Case Information
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF : PENNSYLVANIA
v.
GURINDER SINGH
Appellant No. EDA 2016 : Appeal from the Order August 2016 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0002760-2012 BEFORE: LAZARUS, SOLANO, JJ., STEVENS, P.J.E.* FILED MAY 08, 2017
MEMORANDUM BY STEVENS, P.J.E.: Appellant Gurinder Singh appeals from order entered the Court Common Pleas Delaware County August 2016, denying his second for relief pursuant Post Conviction Relief Act ("PCRA").1 In addition, Application Withdraw Appearance. Upon review, grant counsel's motion seeking to withdraw affirm the order of the court. trial court summarized relevant facts procedural history herein follows:
On February 2012, the arrested and charged First -Degree Murder, Third -Degree Murder, and * Former Justice specially assigned the Superior Court. Pa.C.S.A. §§ 9541-9546.
related charges, connection the death of his wife. Appellant contends that his wife committed suicide because of the shame resulting from their daughter marrying a Muslim man. Appellant wife were followers of the Sikh religion and did not approve of their daughter's marriage. Delaware County Coroner determined that the death of Appellant's wife, Jaswinder Kaur, was a homicide by asphyxiation, assaulted by another.'
On April 30, 2012, a Preliminary Hearing was held and Mr. Scott Kramer, Esquire represented the Appellant. On May 10, 2012, Appellant was arraigned. On October 5, 2012, the Commonwealth filed a "Motion to Introduce Evidence of the Defendant's prior bad acts against the victim under Pa.R.E. 404(b)". (The asserted on February 20, 2012, two days prior to the victim's murder, three of the Appellant's children witnessed the Appellant threaten to kill the victim. On same date, the children observed Appellant strike slap victim about her face body). (Motion p. 2)2
On December 4, 2012, Appellant entered a non -negotiated Guilty Plea Third -Degree Murder. On January 23, 2013, the court held Sentencing Hearing3. At the Hearing, asked court sentence Appellant a period state incarceration of to 40 years. (N.T. 1/23/13 p. 30). requested the court sentence Appellant toward the bottom of the standard range. (N. T. 1/23/13 p. 27). On January 23, 2013, the court sentenced Appellant to: 30 years, SCI, followed by five years consecutive state probation with credit for time served from 2/22/12 1/23/13. (N. T. 1/23/13 p. 35-36).
On February 5, 2013, Appellant's Plea Counsel filed a Motion Reconsideration of Sentence, which was denied on March 4, 2013. Appellant never filed timely Notice of Appeal to Superior Court. However, on October 11, 2013, Appellant's Plea Counsel untimely Notice Appeal at 2878 EDA 2013, which withdrawn by Plea Counsel November 26, 2013.
PCRA I:
On March 3, 2014, se Petition alleging inter alia Plea Counsel failed notice of appeal. (pro Petition p. 3). On March 5, 2014, an order entered appointing Steve Molineux, Esquire PCRA counsel. On November Mr. Molineux, Esquire filed "No Merit" letter. On January 2015, the undersigned entered an Order dismissing the Post -Conviction Relief Act Petition. On
- - January 29, 2015, the Appellant filed a timely Notice of Appeal to Pennsylvania Superior Court it docketed at No. 437 EDA 2015. The Superior Court issued a Memorandum Opinion filed December 29, 2015. The Opinion affirmed PCRA denial order, holding the Petition untimely. II:
On April 28, 2016, Appellant filed his second PCRA Petition. The court appointed Scott Galloway, Esquire, as PCRA counsel. On July 11, 2016, Mr. Galloway, filed an "Amended Petition for Post Conviction Collateral Relief". On July 27, 2016, the Commonwealth responded. On August 9, 2016, the court filed a Notice of Intent to Dismiss Petition without a Hearing. On August 22, 2016, the undersigned entered Order dismissing the second Post -Conviction Relief Act Petition.
