009. The time for filing a PCRA petition seeking
collateral review ended one year after the date the judgment of sentence



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pleaded nor attempted to prove an exception to the time-bar in his PCRA

petitions or in his brief. Consequently, the PCRA court was without jurisdiction

to review the merits of Appellant’s claim and properly dismissed his petition

without an evidentiary hearing. See Taylor, 65 A.3d at 468.5

       Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/19/2018




____________________________________________


became final, October 25, 2010. See 42 Pa.C.S. § 9545(b)(1). Thus, the
petition was filed more than three years after the judgment became final.

5
  Notwithstanding our lack of jurisdiction, we note briefly that Appellant’s claim
is devoid of merit. The certified record contains Appellant’s written jury trial
waiver colloquy, which serves as proof of his notice of the potential range of
sentences for the crimes charged. See Jury Waiver Colloquy, at 3 (signed by
District Attorney, Counsel, trial judge, and Appellant 5/21/2009). After
conviction and before sentencing, Appellant was provided with notice of his
prior record score, including twenty-seven Philadelphia arrests and one felony-
rape conviction. See Notes of Testimony (N.T.), 5/21/2009, at 132. At that
time, the court requested a presentence report and informed Appellant on the
record that he had a second strike and a potential ten to twenty year sentence.
Id. The statute merely requires “reasonable notice of the Commonwealth's
intention to proceed under this section shall be provided after conviction and
before sentencing[.]” 42 Pa.C.S. § 9714(d).

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