Commonwealth v. Dickerson
| Decision Date | 26 July 2022 |
| Docket Number | 793 WDA 2021,J-S14022-22 |
| Parties | COMMONWEALTH OF PENNSYLVANIA v. LOUIS RICHARD DICKERSON Appellant |
| Court | Superior Court of Pennsylvania |
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered June 15, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s) CP-02-CR-0012021-2017
Joseph D. Seletyn, Esq.
BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J. [*]
Louis Richard Dickerson (Appellant) appeals from the order entered in the Allegheny County Court of Common Pleas, dismissing his first petition filed pursuant to the Post Conviction Relief Act (PCRA)[1] as untimely. He seeks relief from the judgment of sentence imposed following his guilty plea to one count each of voluntary manslaughter and tampering with evidence[2] for the September 2017 shooting death of Omar Berry. Appellant contends the PCRA court erred in dismissing his petition as untimely when he established prior counsel was ineffective per se by failing to advise him of this right to file a PCRA petition until after the filing period expired. For the reasons below, we affirm.
The facts and procedural history relevant to this appeal are as follows. On September 14, 2017, Appellant shot Berry outside the door of Appellant's apartment. See Police Criminal Complaint, 9/14/17, Affidavit of Probable Cause at 2-3. Although he initially claimed that an unknown gunmen committed the crime, Appellant later admitted that he shot the victim, but "did so because he feared for his safety." Id. at 3. Appellant claimed they argued over drug money and he believed Berry was reaching for a gun; however, he later determined that Berry was unarmed. Id. Appellant was subsequently arrested and charged with criminal homicide[3] and tampering with evidence.
On March 26, 2018, Appellant, represented by Brandon Herring, Esquire (Plea Counsel), entered a guilty plea to one count each of voluntary manslaughter and tampering with evidence.[4] Appellant proceeded to sentencing on June 21, 2018, at which time the trial court imposed a sentence of five to 10 years' imprisonment, plus five years' consecutive probation for voluntary manslaughter, and no further punishment for tampering with evidence. Thereafter, the court informed Appellant of his post-sentence rights as follows:
Now that you've been sentenced, sir, you have post-sentencing rights. You have the right to file a motion in ten days. You have the right to file [a] direct appeal within 30. If you wish to assert those rights, you speak to your counsel. He knows what to do. If [counsel] are unavailable and you wish to assert your rights but cannot afford another lawyer, you let the Court know, and I'll see to it a lawyer is appointed on your behalf. That's it. We're done.
N.T. Sentencing H'rg, 6/21/18, at 32.
Appellant did not file a direct appeal. Thus, for purposes of PCRA review, his judgment of sentence was final on Monday, July 23, 2018, after the 30-day period for filing a direct appeal expired.[5] See 42 Pa.C.S. § 9545(b)(3) (judgment is final at conclusion of direct review, or at the expiration of time for seeking review); Pa.R.A.P. 903(a) (appeal must be filed within 30 days of entry of order on appeal). Appellant had one year from that date - or until July 23, 2019 - to file a timely PCRA petition. See 42 Pa.C.S. § 9545(b)(1) ().
Prior to the expiration of the one-year filing deadline, on June 12, 2019, Appellant sent the trial court a pro se document, in which he requested "discovery." See Appellant's Request for Discovery, 6/12/19. This request did not include any claim of error or allegation of ineffective assistance of counsel. See id. On August 19, 2019 - nearly a month after the July 21, 2019, PCRA filing deadline - Appellant filed two pro se motions,[6] one seeking to withdraw his guilty plea, and the other requesting an "arrest of judgement [sic] . . . nunc pro tunc." See Appellant's Motion to Withdraw Guilty Plea, 8/19/19; Appellant's Motion to Arrest of Judgement [sic], 8/19/19. The trial court took no immediate action on these motions.
Subsequently, on September 10, 2019, Appellant filed a pro se PCRA petition, in which he averred, inter alia, that Plea Counsel provided ineffective assistance in "encouraging" him to enter an open guilty plea. See Appellant's Post-Conviction Relief Act Petition, 9/10/19, at 7. He also stated that he learned about his "right to file a PCRA after the [one-]year window expired." Id. at 8. In support of this claim, he attached to his petition a letter from Plea Counsel, dated August 12, 2019, which stated the following:
Letter from Brandon Herring, Esquire, to Appellant, 8/12/19.
Our review of an order denying PCRA relief is well-established. "[W]e examine whether the PCRA court's determination is supported by the record and free of legal error." Commonwealth v. Mitchell, 141 A.3d 1277, 1283-84 (Pa. 2016) (citation and quotation marks omitted). Moreover, "[w]e are bound by the PCRA court's credibility determinations, unless those determinations are not supported by the record; however, we review the PCRA court's legal conclusions de novo." Commonwealth v. Flor, 259 A.3d 891, 902 (Pa. 2021) (citation omitted).
Here, the PCRA court properly construed Appellant's pro se petition to withdraw his guilty plea, filed on August 19, 2019, "as his initial PCRA petition." PCRA Ct. Op., 1/19/22, at 4. See Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002) (). The court determined, however, the petition was untimely filed, and Appellant failed to prove the applicability of one of the exceptions to the PCRA's time bar. See PCRA Ct. Op. at 4-5. The statutory requirement that a PCRA petition be filed within one year of the date the judgment of sentence becomes final is a "jurisdictional deadline" and a PCRA court may not ignore the untimeliness of a petition to address the merits of the issues raised therein. Commonwealth v. Whiteman, 204 A.3d 448, 450 (Pa. Super. 2019), appeal denied, 216 A.3d 1028 (Pa. 2019). See also 42 Pa.C.S. § 9545(b)(1).
Appellant does not dispute that his petition was untimely filed. Rather, he argues that Plea Counsel's failure to advise him of his right to file a PCRA petition, until after the expiration of the one-year filing deadline in Section 9545(b), constitutes per se ineffective assistance of counsel, such that his PCRA rights should be restored nunc pro tunc. See Appellant's Brief at 17-21. Relying on the Pennsylvania Supreme Court's decisions in Commonwealth v. Peterson, 192 A.3d 1123 (Pa. 2018), and Commonwealth v. Rosado, 150 A.3d 425 (Pa. 2016), Appellant contends the "appropriate focus is simple" - if "counsel's error completely default[s] all meaningful appellate or PCRA merits review . . . it constitutes ineffectiveness per se." Id. at 17. He further maintains he "remained ignorant" of his right to file a PCRA petition until he received Plea Counsel's August 2019 letter, which was sent after the time to file a PCRA petition had expired. See id. at 18-19. Moreover, while he acknowledges that "there is not yet an appellate decision holding specifically that plea counsel has an obligation to inform a defendant of his right to pursue" PCRA relief, he insists that "recognizing as much merely requires application of the principles set forth in the Rosado/Peterson family of cases and recognizing that they apply no matter the precise default." Id. at 20-21. Indeed, Appellant argues "there is no meaningful difference between an attorney who fails to tell his client he has a right and one who does, but who fails to litigate it in a way that secures merits review." Id. at 21.
In denying Appellant relief, the PCRA court opined that it "consciously considered" his argument, but ultimately concluded it was "constrained to deny the instant PCRA because [it] could find no legal authority imposing a duty or obligation on trial c...
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