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[U] Commonwealth v. Washington

Superior Court of Pennsylvania

February 20, 2014



Appeal from the PCRA Order of March 25, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0200121-2004




Robert Washington appeals the PCRA court's March 25, 2013 order dismissing his second petition under the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541, et seq. We affirm.

The trial court provided the following brief summary of the factual and procedural history of this case:

On October 12, 2004, [Washington] pled guilty to third-degree murder, robbery (two counts), aggravated assault and criminal conspiracy. This court deferred [Washington's] sentencing hearing until the completion of his accomplice's trial.
While awaiting sentencing, [Washington] filed a motion to withdraw his guilty plea and requested the appointment of new counsel. On September 16, 2005, the court held a hearing with regard to [Washington's] motions. [Washington] ultimately withdrew his motions, and his case proceeded to sentencing. The court imposed concurrent prison terms of thirteen (13) to twenty-six (26) years on the murder bill and five (5) to ten (10)[-]year prison terms on each of the remaining bills.
[Washington] filed a Motion for Reconsideration and/or Modification of Sentence. The court denied the motion on October 3, 2005. [Washington] then filed an appeal in the Superior Court. On August 1, 2006, the Superior Court affirmed [Washington's] judgment of sentence. Commonwealth v. Washington, 2969 EDA 2005 (Pa. Super. Aug. 1, 2006) (unpublished). The Pennsylvania Supreme Court denied his Petition for Allowance of Appeal on January 18, 2007. Commonwealth v. Washington, 918 A.2d 745 (Pa. 2007) (per curiam).
On October 30, 2007, [Washington filed] a PCRA petition. The court appointed counsel on [Washington's] behalf. Counsel thereafter filed a brief pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), stating that the issues raised in the pro se petition were without merit and that no meritorious issues or defenses could be raised in an amended petition. On October 3, 2008, after reviewing [Washington's] pro se PCRA petition, counsel's thorough and exhaustive Finley brief and the relevant notes of testimony, this court dismissed the PCRA petition as frivolous.1
1 The dismissal occurred no [fewer] than twenty (20) days after [Washington] was served with notice of the forthcoming dismissal of his PCRA petition. See Pa.R.Crim.P. 907(a).
[Washington] appealed this court's ruling to the Superior Court. On February 5, 2009, the Superior Court dismissed the appeal because [Washington] failed to file an appellate brief. Commonwealth v. Washington, 3206 EDA 2008 (Pa. Super. Feb. 5, 2009) (per curiam). [Washington] then filed a Petition for Review with the Supreme Court. The Supreme Court denied the petition on July 21, 2009. Commonwealth v. Washington, 977 A.2d 1086 (Pa. 2009) (per curiam).
On or about August 13, 2012, [Washington] filed the instant PCRA petition. [Washington] claimed that his guilty plea was not valid and that both trial and PCRA counsel rendered ineffective assistance. On March 25, 2013, after reviewing [Washington's] pro se PCRA petition and the record, this Court dismissed the PCRA petition as untimely2. This timely pro se appeal followed.
2 The dismissal occurred no [fewer] than twenty (20) days after [Washington] was served with notice of the forthcoming dismissal of his PCRA petition. See Pa.R.Crim.P. 907(a).

PCRA Court Opinion, 5/20/2013, at 1-2 (citations modified).[1]

Before this Court, Washington raises the following issues:
1. Whether Washington demonstrated prejudice and a miscarriage of justice where counsel rendered ineffective assistance by advising Washington to enter an involuntary, unknowing plea without informing Washington about all of his rights before entering into the plea?
2. Whether Washington's confession was obtained involuntarily in violation of his Fifth, Sixth, and Fourteenth Amendment rights?
3. Whether Washington was denied and deprived a meaningful review on his first PCRA petition by counsel, and whether the PCRA court erred in denying Washington's PCRA petition without holding an evidentiary hearing?

Brief for Washington at 9 (modified for clarity).

At issue are the PCRA court's orders denying PCRA relief. "In PCRA proceedings, an appellate court's scope of review is limited by the PCRA's parameters; since most PCRA appeals involve mixed questions of fact and law, the standard of review is whether the PCRA court's findings are supported by the record and free of legal error." Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009).

It is well-established that the PCRA time limits are jurisdictional, and are meant to be both mandatory and applied literally by the courts to all PCRA petitions, regardless of the potential merit of the claims asserted. Commonwealth v. Murray, 753 A.2d 201, 202-03 (Pa. 2000); Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. Super. 2011). "[N]o court may properly disregard or alter [these filing requirements] in order to reach the merits of the claims raised in a PCRA petition that is filed in an untimely manner." Murray, 753 A.2d at 203; see also Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).

