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[U] Commonwealth v. Mills

Superior Court of Pennsylvania

November 14, 2013

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
RICHARD WAYNE MILLS Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
v.
RICHARD WAYNE MILLS Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered November 9, 2012 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0001756-2009, CP-40-CR-0001757-2009, CP-40-CR-0001758-2009, CP-40-CR-0002191-2006, CP-40-CR-0004654-2008

BEFORE: GANTMAN, J., ALLEN, J., and MUNDY, J.

MEMORANDUM

MUNDY, J.

Appellant, Richard Wayne Mills, appeals from the November 9, 2012 order dismissing his petitions for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

The underlying factual and procedural history of this case may be summarized as follows. On August 19, 2009, Appellant pled guilty to charges on four separate criminal informations following a lengthy guilty plea colloquy. See N.T., 8/19/09, at 13-46. Specifically, at No. CP-40-CR-0004654-2008, Appellant pled guilty to one count of escape.[1] At No. CP-40-CR-0001756-2009, Appellant pled guilty to one count each of intimidation of a witness and criminal solicitation.[2] At No. CP-40-CR-0001757-2009, Appellant pled guilty to aggravated assault, resisting arrest, and flight to avoid apprehension.[3] Lastly, at No. CP-40-CR-0001758-2009, Appellant pled guilty to burglary and two related firearm offenses.[4] As part of his plea agreement, Appellant agreed to withdraw his pending PCRA petition filed in an unrelated case (No. CP-40-CR-0002191-2006). Id. at 50-54. That same day, Appellant was sentenced to an aggregate term of six to 12 years' imprisonment, to be served concurrently with a sentence imposed at No. CP-40-CR-0002191-2006.[5] Id. at 43; see also Trial Court Order, 8/19/09. At all relevant times during his plea agreement and sentencing, Appellant was represented by William Watt, Esquire (Attorney Watt). Appellant was represented during his prior PCRA proceedings by Jeffrey Yelen, Esquire (Attorney Yelen). The record reflects that Appellant did not directly appeal his August 19, 2009 judgment of sentence with this Court.

On October 21, 2009, Appellant filed a pro se letter with the PCRA court indicating that he had "a problem with [the] proceedings on August 19, 2009[, ]" and alleging the ineffectiveness of Attorney Yelen with respect to the withdrawal of his pending PCRA in No. CP-40-CR-0002191-2006. See Pro Se Letter, 10/21/09 (dated 10/17/09), at 1. It should be noted that, contrary to Appellant's contentions, he was represented by Attorney Watt at the time he entered his guilty plea and agreed to withdraw his pending PCRA petition in No. CP-40-CR-0002191-2006. Thereafter, from November 2009 through January 2011, the docket indicates Appellant filed a litany of PCRA petitions styled, albeit incorrectly in some instances, as "amended petitions, " as well as several other pro se documents, with the PCRA court. The record reflects that some of these petitions appear to address only issues related to No. CP-40-CR-0002191-2006 and the PCRA claims Appellant agreed to withdraw, while others concern the criminal informations at issue in the instant appeal and mention No. CP-40-CR-0002191-2006 tangentially. Specifically, the first PCRA petition that Appellant filed with respect to No. CP-40-CR-0001757-2009 was on November 10, 2010 while Appellant was incarcerated at SCI – Huntingdon, and is dated October 4, 2010. See "PCRA Letter, " 11/10/10 (dated 10/4/10). Therein, Appellant alleges the ineffectiveness of prior counsel David Lampman, Esquire. Id. at 2-3. Likewise, the first PCRA petition that Appellant filed with respect to Nos. CP-40-CR-0001756-2009, CP-40-CR-0001758-2009, and CP-40-CR-0004654-2008 was on November 30, 2011, and is dated November 22, 2011. See "[PCRA] Amended Petition Post Evidentiary Hearing, " 11/30/11 (dated 11/22/11). Appellant's most recent petition, also styled as an "amended petition, " was filed pro se on February 8, 2011 with regard to Nos. CP-40-CR-0001756-2009, CP-40-CR-0001757-2009, and CP-40-CR-0001758-2009, and alleges, inter alia, that Attorney Watt's ineffectiveness unlawfully induced Appellant to enter his guilty plea. See "[PCRA] Amended Petition, " 2/8/11, at ¶¶ 1-3.[6] Appellant's brief, in turn, makes no mention of any issues raised with respect to No. CP-40-CR-0002191-2006 or the withdrawal of his PCRA petition in that case, and in any event, said issues with regard to this case would be deemed untimely.[7]

The PCRA court conducted hearings on Appellant's petitions on July 7 and November 30, 2011, and April 17 and June 27, 2012. Following said hearings, the PCRA court denied Appellant's request to withdraw his guilty plea and dismissed the claims raised in Appellant's petitions by opinion and order dated November 9, 2012. See PCRA Court Opinion and Order, 11/9/12, at 3-7. This timely appeal followed on December 7, 2012.[8]

On appeal, Appellant raises the following six issues for our review.

