Com. v. Kenney, R. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee
v.
ROWLANDA KENNEY
Appellant No. 1542 WDA 2014
Appeal from the PCRA Order dated August 22, 2014
In the Court of Common Pleas of Blair County
Criminal Division at No: CP-07-CR-0001080-1997
BEFORE: BENDER, P.J.E., MUNDY, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 12, 2015
Appellant Rowlanda Kenney appeals from the August 22, 2014 order of
the Court of Common Pleas of Blair County (“PCRA court”), which dismissed
as untimely Appellant’s request for collateral relief under the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. For the reasons set forth
below, we affirm.
The facts and procedural history underlying this appeal are
undisputed. On June 9, 1998, Appellant was sentenced to life imprisonment
following her jury conviction of first-degree murder and endangering the
welfare of a child in connection with the murder of her boyfriend’s
four-year-old daughter. On February 22, 2000, a panel of this Court
affirmed Appellant’s judgment of sentence. See Commonwealth v.
Kenney, 754 A.2d 19 (Pa. Super. 2000) (unpublished memorandum).
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Subsequently, our Supreme Court denied Appellant’s petition for allowance
of appeal. See Commonwealth v. Kenney, 764 A.2d 1066 (Pa. 2000).
On December 27, 2000, ninety days following our Supreme Court’s denial of
her petition and the time for Appellant to file a petition for writ of certiorari
with the United States Supreme Court had expired, Appellant’s judgment of
sentence became final. See 42 Pa.C.S.A. § 9545(b)(3); United States
Supreme Court Rule 13.
On January 9, 2001, while represented by the Blair County Public
Defender’s Office, Appellant pro se petitioned the trial court for production of
transcripts concerning preliminary hearing, trial and sentencing. On March
8, 2001, the trial court denied the pro se petition. In so doing, the trial
court noted “It is not the practice of [the trial court] to type transcripts
where there is nothing pending before the [trial court]. In the event of a
request for post conviction relief [the trial court] would reconsider this
request.”1 Trial Court Order, 3/8/01. On March 20, 2001, the Blair County
Public Defender’s Office filed a “Petition to Withdraw as Counsel and for the
Appointment of Counsel,” because Appellant’s wish to file a PCRA petition
was against the public defender’s wishes. On the same day, the trial court
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1
It is settled that “a court is not required to comply with a defendant’s
request for transcripts in order to pursue relief in a PCRA proceeding where
no such action is pending.” Commonwealth v. Crider, 735 A.2d 730,
733 (Pa. Super. 1999) (emphasis added); see also Commonwealth v.
Ballem, 482 A.2d 1322, 1324 (Pa. Super. 1984).
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granted the petition filed by the public defender’s office and appointed
Russell Montgomery, Esquire, as counsel.2 On June 28, 2001, Appellant filed
a second pro se petition for production of transcripts, which the trial court
denied, noting that “[t]here are no matters pending.” Trial Court Order,
7/9/01. On May 22, 2002, Appellant filed a third pro se request for
production of transcripts, which the trial court also denied because no issues
were pending. On June 4, 2002, Appellant filed a pro se “Motion for
Withdrawal of Counsel,” arguing that Attorney Montgomery be removed as
counsel of record for failing to file a PCRA petition.3 On June 25, 2002, the
trial court denied the motion.
On October 20, 2010, Appellant filed a pro se PCRA petition, raising
principally claims of ineffectiveness against Attorney Montgomery. Following
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2
Although it is not an issue on appeal, we note a trial court may not appoint
counsel in anticipation of a defendant’s filing of a PCRA petition. Rule 904
of the Pennsylvania Rules of Criminal Procedure provides in pertinent part
“when an unrepresented defendant satisfies the judge that the defendant is
unable to afford or otherwise procure counsel, the judge shall appoint
counsel to represent the defendant on the defendant’s first petition for post-
conviction collateral relief.” Pa.R.Crim.P. 904(c), see also comment to Rule
904 (“[I]t is intended that counsel be appointed in every case in which a
defendant has filed a petition for post-conviction collateral relief for the first
time and is unable to afford counsel or otherwise procure counsel.”)
(emphasis added); see also Commonwealth v. Glacken, 32 A.3d 750,
752 (Pa. Super. 2011) (noting that “Rule 904(C) of the Pennsylvania Rules
of Criminal Procedure provides that an indigent petitioner is entitled to
representation by court-appointed counsel in connection with his first PCRA
petition”).
3
The record indicates a dispute as to whether Attorney Montgomery
received a notice of appointment. See Trial Court Opinion, 8/22/14, at 7.
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appointment of new counsel, the Commonwealth moved to dismiss the PCRA
petition on the basis of timeliness on November 30, 2010. On June 7, 2012,
Appellant filed an amended (counseled) PCRA petition, by which she
supplemented her previous pro se petition. In the amended PCRA petition,
Appellant raised only a constitutional claim under Lafler v. Cooper, 132 S.
