J-S09020-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

THOMAS SCOTT DRASS, 

 Appellant No. 1030 WDA 2014 

Appeal from the PCRA Order June 10, 2014 

In the Court of Common Pleas of Blair County 

Criminal Division at No(s): CP-07-CR-0001007-2005 

BEFORE: FORD ELLIOTT, P.J.E., BOWES, and ALLEN, JJ.

MEMORANDUM BY BOWES, J.: FILED AUGUST 18, 2015 

 Thomas Scott Drass appeals from the June 10, 2014 order dismissing 

his second PCRA petition as untimely filed. In a prior memorandum, we 

directed counsel to either file an advocate’s brief or a petition to withdraw 

and no-merit brief pursuant to Commonwealth v. Turner, 544 A.2d 927 

(Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) 

(en banc) (“Turner/Finley”). Counsel has filed a compliant Turner/Finley

request to withdraw. Accordingly, we grant counsel permission to withdraw 

and affirm the denial of PCRA relief. 

On January 5, 2005, Appellant arrived at his maternal grandparents’ 

home, and shot his grandfather, Dwayne Chamberlain, at point blank range. 

Appellant had purchased the shotgun and ammunition used in the shooting 

earlier that day. On September 25, 2006, Appellant pled guilty to third-
J-S09020-15 

- 2 - 

degree murder, and, three days later, he was sentenced to twenty to forty 

years incarceration. The sentencing court had the benefit of a presentence 

report. In the ensuing direct appeal, Appellant claimed that his sentence 

was excessive given “his history of mental illness and lack of a prior criminal 

record.” Commonwealth v. Drass, 935 A.2d 9 (Pa.Super. 2007) 

(unpublished memorandum at 2). We rejected Appellant’s challenge to the 

discretionary aspects of his sentence and affirmed on August 6, 2007, id., 

and Appellant did not seek allowance of appeal with our Supreme Court. 

 The following month, Appellant filed a timely PCRA petition. Counsel 

was appointed and filed an amended PCRA petition. Appellant claimed that 

his guilty plea was induced by ineffective assistance of counsel. The 

Commonwealth sought a first-degree murder conviction but agreed to allow 

Appellant to plead guilty to third-degree murder after plea counsel obtained 

a psychological evaluation by Dr. Joseph Antonowicz, whose report 

supported a diminished capacity defense. See Trial Court Opinion, 9/8/08, 

at 4-5. After an evidentiary hearing, PCRA relief was denied on September 

8, 2008. Appellant did not file an appeal from the denial of PCRA relief. 

On July 24, 2013, Appellant filed a motion seeking modification of his 

sentence, for appointment of counsel, and requesting permission to proceed 

in forma pauperis. Appellant sought a reduction in his sentence due to his 

mental health issues and lack of a prior criminal record, which he asserted 

were not revealed to the sentencing court. Appellant also claimed that he 

was on drugs when he killed his grandfather and that he expected a lesser 
J-S09020-15 

- 3 - 

sentence when he tendered an open guilty plea to third-degree murder. The 

trial court properly treated the motion for modification of sentence as a 

PCRA petition and then granted Appellant the right to proceed in forma 

pauperis. The PCRA court appointed counsel,1 and, over the 

Commonwealth’s objection, held a hearing, which was not transcribed. 

Thereafter, the PCRA court denied relief based upon the untimeliness 

of the 2013 petition. This appeal followed. As noted, counsel has filed a 

petition to withdraw and accompanying no-merit brief establishing why 

Appellant is not entitled to PCRA relief. The “Turner/Finley decisions 

provide the manner for post-conviction counsel to withdraw from 

representation.” Commonwealth v. Rykard, 55 A.3d 1177, 1184 

(Pa.Super. 2012). As we articulated in Rykard, id, at 1184 (footnote 

omitted): 

 

____________________________________________ 

1

 We note that Pa.R.Crim.P. 904(D) provides, “On a second or subsequent 

petition, when an unrepresented defendant satisfies the judge that the 

defendant is unable to afford or otherwise procure counsel, and an 

evidentiary hearing is required as provided in Rule 908, the judge shall 

appoint counsel to represent the defendant.” Except as provided in 

Pa.R.Crim.P. 907, a hearing under Pa.R.Crim.P. 908 is mandated, in 

pertinent part, when “the petition for post-conviction relief or the 

Commonwealth's answer, if any, raises material issues of fact.” 

