Com. v. Vancliff, A. ( 2018 )

J-S74041-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDRE VANCLIFF :
:
Appellant : No. 2242 EDA 2016
Appeal from the PCRA Order June 13, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0508101-1992
BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.
MEMORANDUM BY RANSOM, J.: FILED MARCH 27, 2018
Appellant, Andre Vancliff, appeals from the order entered June 13, 2016,
denying as untimely his second petition filed under the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
On October 5, 1993, following a jury trial, Appellant was convicted of
first-degree murder and possession of an instrument of crime (“PIC”).1 On
August 3, 1994, Appellant received a life sentence for murder and a concurrent
term of two and one-half to five years of imprisonment for PIC. Appellant
timely appealed. On April 21, 1995, this Court affirmed Appellant’s judgment
of sentence, and his petition for allocatur was denied September 13, 1995.
See Commonwealth v. VanCliff, 663 A.2d 255 (Pa. Super. 1995)
(unpublished memorandum), appeal denied, 668 A.2d 1130 (Pa. 1995).
____________________________________________
1 18 Pa.C.S. §§ 2502 and 907, respectively.
J-S74041-17
Appellant did not file a petition for writ of certiorari with the United States
Supreme Court.
Appellant pro se filed his first petition seeking PCRA relief on July 8,
1998.2 On November 30, 1998, the petition was dismissed as untimely.
Appellant did not appeal the dismissal of his first petition.
On March 19, 2012, Appellant pro se filed a second, untimely PCRA
petition. In the petition, he raised vague allegations of ineffective assistance
of trial counsel and prosecutorial misconduct, claiming he had been denied his
right to a fair trial because his first trial allegedly resulted in an acquittal.3 On
March 21, 2012, Appellant filed a supplemental petition, baldly asserting he
was entitled to PCRA relief based upon the newly discovered facts exception.
On March 31, 2012, the PCRA court sent Appellant notice pursuant to
Pa.R.Crim.P. 907, and Appellant pro se filed a response.4 Following a lengthy
____________________________________________
2 Appellant’s first PCRA petition is not contained within the certified record and
does not appear on the docket. The Philadelphia prothonotary’s office
represented to this Court that the 1998 petition was lost. However, we note
that this does not affect our analysis, as both the trial court and Appellant
agree that his first PCRA petition was filed July 8, 1998, and dismissed as
untimely on November 30, 1998.
3On July 7, 1993, Appellant had a jury trial, which resulted in a hung jury.
Appellant was retried and subsequently convicted.
4 It should be noted that the docket does not comply with Pa.R.Crim.P. 114
in that it does not reflect the time and manner of the service to Appellant.
However, the actual 907 notice in the certified record notes the prison
address where the letters were mailed. Further, there are no certificates of
service attached to the 907 notices in the certified record. (Footnote Continued)
-2-
J-S74041-17
delay for which there is no clear explanation, the matter was reassigned to
another judge of the same court, and a new 907 notice was sent to Appellant
on April 17, 2016. Appellant did not respond. On June 13, 2016, the court
formally dismissed the petition. Appellant pro se and timely appealed.
The PCRA court did not order compliance with Pa.R.A.P. 1925(b), and
Appellant did not file a statement of errors. Nevertheless, the court issued a
Rule 1925(a) opinion.
Herein, Appellant presents the following issues on appeal:5
1. Did the PCRA court err when denying [A]ppellant an evidentiary hearing to
counsel abandonment of not notifying [sic] the Appellant of the
Pennsylvania Supreme Court denial of his allowance of appeal, causing the
Appellant to fall under the timely PCRA time line rule, in determining if
[A]ppellant is entitled to reinstatement of his [appellate] rights to proceed
under 42 Pa.C.S.A. 9545.
2. Did the PCRA court interfere with [appellate] right to present appeal
ineffective claims [sic] that was not heard under Post Conviction Petition
when it granted (after Superior Court denial), on record counsel withdrawal
without Finley[6]/Letter [sic] of [appellate] claims, or evidentiary hearing
of client/attorney communication of Appellant assertion of time-bar, and
when on record counsel re-appointed by this court could not argue or file
____________________________________________
See Pa.R.Crim.P. Rule 576 (requiring that “[a]ll documents that are filed and
served pursuant to this rule shall include a certificate of service”).
5 In Appellant’s PCRA petition, he raised issues of ineffective assistance of
counsel and prosecutorial misconduct but does not raise them in his appeal.
Therefore, Appellant has waived these issues for purposes of appeal. See
Commonwealth v. Sanchez, 36 A.3d 24, 81 (Pa. 2011) (concluding that
abandoned issues on appeal are not reviewable).
