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[U] Commonwealth v. Dreibelbis

Superior Court of Pennsylvania

March 11, 2014



Appeal from the PCRA Order entered August 28, 2013, in the Court of Common Pleas of Berks County, Criminal Division, at No(s): CP-06-CR-0000654-1975.




Terry Allen Dreibelbis ("Appellant") appeals pro se from the order denying his third petition for relief under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-46. We affirm.

The PCRA court summarized the procedural history as follows:
On October 21, 1977, following a jury trial, [Appellant] was convicted of murder and related offenses. He was subsequently sentenced on October 24, 1978 to a term of life imprisonment. . . . [Appellant] filed [an appeal] to the Supreme Court of Pennsylvania, which affirmed [Appellant's judgment of sentence] on March 13, 1981. On January 29, 1982, [Appellant] filed his first [petition for post-conviction relief]. On February 11, 1982 [counsel] was appointed to represent [Appellant] regarding the disposition of his petition. [An evidentiary] hearing was held on May 19, 1982, and [Appellant's] petition was subsequently dismissed. [Appellant] filed an appeal to the Pennsylvania Superior Court, which denied his appeal on February 27, 1985. [Appellant] then filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court, which denied [allocatur] on September 16, 1985.
[Appellant] next unsuccessfully sought relief in Federal Court. Thereafter, he filed a second PCRA on January 9, 1997, which was dismissed on April 16, 1997. [Appellant] . . . appealed to the Pennsylvania Superior Court, which subsequently affirmed the dismissal of his second PCRA petition. The Pennsylvania Supreme Court once again denied [allocatur]. Then, on May 15, 2012, [Appellant] filed the instant PCRA petition, his third. In this petition, [Appellant] alleges various violations of his constitutional rights and also claims that all of his prior attorneys were ineffective. Because this petition is manifestly untimely, and because none of the statutory exceptions to the time bar are applicable, this court lacks jurisdiction to reach the merits of [Appellant's] petition.

PCRA Court Opinion, 7/30/13, at 1-2.

On July 30, 2013, the PCRA court issued Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant's PCRA petition without a hearing. Appellant filed a response on August 16, 2013. After considering this response, the PCRA court, by order entered August 28, 2013, dismissed Appellant's third petition as untimely filed. This timely appeal followed. Both Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

This Court's standard of review regarding an order dismissing a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a hearing on the petition if the PCRA court determines that the petitioner's claim is patently frivolous and is without a trace of support in either the record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011 (Pa. Super. 2001). Finally, because this is Appellant's third petition for post-conviction relief, he must meet a more stringent standard. "A second or any subsequent post-conviction request for relief will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred." Commonwealth v. Burkhardt, 833 A.2d 233, 236 (Pa. Super. 2003) (en banc) (citations omitted). "A petitioner makes a prima facie showing if he demonstrates that either the proceedings which resulted in his conviction were so unfair that a miscarriage of justice occurred which no civilized society could tolerate, or that he was innocent of the crimes for which he was charged." Id.

Before addressing the issue Appellant presents on appeal, we must first consider whether the PCRA court correctly determined that Appellant's petition was untimely. The timeliness of a post-conviction petition is jurisdictional. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation omitted). Thus, if a petition is untimely, neither an appellate court nor the PCRA court has jurisdiction over the petition. Id. "Without jurisdiction, we simply do not have the legal authority to address the substantive claims" raised in an untimely petition. Id.

Generally, 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, an exception to the time for filing the petition. Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under these exceptions, the petitioner must plead and prove that: "(1) there has been interference by government officials in the presentation of the claim; or (2) there exists after-discovered facts or evidence; or (3) a new constitutional right has been recognized." Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition invoking one of these statutory exceptions must "be filed within sixty days of the date the claim first could have been presented." Gamboa-Taylor, 753 A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to the time restrictions of the PCRA must be pled in the petition, and may not be raised for the first time on appeal. Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) ("Issues not raised before the lower court are waived and cannot be raised for the first time on appeal.").

Appellant did not file a petition for writ of certiorari to the United States Supreme Court following our Supreme Court's affirmance of his judgment of sentence on March 13, 1981. Thus, for purposes of the time restrictions of the PCRA, Appellant's judgment of sentence became final on or about May 12, 1981, after the sixty-day period for requesting such relief expired. See U.S.Sup.Ct.R. 20 (repealed); Commonwealth v. Joyner, 777 A.2d 1108, 1111 (Pa. Super. 2001). Therefore, Appellant had to file his petition by May 12, 1982, in order for it to be timely. As Appellant filed the instant petition over thirty years later, it is patently untimely unless he has satisfied his burden of pleading and proving that one of the enumerated exceptions applies. See Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999).

Appellant does not assert the applicability of any of the exceptions to the PCRA's time restrictions. Instead, Appellant asserts that his latest petition is not time-barred given the United State Supreme Court's recent holding in Martinez v. Ryan, 132 S.Ct. 1309 (2012). The PCRA court correctly rejected Appellant's claim, noting that this Court has recently held, "'While Martinez represents a significant development in federal habeas corpus law, it is of no moment with respect to the way Pennsylvania courts apply the plain language of the time bar set forth in section 9545(b)(1) of the PCRA.'" PCRA Court Opinion, 7/30/13, at 4 (quoting Commonwealth v. Saunders, 60 A.3d. 162, 165 (Pa. Super. 2013)). Thus, we agree with the PCRA court that Appellant has not met his burden of establishing an exception to the PCRA's time restrictions.

Within his brief, Appellant refers to a more recent decision of the United States Supreme Court in McQuiggin v. Perkins, 133 S.Ct. 1924 (2013). According to Appellant, "his argument qualifies for the gateway provided in McQuiggin, supra, and therefore is not bound by [this Court's] ruling in Saunders, supra." Appellant's Brief at 2. Appellant is mistaken. While McQuiggan represents a further development in federal habeas corpus law, as in Saunders, this change in federal law is irrelevant to the time restrictions of our PCRA.

In sum, because Appellant's third PCRA is patently untimely, and Appellant has not met his burden of establishing an exception to the PCRA's time bar, the PCRA court correctly determined that it lacked jurisdiction to address the substantive claims raised by Appellant. Beasley, supra. We therefore affirm the PCRA court's order denying Appellant post-conviction relief.

Order affirmed.

Judgment Entered.

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