On September 19, 2016, Appellant filed a Notice of Appeal. Consequently, pursuant Pa. R.A.P. 1925(b), the Court ordered Appellant Concise Statement of Errors to Complained of Appeal. On September 21, 2016, Appellant Concise Statement . . . . 'Affidavit Probable Cause p.2. (Affidavit Probable Cause, Criminal Complaint, and Post Mortem Report were made part of the Guilty Plea admitted into evidence basis Plea. (N. T. 12/4/12 pp. 21-22). entered Plea before the Motion was heard by
the court. Three of the Appellant's five children testified at the Sentencing
Hearing and each one testified against the Appellant. His son Praduc Singh testified: "All I want to say I want him to receive maximum punishment for what did. That's all I want to say. I don't support him at all." (N.T. 12/4/12 p.12; p.14; p.21).
Trial Court Opinion, January 2017, at 1-4.
On February counsel filed Application Withdraw Appearance purported Turner/Finely brief2 with this Court.3 2Commonwealth v. Turner, 927 (Pa. 1988) and Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). has not responded to the petition to withdraw as counsel, nor has retained alternate counsel this appeal.
Prior to addressing merits of Appellant's claims on appeal, must first decide whether counsel has fulfilled the procedural requirements for withdrawing representation. v. Daniels, 947 A.2d 795, 797 (Pa.Super. 2008). This Court listed the conditions to be met by counsel seeking to withdraw in a collateral as follows:
Counsel petitioning to withdraw from representation must proceed ... under [Turner, supra and Finley, supra and] ... must review case zealously. Turner/Finley must then submit a "no -merit" letter to trial court, or brief on appeal to this Court, detailing the nature and extent counsel's diligent review of case, listing the issues which petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.
Counsel must also send petitioner: (1) a copy of the "no merit" letter/brief; (2) copy of counsel's withdraw; (3) statement advising petitioner of the right to proceed pro by new counsel.
(Footnote Continued)
[3] Counsel erroneously purports withdraw under Anders v. California, 386 U.S. 87 S.Ct. 18 L.Ed. 2d 493 (1967), which applies when counsel seeks to withdraw from representation on direct appeal. When counsel seeks withdraw from representation collateral appeal, as the dictates of Finley Turner are applicable. case herein, v. Wrecks, (Pa.Super. 2007) (counsel petitioning withdraw from representation must proceed not under Anders, but under Turner Finley). However, because Anders brief provides greater protection defendant, this Court may accept an Anders brief lieu Turner/Finley "no merit" letter. Commonwealth Reed, A.3d 137, 139 n. (Pa.Super. 2014). We will refer to counsel's erroneously titled Anders Brief Turner/Finley brief. * * *
[W]here counsel submits and no -merit letter that ... satisfy the technical demands of Turner/Finley, the court-trial court or this Court-must then conduct its own review of the merits the case. If the court agrees with counsel that claims are without merit, the court will permit counsel to withdraw and deny relief. v. Doty, 48 A.3d 454 (Pa.Super. 2012) (citation
omitted). thorough review of
Herein, counsel indicates he had made a case, and after said review concluded appeal wholly frivolous. See Application to Withdraw Appearance, filed 2/22/17, at 2- 3. Counsel also lists numerous issues relevant to this explains why, his view, they lack merit. In addition, counsel has attached his motion copy of the letter he sent Appellant wherein counsel advised Appellant of his right to proceed or through privately -retained counsel. Counsel also attached letter copy of application to withdraw Turner/Finely brief. Thus, conclude that counsel has substantially complied with the requirements necessary to withdraw as counsel. See Karanicolas, 947 (Pa.Super. 2003) (holding that substantial compliance requirements withdraw counsel will satisfy Turner/Finley criteria).4 We now We note withdraw under Anders, must: (1) petition the Court leave to withdraw certify that after thorough review of the record, she concluded issues be raised are wholly (Footnote Continued Next Page)
review this based issues of arguable merit presented in Turner/Finley brief to ascertain whether they entitle Appellant to relief.
Counsel identified the following issues for appellate review: Guilty Plea offer not knowingly, voluntarily and 1) intelligently tendered. It requested of Trial Counsel to provide an interpreter
2) knowing [Appellant] could not properly understand, spell, read or write English language. [Appellant] requested Trial Counsel to file a timely Motion
3) Reconsideration of Sentence Counsel failed to do so. 4) Trial Counsel was requested file a Notice of Appeal to the Superior Court which failed to do in manner resulting said Appeal being withdrawn.
