J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

AARON HARRIS

APPEL L ANT :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 3240 EDA 2019

Appeal from the PCRA Order Entered October 10, 2019

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP

- 51

- CR

- 0002900

- 2015

BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J. *

MEMORANDUM BY PELLEGRINI, J.: Filed: March 25, 2021

Aaron Harris (Harris) appeals from the October 10, 2019 order of the

Court of Common Pleas of Philadelphia County (PCRA court) dismissing his

petition for relief pursuant to th e Post

- Conviction Relief Act. 1 Harris’s counsel

has filed a brief pursuant to Anders v. California

, 386 U.S. 738 (1967), 2 and

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541 et seq.

2 Counsel filed a brief pursuant to Anders v. California

, 386 U.S. 738 (1967),

instead of a Turner / Finley no

- merit letter, which is the appropriate f iling in

the PCRA context. See Commonwealth v. Turner

, 544 A.2d 927 (Pa.

1988); Commonwealth v. Finley

, 550 A.2d 213 (Pa. Super. 1988) ( en

banc ). However, “ [b]ecause an Anders brief provides greater protection to a

defendant, this Court may accept an And ers brief in lieu of a Turner / Finley

letter.” Commonwealth v. Widgins

, 29 A.3d 816, 817 n.2 (Pa. Super.

2011) (citation omitted).J

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-

a petition for leave to withdraw as counsel. We reverse and remand for the

appointment of new counsel.

On February 23, 2017, Harris pled guilty to aggravated assault and

conspiracy 3 related to an incident in which he and a co

- conspirator assaulted

and stole from Harris’s brother. On May 24, 2017, Harris was sentenced to

an aggregate term of 4.5 to 9 years of incarceration follo wed by 5 years of

probation. On June 15, 2017, he filed a post

- sentence motion seeking

reconsideration of his sentence. No order disposing of this motion appears on

the record

, but the PCRA court and the parties assert that Harris withdrew the

motion on November 20, 2017. See Trial Court Opinion, 8/19/2020, at 1;

Harris’s Brief at 4; Commonwealth’s Brief at 3. He did not file a direct appeal.

Harris filed the instant

- counseled PCRA petition 4 on July 6, 2018

,

seeking relief based on after

- discovered evi dence in the form of affidavits from

his brother and his father. The affidavits do not dispute that the crime

occurred as described in the criminal complaint or Harris’s guilty plea. Harris’s

brother and father simply averred that they believe Harris has been

adequately punished and they regret involving the police in a family matter.

His petition did not address the PCRA’s jurisdictional time

- bar or plead any

_________________ __________ ______ ____ _______

3 18 Pa.C.S. §§ 2702(a)(1), 903(c).

4 The same attorney who represented Harris in his trial and sentencing

proceedings filed the instant petition.J

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exceptions to the time

- bar. See 42 Pa.C.S. 9545(b)(1). The Commonwealth

filed a motion to dis miss, and the PCRA court issued a notice of intent to

dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907. The

PCRA court dismissed the petition on October 10, 2019, and Harris timely filed

a notice of appeal on November 12, 2019. 5 The PC RA court and Harris have

complied with Pa.R.A.P. 1925.

In this court, c ounsel has filed a motion to withdraw from representation

and an Anders brief raising a single issue: “Is [Harris’s] appeal frivolous such

that counsel should be permitted to withdraw? ” In those circumstances:

Counsel petitioning to withdraw from PCRA representation

must proceed

. . . under Turner

, supra and Finley

, supra

and

. . . must review the case zealously. Turner / Finley counsel

must then submit a “ no

- merit ” letter to the trial court, or brief on

appeal to this Court, detailing the nature and extent of counsel ’ s

diligent review of the case, listing the issues which petitioner

wants to have reviewed, explaining why and how those issues lack

merit, and requesti ng permission to withdraw.

Counsel must also send to the petitioner: (1) a copy of the

“ no merit ” letter/brief; (2) a copy of counsel ’ s petition to

withdraw; and (3) a statement advising petitioner of the right to

proceed pro se or by new counsel.

_________________ __________ ______ ____ _______

5 A notice of appeal must be filed within 30 days of the entry of the order on

appeal. Pa.R.A.P. 903(a). Harris had until November 9, 2019, to file his notice

of appeal. However, November 9, 2019

, was a Saturday

, so the 30

- day period

within which Harris could timely file his notice of appeal was extended to the

next business day. See 1 Pa.C.S. § 1908 (“Whenever the last day of any

[time period] shall fall on Saturday or Sunday, or on any day made a legal

holiday.

