Com. v. Fink, J. ( 2018 )

J-S11025-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
JAMES FINK
Appellant No. 2302 EDA 2016
Appeal from the PCRA Order entered June 16, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0607321-2003
BEFORE: OTT, STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED JUNE 11, 2018
Appellant, James Fink, appeals pro se from the June 16, 2016 order of
the Court of Common Pleas of Philadelphia County, dismissing his third
petition for collateral relief pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.
The PCRA court summarized the factual and procedural background as
follows:
Following a bench trial before the Honorable Leslie Fleisher on
August 8, 2003, [Appellant] was found guilty of aggravated
assault, recklessly endangering another person, and criminal
conspiracy. [Appellant] was not found guilty of possessing
instruments of a crime. The Commonwealth presented evidence
that on the evening of June 18, 2002, [Appellant] severely beat
the victim, William Cedotal, inside a Philadelphia bar. The victim
suffered injuries including a broken nose, sprained ribs, and two
black eyes. On September 19, 2003, [Appellant] was sentenced
to 25 to 50 years’ imprisonment for aggravated assault under
Pennsylvania’s “three strikes”[, 42 Pa.C.S.A. § 9714(a)(2)].
J-S11025-18
No sentence was imposed on the remaining charges. On
September 27, 2003, [Appellant] filed a post-sentence motion[,]
which was denied before Judge Fleisher on January 6, 2004.
[Appellant] then filed a timely notice of appeal to the Superior
Court on January 20, 2004; however, on February 9, 2005, it was
discontinued and withdrawn at [Appellant]’s request.
On March 11, 2005, [Appellant] filed his first pro se PCRA petition.
Counsel was appointed and filed an amended petition on
[Appellant]’s behalf on July 21, 2005. An evidentiary hearing was
held on October 12, 2005. During the evidentiary hearing, both
[Appellant] and trial counsel [] testified. Judge Fleisher found that
trial counsel was ineffective and granted [Appellant] a new trial.
The Commonwealth filed a timely notice of appeal on November
14, 2005. The Superior Court of Pennsylvania reversed the lower
court’s order granting a new trial on September 17, 2007. The
Pennsylvania Supreme Court denied allowance of appeal on
November 19, 2008.
On December 2, 2009, [Appellant] filed his second counseled
PCRA petition. The PCRA court heard arguments on August 3,
2010, and formally dismissed the petition on October 12, 2010.
[Appellant] filed an appeal to the Pennsylvania [Superior] Court
on November 2, 2010. On December 6, 2010, [Appellant] filed a
petition to remove counsel and proceed pro se. On February 28,
2011, the PCRA court held a hearing to determine if [Appellant]
was waiving “his right to counsel” knowingly and intelligently
pursuant to Commonwealth v Grazier, 713 A.2d 81 (Pa. 1998).
The PCRA court permitted [Appellant] to continue his appeal pro
se but ordered the Defender Association of Philadelphia to serve
as “back-up” counsel. On December 31, 2012, the Superior Court
of Pennsylvania affirmed the dismissal.
Based on claims of an illegal sentence, newly discovered evidence,
and ineffective assistance of counsel, [Appellant] filed the instant
PCRA petition, his third, on August 19, 2013. After conducting an
extensive and exhaustive review of the record and applicable case
law, this court found the petition to be untimely without exception.
On April 11, 2016, pursuant to Pennsylvania Rule of Criminal
Procedure 907, [Appellant] was served with notice of the court’s
intention to dismiss his PCRA petition. On April 29, 2016,
[Appellant] filed a response to the [Rule] 907 notice of intent to
dismiss. Thereafter, the court formally dismissed [Appellant]’s
PCRA petition as untimely by order dated June 16, 2016. The
-2-
J-S11025-18
instant appeal was timely filed to the Superior Court on July 12,
2016.
PCRA Court Opinion, 12/9/16, at 1-3 (footnotes omitted)
On appeal, Appellant raises several claims for our review, offering
several explanations in support of their timeliness. For the reasons explained
below, Appellant is entitled to no relief.
“[A]n appellate court reviews the PCRA court’s findings of fact to
determine whether they are supported by the record, and reviews its
conclusions of law to determine whether they are free from legal error.”
