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[U] Commonwealth v. Miskovitch

Superior Court of Pennsylvania

September 10, 2013

COMMONWEALTH OF PENNSYLVANIA
v.
ERIC MISKOVITCH, Appellant COMMONWEALTH OF PENNSYLVANIA
v.
ERIC M. MISKOVITCH, Appellant

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered February 28, 2012, in the Court of Common Pleas of Beaver County Criminal Division at Nos. CP-04-CR-0001448-1996, CP-04-CR-0001449-1996, CP-04-CR-0001450-1996, CP-04-CR-0001451-1996

Appeal from the Order, June 21, 2012, in the Court of Common Pleas of Beaver County Criminal Division at Nos. CP-04-CR-0001448-1996, CP-04-CR-0001449-1996, CP-04-CR-0001450-1996, CP-04-CR-0001451-1996

BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND OTT, JJ.

MEMORANDUM

FORD ELLIOTT, P.J.E.

In these consolidated appeals, appellant appeals from the February 28, 2012 order dismissing his second petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546, and from a June 21, 2012 order denying a motion to supplement the record. Finding no error, we affirm at No. 513 WDA 2012, and quash the appeal at No. 1177 WDA 2012.

On August 26, 1996, appellant entered a plea of nolo contendere to two counts of escape related to incidents at the Beaver County Jail on March 17, 1996 and June 8, 1996. Immediately following the plea, appellant was sentenced to an aggregate sentence of 2½ to 12 years' imprisonment. No direct appeal was filed.

On November 19, 2003, appellant filed a pro se PCRA petition. Counsel was initially appointed, but on July 2, 2007, counsel filed a "no-merit" brief and petition to withdraw pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). On September 21, 2007, the court dismissed the petition as untimely. On October 27, 2008, this court affirmed the order below, and on July 22, 2009, the supreme court denied appeal. Commonwealth v. Miskovitch, 964 A.2d 441 (Pa.Super. 2008) (unpublished memorandum), appeal denied, 602 Pa. 677, 981 A.2d 218 (2009).

On October 5, 2011, appellant filed an application for writ of habeas corpus. The court below denied the application on November 10, 2011, and on April 19, 2013, this court affirmed. Commonwealth v. Miskovitch, Nos. 69 WDA 2012 and 179 WDA 2012 (unpublished memorandum).

Meanwhile, on December 29, 2011, while the prior habeas corpus matter was still pending on appeal, appellant filed the instant PCRA petition. On February 9, 2012, the PCRA court issued notice, pursuant to Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A., of its intention to dismiss the petition without hearing.[1] On February 27, 2012, appellant filed a reply. On February 28, 2012, the PCRA court dismissed the petition; and on March 21, 2012, appellant filed this timely appeal. This is the matter at No. 513 WDA 2012.

On June 20, 2012, appellant filed a motion to supplement the record which included another application for writ of habeas corpus. On June 21, 2012, the PCRA court denied the motion, and on July 19, 2012, appellant filed a notice of appeal. This is the matter at No. 1177 WDA 2012.

Our standard of review for an order denying post-conviction relief is whether the record supports the PCRA court's determination, and whether the PCRA court's determination is free of legal error. Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Id.

A PCRA petition must be filed within one year of the date that the judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). This time requirement is mandatory and jurisdictional in nature, and the court may not ignore it in order to reach the merits of the petition. Commonwealth v. Taylor, 933 A.2d 1035, 1038 (Pa.Super. 2007), appeal denied, 597 Pa. 715, 951 A.2d 1163 (2008).

Appellant's judgment of sentence became final on September 26, 1996, 30 days after the judgment of sentence was entered, and the time for seeking direct appeal before this court expired. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P., Rule 903(a), 42 Pa.C.S.A. The instant petition, filed December 29, 2012, is manifestly untimely, and cannot be reviewed unless appellant invokes a valid exception to the time bar of the PCRA. See 42 Pa.C.S.A. § 9545(b)(1)(i-iii).

Appellant has invoked the after-discovered facts exception. See 42 Pa.C.S.A. § 9545(b)(1)(ii). Specifically, appellant attached to his petition an affidavit from a Pete Schoonover. The sum and substance of Schoonover's affidavit is that he was an inmate at the Beaver County Jail on April 28, 1996, and at that time he witnessed an incident in which several jail guards beat appellant. Appellant contends that this after-discovered evidence could be used to prove that his nolo contendere plea was involuntarily given. Appellant argues that if he had had knowledge of Schoonover's potential testimony, he would not have pleaded nolo contendere but would have established a defense based upon "manifest necessity to escape." (Appellant's brief at 19.)

First, appellant could have raised this issue at the time of his original plea, on direct appeal, or in a prior, timely PCRA petition. While he may not have had Schoonover's corroborating statement, appellant himself could have testified that he was beaten by jail guards and that was why he tried to escape.[2] Thus, this issue is waived. 42 Pa.C.S.A. §§ 9543(a)(3); 9544(b).

Second, even if appellant was improperly beaten by jail guards it does not create a defense of "manifest necessity to escape, " as appellant states. Appellant cites to no supporting case law for such a defense, and we are aware of none. Thus, appellant's newly discovered evidence did not provide a viable defense or alternative to entering a plea.

In a second claim of the after-discovered facts exception, appellant asserts that he learned from a November 15, 2011 "Right-To-Know Office" letter that there are presently no Guideline Sentence Forms pertaining to the two escape convictions and that this somehow renders his sentence illegal.

Appellant also contends that he was inaccurately sentenced on the escape convictions using a prior record score of "RFEL" when his prior record score in 1996 was "4."

There is a due diligence component to the after-discovered facts exception. We see no reason why appellant could not have made his inquiry to the Right-To-Know Office years ago. Furthermore, despite what the November 15, 2011 letter stated, the Guideline Sentence Forms for appellant's two escape convictions are present in the record that has been forwarded to this court. However, even if these forms had never been completed as appellant asserts the law requires, the consequence absolutely would not be that appellant is entitled to re-sentencing. Appellant has cited no such law requiring that outcome.

Last, these Guideline Sentence Forms do show that a prior record score of RFEL was employed in calculating appellant's sentence. However, if appellant was sentenced using an incorrect prior record score this was discoverable immediately after sentencing; appellant could have raised this issue years ago, either in a direct appeal or in a timely PCRA petition.[3]Appellant again has failed to exhibit due diligence as to this claim.

Next, appellant argues that mental incapacity delayed his ability to file either a direct appeal or his first PCRA petition. First, there is no exception to the time bar claimed as to this issue; consequently, it is untimely. Second, even if timely, this issue was litigated during appellant's first PCRA petition and is barred as previously litigated. See Memorandum Opinion and Order, 9/21/07; 42 Pa.C.S.A. §§ 9543(a)(3); 9544(a).

Finally, we will quash the appeal at No. 1177 WDA 2012, which was taken from the order of June 21, 2012 which denied appellant's motion to supplement the record/application for writ of habeas corpus. As noted supra, appellant may not file a subsequent PCRA petition while another one is still pending. Thus, he could not file an application for writ of habeas corpus, which functions as a PCRA petition, while his present PCRA is still pending. Any appeal taken from such an improper filing is itself improper.

Accordingly, having found that appellant's PCRA petition was untimely filed, and that no time of filing exception applies, we will affirm the February 28, 2012 order below.

Order at No. 513 WDA 2012 affirmed. Appeal at No. 1177 WDA 2012 is quashed.


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