. . such day shall be omitted from the computation.”). Monday,

November 11, 2019

, was Veterans’ Day, a legal holiday. Harris timely filed

his notice of appeal on November 12, 2019.J

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-

Commo nwealth v. Walters , 135 A.3d 589, 591 (Pa. Super. 2016) (citation

omitted). If counsel has satisfied the above requirements, this court must

then conduct its own review of the record and render an independent

judgment as to whether the appeal is without m erit before permitting counsel

to withdraw. Id. at 591.

Upon review of counsel’s motion to withdraw and the appellate brief, we

conclude that counsel has substantially complied with the procedural

requirements of Turner and Finley . Counsel certified that he conducted a

conscientious review of the record and determined that there are no

meritorious issues to present on appeal. Petition for Leave to Withdraw as

Counsel, 11/30/2020, at 1. His brief reviews the law and the sole issue

presented in the PCRA p etition

, and concludes that the affidavits from Harris’s

brother and father do not constitute exculpatory after

- discovered evidence.

Finally, he provided Harris with a copy of the brief, served him with the petition

for leave to withdraw, and advised him of his immediate right to retain new

counsel or present additional argument to this court pro se

. Id. , Exhibit I.

Therefore, we proceed with our independent review of this case. Walters

,

supra at 591.

Before reaching the merits of the issue raised in counsel’s brief, we must

first determine whether the petition is timely in accordance with the PCRA’sJ

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jurisdictional time

- bar. 6 Because the timeliness requirements of the PCRA are

jurisdictional, no court may consider the merits of an untimely petition.

Commonwealth v. Small

, 238 A.3d 1267, 1280 (Pa. 2020). “A PCRA

petition, including a second and subsequent petition, shall be filed within one

year of the date the underlying judgment becomes final.” Commonwealth

v. Graves

, 197 A.3d 1182, 1185 (Pa. Super

. 2018) (citation omitted) ; see

also 42 Pa.C.S. 9545(b)(1). “[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 expiratio n of

time for seeking the review.” 42 Pa.C.S. § 9545(b)(3).

A defendant may file a post

- sentence motion within 10 days following

the imposition of his sentence, which then tolls the period of time for filing a

notice of appeal. Pa.R.Crim.P. 720(A)(1)

- (2)

. Under these circumstances, a

defendant must file his notice of appeal within 30 days of the order disposing

of his motion. Id. If the defendant does not file an appeal or timely post

sentence motion, his judgment of sentence becomes final after 30 day s when

the period of time for filing a notice of appeal has expired. Pa.R.Crim.P.

_________________ __________ ______ ____ _______

6 Whether a PCRA petition is timely filed is a question of law over which our

standard of review is de novo and our scope of review is plenary.

Commonwealth v. Taylor

, 65 A.3d 462, 468 (Pa. Super. 2013) (citations

omitted). This court may address the time liness of a PCRA petition sua sponte

as timeliness implicates our jurisdiction over the case. Commonwealth v.

Gandy

, 38 A.3d 899, 902 (Pa. Super. 2012).J

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-

720(A)(3). An untimely post

- sentence motion will only toll the appeal period

if the defendant requests nunc pro tunc relief and the trial court “ expressly

permit[s] the filing of a post

- sentence motion nunc pro tunc

, also within 30

days of imposition of sentence.” Commonwealth v. Capaldi

, 112 A.3d

1242, 1244 (Pa. Super. 2015) (emphasis in original).

Harris was sentenced on May 24, 2017

, and did not file his post

se ntence motion until June 15, 2017, or 22 days after his sentence was

imposed. The trial court held argument on June 30, 2017

, regarding the

timeliness of the post

- sentence motion and agreed to consider the post

sentence motion nunc pro tunc

. Notes of Tes timony, 6/30/2017, at 5

- 6.

However, this proceeding took place 37 days after the imposition of the

sentence and 7 days after the time period for filing an appeal had expired. As

a result, the period for filing a notice of appeal was not tolled and Harris ’s

judgment of sentence became final on June 23, 2017. Capaldi

, supra

. The

instant petition, filed on July 6, 2018, is facially untimely.

Because Harris’s petition is facially untimely

, he must plead and prove

one of the exceptions to the PCRA ’ s timelin ess requirements. 42 Pa.C.S.

