Com. v. Frank, R. ( 2016 )

J-S05043-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RONALD FRANK,
Appellant No. 247 MDA 2015
Appeal from the PCRA Order November 6, 2014
in the Court of Common Pleas of Cumberland County
Criminal Division at No.: CP-21-CR-0002091-2009
CP-21-CR-0002094-2009
BEFORE: BENDER, P.J.E., SHOGAN, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED FEBRUARY 03, 2016
Appellant, Ronald Frank, appeals pro se from the order dismissing his
first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546, as untimely.1 We affirm.
The PCRA court aptly summarized the factual and procedural history of
this case as follows:
Appellant’s conviction stems from his sexual assault of four
minor victims, each of whom he met while working as a crossing
guard a Lemoyne Middle School. Appellant, who also, during the
relevant period, was fire chief of the West Shore Bureau Fire
Station, assaulted the boys after they had applied to become
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*
Retired Senior Judge assigned to the Superior Court.
1
The PCRA court’s order is dated November 5, 2014, but was filed on
November 6, 2014. We have amended the caption accordingly.
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junior firefighters, and worked with him at the station. Three of
the victims were assaulted during the summer of 2007, while the
fourth victim was assaulted in the fall of 2000 through the fall of
2001. Appellant paid two of the victims to allow him to perform
oral sex on them.
In March of 2008, Officer Timothy Hutcheson of the West
Shore Regional Police Department received information that
[A]ppellant had sexually assaulted one of the victims. Although
[A]ppellant was investigated at that time, he was not arrested
until more than one year later, on July 1, 2009, after he
provided a signed confession to the police. On November 16,
2009, [A]ppellant filed a pre-trial motion to suppress, arguing
that his confession was obtained in violation of his constitutional
right to counsel. The trial court conducted a suppression hearing
on December 15, 2009, and denied [A]ppellant’s motion to
suppress two months later, on February 19, 2010.
Appellant, on March 12, 2010, proceeded to a non-jury
trial on stipulated facts. At the conclusion of the non-jury trial,
[the trial] court found him guilty of four counts each of
involuntary deviate sexual intercourse, (“IDSI”), statutory sexual
assault, indecent assault, corruption of minors, and unlawful
contact with a minor, as well as two counts of prostitution.
Following a hearing on August 2, 2010, the trial court
determined that [A]ppellant met the criteria for classification as
a sexually violent predator under Pennsylvania Megan’s Law, 42
Pa.C.S. §§ 9791-9799.9. Appellant was sentenced the following
day to an aggregate term of imprisonment of 15 years to 30
years.
On August 13, 2010, [Appellant] filed a motion for
modification of sentence. The court denied this motion on
September 10, 2010, and [Appellant] took a direct appeal to the
Superior Court. This appeal challenged the trial court’s denial of
[Appellant’s] pre-trial motion to suppress his confession and the
court’s sentencing of [Appellant] to a consecutive sentence on
the charges of unlawful contact with a minor.
In a memorandum opinion filed on March 25, 2011, the
Superior Court denied [Appellant’s] appeal and affirmed [his]
sentence. Thereafter, [Appellant] did not file a petition for
allowance of appeal to the Supreme Court of Pennsylvania. . . .
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(PCRA Court Opinion, 4/02/15, at 2-3) (some capitalization omitted).
On April 22, 2014, Appellant, acting pro se, filed the instant PCRA
petition, and the PCRA court subsequently appointed counsel. On July 28,
2014, the Commonwealth filed a motion to dismiss the PCRA petition as
untimely. On August 1, 2014, the PCRA court entered an order directing
Appellant to file an answer and stating that, upon receipt, it would determine
the necessity for a hearing. Appellant filed a counseled answer to the
Commonwealth’s motion on September 26, 2014. On November 6, 2014,
the court entered its order granting the Commonwealth’s motion and
dismissing the PCRA petition as untimely.2 Appellant filed a timely pro se
notice of appeal.
On December 16, 2014, counsel for Appellant filed a motion to
withdraw in which he requested that the PCRA court conduct a hearing
pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988), to
determine whether Appellant knowingly, intelligently, and voluntarily wished
to proceed in this appeal pro se. Following a Grazier hearing, the PCRA
court entered an order on February 9, 2015, permitting counsel to withdraw
and Appellant to proceed in this appeal pro se.3
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2
As discussed more fully infra, the court did not issue notice of its intention
to dismiss Appellant’s PCRA petition before entering this order. See
Pa.R.Crim.P. 907(1).
3
Pursuant to the PCRA court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on February 25, 2015. See
(Footnote Continued Next Page)
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Appellant raises the following issues for our review:
I. Was Appellant denied due process of law by governmental
interference?
II. Was Appellant denied due process of law by erroneous
decisions of the [PCRA court]?
III. Was Appellant denied due process of law by counsels [sic]?
(Appellant’s Brief, at 4) (most capitalization omitted).4
We begin by noting our well-settled standard of review. In
reviewing the denial of PCRA relief, we examine whether the
PCRA court’s determination is supported by the record and free
of legal error. The scope of review is limited to the findings of
the PCRA court and the evidence of record, viewed in the light
most favorable to the prevailing party at the trial level. It is
well-settled that a PCRA court’s credibility determinations are
binding upon an appellate court so long as they are supported by
the record. However, this Court reviews the PCRA court’s legal
conclusions de novo.
We also note that a PCRA petitioner is not automatically
entitled to an evidentiary hearing. We review the PCRA court’s
decision dismissing a petition without a hearing for an abuse of
discretion.
