Com. v. Woodall, E. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
ERNEST WOODALL, : No. 565 WDA 2013
:
Appellant :
Appeal from the Order, February 25, 2013,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0008320-1996
BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 14, 2015
Ernest Woodall appeals, pro se, from the order of February 25, 2013,
dismissing his serial PCRA1 petition as untimely. We affirm.
The facts of this case were described in a prior memorandum of this
court:
On May 5, 1996, two uniformed Pittsburgh
police officers on routine patrol in a marked wagon
noticed Appellant’s vehicle parked in the middle of
the street with the engine idling and a door open,
blocking traffic in either direction, while he was
standing on the sidewalk, talking to a female. One
of the police officers, Edward Dent, knew Appellant
personally from the neighborhood, and from towing
his vehicle a week earlier. When Officer Dent asked
him to move his vehicle, Appellant responded, “Fuck
you,” and ran to the back of the vehicle. Both
officers followed. (See N.T. Trial, 11/9-12/04, at
37-44).
1
Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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In the scuffle which ensued, Appellant
attempted to draw a .45 Glock handgun from his
waistband, but it fell to the ground. He managed to
run away. The police began to follow him, but
decided to stay behind to secure the Glock, which
was loaded and equipped with a laser sight, and
other firearms found in Appellant’s vehicle, a
.9 millimeter Smith & Wesson handgun, and an
SKS assault rifle, both also loaded. (Id. at 53-56).
The two officers radioed for back-up and prepared to
tow the vehicle.
However, Appellant soon returned, this time
with an AK-47 assault rifle, which he pointed at the
police, saying, “I want my shit, give me my shit
now.” (Id. at 58). When they did not comply, he
fired at them, now six police in all, including those
who had arrived in response to the radio call.
Appellant then escaped.
The police apprehended Appellant the next
day, but he fled the jurisdiction soon after he was
charged. He was not discovered until almost seven
years later, when the National Crime Information
Center informed an FBI agent assigned to the
Pittsburgh Fugitive Task Force that there was a
possible fingerprint match between one
“Joseph Brown,” a/k/a “Allan Alphonso Garner,”
recently arrested in Montgomery County, Alabama,
and Appellant. Appellant was arrested in February,
2003, in the office of his Alabama parole officer, and
eventually returned to Pittsburgh through the
Interstate Agreement on Detainers (IAD),
42 Pa.C.S.A. §§ 9101-9108. Following a hearing,
the trial court denied pre-trial motions, and trial
commenced in November of 2004.
After the jury convicted Appellant of four
counts of attempted homicide, six counts of
aggravated assault, and one count of violation of the
Uniform Firearms Act (VUFA), the trial court
sentenced him to an aggregate term of thirty-two to
eighty years’ imprisonment. This Court affirmed the
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judgment of sentence, and our Supreme Court
denied allowance of appeal on May 10, 2007.
On December 19, 2007, Appellant filed a
timely pro se petition for PCRA relief. The PCRA
court appointed counsel, who filed an amended
petition. After the PCRA court filed notice of its
intent to dismiss pursuant to Pa.R.Crim.P. 907,
counsel filed a second amended petition and
response to the notice of intent. The PCRA court
dismissed the petition on May 4, 2009. Appellant
filed a timely pro se notice of appeal, and the PCRA
court appointed counsel to represent him.
Commonwealth v. Woodall, No. 897 WDA 2009, unpublished
memorandum at 1-3 (Pa.Super. filed October 20, 2010). This court affirmed
dismissal of appellant’s first PCRA petition on October 20, 2010. Appellant
did not file a petition for allowance of appeal with the Pennsylvania Supreme
Court.
On November 10, 2011, appellant filed a second pro se PCRA petition,
which was dismissed without a hearing, following Rule 907 notice, on
December 2, 2011. No direct appeal was taken from this dismissal.
On December 16, 2011,2 appellant filed, pro se, a petition for
habeas corpus relief which was properly treated as a third PCRA
2
Appellant’s petition was not docketed until December 21, 2011. However,
we are mindful of the so-called “prisoner mailbox rule,” pursuant to which a
document is deemed filed on the date that a prisoner delivers it to prison
authorities for mailing. Commonwealth v. Jones, 700 A.2d 423, 426 (Pa.
1997). The record indicates that appellant’s petition was mailed from
SCI-Dallas on December 16, 2011. (Docket #93.)
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petition.3 On January 22, 2013, the PCRA court gave Rule 907 notice of its
intent to dismiss the petition within 20 days without a hearing; and with no
response forthcoming from appellant, his petition was dismissed on
February 25, 2013. Appellant filed a timely pro se notice of appeal on
March 13, 2013. On April 15, 2013, appellant was ordered to file a concise
statement of errors complained of on appeal within 21 days pursuant to
Pa.R.A.P. 1925(b); appellant timely complied on May 3, 2013, and on
May 13, 2013, the PCRA court filed a Rule 1925(a) opinion.
The standard of review for an order denying
post-conviction relief is limited to whether the record
supports the PCRA court’s determination, and
whether that decision is free of legal error. The
PCRA court’s findings will not be disturbed unless
there is no support for the findings in the certified
record. Furthermore, a petitioner is not entitled to a
PCRA hearing as a matter of right; the PCRA court
can decline to hold a hearing if there is no genuine
issue concerning any material fact and the petitioner
is not entitled to post-conviction collateral relief, and
no purpose would be served by any further
proceedings.
Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa.Super. 2008),
appeal denied, 956 A.2d 433 (Pa. 2008), quoting Commonwealth v.
Taylor, 933 A.2d 1035, 1040 (Pa.Super. 2007) (citations omitted).
