Com. v. Barnes, J. ( 2017 )

J-S29023-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JAMES CHARLES BARNES
Appellant No. 2576 EDA 2016
Appeal from the PCRA Order dated July 27, 2016
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000481-2007
BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E.*
MEMORANDUM BY SOLANO, J.: FILED AUGUST 17, 2017
Appellant, James Charles Barnes, appeals from the order entered by
the Monroe County Court of Common Pleas dismissing his second Post
Conviction Relief Act (“PCRA”)1 petition as untimely. Appellant contends he
is entitled to relief for his ineffectiveness-of-counsel claim under
Montgomery v. Louisiana, 136 S. Ct. 718 (2016), and McQuiggin v.
Perkins, 133 S. Ct. 1924 (2013). He suggests that when read together,
McQuiggin and Montgomery establish that no PCRA time bar applies when
there is “an important constitutional right at issue,” including the right to
effective assistance of counsel (the right asserted here). We affirm.
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*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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Review of the facts underlying Appellant’s convictions is unnecessary
for our disposition. Suffice to say that on May 8, 2007, Appellant was
convicted of two counts each of rape, involuntary deviate sexual intercourse,
statutory sexual assault, sexual assault, endangering the welfare of a child,
corruption of minors, aggravated indecent assault, and indecent assault.
PCRA Ct. Op., 9/20/16, at 1 (unpaginated). Appellant was sentenced to 34
to 68 years’ imprisonment and appealed to this Court, which affirmed the
judgment of sentence on July 15, 2008. Commonwealth v. Barnes, 959
A.2d 957 (Pa. Super. 2008). Appellant did not petition to appeal to the
Pennsylvania Supreme Court. Pet. for Post-Collateral Relief, 6/13/16, at 2
(unpaginated).
Appellant filed a timely pro se PCRA petition on July 9, 2009. PCRA Ct.
Op. at 2 (unpaginated). The PCRA court appointed Jason Leon, Esq., as
counsel. Attorney Leon filed an amended PCRA petition alleging
ineffectiveness of Appellant’s counsel at the trial and appellate level. Id.
The PCRA court denied the petition on May 19, 2010. Id. Appellant timely
appealed to this Court. Id.
While his appeal was pending, Appellant retained new counsel, S. Lee
Ruslander, Esq., who filed a petition to remand the case to the PCRA court to
develop a claim of ineffectiveness against all prior counsel, including
Attorney Leon. Pet. for Post-Collateral Relief, 6/13/16, at 2 (unpaginated).
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This Court deferred decision on the petition to remand, 2 and subsequently
denied appellate relief on September 7, 2011. Commonwealth v. Barnes,
34 A.3d 216 (Pa. Super. 2011), appeal denied, 44 A.3d 1160 (Pa. 2012).
The Pennsylvania Supreme Court denied Appellant’s petition for allowance of
appeal on May 15, 2012. Id.
Appellant filed a second, counseled PCRA petition on June 13, 2016.
Pet. for Post-Collateral Relief, 6/13/16. On June 21, 2016, the PCRA court
issued a notice of its intent to dismiss the petition pursuant to Rule 907 of
the Rules of Criminal Procedure. Rule 907 Notice, 6/21/16.3 Appellant filed a
timely response on July 15, 2016. On July 28, 2016, the PCRA court
dismissed Appellant’s petition as untimely. Order, 7/28/16.
Appellant timely appealed and presents us with a single appellate
issue:
Whether the Court of Common Pleas of Monroe County erred in
denying and dismissing [Appellant’s] Petition for Post-Collateral
Relief without an evidentiary hearing in as much as the Petition
for Post-Collateral Relief raised material issues of fact on its
claims which had merit?
Appellant’s Brief at 3.4
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2
The record does not reflect whether this Court ever explicitly ruled on the
petition to remand. The certified record lacks any reference to the portion of
the proceedings that featured Attorney Ruslander.
3
The Notice was docketed on June 20th, but the docket reflects that it was
mailed the next day.