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations
and quotation marks omitted).
_______________________
(Footnote Continued)
Pa.R.A.P. 1925(b). The PCRA court entered an opinion on April 2, 2015.
See Pa.R.A.P. 1925(a).
4
The Commonwealth did not file a brief; it advised this Court of its belief
that the PCRA court’s opinion more than adequately addresses this appeal.
(See Commonwealth’s Letter, 10/02/15).
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“Before we may address the merits of Appellant’s arguments we must
first consider the timeliness of Appellant’s PCRA petition because it
implicates the jurisdiction of this Court and the PCRA court.” Id. (citation
omitted).
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
[the Pennsylvania Supreme] 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).
In this case, Appellant’s judgment of sentence became final on April
25, 2011, when his time to file a petition for allowance of appeal with the
Pennsylvania Supreme Court expired. See Pa.R.A.P. 903(a); 42 Pa.C.S.A. §
9545(b)(3).5 Therefore, Appellant had one year from that date to file a
petition for collateral relief, specifically, until April 25, 2012. See 42
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5
The last day of the appeal period fell on a Sunday. Accordingly, Appellant
had until that Monday to file a petition for allowance of appeal. See 1
Pa.C.S.A. § 1908.
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Pa.C.S.A. § 9545(b)(1). Because Appellant filed the instant petition on April
22, 2014, it is untimely on its face, and the PCRA court lacked jurisdiction to
review it unless he pleaded and proved one of the statutory exceptions to
the time-bar. See id. at § 9545(b)(1)(i)-(iii).
Section 9545 of the PCRA provides only three limited exceptions that
allow for review of an untimely PCRA petition:
(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.
Id. “If the [PCRA] 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.” Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa.
Super. 2011), appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted).
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Here, Appellant claims the benefit of the governmental interference
exception. (See Appellant’s Brief, at 17);6 see also 42 Pa.C.S.A. §
9545(b)(1)(i). At the core of Appellant’s claim are his allegations of trial and
PCRA counsel ineffectiveness, which he argues deprived him of the
opportunity to present a viable defense at trial, advance his direct appeal,
and to demonstrate a right to relief during collateral review proceedings.
(See Appellant’s Brief, at 16-25). However, as the PCRA court recognized,
our Supreme Court has rejected attempts to circumvent the PCRA’s
timeliness requirement by asserting ineffective assistance of counsel claims.
See Commonwealth v. Abu-Jamal, 833 A.2d 719, 725 (Pa. 2003), cert.
denied, 541 U.S. 1048 (2004); (PCRA Ct. Op., at 7). In fact, with respect to
the governmental interference exception, the PCRA specifically states that
the term “‘government officials’ shall not include defense counsel[.]” 42
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6
Appellant’s pro se brief is rambling, often incoherent, and consists in large
part of a narrative version of his view of the facts of this case, rather than a
cogent legal argument with discussion of pertinent authority. (See
Appellant’s Brief, at 17-55); see also Pa.R.A.P. 2101, 2119(a)-(b).
“[A]lthough this Court is willing to construe liberally materials filed by a pro
se litigant, pro se status generally confers no special benefit upon an
appellant. Accordingly, a pro se litigant must comply with the procedural
rules set forth in the Pennsylvania Rules of the Court.” Commonwealth v.
Lyons, 833 A.2d 245, 251-52 (Pa. Super. 2003), appeal denied, 879 A.2d
782 (Pa. 2005) (citations omitted). Although Appellant’s brief is defective,
we will address his argument regarding the timeliness of his PCRA petition to
the extent we are able to discern it, in the interest of judicial economy. See
id.-7-
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Pa.C.S.A. § 9545(b)(4). Thus, Appellant has failed to prove the applicability
of the governmental interference exception.
We next address Appellant’s claim that the PCRA court’s failure to
issue notice of its intention to dismiss the petition, as required by
Pennsylvania Rule of Criminal Procedure 907, denied him due process of law.
(See Appellant’s Brief, at 25, 34-35); see also Pa.R.Crim.P. 907(1).
Although a review of the record indicates that the PCRA court did dismiss
Appellant’s petition without providing Rule 907 notice, it also reflects that
the court directed Appellant to file an answer to the Commonwealth’s motion
to dismiss his PCRA petition as untimely, and that Appellant complied with
this directive. After reviewing Appellant’s answer and undertaking an
independent review of the record, the court granted the Commonwealth’s
motion and dismissed the PCRA petition as untimely. (See PCRA Ct. Op., at
6). Thus, regardless of any technical violation of Rule 907 by the PCRA
court, Appellant was on notice of the Commonwealth’s position that the
petition was untimely, and the court gave him ample opportunity to respond.
Moreover, “where the PCRA petition is untimely, the failure to provide such
notice is not reversible error.” Commonwealth v. Davis, 916 A.2d 1206,
1208 (Pa. Super. 2007) (citation omitted). Therefore, the PCRA court’s
failure to provide Rule 907 notice provides Appellant no relief.
In sum, we conclude that Appellant has not met his burden of proving
his untimely petition fits within one of the three exceptions to the PCRA’s
time-bar. See Jones, supra at 17. The PCRA court properly dismissed the
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petition without a hearing based on its determination that it was untimely
with no exception to the time-bar pleaded or proven. See Jackson, supra
at 519. In view of our disposition, we are without jurisdiction to address
Appellant’s remaining issues on appeal. See id. Accordingly, we affirm the
order of the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/3/2016
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