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[U] Commonwealth v. Rowland

Superior Court of Pennsylvania

March 12, 2014

LEE J. ROWLAND, Appellant


Appeal from the PCRA Order of May 22, 2013 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0004755-2008




Appellant, Lee J. Rowland, appeals pro se from the order entered on May 22, 2013, dismissing as untimely his second petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541–9546. We affirm.

We briefly summarize the facts and procedural history of this case as follows. On September 3, 2008, using a confidential informant, police initiated a controlled narcotics purchase from Appellant at his auto mechanic shop in Harrisburg, Pennsylvania. The informant purchased $100.00 of crack cocaine from Appellant using marked currency. Following the purchase, police obtained a search warrant of Appellant's shop and recovered 46.7 grams of crack cocaine, a digital scale and plastic sandwich bags from a file cabinet in Appellant's office. Police also obtained $2, 098.00 in cash from Appellant's person that included the marked currency used in the prior controlled purchase. On January 14, 2010, a jury convicted Appellant of possession with intent to deliver a controlled substance.[1] On March 29, 2010, the trial court sentenced Appellant to five to 10 years of imprisonment. Appellant did not file a direct appeal.

On January 10, 2011, Appellant filed a pro se PCRA petition. The PCRA court appointed counsel who filed a supplemental PCRA petition. PCRA counsel petitioned to withdraw and the PCRA court granted the request. The PCRA court dismissed Appellant's first PCRA petition on May 11, 2011. Appellant appealed to this Court and we dismissed the appeal on October 20, 2011 by per curiam order for failure to file an appellate brief. On August 7, 2012, our Supreme Court denied Appellant's petition for allowance of appeal.

On April 15, 2013, Appellant filed a second pro se PCRA petition. On April 29, 2013, the PCRA court entered a notice of its intent to dismiss the PCRA petition without a hearing pursuant to Pa.R.Crim. 907.[2] On May 22, 2013, the PCRA court denied relief on Appellant's second PCRA petition. That same day, the PCRA court received a pro se Rule 907 response from Appellant. The PCRA court dismissed the response as untimely by order dated May 28, 2013. This timely appeal followed.[3]

On appeal, Appellant presents the following issues for our review:

a) Whether this [] Court should remand the matter back to the [PCRA] court under extraordinary circumstances to afford Appellant an opportunity to file an amended PCRA petition with applicable statutory exceptions based on newly discovered evidence showing, [his] trial resulted in a[] conviction that w[as] so unfair that a miscarriage of justice occurred while Appellant is actual[ly] innocent of the crime charge[d] which no civilized society could tolerate, vacating the lower court[']s orders?
b) [Whether the] May 22, 2013 [order] is in error dismissing the Post Conviction petition 17 days after its reception without a hearing and without affording Appellant an opportunity to file an amended PCRA petition to include two if not three of the statutory exceptions for filing within the sixt[y] (60) [day] time frame, and invoking trial and prior counsel's inadequate and ineffective assistance when the court did not order that it lack[ed] jurisdiction?
c) [Whether the] May 28, 2013 [order] is in error when [the PCRA court] failed to consider Appellant's May 17, 2013 response in opposition to [the] court[']s intent to dismiss along with his PCRA petition, which are supported by mailing receipt and SCI-Rockview inmate financial statement deduction when said response not only was placed in the mailbox within the prescribed period, but also was filed six (6) days prior to the court issuing its final dismissal order May 22, 2013.
d) [Whether the PCRA court] erred in dismissing this matter, while covering its own error when it invoked the power and discretion of the prosecution on its own incentive to pick what sentence should be imposed upon [] Appellant, in which such obligation is rest[ed] with and are only permissible as a duty under the constitution to the prosecution itself, rendering the imposed sentence illegal.
e) [Whether the PCRA court] erred in dismissing the matter where [the] imposition of [his] conviction and sentence is based on [the] drug laboratory report [specifying the amount is] contrary to and in violation of the crack cocaine sentencing laws for its potency.
f) [Whether there was PCRA court] error in dismissing the matter without determining Appellant[']s constitutional substantial claim by United States Supreme Court new rule of law now applicable to Appellant, where Appellant's attorney in his first state collateral proceeding rendered inadequate assistance in not challenging initial counsel ineffectiveness, as the underlying ineffective of trial/sentencing counsel[']s failure to challenge the trial court[']s invoking the authority of the prosecution under the constitution to impose a sentence on Appellant, but instead PCRA counsel filed a no-merit letter.

Appellant's Brief at 1 (complete capitalization omitted).

Before we may address the merits of Appellant's claims, we must determine whether we have jurisdiction to hear the appeal pursuant to the PCRA:

[T]he timeliness of a PCRA petition is a jurisdictional requisite. Jurisdictional time limits go to a court's right or competency to adjudicate a controversy. Pennsylvania law makes clear no court has jurisdiction to hear an untimely PCRA petition. The PCRA now requires a petition, including a second or subsequent petition, to be filed within one year of the date the underlying judgment becomes final. A judgment is deemed final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking review.