Pennsylvania law makes clear no court has
jurisdiction to hear an untimely PCRA petition.
3
Appellant’s petition for writ of habeas corpus is properly treated as a
serial PCRA petition, since the PCRA is the sole means by which a defendant
may obtain collateral relief and subsumes the remedy of habeas corpus
with respect to remedies offered under the Post-Conviction Relief Act.
42 Pa.C.S.A. § 9542.
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Commonwealth v. Robinson, 575 Pa. 500, 508,
837 A.2d 1157, 1161 (2003). The most recent
amendments to the PCRA, effective January 16,
1996, provide a PCRA petition, including a second or
subsequent petition, shall be filed within one year of
the date the underlying judgment becomes final.
42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.
Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003);
Commonwealth v. Vega, 754 A.2d 714, 717
(Pa.Super.2000). A judgment is deemed 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.A. § 9545(b)(3).
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010).
The three statutory exceptions to the timeliness
provisions in the PCRA allow for very limited
circumstances under which the late filing of a
petition will be excused. 42 Pa.C.S.A. § 9545(b)(1).
To invoke an exception, a petition must allege and
prove:
(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
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has been held by that court to apply
retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). “As such, when a
PCRA petition is not filed within one year of the
expiration of direct review, or not eligible for one of
the three limited exceptions, or entitled to one of the
exceptions, but not filed within 60 days of the date
that the claim could have been first brought, the trial
court has no power to address the substantive merits
of a petitioner’s PCRA claims.” Commonwealth v.
Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783
(2000); 42 Pa.C.S.A. § 9545(b)(2).
Id. at 1079-1080.
Instantly, the Supreme Court of Pennsylvania denied allowance of
appeal on May 10, 2007. Commonwealth v. Woodall, No. 526 WAL 2006
(per curiam). Therefore, appellant’s judgment of sentence became final for
PCRA purposes on or about August 8, 2007, upon expiration of the time to
file a petition for writ of certiorari with the United States Supreme Court.
See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct. Rule 13, 28 U.S.C.A. (petition
for writ of certiorari is deemed timely when it is filed within 90 days after
denial of allocatur). Appellant filed the current petition, his third, on
December 16, 2011, over four years later. Therefore, appellant’s current
PCRA petition is manifestly untimely on its face.
Appellant does not attempt to plead and prove any of the three
exceptions to the one-year jurisdictional time bar. Instead, he claims that
his sentence is illegal because his four convictions of attempted homicide
should have merged for sentencing purposes. Appellant received
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consecutive sentences of 8 to 20 years’ imprisonment on each of the four
counts of attempted homicide. Appellant argues that an illegal sentence is
always subject to correction and cites 18 Pa.C.S.A. § 906, “Multiple
convictions of inchoate crimes barred,” which provides: “A person may not
be convicted of more than one of the inchoate crimes of criminal attempt,
criminal solicitation or criminal conspiracy for conduct designed to commit or
to culminate in the commission of the same crime.”
Appellant is correct that the concept of merger implicates the legality
of sentencing and is generally non-waivable (see, e.g., Commonwealth v.
Duffy, 832 A.2d 1132, 1136 (Pa.Super. 2003), appeal denied, 845 A.2d
816 (Pa. 2004)); however, such a claim is still subject to the PCRA’s time
limitations.
The timeliness requirements of the PCRA do not vary
based “on the nature of the constitutional violations
alleged therein . . . . To the contrary, . . . the
PCRA’s timeliness requirements . . . are intended to
apply to all PCRA petitions, regardless of the nature
of the individual claims raised therein.”
Commonwealth v. Murray, 562 Pa. 1, 753 A.2d
201, 202-03 (2000). Because the “PCRA’s timeliness
requirements are mandatory and jurisdictional in
nature, no court may properly disregard or alter
them in order to reach the merits of the claims
raised in a PCRA petition that is filed in an untimely
manner.”
Commonwealth v. Howard, 788 A.2d 351, 356 (Pa. 2002), quoting
Murray, 753 A.2d at 203. Indeed, “even claims that a sentence was illegal,
an issue deemed incapable of being waived, are not beyond the jurisdictional
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time restrictions.” Commonwealth v. Grafton, 928 A.2d 1112, 1114
(Pa.Super. 2007), citing Commonwealth v. Fahy, 737 A.2d 214 (Pa.
1999); Commonwealth v. Beck, 848 A.2d 987 (Pa.Super. 2004).
Therefore, appellant’s illegal sentencing claim does not operate as an
independent exception to the PCRA’s jurisdictional time bar.
At any rate, appellant’s argument is misplaced. His conviction of four
separate counts of attempted homicide did not merge for sentencing
purposes where they related to four individual victims. The record reflects
that appellant shot at four different police officers. Appellant’s conduct was
designed to culminate in the commission of separate and distinct crimes.
Therefore, the convictions did not merge. See Commonwealth v. Graves,
508 A.2d 1198 (Pa. 1986) (per curiam) (conspiracy and solicitation did not
merge where each was directed at a different end; “inchoate crimes merge
only when directed to the commission of the same crime, not merely
because they arise out of the same incident”); Commonwealth v. Hassine,
490 A.2d 438, 465 (Pa.Super. 1985), overruled on different grounds,
Commonwealth v. Schaeffer, 536 A.2d 354 (Pa.Super. 1987) (en banc)
(sentences for conspiracy and attempt would not merge where there were
two separate victims).
As appellant’s petition was untimely filed, the PCRA court did not have
jurisdiction to consider it. The PCRA court did not err in denying appellant’s
petition.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/14/2015
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