Com. v. Chick, E. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ELDON CHICK
Appellant No. 2381 EDA 2015
Appeal from the PCRA Order entered July 16, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0403371-2005
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 24, 2016
Appellant, Eldon Chick, appeals from the July 16, 2015 order entered
in the Court of Common Pleas of Philadelphia County, denying as untimely
his petition for collateral relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Following review, we affirm.
The facts as gleaned from the record reveal that Appellant was
arrested on February 13, 2005 when officers responding to a report of a
domestic disturbance stopped Appellant’s vehicle and noticed a rifle and
silver handgun in the car. Appellant was charged with various violations of
the firearms act (“VUFA”), including persons not to possess, carrying
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firearms without a license (“VUFA 6106”), and carrying firearms on the
public streets of Philadelphia.1
Subsequent examination of Appellant’s handgun by the Firearms
Identification Unit of the Philadelphia Police Department determined that the
gun matched a bullet recovered on December 29, 2004 at Temple University
Hospital from the pelvic bone of Terry Flores (“Flores”). On February 25,
2005, Appellant was charged at a separate criminal docket number with
attempted murder, aggravated assault, VUFA 6106, and possession of an
instrument of crime (“PIC”) in relation to the December 29, 2004 shooting of
Flores (“the Flores prosecution”).2
With regard to the VUFA charges stemming from the February 2005
traffic stop, Appellant appeared for a non-jury trial on November 10, 2005
and was found guilty of all charges. On February 16, 2006, he was
sentenced to 11-1/2 to 23 months in prison plus three years’ probation as a
person not to possess. No additional sentence was imposed for the
remaining charges. Appellant filed a PCRA petition, which was dismissed on
October 22, 2009. In May 2010, Appellant filed a second PCRA petition
seeking leave to appeal nunc pro tunc. By order entered May 20, 2011, the
PCRA court denied Appellant’s petition. Appellant filed a pro se appeal
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1
18 Pa.C.S.A. §§ 6105, 6106, and 6108, respectively.
2
18 Pa.C.S.A. §§ 901(a), 2502, 2702, 6106, and 907, respectively.
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docketed at 1684 EDA 2011, but later sought to discontinue the appeal by
filing an application for discontinuance. In his application, Appellant
acknowledged his “ineffectiveness claims are not sufficient to warrant
reversal of the instant conviction. Based upon this conclusion, Appellant has
decided to proceed to federal habeas corpus review of his Fourth
Amendment challenge to the warrantless stop and search of his vehicle by
Philadelphia Police.” Application to Discontinue Appeal, 8/3/11, at 1. By
Order entered August 29, 2011, this Court granted the application and
dismissed the appeal.
With respect to the Flores prosecution, a jury trial was held from
September 14 through 20, 2006. On September 20, the jury found
Appellant guilty of aggravated assault, VUFA 6106, and PIC. The court
imposed consecutive state sentences totaling 130 to 300 months in prison,
including 23 to 60 months for VUFA 6106. In June 2007, Appellant filed a
pro se PCRA petition that resulted in restoration of his direct appeal rights
nunc pro tunc. This Court affirmed Appellant’s judgment of sentence on
August 17, 2009. Our Supreme Court denied his petition for allowance of
appeal on February 2, 2010.
More than eighteen months later, on August 22, 2011, Appellant filed
a pro se PCRA petition alleging ineffectiveness of counsel for failing to seek
dismissal of the VUFA 6106 charge in the Flores prosecution, claiming his
second VUFA 6106 conviction resulted in a violation of the double jeopardy
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clause of the U.S. Constitution and 18 Pa.C.S.A. § 110(1)(ii). 3 Counsel was
appointed on July 25, 2012 and filed an amended petition on December 3,
2013, again alleging trial counsel was ineffective for failing to file a motion to
dismiss Appellant’s VUFA 6106 charge. Appellant further argued his petition
was timely because direct appeal counsel failed to advise him of the
Supreme Court’s denial of his petition for allowance of appeal. He claimed
he filed his PCRA petition with 60 days of learning of the Supreme Court’s
action.
On October 9, 2014, the Commonwealth filed a motion to dismiss the
petition. On June 12, 2015, the PCRA court issued a notice pursuant to
Pa.R.Crim.P. 907, advising Appellant of the court’s intent to dismiss the
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3
18 Pa.C.S.A. § 110(1)(ii) provides, in relevant part:
Although a prosecution is for a violation of a different provision
of the statutes than a former prosecution or is based on different
facts, it is barred by such former prosecution under the following
circumstances:
(1) The former prosecution resulted in . . . a conviction . . .
and the subsequent prosecution is for:
....
(ii) any offense based on the same conduct or arising
from the same criminal episode, if such offense was
known to the appropriate prosecuting officer at the
time of the commencement of the first trial and
occurred within the same judicial district as the
former prosecution unless the court ordered a
separate trial of the charge of such offense[.]
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petition as untimely and lacking merit. Appellant did not file a response. By
order entered July 16, 2015, the PCRA court dismissed Appellant’s petition
as untimely and lacking merit “after independent review of [Appellant’s] pro
se petition, PCRA counsel’s amended petition, and the Commonwealth’s
motion to dismiss.” PCRA Court Rule 1925(a) Opinion, 10/29/15, at 3. This
timely appeal followed. Both Appellant and the PCRA court complied with
Pa.R.A.P. 1925.
In this appeal, Appellant presents two issues for our review:
I. Whether the [J]udge was in error in denying the
Appellant’s PCRA petition without an evidentiary hearing
on the issues raised in the amended PCRA petition
regarding trial counsel’s ineffectiveness.
II. Whether the Judge was in error in not granting relief on
the PCRA petition alleging counsel was ineffective.
