J-S54044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 HERMAN BRIAN JACKSON                    :
                                         :
                   Appellant             :   No. 666 WDA 2018

              Appeal from the PCRA Order November 28, 2017
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0000365-2016,
                         CP-02-CR-0000380-2016


BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                        FILED OCTOBER 18, 2018

      Herman Brian Jackson (Appellant) appeals from the order denying his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. After careful consideration, we quash.

      The PCRA court summarized the relevant factual history of this case as

follows:

            On May 16, 2016, [Appellant] appeared before [the trial
      court] to plead guilty pursuant to a negotiated plea agreement.
      [Appellant] was originally charged in two separate cases and the
      negotiated plea agreement resolved both cases. In the case filed
      at CC No. 2016000365, [Appellant] was charged with four counts
      of access device fraud, one count of theft, one count of receiving
      stolen property, four counts of unlawful use of a computer and
      four counts of identity theft.    In the case filed at CC No.
      201600[0]380, [Appellant] was charged with access device fraud,
      one count of theft, one count of receiving stolen property, one
      count of unlawful use of a computer, and identity theft. Under the
      terms of the plea agreement, [Appellant] agreed to plead guilty in
      the case filed at CC No. 2016000365 to three counts of access
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      device fraud, one count of theft and one count of identity theft.
      The remaining thirteen counts were withdrawn. [Appellant]
      agreed to plead guilty in the case filed at CC No. 2016000380 to
      one count of access device fraud, one count of theft and one count
      of identity theft. The remaining two counts were withdrawn.
      There was no agreement as to the sentences to be imposed at
      each case. [Appellant], upon being asked by the [c]ourt directly,
      advised that he knew what a presentence investigation report was
      and did not want to request the preparation of such a report prior
      to sentencing.

PCRA Court Opinion, 7/11/18, at 1-2.

      On May 16, 2016, the trial court sentenced Appellant to two consecutive

terms of 15 to 30 months in prison. On May 26, 2016, Appellant filed a post-

sentence motion seeking to modify his sentence; the trial court denied the

motion on June 8, 2016. Appellant did not file a direct appeal.

      On May 25, 2017, Appellant filed a timely pro se PCRA petition. P.

Donovan Morris, Esquire was appointed as counsel and filed an amended

petition on Appellant’s behalf on August 8, 2017. In his amended petition,

Appellant alleged that his guilty plea was unknowing and involuntary, and that

trial counsel was ineffective for failing to file a timely motion to withdraw his

guilty plea. On September 29, 2017, the Commonwealth filed an answer to

Appellant’s amended PCRA petition, seeking to have the petition dismissed.

The PCRA court issued notice of its intent to dismiss Appellant’s PCRA petition

without a hearing pursuant to Rule 907 of the Pennsylvania Rules of Criminal

Procedure on October 4, 2017. Appellant filed a response to the PCRA court’s

Rule 907 notice on October 23, 2017, asserting that the question of whether

his plea was knowing and voluntary involves an issue of material fact that



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requires a hearing. Accordingly, the PCRA court held a hearing on Appellant’s

PCRA petition on November 28, 2017, and thereafter denied Appellant’s

petition.

      On December 11, 2017, Attorney Morris filed a motion to withdraw as

counsel. In his motion, Attorney Morris acknowledged that Appellant wished

to appeal the PCRA court’s decision denying his PCRA petition.      However,

Attorney Morris indicated that he “cannot, and will not do so” as he believed

Appellant’s appeal was frivolous. The PCRA court issued an order granting

Attorney Morris’ request for the appointment of new counsel and appointed

Scott Coffey, Esquire as Appellant’s new counsel on December 20, 2017. No

direct appeal was filed.

      On April 16, 2018, Appellant filed the instant PCRA petition seeking to

have his collateral appeal rights reinstated nunc pro tunc. The Commonwealth

did not oppose the reinstatement of Appellant’s collateral appeal rights, and

on May 2, 2018, the PCRA court reinstated Appellant’s collateral appeal rights

nunc pro tunc. This appeal followed. Both Appellant and the PCRA court have

complied with Pennsylvania Rule of Appellate Procedure 1925(b).

      “Pennsylvania law makes clear no court has jurisdiction to hear an

untimely PCRA petition.” Commonwealth v. Monaco, 996 A.2d 1076, 1079

(Pa. Super. 2010) (quoting Commonwealth v. Robinson, 837 A.2d 1157,

1161 (Pa. 2003)). A petitioner must file a PCRA petition within one year of

the date on which the petitioner’s judgment became final, unless one of the

three statutory exceptions applies:

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      (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.A. § 9545(b)(1). A petitioner must file a petition invoking one of

these exceptions “within 60 days of the date the claim could have been

presented.” 42 Pa.C.S.A. § 9545(b)(2). If a petition is untimely, and the

petitioner has not pled and proven any exception, “neither this Court nor the

trial court has jurisdiction over the petition. Without jurisdiction, we simply

do not have the legal authority to address the substantive claims.”