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). All PCRA petitions,
“including a second or subsequent petition, shall be filed within one year of
the date the judgment becomes final” unless an exception to timeliness
applies. 42 Pa.C.S.A. § 9545(b)(1).1 “The PCRA’s time restrictions are
jurisdictional in nature. Thus, “[i]f a PCRA petition is untimely, neither this
Court nor the [PCRA] court has jurisdiction over the petition. Without
jurisdiction, we simply do not have the legal authority to address the
____________________________________________
1 Appellant’s judgment of sentence became final on February 9, 2005, the date
he withdrew his direct appeal. See Commonwealth v. McKeever, 947 A.2d
782, 785 (Pa. Super. 2008) (stating that the judgment of sentence becomes
final for PCRA purposes when direct appeal is discontinued voluntarily, citing
Commonwealth v. Conway, 706 A.2d 1243 (Pa. Super 1997)). Appellant
had one year from that date to file a timely PCRA petition. The instant petition
was filed on August 19, 2013, more than eight years after Appellant’s
judgment of sentence became final. Accordingly, the instant petition is
untimely unless he pleads and proves that it fell within one of the exceptions
to the PCRA’s timeliness requirements. As explained infra, Appellant failed to
do so.
-3-
J-S11025-18
substantive claims.” Commonwealth v. Chester, 895 A.2d 520, 522 (Pa.
2006) (first alteration in original) (internal citations and quotation marks
omitted). As timeliness is separate and distinct from the merits of Appellant’s
underlying claims, we first determine whether this PCRA petition is timely
filed. See Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008)
(consideration of Brady2 claim separate from consideration of its timeliness).
The timeliness requirements of the PCRA petition must be met, even if the
underlying claim is a challenge to the legality of the sentence. See
Commonwealth v. Holmes, 933 A.2d 57, 60 (Pa. 2007) (“Although legality
of sentence is always subject to review within the PCRA, claims must still first
satisfy the PCRA’s time limits or one of the exceptions thereto”) (citing
Commonwealth v. Fahy, 737 A.2d 214, 223 (1999)).
First, Appellant argues he received ineffective assistance from his first
PCRA counsel. Appellant argues that PCRA counsel was ineffective for not
confronting trial counsel regarding a statement trial counsel made at the first
PCRA hearing.3 Appellant argues he timely filed his current petition upon
learning of PCRA counsel’s error.4 “Appellant’s attempt to interweave
____________________________________________
2 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).
3 Apparently, there was a written statement in the record regarding trial
counsel’s experience in handling “third strikes” cases that was inconsistent
with his testimony at the PCRA hearing.
4 Appellant alleges he learned of the PCRA counsel ineffective assistance on
July 10, 2013, approximately eight years after his judgment of sentence
became final. PCRA Court Opinion, 12/9/16, at 3.
-4-
J-S11025-18
concepts of ineffective assistance of counsel and after-discovered evidence as
a means of establishing jurisdiction is unconvincing.” Commonwealth v.
Gamboa-Taylor, 754 A.2d 780, 785 (Pa. 2000). “[W]e have previously
rejected attempts to circumvent the timeliness requirements of the PCRA by
asserting prior counsel’s ineffectiveness for failing timely to raise a claim.”
Commonwealth v. Edmiston, 65 A.3d 339, 349 (Pa. 2013); see also
Gamboa-Taylor, supra (“Fact” that current counsel discovered that prior
PCRA counsel had failed to develop issue of trial counsel’s ineffectiveness was
not after-discovered evidence qualifying for exception to PCRA time
limitations); Commonwealth v. Pursell, 749 A.2d 911, 915 (Pa. 2000)
(holding that claims of PCRA counsel’s ineffectiveness do not escape the PCRA
one-year time limitation merely because they are presented in terms of
current counsel’s discovery of the “fact” that a previous attorney was
ineffective). This claim is therefore untimely. As such, we cannot review it.5
Appellant next alleges that his sentence was illegal because the “third
strike” enhancement should not have been applied. Appellant is fully aware
that all claims, including claims of illegality, must be timely raised to trigger
____________________________________________
5 Appellant also raises additional claims of ineffective assistance of counsel.
Appellant claims that trial counsel was ineffective because he “never took time
to research the three strike statute prior to the sentencing.” Appellant’s Brief
at 12. In the same vein, Appellant alleges prior PCRA counsel were also
ineffective for several reasons, all related to the alleged failure to challenge
the legality of his sentence. As for the claim of ineffective assistance of
counsel addressed above in the main text, we similarly conclude that couching
the above claims in terms of ineffectiveness would not save an otherwise
untimely petition from the application of the time restrictions of the PCRA.
