Com. v. Ovens, J. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
:
v. :
:
:
JONATHAN ERIC OVENS :
:
Appellant : No. 310 MDA 2017
Appeal from the PCRA Order January 5, 2017
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0001373-2011
BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 12, 2018
Appellant, Jonathan Eric Ovens, appeals pro se from the order denying
his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-9546. We affirm.
Appellant began sexually assaulting his stepdaughter, B.B., when the
child was seven years old and continued to do so over a period of years.
Commonwealth v. Ovens, 96 A.3d 1091, 894 MDA 2013 (Pa. Super. filed
January 23, 2014) (unpublished memorandum at 1). A jury convicted
Appellant of aggravated indecent assault of a child, indecent assault of a
person less than thirteen years of age, endangering the welfare of children,
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and corruption of minors1 on December 8, 2011. On June 5, 2012, the trial
court imposed an aggregate sentence of twelve years, ten months to
twenty-eight years of imprisonment, followed by four years of special
probation. N.T. (Sentencing), 6/5/12, at 9. This Court affirmed the
judgment of sentence on January 23, 2014. Ovens, 894 MDA 2013
(unpublished memorandum). Appellant did not file a petition for allowance
of appeal to our Supreme Court.
Appellant filed a pro se PCRA petition on August 11, 2015. On
September 25, 2015, the PCRA court appointed counsel, who sought to
withdraw on January 19, 2016, pursuant to Commonwealth v. Turner,
544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213
(Pa. Super. 1988) (en banc), asserting that the PCRA petition was untimely.
The PCRA court issued a Pa.R.Crim.P. 907 notice of intent to dismiss the
petition on August 11, 2016, and granted counsel’s motion to withdraw that
day. Appellant did not respond to the notice of intent to dismiss, and the
PCRA court dismissed Appellant’s petition on January 5, 2017. Appellant
filed the instant timely appeal.2 Both the PCRA court and Appellant have
complied with Pa.R.A.P. 1925.
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1 18 Pa.C.S. §§ 3125(b), 3126(a)(7), 4304(a)(1), and 6301(a)(1)(i),
respectively.
2 Appellant’s notice of appeal was dated February 1, 2017, but docketed
February 16, 2017. Initially, this Court quashed the appeal as untimely on
(Footnote Continued Next Page)
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Appellant raises the following issues on appeal:
1. Counsel was ineffective for failing to request the recusal of the
presiding judge who sat on the children and youth board.
2. The Commonwealth witness Amy Kellogg made false
statement under oath to the Court and Counsel failed to object
to the truthfulness.
3. Counsel was ineffective in failing to petition for psychiatric
evaluations of both appellant and the victim.
4. Trial Counsel failed to object to the credibility of the victim
during the preliminary hearing.
5. Appellant contends that Trial Counsel was ineffective in failing
to present character witnesses requested by appellant in order to
show appellant[’]s good character.
6. Appellant[’s] Counsel was ineffective in failing to file a Direct
Appeal with issues entailing the trial, rather than a [F]inley
appeal[.]
7. Trial Counsel rendered ineffective assistance of counsel in
failing to investigate and interview the victim[’]s teachers and
counselors regarding the victim[’]s behavior.
8. Appellant avers that post conviction counsel rendered
ineffective assistance of counsel in failing to raise issues of
merit, investigate, and correspond with appellant, however,
counsel file[d] a [F]inley letter without investigating the issues
presented to the court, thus counsel rendered ineffective
assistance of counsel.
Appellant’s Brief at unnumbered 2.
(Footnote Continued) _______________________
May 3, 2017. We reinstated the appeal on May 19, 2017, following our
receipt of Appellant’s application for reconsideration and his submission of a
cash slip showing deduction of postage from his prison account dated
February 2, 2017.
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When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.
2014) (en banc)). This Court is limited to determining whether the evidence
of record supports the conclusions of the PCRA court and whether the ruling
is free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185
(Pa. 2016). The PCRA court’s findings will not be disturbed unless there is
no support for them in the certified record. Commonwealth v. Lippert, 85
A.3d 1095, 1100 (Pa. Super. 2014). Moreover, “[t]here is no absolute right
to an evidentiary hearing on a PCRA petition, and if the PCRA court can
determine from the record that no genuine issues of material fact exist, then
a hearing is not necessary.” Commonwealth v. Jones, 942 A.2d 903, 906
(Pa. Super. 2008) (quoting Commonwealth v. Barbosa, 819 A.2d 81 (Pa.