Following our disposition of Washington's direct appeal on August 1, 2006, Appellant sought allowance of appeal in the Pennsylvania Supreme Court. That Court denied Washington's petition on January 18, 2007. Thus, his judgment of sentence became final on or about April 18, 2007, ninety days after the Pennsylvania Supreme Court denied review and the time expired for Washington to file a petition for a writ of certiorari to the United States Supreme Court. See U.S.Sup.Ct.R. 13. Hence, Washington had until approximately April 18, 2008, to file a timely PCRA petition. The instant petition, however, was docketed by the trial court on or about August 13, 2012, over four years after the expiration of the applicable one-year period. Therefore, the petition facially is untimely. 42 Pa.C.S. § 9545(b)(1); Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000).

Despite facial untimeliness, a tardy PCRA petition nonetheless will be considered timely if (but only if) the petitioner pleads and proves one of the three exceptions to the one-year time limit enumerated in §§ 9545(b)(1)(i)-(iii) of the PCRA:

(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. § 9545(b).

As best we can glean from Washington's disjointed brief, his only attempt to invoke one of the above-cited exceptions is found in his claim that Lafler v. Cooper, 132 S.Ct. 1376 (U.S. 2012), created a new retroactive constitutional right for purposes of 42 Pa.C.S. § 9545(b)(1)(iii). This Court squarely has rejected precisely this argument before:

This Court recently considered the effect of Lafler on the PCRA time bar in Commonwealth v. Lewis, 63 A.3d 1274 (Pa. Super. 2013). Although the Court found the issue to be waived based on Appellant's failure to properly assert an exception to the PCRA's timeliness requirements in his brief, the Court offered the following analysis:
[R]egardless of waiver, [Lewis'] reliance on Lafler does not support an exception to the PCRA's time restrictions, as the issue presented in Lafler is materially different from the issue presented in the case before us. Lafler involved a criminal defendant who elected to proceed to trial rather than plead guilty based upon counsel's advice that the Commonwealth would be unable to prove intent to kill because the defendant shot the victim below the waist. Lafler, 132 S.Ct. at 1383. The defendant received a mandatory sentence of incarceration more than three times longer than had been offered by the Commonwealth in the initial plea agreement. Id. It was uncontested that counsel's advice "fell below the standard of adequate assistance of counsel guaranteed by the Sixth Amendment, applicable to the States through the Fourteenth Amendment." Id.
In the case at bar, Lewis did not reject a plea offer by the Commonwealth and elect to go to trial. Instead, Lewis pled guilty, and now claims that he did so because his plea counsel provided ineffective assistance during the plea bargaining process. . . . Indeed, the United States Supreme Court [in Lafler] distinguished Lafler from its 1985 decision in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (holding that the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) applies to challenges to guilty pleas based on the ineffective assistance of counsel) based upon the fact that in Lafler, "the ineffective advice led not to a [plea] offer's acceptance but to its rejection. Having to stand trial, not choosing to waive it, is the prejudice alleged." Lafler, 132 S.Ct. at 1385.

Lewis, 63 A.3d at 1279–1280 (footnotes omitted, some brackets in original).

We agree with the Lewis Court's well-reasoned analysis. Similar to the appellant in Lewis, and unlike the appellant in Lafler, here Appellant did not reject a plea offer and proceed to trial, but entered a favorable guilty plea and now claims that he did so because his plea counsel provided ineffective assistance during the plea bargaining process. Thus, the facts of the instant case render Lafler inapposite.

Commonwealth v. Hernandez, 79 A.3d 649, 652-53 (Pa. Super. 2013) (citations modified; some brackets omitted).

This case is materially identical to Lewis and Hernandez. In this case, as in those cases, Washington does not contend that he declined to enter a favorable plea bargain based upon the infirm advice of counsel. Rather, he contends that the guilty plea he did enter was rendered involuntary by the ineffectiveness of plea counsel. As we noted in Lewis, the Lafler Court itself noted that the right to effective assistance of counsel associated with the entry of a guilty plea, as distinct from the decision not to enter such a plea, dates back at least as far as the Court's 1985 decision in Hill. See Lewis, 63 A.3d at 1279-80. In short, the issue Washington asserts as a basis to excuse the untimeliness of his petition could have been raised in a facially timely petition, because the right in question had been recognized long before Washington entered his plea.

For the foregoing reasons, Washington's sole attempt to invoke an exception to the PCRA's time-bar is unavailing. Lafler did not create a new retroactive constitutional right that applies under the circumstances of his case.[2] Consequently, Washington's petition was untimely under the PCRA.

Order affirmed.

Judgment Entered.

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