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

      Here, Appellant’s PCRA petition is facially untimely.    “A judgment is

deemed 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.’” Monaco,

996 A.2d at 1079 (quoting 42 Pa.C.S.A. § 9545(b)(3)). The trial court entered

Appellant’s judgment of sentence on May 16, 2016. Appellant filed a post-



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sentence motion on May 26, 2016, but did not file a direct appeal. Therefore,

Appellant’s judgment of sentence became final 30 days from May 26, 2016,

or June 27, 2016. See Pa.R.A.P. 903(a) (“Except as otherwise prescribed by

this rule, the notice of appeal . . . shall be filed within 30 days after the entry

of the order from which the appeal is taken.”). Under Section 9545(b)(1),

Appellant needed to file a PCRA petition one year from June 27, 2016, or June

27, 2017.     Although Appellant filed his first PCRA petition within that

timeframe, the instant PCRA petition, his second, was not filed until April 16,

2018. Accordingly, we are without jurisdiction to decide Appellant’s appeal

unless he pled and proved one of the three timeliness exceptions of Section

9545(b)(1). See Derrickson, 923 A.2d at 468.

      In his petition, Appellant does not plead and prove any of the three

timeliness exceptions of Section 9545(b)(1). Rather, Attorney Coffey argues

that Appellant’s petition is timely based upon the “extension theory.”

Essentially, Attorney Coffey contends that Appellant’s second petition is timely

filed because it is an extension of Appellant’s first timely PCRA petition – a

request to have his collateral appeal rights reinstated nunc pro tunc. Attorney

Coffey notes that Appellant filed a timely PCRA petition on May 25, 2017.

However, due to Attorney Morris’ refusal to file a notice of appeal, Appellant

was deprived of his right to file an appeal from the denial of his timely PCRA

petition.   Thus, Attorney Coffey suggests that Appellant’s second PCRA

petition satisfies the jurisdictional timeliness requirements.




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      Our Supreme Court has consistently rejected “various theories devised

to   avoid   the   effects   of   the   [PCRA’s]   one-year   time     limitation[.]”

Commonwealth v. Robinson, 837 A.2d 1157, 1157 (Pa. 2003) (citing

Commonwealth v. Baroni, 827 A.2d 419 (Pa. 2003).                     Specifically, in

Robinson, the extension theory was explicitly rejected after our Supreme

Court concluded that “neither the language of the statute nor [the Supreme

Court’s] decisional law authorize[] suspension of the time-bar in instances

where the petitioner is seeking nunc pro tunc appellate relief or reiterating

claims which were litigated on a previous petition.” Robinson, 837 A.2d at

1161. The Court further explained:

      [T]he . . . ‘extension’ theory ignores bedrock principles of finality.
      Once a PCRA petition has been decided and the ruling on it has
      become final, there is nothing for a subsequent petition or
      pleading to ‘extend.’ Far from continuing into perpetuity, the trial
      court’s jurisdiction over a matter generally ends once an appeal is
      taken from a final order or, if no appeal is taken, thirty days elapse
      after the final order.

Id. at 1162 (internal citation omitted).

      Turning to the matter before us, pursuant to Robinson, Attorney

Coffey’s reliance on the extension theory to overcome the timeliness

requirements is misplaced. As the jurisdiction of the court over Appellant’s

first PCRA petition had expired, Appellant’s subsequent petitions were entirely

new collateral actions and, as such, they were subject to the time and serial

petition restrictions of Section 9545(b) of the PCRA. Since the petition at issue

here was facially untimely and Attorney Coffey failed to plead and prove any



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of the three exceptions to the time-bar, both the PCRA court and this Court

lack jurisdiction in this matter.

      This case is troubling insofar as appointed counsel, Attorney Morris,

failed to protect Appellant’s appeal rights despite acknowledging in his “Motion

to Withdraw as Counsel and to Request Appointment of New Appellate

Counsel” that “[Appellant] requested that Counsel file an [a]ppeal to the

Pennsylvania Superior Court to challenge the dismissal [of his PCRA petition].”

Motion to Withdraw as Counsel, 12/11/17, at ¶ 3.

      An indigent petitioner is entitled to representation by counsel for
      a first petition filed under the PCRA. See Commonwealth v.
      Hampton, 718 A.2d 1250 (Pa. Super. 1998). This right to
      representation       exists  “throughout     the    post-conviction
      proceedings, including any appeal from disposition of the petition
      for post-conviction relief.” Pa.R.Crim.P. 904(E). Once counsel
      has entered an appearance on a defendant’s behalf, counsel is
      obligated to continue representation until the case is concluded or
      counsel is granted leave by the court to withdraw his appearance.
      See Commonwealth v. Quail, 729 A.2d 571 (Pa. Super. 1999)
      (citation omitted).

Commonwealth v. Brown, 836 A.2d 997, 998-99 (Pa. Super. 2003).

      Attorney Morris filed his petition to withdraw on December 11, 2017.

Attorney Coffey was not appointed to replace Attorney Morris until December

20, 2017, eight days before the expiration of the 30-day appeal period. We

note that Attorney Morris could have filed a timely notice of appeal on

Appellant’s behalf, and then, if he was of the opinion that the appeal was

wholly   frivolous,   file   a   petition   to    withdraw   with   an   accompanying

Turner/Finley “no merit” letter. Likewise, upon being appointed eight days



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in advance of the expiration of the appeal period, Attorney Coffee could have

filed a timely notice of appeal on Appellant’s behalf, and then, depending on

his communications with Appellant, proceed accordingly.             Regardless of

whether the appeal is ultimately deemed frivolous, Appellant had the right to

an appeal from the denial of PCRA relief.1 Nevertheless, as the instant PCRA

petition is untimely, this court is without jurisdiction to consider it.

       Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/2018




____________________________________________


1 We likewise remind the PCRA court of an appellant’s right to file an appeal
from the denial of a PCRA petition and the dangers that arise in permitting
counsel to withdraw from a case so close to the expiration of the appeal period.

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