4
On May 1, 2017, Appellant filed a petition to amend his appellate brief to
allege additional instances of ineffectiveness by Attorney Leon. Pet. to
(Footnote Continued Next Page)
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Before examining the merits of an appellant’s claims, we must
determine whether the post-conviction petition is timely. The timeliness of a
post-conviction petition is jurisdictional — if a petition is untimely, neither an
appellate court nor the PCRA court has jurisdiction. Commonwealth v.
Albrecht, 994 A.2d 1091, 1093 (Pa. 2010). To be timely,
[a]ll PCRA petitions must be filed within one year of the date a
judgment of sentence becomes final unless the petitioner pleads
and proves 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. 42 Pa.C.S.A. § 9545(b)(1)(i-iii);
[Commonwealth v.] Robinson [, 837 A.2d 1157, at 1161 (Pa.
2003)].
Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007), appeal
denied, 944 A.2d 756 (Pa. 2008). It is the petitioner’s burden to allege and
prove that one of the timeliness exceptions applies; whether this burden has
been carried is a “threshold inquiry that must be resolved prior to
considering the merits of any claim.” Commonwealth v. Robinson, 139
A.3d 178, 186 (Pa. 2016) (citation omitted). Couching an otherwise
untimely PCRA petition in terms of ineffectiveness of counsel will not save it
from the PCRA’s time restrictions. Commonwealth v. Lesko, 15 A.3d 345,
367 (Pa. 2011) (citing Commonwealth v. Breakiron, 781 A.2d 94, 97 (Pa.
2001)).
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(Footnote Continued)
Amend Appellant’s Br., 5/1/17. We deny Appellant’s request because, as
explained below, Appellant failed to overcome the PCRA’s time-bar. The
Commonwealth did not file a brief in this case.
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We agree with the PCRA court that Appellant’s second PCRA petition is
untimely. Appellant’s judgment of sentence became final on August 14,
2008 — thirty days after the Pennsylvania Superior Court affirmed.
Therefore, Appellant had until August 14, 2009, to file a timely PCRA
petition. Appellant filed his instant, second PCRA petition well beyond that
deadline, on June 13, 2016.
To overcome the one-year time-bar, Appellant was required to plead
and prove one of the PCRA’s three timeliness exceptions. See Robinson,
139 A.3d at 186. Appellant never explicitly invokes any of the exceptions in
his brief. However, he implicitly points to the third — assertion of “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,” 42 Pa.
C.S. § 9545(b)(iii) — by arguing that effective assistance to counsel is an
“important constitutional right” that he should be allowed to raise at any
time, regardless of the PCRA’s time-bar. Appellant’s Brief at 7. Appellant
fails to meet the requirements of this exception, however, because, like the
defendant in Robinson, his petition does not refer to any decision
recognizing a new, retroactively applied right to effective counsel.5 Like the
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5
In order to invoke the newly-recognized constitutional right exception to
the PCRA, a petition must point to specific decisions granting retroactive
effect to a newly recognized right. See Robinson, 139 A.3d at 186
(rejecting the defendant’s untimely PCRA petition alleging ineffectiveness of
counsel for, among other reasons, failing to refer to any new, retroactive
(Footnote Continued Next Page)
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defendant in Commonwealth v. Feliciano, 69 A.3d 1270, 1275 (Pa. Super.
2013), Appellant fails to establish that he relies on a right that is “newly
recognized,” rather than longstanding.
Appellant contends that the PCRA court had jurisdiction to entertain
his untimely second PCRA petition because Montgomery, read alongside
McQuiggin,6 “meant [that] any important constitutional right can be raised
and argued in state PCRA courts no matter a time bar,” including the
“important constitutional right” of “effective assistance of counsel.”
Appellant’s Brief at 9. The PCRA court rejected Appellant’s Montgomery
argument, reasoning that since “[n]o case relevant to [Appellant’s] has
announced a new substantive rule under the Constitution,” Montgomery is
not applicable. Rule 907 Notice, 6/21/16. In this Court, Appellant seeks to
use McQuiggan to bolster his argument by pointing out that McQuiggin
held that (1) a “plea of actual innocence can overcome [a] habeas statute of
limitations,” and (2) that “federal habeas courts may invoke [a] miscarriage
of justice exception to justify consideration” of state court claims that
_______________________
(Footnote Continued)
constitutional right recognized after his conviction was finalized); see also
Commonwealth v. Feliciano, 69 A.3d 1270, 1276-77 (Pa. Super. 2013)
(rejecting the petitioner’s argument that recent U.S. Supreme Court cases
created a new, retroactive constitutional right to effective counsel, reasoning
that the right to effective counsel “has been recognized for decades,” and
that the cases cited did not create a new right but rather applied the Sixth
Amendment to particular circumstances).