Super. 2003)). “[S]uch a decision is within the discretion of the PCRA court
and will not be overturned absent an abuse of discretion.” Commonwealth
v. Mason, 130 A.3d 601, 617 (Pa. 2015).
In order to be considered timely, a first, or any subsequent PCRA
petition, must be filed within one year of the date the petitioner’s judgment
of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). The PCRA’s time-for-
filing requirements are mandatory and jurisdictional in nature, and a court
may not ignore them in order to reach the merits of the petition.
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Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). For
purposes of the PCRA, a judgment of sentence “becomes final at the
conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3). Here,
the time for seeking review in the Supreme Court of Pennsylvania expired on
Monday, February 24, 2014,3 thirty days after this Court affirmed the
judgment of sentence January 23, 2014. Pa.R.A.P. 1113(a). Thus, in order
to be timely under the PCRA, Appellant was required to file his PCRA petition
on or before Tuesday, February 24, 2015. Because Appellant did not file the
instant PCRA petition until August 11, 2015, the petition is patently
untimely.
If a petitioner does not file a timely PCRA petition, his petition
nevertheless may be received under three limited exceptions to the
timeliness requirements of the PCRA. 42 Pa.C.S. § 9545(b)(1).4 If a
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3 Because the thirtieth day fell on Saturday, February 22, 2014, the appeal
period expired on the following Monday. 1 Pa.C.S. § 1908 (whenever the
last day of any time period referred to in a statute falls on a Saturday,
Sunday, or legal holiday, we omit that day from the computation).
4 The exceptions to the timeliness requirement are:
(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;
(Footnote Continued Next Page)
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petitioner asserts one of these exceptions, he must file his petition within
sixty days of the date that the exception could be asserted. 42 Pa.C.S. §
9545(b)(2). In order to be entitled to the exceptions to the PCRA’s one-year
filing deadline, “the petitioner must plead and prove specific facts that
demonstrate his claim was raised within the sixty-day time frame” under
section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa.
Super. 2001). “We have repeatedly stated it is the [petitioner’s] burden to
allege and prove that one of the timeliness exceptions applies. Whether [a
petitioner] has carried his burden is a threshold inquiry prior to considering
the merits of any claim.” Commonwealth v. Edmiston, 65 A.3d 339, 346
(Pa. 2013) (internal citation omitted).
Appellant failed to plead, much less prove, any exception to the
PCRA’s timeliness requirement. In his brief, Appellant asserts issues alleging
the ineffective assistance of prior counsel. Our Supreme Court has made
clear, however, that “a claim of ineffective assistance of counsel does not
(Footnote Continued) _______________________
(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), (ii), and (iii).
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save an otherwise untimely petition for review on the merits.”
Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999); see also
Commonwealth v. Perrin, 947 A.2d 1284, 1287 (Pa. Super. 2008) (a
claim of ineffective assistance of counsel does not save an otherwise
untimely petition for review on merits).5
Accordingly, Appellant’s PCRA petition was untimely, no exceptions
apply, the PCRA court lacked jurisdiction to grant relief in this matter, and it
properly dismissed Appellant’s PCRA petition as untimely. See
Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding
that PCRA court lacks jurisdiction to hear untimely petition). Likewise, we
lack the authority to address the merits of any substantive claims raised in
the PCRA petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267
(Pa. 2007) (“[J]urisdictional time limits go to a court’s right or competency
to adjudicate a controversy.”).
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5 The PCRA court properly addressed Appellant’s final issue that PCRA
counsel improperly filed a petition pursuant to Commonwealth v. Finley,
PCRA Court Opinion, 4/21/17, at 6–7, nor does the claim “assert or prove
any facts that would give rise to the exceptions to the jurisdictional time bar
of the PCRA.” Id. at 6.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/12/2018
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