See, e.g., Edmiston, supra.
-5-
J-S11025-18
our courts’ jurisdiction. To overcome the facial untimeliness of the instant
PCRA petition, Appellant claims that the instant petition (his third) should be
treated as an “extension” of his first PCRA petition because some of the issues
raised in his first petition had not been decided. To this end, Appellant relies
on the authority of the Supreme Court’s decision in Commonwealth v.
Renchenski, 52 A.3d 251 (Pa. 2012) “citing Com v. Flanagan, 854 A.2d 488,
499 (2004), ‘For the proposition that since the original petition never was
with-drawn or dismissed, amended pcra was not subject to the one-year time
limitation, even though amendment was filed ten (10) years after original
petition.’” Appellant’s Brief at 8.
A review of the Supreme Court’s decision in Renchenski quickly dispels
any doubt as to the lack of merit of the instant argument. What Appellant
purports to represent as the holding of the Supreme Court in Renchenski is
nothing other than the Supreme Court’s summary of the prior procedural
history of the case, including a reference to our unpublished memorandum
which we relied on in Flanagan.
In any event, Renchenski is inapposite. In Renchenski our Supreme
Court affirmed the dismissal of an amended PCRA petition filed nineteen years
after the trial. The case involved the application of the delay in filing exception
under Section 9543(b). There is no indication in the record that either the
Commonwealth or the PCRA court relied on that exception for purposes of
disposing of the instant petition.
-6-
J-S11025-18
To the extent that Appellant argues his claim—as originally articulated
in his first PCRA—had not been disposed by the PCRA court, we note that
“[s]uch an allegation, however, does not entitle him to equitable tolling of the
PCRA’s jurisdictional time limit.” Commonwealth v. Abu–Jamal, 833 A.2d
724, 727 (Pa. 2003) (relying on Commonwealth v. Fahy, 737 A.2d 214, 222
(Pa. 1999)).6 In light of the foregoing, we conclude that Appellant failed to
prove that his illegality of sentence claim has been timely raised.
Finally, Appellant claims the instant PCRA petition is timely under 42 Pa.
C.S.A. § 9545(b)(1)(iii), in light of Montgomery v. Louisiana, 136 S.Ct. 718(2016), and Miller v. Alabama, 132 S.Ct. 2455 (2012).7 We have repeatedly
held that Miller does not apply to defendants who were eighteen or older
when they committed murders. See, e.g., Commonwealth v. Furgess, 149
A.3d 90, 94 (Pa. Super. 2016). It is uncontested that Appellant was an adult
____________________________________________
6 In Abu-Jamal, appellant, inter alia, argued that the PCRA court should have
treated “his second petition as an extension of his timely first one, because
the same allegedly biased judge who presided at trial refused to recuse himself
from hearing the first petition. Thus, appellant argue[d] his claim of judicial
bias has never been examined by an impartial member of the judiciary.” Abu-
Jamal, 833 A.2d at 727. As noted above, our Supreme Court rejected the
argument, noting that “[s]uch an allegation, however, does not entitle him to
equitable tolling of the PCRA's jurisdictional time limit.” Id.
7 In Miller, the U.S. Supreme Court held that “mandatory life without parole
for those under the age of 18 at the time of their crimes violates the Eighth
Amendment’s prohibition on ‘cruel and unusual’ punishments.” Miller, 132
S.Ct. at 2460 (emphasis added). In Montgomery, the Unites States Supreme
Court held that Miller was a new substantive rule that, under the United
States Constitution, must be retroactive in cases on state collateral review.
Montgomery, 136 S.Ct. at 736.
-7-
J-S11025-18
at the time of the underlying crimes. Additionally, Appellant was not
sentenced to life without parole. Accordingly, Appellant has no claim under
Miller. See Commonwealth v. Montgomery, 181 A.3d 359, 366-67 (Pa.
Super. March 14, 2018) (en banc). Because Appellant has no claim under
Miller, the United States Supreme Court decision in Montgomery does not
affect the timeliness of this matter.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/11/18
-8-