6
Appellant cites McQuiggin for the first time on appeal. He made no
mention of the case in his PCRA petition or Rule 1925(b) statement.
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defaulted under state timeliness rules. Id. Appellant’s argument is
unavailing.
Federal decisions about federal habeas corpus law, like McQuiggin,
are irrelevant to construction of the PCRA’s timeliness requirements. In
Commonwealth v. Brown, 143 A.3d 418, 420-21 (Pa. Super. 2016), the
defendant cited McQuiggin to argue that the PCRA’s time-bar should not
apply to his untimely PCRA petition that asserted actual innocence because
the U.S. Supreme Court in McQuiggin held that convincing claims of actual
innocence could overcome the statute of limitations for filing a federal
habeas corpus petition. Id. at 420. Rejecting that argument, this Court
emphasized that McQuiggin represented only a development in federal
habeas corpus law, which has no effect on state court construction of the
PCRA’s time bar, since a “change in federal law is irrelevant to the time
restrictions of our PCRA.” Id. at 421.
Pennsylvania courts do not have jurisdiction to create extra-statutory
exceptions to the PCRA’s time-bar. Robinson, 139 A.3d at 187. In
Robinson, the Pennsylvania Supreme Court rejected the defendant’s
proposed exception to the PCRA time-bar for facially untimely PCRA petitions
challenging the performance of prior PCRA counsel. Id. In support of his
exception, the defendant cited two recent U.S. Supreme Court decisions7
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7
The defendant cited Martinez v. Ryan, 132 S. Ct. 1309 (2013), and
Trevino v. Thaler, 133 S. Ct. 1911 (2013). See Robinson, 139 A.3d at
183 n.7 (summarizing both cases).
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that “altered the federal law of procedural default to allow post-conviction
petitioners to have their waived claims of trial counsel ineffectiveness
reviewed in federal habeas corpus proceedings where post-conviction
counsel never raised such claims.” Id. at 183. Our Supreme Court held
that the defendant’s —
proposed [exception] would be in direct contravention of the
legislatively created time-bar of the PCRA and the limited
statutory exceptions provided therein. This Court has no
authority to carve out equitable exceptions to statutory
provisions and the federal jurisprudence cited by [the defendant]
neither requires nor authorizes our doing so.
Id. at 187.
Appellant’s citation of Montgomery and McQuiggin does not render
his petition timely, as neither case suggests the existence of a newly
recognized right to effective counsel. The U.S. Supreme Court in
Montgomery never mentioned ineffectiveness of counsel, much less
announced a new substantive right or rule on the matter. McQuiggin is
inapposite for reasons similar to those given by this Court in Brown; even if
Appellant had timely invoked McQuiggin and not cited it for the first time
on appeal, it would remain irrelevant to our construction of the PCRA’s time
limitations. Like the defendant’s argument in Robinson, Appellant’s
suggested interpretation of Montgomery — that any “important”
constitutional right may be raised at any time by a PCRA petitioner,
regardless of time-bar — would directly contravene the PCRA’s legislative
mandate and require this Court to exceed its authority by creating a new
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exception to a statutory provision. Appellant’s reading would significantly
undermine the PCRA’s jurisdictional time limits; any time a right was
characterized as “important” (a vague and overly general standard), those
limits would become inapplicable. As explained in Robinson, we lack
authority to carve out exceptions to the PCRA’s limits that are not already in
the statute.
Because we agree with the PCRA court that Appellant’s petition was
untimely and Montgomery does not cure its untimeliness, we affirm the
dismissal.
Petition to amend Appellant’s brief denied as moot. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2017
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