Commonwealth v. Williams, 35 A.3d 44, 52 (Pa.Super. 2011) (citations and quotations omitted).

Here, Appellant was sentenced on March 29, 2010. He did not appeal to this Court. Thus, his judgment of sentence became final after the expiration of the 30-day appeal period, or on April 28, 2010. See Pa.R.A.P. 903. Because the current PCRA petition was filed on April 15, 2013, more than one year after his judgment of sentence became final, it is patently untimely under the PCRA.

"Generally, to obtain merits review of a PCRA petition filed more than one year after a petitioner's sentence became final, the petitioner must allege and prove at least one of the three timeliness exceptions." Williams, 35 A.3d at 52, citing 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).[4] "[W]hen a PCRA petition is not filed within one year of the expiration of direct review, or not eligible for one of the three limited exceptions, or entitled to one of the exceptions, but not filed within 60 days of the date that the claim could have been first brought, the trial court has no power to address the substantive merits of a petitioner's PCRA claims." Id. at 53. Moreover, our Supreme Court has repeatedly stated, "a claim of ineffective assistance of counsel does not save an otherwise untimely petition for review on the merits." Commonwealth v. Morris, 822 A.2d 684, 694 (Pa. 2003).

Here, in his pro se PCRA petition Appellant did not invoke, much less prove, an exception to the one-year jurisdictional time bar. Instead, he argued that his sentence was illegal. "[A]lthough illegal sentencing issues cannot be waived, they still must be presented in a timely PCRA petition." Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa.Super. 2013) (citation omitted).

Moreover, for the first time on appeal, Appellant attempts to invoke the unknown facts exception to the PCRA under 42 Pa.C.S.A. § 9545(b)(1)(ii) and raises a related ineffective assistance of counsel claim. He claims that, after he filed his current PCRA petition, he received the financial records of his business from the Pennsylvania Department of Transportation, showing he received substantial sums of cash for car inspections at the time of the crime. Appellant's Brief at 4-5, 9. Thus, he posits the money police found on his person was from legitimate business efforts and could not be used against him in his prosecution for possession with intent to deliver a controlled substance. Id. In conjunction, Appellant claims that trial counsel was ineffective when he failed "to investigate and obtain such new evidence." Id. at 12.

These issues, however, are waived because they were not presented in Appellant's PCRA petition and have been raised for the first time on appeal to this Court. Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004) ("[A] claim not raised in a PCRA petition cannot be raised for the first time on appeal."). Our Supreme Court has held that a claim predicated on facts discovered after the filing of the PCRA petition at issue must be asserted in a subsequent PCRA petition. Id. In addition, claims of ineffective assistance of counsel cannot save an otherwise untimely PCRA petition. Thus, for all of the foregoing reasons, Appellant's PCRA petition is untimely and we are without jurisdiction to address the merits of his claims.

Finally, we address Appellant's contention that the PCRA court denied relief before considering his response to the PCRA court's Rule 907 notice. Appellant's Brief at 8-9. He claims that he should have been afforded an opportunity to amend any defects in his PCRA petition before dismissal. Id.

The PCRA court entered an order indicating its intention to dismiss Appellant's petition pursuant to Pa.R.Crim.P. 907 on April 29, 2013. Rule 907 gave Appellant 20 days from April 29, 2013, or until May 20, 2013, [5] to respond. The PCRA court received Appellant's response on May 22, 2013.

However, because Appellant was incarcerated, the prisoner mailbox rule is applicable. "Under the prisoner mailbox rule, we deem a pro se document filed on the date it is placed in the hands of prison authorities for mailing." Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa.Super. 2011). Pursuant to that rule, "[this Court is] inclined to accept any reasonably verifiable evidence of the date that the prisoner deposits the [filing] with the prison authorities." Commonwealth v. Perez, 799 A.2d 848, 851 (Pa.Super. 2002) (holding certified mail receipt was sufficient proof of the date of filing under the prisoner mailbox rule).

In this case, the only information regarding the date of Appellant's Rule 907 response is contained in the response itself, in the proof of service. Appellant dated the response May 17, 2013, within the 20-day requirement. Unfortunately, this information is not verifiable. Appellant could have prepared the response on one day and handed it to prison authorities much later. Without proof, we must consider Appellant's Rule 907 response untimely and, hence, the PCRA court was not required to consider it.

Regardless, after our independent review of Appellant's Rule 907 response, Appellant merely reiterates his illegality of sentence argument as presented in his second PCRA petition and argues that trial counsel was ineffective for failing to raise it. As previously stated, these claims could not subvert the one-year PCRA timing requirement. Further, Appellant did not raise any additional issues or invoke an exception to the PCRA timing requirements in his Rule 907 response. Thus, in addition to being untimely, Appellant's Rule 907 notice did not raise cognizable PCRA claims. Hence, we affirm the PCRA court's order denying relief.

Order affirmed.

Judgment Entered.

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