A. Whether the PCRA court erred in denying Appellant's claim that he was denied the effective assistance of counsel under the Federal and State Constitutions at the time he plead guilty because trial counsel failed to properly advise him of the consequences of the guilty plea and because the [trial court's] colloquy was insufficient as a matter of law, rendering the plea involuntary and unknowing[?]
B. Whether the PCRA court erred in denying Appellant's claim that his guilty plea was unknowing and involuntary due to the Commonwealth's failure to give an accurate factual basis for the plea to the charge of Aggravated Assault, specifically omitting any facts regarding serious bodily injury, and element of the charge[?]
C. Whether the PCRA court erred in denying Appellant's claim that his guilty plea was unknowing and involuntary due to the [trial court's] failure to advise Appellant of the elements of the crimes for which he was pleading guilty[?]
D. Whether the PCRA court erred in denying Appellant's claim that he was denied due process under the Federal and State Constitutions due to the Commonwealth's violation of the tenets of Brady v. Maryland, [83 S.Ct. 1194 (1963)], specifically the Commonwealth's failure to disclose exculpatory evidence during the course of discovery[?]
E. Whether the PCRA court erred in denying Appellant's claim that he was denied due process under the Federal and State Constitutions due to the Commonwealth's presenting false and misleading testimony during the Preliminary Hearing[?]
F. Whether the PCRA court erred in denying Appellant's claim that he was denied the effective assistance of counsel under the Federal and State Constitutions due to trial counsel's failure to review discovery with Appellant prior to the guilty plea[?]

Appellant's Brief at 5.

"On appeal from the denial of PCRA relief, our standard and scope of review is limited to determining whether the PCRA court's findings are supported by the record and without legal error." Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). "[Our] 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 PCRA court level." Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation omitted). In order to be eligible for PCRA relief, a petitioner must plead and prove by a preponderance of the evidence that his conviction or sentence arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). These issues must be neither previously litigated nor waived. 42 Pa.C.S.A. § 9543(a)(3). "[T]his Court applies a de novo standard of review to the PCRA court's legal conclusions." Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citation omitted).

Before we may address the merits of a PCRA petition, we must first consider the petition's timeliness because it implicates the jurisdiction of both this Court and the PCRA court. Commonwealth v. Williams, 35 A.3d 44, 52 (Pa. Super. 2011) (citation omitted), appeal denied, 50 A.3d 121 (Pa. 2012). We may raise issues concerning our appellate jurisdiction sua sponte. Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa. Super. 2007), appeal denied, 960 A.2d 838 (Pa. 2008). "Pennsylvania law makes clear no court has jurisdiction to hear an untimely PCRA petition." Id. The PCRA "confers no authority upon this Court to fashion ad hoc equitable exceptions to the PCRA time-bar[.]" Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011) (citation omitted). This is to "accord finality to the collateral review process." Id. "A petition for relief under the PCRA, including a second or subsequent petition, must be filed within one year of the date the judgment becomes final unless the petition alleges, and the petitioner proves, that an exception to the time for filing the petition, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is met." Commonwealth v. Harris, 972 A.2d 1196, 1199-1200 (Pa. Super. 2009), appeal denied, 982 A.2d 1227 (Pa. 2009).

Section 9545 provides, in relevant part, as follows.

(b) Time for filing petition.-
(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:
(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.
(2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.

… 42 Pa.C.S.A. § 9545(b).

In the instant matter, Appellant pled guilty and was sentenced with respect to Nos. CP-40-CR-0004654-2008, CP-40-CR-0001756-2009, CP-40-CR-0001757-2009, and CP-40-CR-0001758-2009 on August 19, 2009. As noted, Appellant did not file a direct appeal with this Court. Thus, Appellant's judgment of sentence became final on September 18, 2009, when the 30-day period for Appellant to file a direct appeal in this Court expired. See id. § 9545(b)(3). Therefore, in order to be timely, Appellant's PCRA petition had to be filed by September 18, 2010. Although the record reflects that Appellant filed multiple PCRA petitions, Appellant did not raise any specific arguments with respect to No. CP-40-CR-0001757-2009 until October 4, 2010. See "PCRA Letter, " 11/10/10 (dated 10/4/10). Likewise, Appellant did not raise any arguments with respect to Nos. CP-40-CR-0001756-2009, CP-40-CR-0001758-2009, and CP-40-CR-0004654-2008 until November 22, 2011. See "[PCRA] Amended Petition Post Evidentiary Hearing, " 11/30/11 (dated 11/22/11). Additionally, the claims Appellant now asserts on appeal were not raised until February 8, 2011. See "[PCRA] Amended Petition, " 2/8/11. Accordingly, all of Appellant's petitions are patently untimely, and he must plead and prove one of the three enumerated statutory exceptions to the time-bar.

Our review of Appellant's 29-page appellate brief reveals that Appellant has neither alleged nor proven a cognizable time-bar exception to the PCRA time-bar. Without a pled and successfully proven exception to the time-bar, we cannot address the merits of the arguments raised. Commonwealth v. Perrin, 947 A.2d 1284, 1285 (Pa. Super. 2008). Accordingly, we are constrained to affirm the dismissal of Appellant's PCRA petitions on this basis.

Having found that Appellant's PCRA petitions were untimely filed and that no cognizable exception to the time-bar applies, we discern no error on the part of the PCRA court in dismissing said petitions. Therefore, we affirm the November 9, 2012 order of the PCRA court.[9]

Order affirmed.


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