Appellant’s Brief at 8. In his Rule 1925(b) statement, Appellant presented
two subparts to his second issue, i.e., that trial counsel was ineffective for
failing to file a motion to dismiss the firearm charge [in the Flores
prosecution] and that the PCRA petition was timely filed.
In Commonwealth v. Johnston, 42 A.3d 1120 (Pa. Super. 2012),
this Court reiterated:
[T]he standard of review for review of an order denying a PCRA
petition is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Commonwealth v. Ragan, 592 Pa. 217, 923 A.2d 1169, 1170
(2007). The PCRA court’s findings will not be disturbed unless
there is no support for the findings in the certified record.
Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
2001).
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Id. at 1126.
As this Court explained in Johnston:
As a threshold jurisdictional matter, however, the timeliness of
the PCRA petition must be addressed. 42 Pa.C.S. § 9545(b) sets
forth the time limitations for filing of a PCRA petition as follows:
(b) Time for filing petition.—
(1) Any petition under this subchapter, including a
second or subsequent petition, shall be filed within
one year of the date the judgment becomes final,
unless the petition alleges and the petitioner proves
that:
(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.
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the
date the claim could have been presented.
42 Pa.C.S. § 9545(b)(1)-(2).
Petitioners must plead and prove the applicability of one of the
three exceptions to the PCRA timing requirements.
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Commonwealth v. Perrin, 947 A.2d 1284 (Pa. Super. 2008);
Commonwealth v. Geer, 936 A.2d 1075, 1078–1079 (Pa.
Super. 2007). “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.”
Perrin, 947 A.2d at 1285.
Id. See also Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1267-68
(Pa. 2008) (“The PCRA’s timeliness requirements are jurisdictional in nature
and must be strictly construed; courts may not address the merits of the
issues raised in a petition if it is not timely filed.”).
The Supreme Court denied Appellant’s petition for allowance of appeal
on February 12, 2010. Therefore, his judgment of sentence became final 90
days later, on May 13, 2010, the deadline for filing a writ of certiorari with
the United States Supreme Court. U.S.Sup.Ct. Rule 13. In accordance with
§ 9545(b)(1) and absent any applicable exception, Appellant’s deadline for
filing his PCRA petition was May 13, 2011. Appellant filed his petition on
August 22, 2011, more than three months beyond the deadline.
Appellant argues that his petition is saved from the PCRA’s time bar by
a “newly discovered fact” qualifying as an exception under § 9545(b)(1)(ii).
He asserts that neither his direct appeal counsel nor the Supreme Court
advised him that his petition for allowance of appeal was denied on February
12, 2010. He contends he wrote to the Supreme Court Prothonotary
inquiring about the status of his petition and, in response, received a letter
dated July 5, 2011 with a copy of the docket reflecting the February 2010
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denial of the petition. He complains that his counsel’s failure to notify him of
the denial constitutes “abandonment.” Appellant’s Brief at 27 (citing
Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007)). He suggests that
his August 22, 2011 PCRA petition was filed within 60 days of learning of the
“newly discovered fact” of the Supreme Court’s denial of his petition for
allowance of appeal, satisfying the requirement of § 9545(b)(2). We cannot
agree. As the PCRA recognized:
[Appellant’s] reliance upon Bennett is misplaced and his claim is
without merit. Unlike the petitioner in Bennett, who promptly
wrote to the PCRA court and the Superior Court but did not find
out that his appeal had been dismissed until two months
afterwards, [Appellant] did not exercise due diligence in
ascertaining the status of the appeal. In the instant case,
[Appellant] offered no evidence that he promptly wrote to
appellate counsel, the Supreme Court Prothonotary or anyone
else about the status of his appeal and, tellingly, he did not learn
about the denial of his appeal until July 5, 2011, more than 15
months after it was denied. Thus, [Appellant] did not exercise
due diligence in ascertaining the status of his appeal and
therefore his belated discovery that his appeal had been denied
cannot now constitute a newly-discovered fact which would allow
him to avoid the time-bar. Consequently, [Appellant’s] petition
was properly dismissed as untimely.
PCRA Court Rule 1925(a) Opinion, 10/29/15, at 8-9.
Appellant also suggests that if his “newly discovered evidence”
argument is unavailing, his petition is saved under an exception to the
timeliness requirement. Appellant’s Brief at 29. Appellant then identifies
the three exceptions provided in § 9545(b)(1)(i)-(iii) and correctly
acknowledges that the PCRA places the burden upon Appellant to plead and
prove an exception. Id. However, Appellant has not indicated which
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timeliness exception might apply nor does he offer any argument in support
of proving any exception. Appellant’s alternate “theory” does not save his
untimely petition from the PCRA’s time bar.
Because Appellant’s PCRA petition was untimely filed and because
Appellant has failed to prove that it is saved by any exception to the PCRA’s
time bar, we have no jurisdiction to consider the merits, if any, of his
petition.4
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/24/2016
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4
Even if Appellant proved an exception to the PCRA’s time bar, we would
not disturb the PCRA court’s determination that he was not entitled to relief.
As the PCRA court recognized, the VUFA 6106 charge in the Flores
prosecution was not based on the same criminal conduct or episode as the
VUFA 6106 charge stemming from the traffic stop. See PCRA Court Rule
1925(a) Opinion at 7-10 (citing Commonwealth v. Miskovitch, 64 A.3d
672, 685 (Pa. Super. 2013) (examining 18 Pa.C.S.A. § 110 and explaining
that for a subsequent prosecution to be barred on double jeopardy grounds,
all four prongs of applicable test must be met, including that the “current
prosecution was based on the same criminal conduct or arose from the same
criminal episode”).
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