Ct. 1376 (2012).4 Following several hearings, the PCRA court issued an
opinion and order, dismissing as untimely Appellant’s PCRA petition and
denying relief based on Lafler. In its opinion, the PCRA court concluded
Appellant failed to overcome the timeliness requirement of the PCRA.
Appellant timely appealed.5
On appeal,6 Appellant raises a single issue for our review:
Did the PCRA court err in dismissing [Appellant’s] first Motion for
Post-Conviction Relief as untimely where the Blair County
Administrator’s Office failed to properly serve appointed PCRA
counsel, Attorney Montgomery, with the order of appointment in
March 2001 which interfered with the timely filing and perfection
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4
In Lafler, the Supreme Court of the United States held a defendant must
receive post-conviction relief “when inadequate assistance of counsel caused
nonacceptance of a plea offer and further proceedings led to a less favorable
outcome,” and where the defendant has shown that “the outcome of the
plea process would have been different with competent advice.” Lafler, 132
S. Ct. at 1382-85, 1390-91.
5
The trial court did not order Appellant to file a Pa.R.A.P. 1925(b) statement
of errors complained of on appeal.
6
“In PCRA proceedings, an appellate court’s scope of review is limited by the
PCRA’s parameters; since most PCRA appeals involve mixed questions of
fact and law, the standard of review is whether the PCRA court’s findings are
supported by the record and free of legal error.” Commonwealth v. Pitts,
981 A.2d 875, 878 (Pa. 2009) (citation omitted).
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of [Appellant’s] first Motion and resulted in a violated of
[Appellant’s] rule-based right to effective collateral review
counsel[.]
Appellant’s Brief at 4.
As a threshold matter, we must determine whether the court erred in
dismissing as untimely Appellant’s PCRA petition. The PCRA contains the
following restrictions governing the timeliness of any PCRA petition.
(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.
(3) For purposes of this subchapter, a judgment 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.A. § 9545(b). Section 9545’s timeliness provisions are
jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).
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Here, as stated earlier, the record reflects Appellant’s judgment of
sentence became final on December 27, 2000. See 42 Pa.C.S.A.
§ 9545(b)(3); Pa.R.A.P. 903(a). Because Appellant had one year from
December 27, 2000 to file his PCRA petition, the current filing is untimely on
its face given it was filed on October 20, 2010.
The one-year time limitation, however, can be overcome if a petitioner
alleges and proves one of the three exceptions set forth in Section
9545(b)(1)(i)-(iii) of the PCRA. Here, Appellant argues for relief based on
only governmental interference under Section 9545(b)(1)(i).7 Our review of
Appellant’s pro se and amended PCRA petitions, however, reveals Appellant
failed to raise the governmental interference exception before the trial court.
As such, Appellant waived this claim. See Pa.R.A.P. 302(a) (“Issues not
raised in the lower court are waived and cannot be raised for the first time
on appeal.”). We likewise dismiss as waived Appellant’s suggestion that the
after-discovered evidence exception under Section 9545(b)(1)(ii) applies in
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7
Although abandoned on appeal, Appellant raised only one of the Section
9545(b) exceptions before the trial court. In her amended PCRA petition,
Appellant alleged that, under Section 9545(b)(1)(iii), Lafler created a new
constitutional right that retroactively applied to her case. This Court,
however, has rejected an identical argument in Commonwealth v.
Hernandez, 79 A.3d 649 (Pa. Super. 2013). The Hernandez Court
determined that Lafler did not create a newly-recognized constitutional right
and, as such, does not provide a petitioner with an exception to the PCRA’s
timeliness requirements. Id. at 654. We also note Appellant did not file her
amended PCRA petition raising the Lafler issue within 60 days of the
decision in Lafler. The Supreme Court decided Lafler on March 21, 2012
and Appellant filed her amended petition on June 7, 2012.
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this case, because she was unaware that Attorney Montgomery had
abandoned her.8
In sum, given the fact that Appellant filed her first PCRA petition
approximately eight years and ten months after the deadline to file the
petition had expired and she does not satisfy any of the timeliness
exceptions under Section 9545(b), the PCRA court did not err in dismissing
her petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/12/2015
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8
Even if Appellant properly had preserved her claims under the
governmental interference and after-discovered evidence exceptions, they
still fail. Appellant provides no facts to establish that she raised the claims
within 60 days under Section 9545(b)(2). Specifically, with regard to after-
discovered evidence, Appellant’s suggestion that she recently discovered
Attorney Montgomery abandoned her is belied by the record. As noted
earlier, on June 4, 2002, Appellant pro se moved to have Attorney
Montgomery withdrawn as counsel of record, arguing he failed to file a PCRA
petition.
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