6 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
-3-
J-S74041-17
Turner/Finley[7], against herself, denial of denial [sic] [A]ppellant[’s]
appealable issues?
3. Should this [Appellant] be granted his PCRA rights reinstated due to
counsel misconduct causing his untimely filing?[8]
See Appellant’s Brief at 4 (unnecessary capitalization omitted).
We review an order denying a petition under the PCRA to determine
whether the court’s decision is free of legal error. See Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). Whether a petition is timely filed is
a question of law. See Commonwealth v. Fahy, 959 A.2d 312, 316 (Pa.
2008).
We begin by addressing the timeliness of Appellant’s petition, as the
PCRA time limitations implicate our jurisdiction and may not be altered or
disregarded in order to address the merits of his claims except as the statute
permits. See Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa. Super 2017).
Any PCRA petition, including second and subsequent petitions, must be filed
within one year of the date on which the judgment of sentence becomes final.
See Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). There
____________________________________________
7Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Finley, 550 A.2d at
213.
8 During the pendency of this appeal, Janis Smarro, Esq., was still listed as
counsel of record from Appellant’s first appeal over twenty years ago. Upon
receiving notice of the instant appeal, she filed an application in this Court,
seeking to withdraw as counsel as she had not represented Appellant since his
original appeal. This motion was denied without prejudice to seek the same
relief in the PCRA court. She filed her petition with the PCRA court. Upon
receipt of the PCRA’s court’s order, this Court relieved her of representation.
-4-
J-S74041-17
are three exceptions to the jurisdictional time limit:
(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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii); see also Commonwealth v. Perrin, 947
A.2d 1284, 1286 (Pa. Super. 2008) (noting that in order to invoke a statutory
exception to the PCRA time-bar, a petitioner must properly plead and prove
all required elements of the exception). Additionally, any petition attempting
to invoke these exceptions “shall be filed within 60 days of the date the claim
could have been presented.” 42 Pa.C.S. § 9545(b)(2); see also
Commonwealth v. Gamboa–Taylor, 753 A.2d 780, 783 (Pa. 2000).
Appellant’s judgment of sentence became final on December 12, 1995,
ninety days after the Pennsylvania Supreme Court denied allocatur and the
time to file a petition for writ of certiorari with the United States Supreme
Court expired. See Pa.C.S. § 9545(b)(3) (“[A] judgment becomes final at the
conclusion of direct review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
-5-
J-S74041-17
review.”); see also Commonwealth v. Owens, 718 A.2d 330, 331 (Pa.
Super. 1998). Therefore, Appellant had one year, or until December 12, 1996,
to timely file a petition. Appellant filed the instant petition on March 19, 2012,
fifteen years, three months and seven days afterwards, and it is patently
untimely. Accordingly, Appellant must plead and prove that one of the
enumerated exceptions to the one year time-bar is applicable. See 42 Pa.C.S.
§ 9545 (b)(1); Perrin, 947 A.2d at 1286.
In his brief to this Court, Appellant asserts that his claim is timely based
upon the newly discovered facts exception to the one-year time limitation.
See Appellant’s Brief at 10. However, it is unclear to what fact or facts
Appellant refers, nor when Appellant discovered them. Affording Appellant
the most generous benefit of the doubt, we infer that Appellant references
former counsel’s depriving him of an opportunity to timely file his first PCRA
petition. However, Appellant did not raise this issue before the PCRA court or
in response to the 907 notice. Accordingly, we deem this issue waived.
Pa.R.A.P. 302(a) (“issues not raised in the lower court are waived and cannot
be raised for the first time on appeal.”); see also Commonwealth v.
Washington, 927 A.2d 586, 601 (Pa. 2007) (finding that “any claim not
raised in the PCRA petition is waived and not cognizable on appeal.”).
Further, absent waiver, Appellant cannot establish this exception.
Appellant suggests before this Court that he did not learn of counsel’s alleged
abandonment until August 1, 1997, when the Pennsylvania Supreme Court
-6-
J-S74041-17
responded to his inquiry and informed him of the date of the denial of his
petition for allocatur. See Appellant’s Brief at 10. However, his petition, filed
almost fifteen years after the date of discovery, does not meet the
requirement of Section 9545(b)(2), because it was not filed within sixty days
of the date the claim could have been presented. 42 Pa.C.S. § 9545(b)(2).
For the aforementioned reasons, Appellant’s second petition is untimely,
and he has failed to plead and prove an exception to the statutory time-bar.
Accordingly, the PCRA court was without jurisdiction to consider Appellant’s
claims. See Rizvi, 166 A.3d at 347.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/27/18
-7-