§ 9545(b)(1)(i)

- (iii) (outlining exceptions to the jurisdictional time

- bar based

on interference by government officials, newly

- discovered facts or newly

recognized constitutional rights). In addition, he must present a claim ed

exception within one year of the date the claim could have been presented

.

42 Pa.C.S.A. § 9545(b)(2)

.J

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-

Harris did not plead or prove any of the statutory exceptions to the

PCRA’s jurisdictional time

- bar in his petition. Significantly, the same attorney

represented Harris in his trial and sentencing proceedings and in the instant

PCRA proceedings. A review of his petition and his brief in this court reveals

that counsel mistakenly believed that the trial court had granted nunc pro tunc

reconsideration of the untimely post

- sentence motion and that the appeal

period was tolled. See Amended Petition Under Pos t

- Conviction Relief Act,

7/6/18, at Paragraph 5; Harris’s Brief at 4. He asserted that the motion had

been withdrawn on November 20, 2017. Id. Counsel then apparently

believed that the PCRA petition was timely filed within one year of when

Harris’s judg ment of sentence became final on December 20, 2017. 7

Based on his misconception, counsel did not plead or prove any of the

exceptions to the jurisdictional time

- bar in the instant petition. The two

affidavits counsel submitted in support of the petition were dated May 13,

2018

, and May 14, 2018. Thus, by filing the petition in July 2018

, it appears

that he presented the claims based on these affidavits within one year of the

_________________ __________ ______ ____ _______

7 We recognize that the PCRA court also did not address the timeliness of the

petition and agreed tha t the post

- sentence motion was withdrawn on

November 20, 2017. Trial Court Opinion, 8/19/2020, at 1. In addition, the

Commonwealth did not challenge the timeliness of the petition in its motion

to dismiss in the PCRA court. See Commonwealth’s Motion to Dismiss,

2/19/19. It raised the jurisdictional time

- bar for the first time in its brief on

appeal. Commonwealth’s Brief at 6

- 8.J

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time the claims could have been presented. 42 Pa.C.S.A. § 9545(b)(2).

However, he pled only that these affidavits constituted after

- discovered

evidence entitling Harris to substantive relief. See 42 Pa.C.S.A.

§ 9543(a)(2)(vi). He did not plead that the affidavits constituted newly

discovered evidence under the exception to the jur isdictional time

- bar. See

42 Pa.C.S. § 9545(b)(1)(ii). 8

By filing an untimely PCRA petition without pleading and proving an

exception to the PCRA based on an apparent misunderstanding of the

timeliness of his earlier post

- sentence motion, counsel has eff ectively deprived

Harris of review of any post

- conviction claims. See Commonwealth v.

Peterson

, 192 A.3d 1123, 1130 (Pa. 2018) (finding ineffectiveness per se

when PCRA counsel filed first PCRA petition one day after the expiration of the

deadline). In P eterson

, our Supreme Court held that a PCRA petitioner may

assert ineffectiveness per se under the newly

- discovered facts exception to

the PCRA time

- bar when he is completely deprived of meaningful review of his

claims by counsel’s failure to file a timely petition. Id. at 1130

- 31. Because

counsel’s untimely post

- sentence motion resulted in this untimely PCRA

_________________ __________ ______ ____ _______

8 We do not express an opinion based on the record before us as to whether

Harris could have proven that the affidavits constitute newly

- discovered

evidence. See Commonwealth v. Cox

, 146 A.3d 221, 227 (Pa. 2016)

(explaining that to establish timeliness under the newly

- discovered evidence

exception, petitioner must prove “(1) the facts upon which the cl aim was

predicated were unknown and (2) they could not have been ascertained by

the exercise of due diligence”).J

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petition, it appears that Harris may raise counsel’s ineffectiveness per se here

to overcome the time

- bar if he is able to plead and prove the requirements of

the newly

- discovered facts exception. See note 8, supra ; Peterson

, supra.

Our independent review of the record reveals that there is an issue of

arguable merit as to whet her Harris’s petition was timely filed and whether he

is entitled to any further relief as a result of the untimely filing of his post

sentence motion. Our precedents preclude an attorney from arguing claims

related to his own ineffectiveness. See Common wealth v. Betts

, 240 A.3d

616, 621

- 22 (Pa. Super. 2020). Accordingly, we reverse the order dismissing

Harris’s petition, grant counsel’s petition to withdraw, and remand for the

appointment of new counsel to address Harris’s claims.

Order reversed. Case remanded for further proceedings. Petition to

withdraw granted. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/25/21