J-S51014-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                   v.

ERIC COXRY

                        Appellant                   No. 3810 EDA 2016


               Appeal from the PCRA Order October 26, 2016
              In the Court of Common Pleas of Chester County
            Criminal Division at No(s): CP-15-CR-0001939-2009


BEFORE: BOWES, J., SHOGAN, J., AND STEVENS, P.J.E.,*

MEMORANDUM BY BOWES, J.:                           FILED AUGUST 17, 2017

     Eric Coxry appeals from the order dismissing his PCRA petition as

untimely. We affirm.

     We previously set forth the relevant facts as follows:

            [Appellant] was charged with first degree murder for the
     shooting death of Jonas Suber. On July 19, 2013, a jury found
     [Appellant] guilty of first degree murder. The Commonwealth
     offered to waive its right to seek the death penalty if [Appellant]
     agreed to waive all rights of appeal and thus spend the rest of
     his life in prison. [Appellant] accepted the Commonwealth’s
     offer.

     ....

            The trial court questioned [Appellant] on the record and
     determined that he entered into this agreement knowingly,
     voluntarily, and intelligently. The court sentenced [Appellant] to
     life imprisonment without the possibility of parole for first degree
     murder and concurrent terms of 20[-]40 years’ imprisonment for
     conspiracy and 10-20 years’ imprisonment for burglary.

* Former Justice specially assigned to the Superior Court.
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           On August 15, 2013, more than 10 days after sentencing,
     [Appellant] filed a motion entitled as a “post-sentence motion” to
     withdraw his waiver of his rights. On August 22, 2013 the court
     scheduled a hearing on [Appellant’s] motion. On January 21,
     2014, after two days of hearings, the court denied [Appellant’s]
     motion. On February 7, 2014, [Appellant] filed a notice of
     appeal.

Commonwealth v. Coxry, 116 A.3d 695 (Pa.Super. 2014) (unpublished

memorandum) at *1-3.

     On direct appeal, we noted that untimely post-sentence motions do

not toll the thirty-day appeal period, even when the trial court holds a

hearing and renders a decision on the merits.      Since Appellant filed an

untimely post-sentence motion, we found that his appeal period commenced

on the date of his sentencing, July 22, 2013, and therefore his notice of

appeal filed on February 7, 2014, was untimely. As such, we quashed his

appeal.   Appellant filed a petition for allowance of appeal to our Supreme

Court, which was denied on May 4, 2015. Commonwealth v. Coxry, 114

A.3d 415 (Pa. 2015).

     On February 23, 2016, Appellant filed his first PCRA petition. Counsel

was appointed, but later sought to withdraw. On August 25, 2016, the PCRA

court filed a Rule 907 notice of its intent to dismiss Appellant’s petition.

Appellant filed an objection to that notice.      Subsequently, the court

dismissed Appellant’s PCRA petition, and granted counsel’s petition to




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withdraw. Appellant filed a pro se notice of appeal to this Court.1    Appellant

filed a Rule 1925(b) concise statement of errors complained of on appeal,

and the PCRA court authored its Rule 1925(a) opinion. This matter is now

ready for our review.

       Appellant raises six questions for our consideration:

       1. Whether Appellant’s PCRA counsel (hereinafter, Robert P.
          Brendza, Esq.) was ineffective for failing to argue that
          Appellant’s Sentencing-Hearing counsel (hereinafter, Brenda
          Jones, Esq.) was ineffective for failing to ensure that
          Appellant’s request to with draw [sic] his guilty plea dated
          July 30, 2013, [was] timely docketed before August 1, 2013?

       2. Whether Robert P. Brendza, Esq. was ineffective for failing to
          argue that Brenda Jones, Esq. was ineffective for failing to
          notify the Trial Court that the court lacked jurisdiction to hold
          a hearing on the voluntariness of the Appellant’s plea since
          the Clerk docketed the [post-sentence motion] on August 15,
          2013, (i.e. fourteen (14) days after the deadline to file Post
          Sentence Motion to preserve Appellant’s Right to Direct
          Appeal)?

       3. Whether Robert P. Brendza, Esq. was ineffective for failing to
          argue that Appellant’s initial appeal counsel (hereinafter,
          Vincent P. Difabio, Esq.) was ineffective for failing to notify
          the Trial Court that it lacked jurisdiction to hold a Hearing on
          Mrs. Brenda Jones’ untimely docketed Post Sentence Motion
          (after Mr. Difabio was appointed to represent Appellant on
          November 25, 2013)?
____________________________________________


1
  Appellant’s notice of appeal was not docketed by the clerk of courts until
November 28, 2016, which would render it untimely. However, the PCRA
court found that Appellant’s notice of appeal was timely filed, pursuant to
the “prisoner-mailbox rule,” according to the postmarked envelope dated
November 23, 2016. PCRA Court Opinion, 1/5/17, at unnumbered 1. The
Commonwealth does not dispute this finding, thus, we find that Appellant’s
notice of appeal was timely filed.



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      4. Whether Robert P. Brendza, Esq. was ineffective for failing to
         argue that Vincent P. Difabio, Esq. was ineffective for failing
         to argue that Brenda Jones, Esq. was ineffective for filing an
         untimely Post Sentence Motion (on August 15, 2013), after
         Mr. Difabio was appointed to represent [A]ppellant on
         November 25, 2013?

