Com. v. Hoyer, C. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
CHARLES EDWARD HOYER,
Appellant No. 335 MDA 2017
Appeal from the Order Entered January 19, 2017
in the Court of Common Pleas of Lebanon County
Criminal Division at Nos.: CP-38-CR-0001410-2007
CP-38-CR-0001411-2007
CP-38-CR-0001669-2008
BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED FEBRUARY 16, 2018
Appellant, Charles Edward Hoyer, appeals pro se from the order denying
his post-conviction motion to compel discovery. We affirm.
Appellant was convicted at the above docket numbers on March 3, 2008,
May 9, 2008, and October 7, 2009, of several sex crimes involving minor
boys.1 On April 14, 2008 and October 8, 2008, the court imposed judgments
of sentence in docket numbers 1410-2007 and 1411-2007. This Court
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* Retired Senior Judge assigned to the Superior Court.
1 Specifically, Appellant was convicted of three counts of endangering the
welfare of children, 18 Pa.C.S.A. § 4304(a); four counts of corruption of
minors, 18 Pa.C.S.A. § 6301(a); and eleven counts of indecent assault, 18
Pa.C.S.A. § 3126(a)(1)-(4), and (7)-(8).
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affirmed the judgments of sentence on September 8, 2009 and September 9,
2009. (See Commonwealth v. Hoyer, 986 A.2d 1256 (Pa. Super. 2009)
(unpublished memorandum); Commonwealth v. Hoyer, 986 A.2d 1257 (Pa.
Super. 2009) (unpublished memorandum)). The trial court imposed the
judgment of sentence for docket number 1669-2008 on December 1, 2009,
and this Court affirmed on January 14, 2011. (See Commonwealth v.
Hoyer, 23 A.3d 1083 (Pa. Super. 2011) (unpublished memorandum)).
On November 5, 2009, at docket numbers 1410-2007 and 1411-2007,
the Lebanon County Public Defender’s Officer filed a motion for the
appointment of conflict counsel to enable Appellant to pursue post-conviction
relief. The court appointed counsel on November 6, 2009, and an amended
petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§
9541-9546, was filed on November 18, 2010. After a hearing, the PCRA court
denied Appellant’s petition on August 12, 2011. This Court affirmed the PCRA
court’s order on March 23, 2012, and our Supreme Court denied further review
on September 19, 2012. (See Commonwealth v. Hoyer, 47 A.3d 1255 (Pa.
Super. 2012) (unpublished memorandum), appeal denied, 53 A.3d 757 (Pa.
2012)).2
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2 On November 9, 2011, Appellant filed a pro se PCRA petition at docket
number 1669-2008. Appointed counsel filed an amended petition on April 23,
2012. On October 13, 2015, the court issued a Rule 907 notice of its intent
to dismiss Appellant’s petition without a hearing, from which Appellant
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On December 16, 2016, Appellant filed a pro se motion to compel
discovery pursuant to Pennsylvania Rule of Criminal Procedure 573(a). On
January 19, 2017, the court denied Appellant’s motion on the basis that he is
not entitled to discovery where there is nothing pending in any of his cases,
and his request for discovery is a fishing expedition. Appellant timely appealed
on February 13, 2017.3
Appellant raises five issues challenging the denial of his motion to
compel discovery.
1. Whether the Commonwealth denied Appellant access to
discovery materials necessary to prove his innocence and perfect
his appeal efforts?
2. Whether the Commonwealth committed deliberate Brady
violations when it knowingly denied Appellant discovery crucial to
his defense pretrial?
3. Whether materials exist now that were not present at the
time of trial that are denied the Appellant?
4. Whether some materials requested have been previously
requested by the Appellant via pro-se motions which have been
ignored by the Commonwealth?
5. Whether some of the materials denied include original
investigative notes that were not included in pretrial discovery?
(Appellant’s Brief, at 4) (unnecessary capitalization omitted).
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appealed. See Pa.R.Crim.P. 907(1). On February 29, 2016, this Court
quashed the appeal because it was not from a final order.
3 On March 23, 2017, Appellant filed a timely court-ordered statement of
errors complained of on appeal. See Pa.R.A.P. 1925(b). The court filed an
opinion on March 29, 2017. See Pa.R.A.P. 1925(a).
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We note first that “[i]t is [] well-settled that the PCRA provides the sole
means for obtaining collateral review, and that any petition filed after the
judgment of sentence becomes final will be treated as a PCRA petition.”
Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007), appeal
denied, 944 A.2d 756 (Pa. 2008) (citations omitted). Here, Appellant’s
judgments of sentence became final after the thirty-day period expired to
petition for allowance of appeal to the Pennsylvania Supreme Court. See 42
Pa.C.S.A. § 9545(b)(3). Specifically, the judgments at docket numbers 1410-
2007 and 1411-2007 became final on October 8, 2009 and October 9, 2009,
respectively; and his sentence at docket number 1669-2008 was final as of
February 14, 2011.4 Therefore, we treat Appellant’s motion to compel
discovery as a PCRA petition.
Pursuant to the Pennsylvania Rules of Criminal Procedure, “[unless
requested i]n the first counseled petition in a death penalty case,” “[n]o
discovery shall be permitted at any stage of [post-conviction] proceedings,
except upon leave of court after a showing of exceptional circumstances.”
Pa.R.Crim.P. 902(E). Generally, “[w]e review a PCRA court’s denial of
discovery for an abuse of discretion.” Commonwealth v. Reid, 99 A.3d 470,
486 (Pa. 2014) (citation omitted). However, before we consider the merits of
Appellant’s request for relief, we must consider whether it is timely:
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4 February 13, 2011 was a Sunday.
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A PCRA petition, including a second or subsequent one, must be
filed within one year of the date the petitioner’s judgment of
sentence became final, unless he pleads and proves one of the
three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
judgment becomes final at the conclusion of direct review by this
Court or the United States Supreme Court, or at the expiration of
the time for seeking such review. 42 Pa.C.S.[A.] § 9545(b)(3).
The PCRA’s timeliness requirements are jurisdictional; therefore,
a court may not address the merits of the issues raised if the
petition was not timely filed. The timeliness requirements apply
to all PCRA petitions, regardless of the nature of the individual
claims raised therein. The PCRA squarely places upon the
petitioner the burden of proving an untimely petition fits within
one of the three exceptions. . . .
Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations and
footnote omitted).
Instantly, as discussed above, Appellant’s judgments of sentence
became final on October 8, 2009, October 9, 2009, and February 14, 2011.
Therefore, he had one year from each of those dates to file a timely PCRA
petition. See 42 Pa.C.S.A. § 9545(b)(1). Accordingly, Appellant’s current
petition, filed on December 16, 2016, is untimely on its face, and we lack
jurisdiction to consider its merits unless he pleads and proves a timeliness
exception. See id.
Section 9545 of the PCRA provides only three exceptions that allow for
review of an untimely PCRA petition: (1) the petitioner’s inability to raise a
claim because of governmental interference; (2) the discovery of previously
unknown facts that would have supported a claim; and (3) a newly-recognized
constitutional right. See id. When a petition is filed outside the one-year
time limit, petitioners must plead and prove the applicability of one of the
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three exceptions to the PCRA timing requirements. See Commonwealth v.
Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012) (“If the petition is
determined to be untimely, and no exception has been pled and proven, the
petition must be dismissed without a hearing because Pennsylvania courts are
without jurisdiction to consider the merits of the petition.”) (citation omitted).
In the case sub judice, Appellant fails to acknowledge that his motion is
an untimely PCRA petition, let alone to plead and prove the applicability of a
timeliness exception.5 (See Appellant’s Brief, at 9-12); see Johnston, supra
at 1126. Therefore, we lack jurisdiction to consider the merits of his appeal.
See Jones, supra at 16-17. Accordingly, we affirm.6
Order affirmed.
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5 To the extent Appellant’s brief could be interpreted liberally to raise the
government interference and newly discovered evidence exceptions, (see
Appellant’s Brief, at 4, 9-12); 42 Pa.C.S.A. § 95445(b)(1)(i)-(ii), he provides
absolutely no pertinent law or discussion to support such claims, and this
Court will not act as counsel and develop arguments on his behalf. See
Pa.R.A.P. 2119(a)-(b); see also Commonwealth v. Cox, 72 A.3d 719, 721
n.3 (Pa. Super. 2013).
6 Moreover, we note briefly that the PCRA court found Appellant merely was
“conduct[ing] a fishing expedition[.]” (PCRA Court Order, 1/19/17, at 3).
Indeed, a cursory review of his appellate brief confirms that he fails to
establish the exceptional circumstances necessary for discovery in post-
conviction proceedings. (See Appellant’s Brief, at 9-12); see also Pa.R.A.P.
2119(a)-(b); Pa.R.Crim.P. 902(E)(1).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/16/2018
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