Turner/Finely Brief at 4.
When reviewing the propriety of order denying PCRA relief, this Court is limited determination whether the evidence of record supports the court's conclusions whether its ruling free of legal error. Robinson, , 178, Pa. , (2016). This Court will not disturb court's findings unless (Footnote Continued)
frivolous; (2) file brief referring anything record might arguably support the appeal; (3) provide copy of the brief appellant advising him right obtain new counsel se brief raising any additional points that the appellant deems worthy of review. Karanicolas, supra at 947.
there is no support for them the certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa.Super. 2014).
At the outset, consider whether this is properly before us. question of whether petition is raises question of law, and where petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary. v. Callahan, 101 A.3d 121 (Pa.Super. 2014).
All petitions must be within one year of the date upon which the judgment of sentence became final, unless one of the statutory exceptions set forth Pa.C.S.A. § 9545(b)(1)(i)-(iii) applies. The petitioner bears the burden of pleading proving an applicable statutory exception. If petition untimely petitioner not pled and proven exception, the petition must be dismissed without hearing because Pennsylvania courts are without jurisdiction consider the merits of the petition. Taylor, A.3d 462, 468 (Pa.Super. 2013). Pa.C.S.A. § 9545(b)(1)(i)-(iii) states:
(b) Time for filing petition. --
(1) Any petition under this subchapter, including second or
subsequent petition, shall be within one year of the date judgment of sentence becomes final, unless alleges petitioner proves that: (i) the failure to raise claim previously the result interference by government officials the presentation of the claim in violation of the Constitution or laws of this the Constitution or laws of the United States:
(ii) the facts upon which the claim is predicated were unknown the petitioner could not have been ascertained by the exercise of due diligence; or
(iii) the right asserted 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 court this section and has been held by apply retroactively.
42 Pa.C.S.A. § 9545(b)(1). In addition, any petition attempting invoke one of these exceptions "shall be filed within 60 days of date the claim could have been presented." Pa.C.S.A. § 9545(b)(2).
Herein, Appellant sentenced on January 23, 2013, filed an untimely post -sentence motion on February 5, 2013. As post -sentence motion had been untimely filed, it did not toll the time period which Appellant required notice of appeal this Court. See Green, 618 (Pa.Super. 2004) (en banc). As such, notice of had be filed by February 2013. As failed do so, his judgment sentence became final for purposes of on date. See Pa.C.S.A. § 9545(b)(3) ("a judgment becomes final at the conclusion of direct review, including discretionary review the Supreme Court of the United States the Supreme Court of Pennsylvania or at expiration time for seeking review"); see also U.S. Sup.Ct.R. 13.1.
A had to have been by Monday, February 2014; therefore, instant petition initially April 28,
- - patently untimely, the burden fell upon Appellant to plead prove that one of the enumerated exceptions one-year time -bar applied to case. See 42 Pa.C.S.A. § 9545(b)(1); v. Perrin, 947 A.2d 1284, 1286 (Pa.Super. 2008) (to invoke statutory exception time -bar, petitioner must properly plead and prove all required elements of the exception).
A prior panel this Court previously determined we lacked jurisdiction consider Appellant's fourth claim presented herein that his plea counsel had been ineffective for failing notice of Appeal from Appellant's judgment of sentence because he raised it in an untimely PCRA petition. Singh, No. EDA 2015, unpublished memorandum at 6-8 (Pa.Super. filed December 29, 2015). Therefore, this claim previously litigated. See Pa.C.S.A. § 9543(a)(3) (requiring the allegation of error appellant presents has not been previously litigated waived); see also Pa.C.S.A. § 9544(a)(2) (an issue previously litigated if "the highest appellate court which the petitioner could have had review matter right ruled merits of the issue").
With regard to the remaining three claims presents, find he has not pled or proven the applicability of any exception PCRA time -bar under Section 9545(b), nor does explain why he could not have known about these issues until April of 2016. As such, second pursuant manifestly untimely this Court lacks jurisdiction offer him any form of relief. v. Jackson, A.3d (Pa.Super. 2011).
Motion to withdraw granted. Order affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 5/8/2017
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