Com. v. Hackworth, S. ( 2018 )

J-S76033-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHANE CODY HACKWORTH :
:
Appellant : No. 713 WDA 2018
Appeal from the Order April 16, 2018
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0001441-2008
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED DECEMBER 13, 2018
Shane Cody Hackworth (Appellant) appeals pro se from the order
denying as untimely his first petition filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court summarized the factual and procedural history of this
case as follows:
On July 24, 2008, [Appellant pled] guilty to Count 1 – Defiant
Trespass, Count 2 – Possession of Marijuana, and Count 3 –
Possession of Drug Paraphernalia.[FN]1 [Appellant] applied for
admission to the Erie County Drug Treatment Court. On July 24,
2008, [Appellant] was admitted into Drug Treatment Court and
sentenced as follows:
Count 1 – Probation for a period of 3 years,
consecutive to Docket Number 3068 of 2007;
Count 2 – Probation for a period of 30 days,
consecutive to Count 1; and
Count 3 – Probation for a period of 12 months,
concurrent to Count 1.
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On July 23, 2009, [Appellant’s] probation was revoked and
[Appellant] was re-sentenced to probation. No post-sentence
motions were filed within the ten-day periods following
[Appellant’s] original sentencing or revocation and re-sentencing,
nor was a direct appeal taken within 30 days of either sentencing.
On May 10, 2017, [Appellant] filed a Motion for Reconsideration
of Sentence Nunc Pro Tunc; his first post-sentence motion at this
docket. Said Motion was denied on May 11, 2017 as untimely.
On May 22, 2017, [Appellant] filed a Notice of Appeal to the
Superior Court of Pennsylvania at Superior Court Docket Number
752 WDA 2017. The Superior Court held [that Appellant’s] Motion
for Reconsideration of Sentence Nunc Pro Tunc should have been
treated as a request for relief under the Post Conviction Relief Act.
See Commonwealth v. Hackworth, 752 WDA 2017 (Pa. Super.
[Jan. 3,] 2018) [(unpublished memorandum)]. This case was
remanded for that purpose.
On January 10, 2018, Attorney William J. Hathaway was appointed
as PCRA counsel and given 60 days to file a Supplemental Post
Conviction Collateral Relief Petition or “no-merit” letter. On March
12, 2018, Attorney Hathaway filed a “no-merit” letter stating
[Appellant’s] PCRA is patently untimely.
18 Pa.C.S.A. § 3503(b)(1)(v); 35 [P.S.] § 780-113(a)(31);
[FN] 1
35 [P.S.] § 780-113(a)(32), respectively.
Order of Court, 3/14/18, at 1-2. The PCRA court issued notice of its intent to
dismiss Appellant’s PCRA petition without a hearing pursuant to Rule 907 of
the Pennsylvania Rules of Criminal Procedure on March 14, 2018. This appeal
followed.
On August 21, 2018, Appellant filed an application for relief in this Court,
requesting a Grazier1 hearing. This Court remanded the case to the PCRA
court to address Appellant’s request to proceed pro se. The PCRA court held
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1 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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a Grazier hearing on September 11, 2018, after which it granted Appellant’s
request to proceed pro se. Thereafter, the case was submitted back to this
Court for disposition.
Appellant presents his issues verbatim as follows:
1) Was the Appellant Ineffectively represented and accept a plea
for trespassing and other charges prior to appellant discovering
sidewalk rule case law and Terry stop rules?
2) Did the Appellant have a Constitutional right to bring these
newly discovered issues before the Erie County Courts Nunc
Pro Tunc within (60) days of the discovery of sidewalk rule case
law?
3) Did the Erie County Courts abuse discretion for not granting
relief when undisputable facts have been presented by a Pro-
Se litigant?
4) Was Attorney Hathaway strategically appointed to represent
the Appellant on appeal by the Erie County Courts to deter the
Appellant’s appeal, even though clear error of law occurred
pursuant to the Terry stop and “Sidewalk Rules?[”]
5) Is the Appellant entitled to review when undisputed “Newly
Discovered” evidence has been located and filed before the
court within (60) days?
Appellant’s Brief at 2.
We note initially that “Pennsylvania law makes clear no court has
jurisdiction to hear an untimely PCRA petition.” Commonwealth v. Monaco,
996 A.2d 1076, 1079 (Pa. Super. 2010) (quoting Commonwealth v.
Robinson, 837 A.2d 1157, 1161 (Pa. 2003)). A petitioner must file a PCRA
petition within one year of the date on which the petitioner’s judgment became
final, unless one of the three statutory exceptions applies:
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(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.
42 Pa.C.S.A. § 9545(b)(1). A petitioner must file a petition invoking one of
these exceptions “within 60 days of the date the claim could have been
presented.” 42 Pa.C.S.A. § 9545(b)(2). If a petition is untimely, and the
petitioner has not pled and proven any exception, “neither this Court nor the
trial court has jurisdiction over the petition. Without jurisdiction, we simply
do not have the legal authority to address the substantive claims.”
Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)
(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).
Appellant’s PCRA petition is facially untimely. “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.’” Monaco, 996 A.2d at
1079 (quoting 42 Pa.C.S.A. § 9545(b)(3)). Here, the trial court entered
Appellant’s judgment of sentence on July 24, 2008. Appellant did not file any
post-sentence motions or a direct appeal with this Court. Appellant’s
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judgment of sentence became final 30 days from July 24, 2008, or August 25,
2008. See Pa.R.A.P. 1113(a) (“Except as otherwise prescribed by this rule, a
petition for allowance of appeal shall be filed with the Prothonotary of the
Supreme Court within 30 days after the entry of the order of the Superior
Court . . . sought to be reviewed.”). Under Section 9545(b)(1), Appellant had
to file his PCRA petition within one year of August 25, 2008, or August 25,
2009. Appellant did not file his PCRA petition until May 10, 2017, over seven
years after his judgment of sentence became final. Accordingly, we are
without jurisdiction to decide Appellant’s appeal unless he pled and proved
one of the three timeliness exceptions of Section 9545(b)(1). See
Derrickson, 923 A.2d at 468.
Appellant attempts to invoke the newly-discovered fact exception under
section 9545(b)(1)(ii) by asserting “that if the Appellant had prior knowledge
of the law or was reasonably counseled by [plea counsel], this case would
have went [sic] before the court on motions for suppression of evidence
pursuant to the Terry[2] Stop violations and sidewalk rule.” Appellant’s Brief
at 5. Appellant contends that these issues, which were “disregarded” by plea
counsel, “would have undisputedly changed the outcome of the Appellant’s
conviction and sentence.” Id. Therefore, Appellant argues that the PCRA
court possessed jurisdiction over the merits of his petition.
The newly-discovered fact exception:
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2 Terry v. Ohio, 392 U.S. 1 (1968).
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has two components, which must be alleged and proved. Namely,
the petitioner must establish that: 1) the facts upon which the
claim was predicated were unknown and 2) could not have been
ascertained by the exercise of due diligence. If the petitioner
alleges and proves these two components, then the PCRA court
has jurisdiction over the claim under this subsection.
Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (quotation
marks and citations omitted) (emphasis removed).
Appellant’s claim does not constitute a newly-discovered fact. It is well
settled that “decisional law does not amount to a new ‘fact’ under section
9545(b)(1)(ii)[.]” Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011)
(holding that a judicial opinion does not qualify as a previously unknown “fact”
capable of triggering the timeliness exception set forth in the PCRA, and
stating that “section 9545(b)(1)(ii) applies only if the petitioner has uncovered
facts that could not have been ascertained through due diligence, and judicial
determinations are not facts”).
Moreover, even if the decisions upon which Appellant relies could be
considered new “facts” under section 9545(b)(1)(ii), he still would not be
entitled to relief. Our case law is clear that the entry of a guilty plea
constitutes waiver of all defenses and defects except claims of lack of
jurisdiction, invalid guilty plea, and illegal sentence. See Commonwealth v.
Roden, 730 A.2d 995, 997 n.2 (Pa. Super. 1999) (“Upon entry of a guilty
plea, a defendant generally waives all defects and defenses except those
concerning the validity of the plea, the jurisdiction of the trial court, and the
legality of the sentence imposed.”); see also Commonwealth v. Messmer,
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863 A.2d 567, 571 (Pa. Super. 2004) (“The entry of a guilty plea constitutes
a waiver of all defenses and defects except claims of lack of jurisdiction, invalid
guilty plea, and illegal sentence.”). Thus, there is no support for Appellant’s
claim that plea counsel should have filed a motion to suppress based on an
alleged Terry stop violation or otherwise.
Accordingly, the PCRA court properly denied Appellant’s PCRA petition.3
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/2018
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3 While Appellant raised five issues in his statement of questions presented,
the argument section of his brief consists of only three sentences in which he
argues that he met the jurisdictional timeliness requirements of the PCRA. It
is well settled that he argument portion of an appellate brief must be
developed with pertinent discussion of the issue, including citations to relevant
authority. See Pa.R.A.P. 2119(a) (requiring that an appellant develop an
argument with citation to and analysis of relevant legal authority); see also
Commonwealth v. Genovese, 675 A.2d 331, 334 (Pa. Super. 1996) (stating
that “[t]he argument portion of an appellate brief must be developed with a
pertinent discussion of the point which includes citations to the relevant
authority”). Although we are mindful that Appellant is proceeding pro se, his
pro se status does not relieve him of his responsibility to properly raise and
develop appealable claims. See Smathers v. Smathers, 670 A.2d 1159,
1160 (Pa. Super. 1996). Moreover, this Court will not act as Appellant’s
counsel. Id.-7-
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