      5. Whether Robert P. Brendza, Esq. was ineffective for failing to
         argue that Vincent P. Difabio, Esq. was ineffective for failing
         to file a timely “Application For Reargument” in the
         Pennsylvania Superior Court after the Pennsylvania Superior
         Court incorrectly found that the Appellant was untimely in his
         attempt to withdraw his Sentence-Phase plea, (since the
         certified record confirms that both the Trial Court and Brenda
         Jones, Esq. were duly informed by Appellant)?

      6. Whether Robert P. Brendza, Esq. was ineffective for failing to
         argue that Vincent P. Difabio, Esq. was ineffective for failing
         to file a Federal Writ of Habeas Corpus (i.e. after Mr. Difabio
         was appointed to represent Appellant on November 25, 2013)
         thereby properly raising a claim that the Trial Court denied
         Appellant his right to due process of law by holding a hearing
         that it lacked jurisdiction to hold and “Denying the
         [A]ppellant’s Post-Trial Motion seeking to withdraw the
         agreement to waive his appellate rights in exchange for a
         sentence of life imprisonment”?

Appellant’s brief at 4-5.

      As a preliminary matter, we must determine whether we have

jurisdiction over this appeal. It is well-settled that a PCRA petition must be

filed within one year of the date that a defendant’s judgment of sentence

becomes final, unless an exception to this one-year time restriction applies.

42 Pa.C.S. § 9545(b)(1). The statutory time-bar is jurisdictional in nature.

If a PCRA petition is untimely, “neither this Court nor the trial court has

jurisdiction over the petition.”   Commonwealth v. Miller, 102 A.3d 988,

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992 (Pa.Super. 2014) (citation omitted). Whether a petition is timely is a

question of law. As such, our standard of review is de novo, and our scope

of review is plenary.        Commonwealth v. Hudson, 156 A.3d 1194, 1197

(Pa.Super. 2017).

     When a PCRA petition is facially untimely, the petitioner must plead

and prove that one of the statutory exceptions applies. Id. If no exception

applies, then the petition must be dismissed, as we cannot consider the

merits of the appeal. Id. The PCRA reads, in pertinent part:

     (b)       Time for filing petition.-

        (1)          Any petition under this subchapter, including a second
                     or subsequent petition, shall be filed within one year of
                     the date the judgment of sentence becomes final,
                     unless the petition alleges and the petitioner proves
                     that:

               i.       the failure to raise the claim previously was the
                        result of interference by the government officials
                        with the presentation of the claim in violation of the
                        Constitution or law 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.

        (2)          Any petition invoking an exception provided in
                     paragraph (1) shall be filed within 60 days of the date
                     the claim could have been presented.



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42 Pa.C.S. § 9545(b)(1) and (2).

      Instantly, the calculation of when Appellant’s judgment of sentence

became final is governed by Commonwealth v. Brown, 943 A.2d 264 (Pa.

2008). In Brown, the defendant was convicted of numerous drug offenses,

and sentenced to a period of incarceration.    Counsel offered an oral post-

sentence motion, but failed to file a written post-sentence motion.

Nevertheless, the court purported to deny the oral motion eleven months

after sentencing.   Following that decision, the defendant filed a notice of

appeal to this Court.    We quashed the defendant’s appeal as untimely,

finding that, by failing to file a timely, written post-sentence motion, the

period in which the defendant could file a notice of appeal was not tolled.

Id. at 265; See Pa.R.Crim.P. 720(A)(3) (“If the defendant does not file a

timely post-sentence motion, the defendant’s notice of appeal shall be filed

within 30 days of imposition of sentence,” except in circumstances not

relevant here).

      Utilizing the PCRA, the defendant sought reinstatement of his appellate

rights.   Although the PCRA court reinstated those rights, this Court again

quashed the resulting appeal as untimely, finding that, since the defendant

did not file a timely post-sentence motion, his judgment of sentence became

final thirty days after the imposition of his sentence, i.e., June 2001. Since

the defendant filed his PCRA petition in February 2004, it was untimely.




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      Our Supreme Court granted allocatur to address the incongruity of

that decision with past Supreme Court case law. The High Court reviewed

an oft-cited statement in Commonwealth v. Murray, 753 A.2d 201 (Pa.

2000), which noted that a judgment of sentence did not become final for the

purposes of the PCRA’s time-bar until the expiration of the time for seeking

review. In Murray, the Supreme Court interpreted § 9545 as indicating that

the petitioner’s judgment of sentence did not become final until thirty days

after his appeal was quashed as untimely by this Court.       Id. at 203.     In

Brown, the High Court determined that this interpretation was at odds with

§ 9545, and in any case, it was dictum with no precedential effect. Instead,

it ruled that there was no “generalized equitable exception to the

jurisdictional one-year time bar pertaining to post-conviction petitions,” and

thus, “in circumstances in which no timely direct appeal is filed relative to a

judgment of sentence, and direct review is therefore unavailable, the one-

year period allowed for the filing of a post-conviction petition commences

upon the actual expiration of the time period allowed for seeking direct

review[.]” Brown, supra at 267-268.

      Here, Appellant’s sentence was imposed on July 22, 2013. He did not

file a timely post-sentence motion or a timely notice of appeal. As such, his

judgment of sentence became final on August 21, 2013, thirty days after the

entry of his sentence when his opportunity to seek direct review expired.

Hence, Appellant had until August 21, 2014, to file a timely PCRA petition.

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      Appellant filed the instant petition on February 23, 2016, rendering his

petition facially untimely.   He did not plead and prove any of the three

statutory exceptions outlined in 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Thus, the

PCRA court did not err in dismissing Appellant’s PCRA petition as untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/17/2017




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