Com. v. Carr

• Court: Pennsylvania Superior Court
• Writing for the Court: KELLY, J.
• Citation: 768 A.2d 1164
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Michael CARR a/k/a Krajci, Appellant.
• Decision Date: 22 February 2001

768 A.2d 1164

COMMONWEALTH of Pennsylvania, Appellee,
v.
Michael CARR a/k/a Krajci, Appellant

Superior Court of Pennsylvania.

Submitted January 29, 2001.

Filed February 22, 2001.

768 A.2d 1165

Michael Carr, appellant, pro se

Patrick L. Meehan, Vram Nedurian, Jr., Asst. Dist. Attys., Media, for Com., appellee.

Before JOHNSON, HUDOCK, and KELLY, JJ.

KELLY, J.:

¶ 1 Appellant, Michael Carr, asks us to determine whether the trial court erred when it denied his PCRA petition as untimely without affording him a hearing.

768 A.2d 1166

We hold that Appellant's PCRA petition is untimely as it was filed more than one year from the date Appellant's conviction became final. We also hold that Appellant's recent discovery of trial counsel's failure to file a direct appeal on his behalf does not meet any exception to the PCRA's timeliness requirements. Accordingly, we affirm the order denying PCRA relief

¶ 2 The relevant facts and procedural history of this appeal are as follows. On June 1, 1995, the Commonwealth charged Appellant with robbery¹ in connection with a bank heist that occurred in April 1995. On August 7, 1995, Appellant entered an open guilty plea to the robbery charge. The court imposed a sentence of six and one-half to twenty years' incarceration on September 25, 1995.

¶ 3 Appellant subsequently filed a motion to withdraw his guilty plea and a petition to reconsider his sentence. The trial court conducted a hearing on October 20, 1995. At the hearing, Appellant withdrew his motion to withdraw his guilty plea. By order filed January 10, 1996, the trial court denied Appellant's petition to reconsider his sentence. No direct appeal was filed.

¶ 4 On April 27, 1999, Appellant filed a pro se petition under Pennsylvania's Post Conviction Relief Act ("PCRA").² The court appointed counsel to assist Appellant with his petition. Counsel then sought to withdraw representation, and filed a "no merit" letter on August 24, 1999.³ The court granted counsel's request to withdraw representation on January 12, 2000.

¶ 5 Appellant filed a pro se motion for enlargement of time and a petition for transcripts on January 31, 2000. On February 4, 2000, the court notified Appellant of its intent to dismiss his petition as untimely. After receiving Appellant's reply brief, the court dismissed Appellant's PCRA petition as untimely and denied his motion for enlargement of time and petition for transcripts. This appeal followed.

¶ 6 On appeal, Appellant raises the following issues for our review:

DID THE COURT ERR IN DISMISSING [APPELLANT'S] PETITION FOR RELIEF PURSUANT TO THE POST CONVICTION RELIEF ACT AS UNTIMELY AND WITHOUT A HEARING?

DID THE COURT ERR AND DENY [APPELLANT] MEANINGFUL REVIEW BY REFUSING PRO SE [APPELLANT] A COPY OF HIS TRIAL TRANSCRIPTS?

(Appellant's Brief at 5).

¶ 7 In reviewing the propriety of the PCRA court's denial of a petition for relief, we are limited to determining whether the record supports the court's findings, and whether the order is otherwise free of legal error. Commonwealth v. Allen, 557 Pa. 135, 732 A.2d 582 (1999) (citing Commonwealth v. Jermyn, 551 Pa. 96, 709 A.2d 849 (1998)). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Bell, 706 A.2d 855 (Pa.Super.1998), appeal denied, 557 Pa. 624, 732 A.2d 611 (1998).

¶ 8 In his first issue, Appellant argues that he requested trial counsel to file a direct appeal on his behalf, but no appeal was ever filed. Appellant contends that he is entitled to a hearing to examine whether trial counsel's failure to file an appeal denied Appellant his constitutional right to a direct appeal. Appellant also alleges that he did not learn of counsel's failure to file his direct appeal until approximately March 25, 1999. Appellant maintains that he filed the instant PCRA petition less than sixty days following his discovery that

768 A.2d 1167

trial counsel failed to file a direct appeal. Thus, Appellant concludes, his PCRA petition meets the exception to the PCRA's timeliness requirements under subsection 9545(b)(1)(ii) for after-discovered evidence. We disagree

¶ 9 The time requirements for filing a PCRA petition are as follows:

(b) Time for filing petition.

(1) Any petition under

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