Pa.R.Crim.P. 908(A)(2). Under Pa.R.Crim.P. 907, the PCRA court may deny 

PCRA relief without a hearing, if, after review of the pleadings, it “is satisfied 

. . . that there are no genuine issues concerning any material fact and that 

the defendant is not entitled to post-conviction collateral relief, and no 

purpose would be served by any further proceedings[.]” Pa.R.Crim.P. Rule 

907(1). 
J-S09020-15 

- 4 - 

The holdings of those cases mandate an independent 

review of the record by competent counsel before a PCRA court 

or appellate court can authorize an attorney's withdrawal. The 

necessary independent review requires counsel to file a “nomerit” letter detailing the nature and extent of his review and list 

each issue the petitioner wishes to have examined, explaining 

why those issues are meritless. The PCRA court, or an appellate 

court if the no-merit letter is filed before it, see Turner, supra,

then must conduct its own independent evaluation of the record 

and agree with counsel that the petition is without merit. See

[Commonwealth v.] Pitts, [981 A.2d 875], 876 n.1. [Pa. 

2009]. 

In Commonwealth v. Friend, 896 A.2d 607 (Pa.Super. 

2006) abrogated in part by Pitts, supra, this Court imposed 

additional requirements on counsel that closely track the 

procedure for withdrawing on direct appeal. Pursuant to Friend,

counsel is required to contemporaneously serve upon his client 

his no-merit letter and application to withdraw along with a 

statement that if the court granted counsel's withdrawal request, 

the client may proceed pro se or with a privately retained 

attorney. Though Chief Justice Castille noted in Pitts that this 

Court is not authorized to craft procedural rules, the Court did 

not overturn this aspect of Friend as those prerequisites did not 

apply to the petitioner in Pitts. See Pitts, supra at 881 

(Castille, C.J. concurring). 

In this case, counsel filed a petition to withdraw together with a brief 

establishing that the present PCRA petition is untimely as to the issues 

Appellant seeks to raise. As indicated in the petition to withdraw and letter 

attached thereto, counsel sent Appellant a copy of the petition and the brief 

and advised him of his right to continue pro se or hire a private attorney. 

Counsel reviewed Appellant’s case and researched the law and concluded 

that Appellant cannot obtain PCRA relief on his claims, as outlined in the 

argument presented in the brief. Thus, counsel’s withdrawal request 

satisfies Turner/Finley. 
J-S09020-15 

- 5 - 

Initially, we outline the applicable principles regarding our review of 

the PCRA court’s determinations herein: 

 An appellate court reviews the PCRA court's findings of fact to 

determine whether they are supported by the record, and reviews 

its conclusions of law to determine whether they are free from 

legal error. The scope of review is limited to the findings of the 

PCRA court and the evidence of record, viewed in the light most 

favorable to the prevailing party at the trial level. 

Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa.Super. 2014) 

(citation omitted). 

 All PCRA petitions must be filed within one year of when a defendant’s 

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). If the 

petition is untimely, we lack jurisdiction. Commonwealth v. Callahan, 101 

A.3d 118 (Pa.Super. 2014) (courts do not have jurisdiction over an untimely 

PCRA). “A judgment becomes 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.” Id. at 122 (quoting 42 Pa.C.S. § 9545(b)(3)). In this case, we 

affirmed Appellant’s sentence on August 6, 2007, and he did not seek 

further review. Hence, his judgment of sentence became final on September 

5, 2007. Appellant had until September 5, 2008 to file a timely PCRA 

petition and his present one, which was filed on July 24, 2013, failed to 

satisfy that time limitation. 

 There are three exceptions to the one-year time bar: when the 

government has interfered with the defendant’s ability to present the claim, 
J-S09020-15 

- 6 - 

when the defendant has recently discovered the facts upon which his PCRA 

claim is predicated, or when either our Supreme Court or the United States 

Supreme Court has recognized a new constitutional right and made that 

right retroactive. 42 Pa.C.S. § 9545(b)(1)(i-iii). Commonwealth v. 

Brandon, 51 A.3d 231, 233-34 (Pa.Super. 2012) (“There are three 

exceptions to this [one-year] time requirement: (1) interference by 

government officials in the presentation of the claim; (2) newly discovered 

facts; and (3) an after-recognized constitutional right.”). The defendant has 

the burden of pleading and proving the applicability of any exception. 42 

Pa.C.S. § 9545(b)(1). 

Appellant seeks to withdraw his guilty plea based upon his mental 

health issues and the fact that he was medicated when he tendered his 

guilty plea. He also claims that the sentence was in excess of what he 

believed he would receive given his mental health issues, prior record score, 

and plea counsel’s representations. These claims do not satisfy any 

exception to the PCRA. All these facts were within Appellant’s knowledge as 

of the date his judgment of sentence was imposed. Our independent review 

of the record confirms that Appellant’s averments in his PCRA petition cannot 

afford him relief. Hence, we concur both with counsel’s assessment that 

there is no merit to his request for PCRA relief. The PCRA court did not 

abuse its discretion in dismissing Appellant’s second PCRA petition as 

untimely. 
J-S09020-15 

- 7 - 

Petition of Paul M. Puskar, Esquire, to withdraw is granted. Order 

affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/18/2015