Com. v. Oren, A. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ARIE OREN
Appellant No. 3137 EDA 2016
Appeal from the PCRA Order September 13, 2016
in the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0002955-2011
BEFORE: PANELLA, SOLANO, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MARCH 30, 2017
Appellant, Arie Oren, appeals pro se from the order dismissing his
second petition for relief under the Post Conviction Relief Act 1 (“PCRA”) as
untimely. Appellant claims that his prior counsels’ ineffectiveness
constituted interference by government officials or previously unknown facts.
See 42 Pa.C.S. § 9545(b)(1)(i)-(ii). We affirm.
The procedural history of this case is as follows. On September 13,
2012, a jury found Appellant guilty of four counts of aggravated indecent
assault2 and five counts of indecent assault without consent.3 J. David
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
2
18 Pa.C.S. § 3125(a)(1).
3
18 Pa.C.S. § 3126(a)(1).
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Farrell Esq. (“trial counsel”) represented Appellant at trial, but withdrew
from representation on November 7, 2012. Timothy Woodward, Esq. (“post-
trial counsel”), entered his appearance on behalf of Appellant on November
13, 2012. On February 14, 2013, the trial court sentenced Appellant to an
aggregate four-and-one-half to nine years’ imprisonment. Appellant did not
file post-sentence motions and did not take a direct appeal.
On July 8, 2013, Daniel Silverman, Esq. (“prior PCRA counsel”), filed a
first PCRA petition on Appellant’s behalf. The PCRA court, following an
evidentiary hearing, denied relief on July 1, 2014. This Court affirmed.
Commonwealth v. Oren, 1940 EDA 2014 (Pa. Super. July 30, 2015)
(unpublished memorandum). Appellant did not petition the Pennsylvania
Supreme Court for allowance of appeal.
On July 25, 2016, Appellant filed the instant second PCRA petition pro
se, raising six claims alleging trial error or the ineffective assistance of trial
counsel. On August 15, 2016, the PCRA court issued a Pa.R.Crim.P. 907
notice of its intent to dismiss the petition as untimely. On August 25, 2016,
Appellant filed a pro se response alleging that he exercised due diligence in
discovering the alleged constitutional violations underlying his claims for
relief. The court dismissed Appellant’s second petition on September 13,
2016. This timely appeal followed.
In his pro se brief, Appellant raises numerous claims of error, in which
he, in relevant part, asserts prior PCRA counsel’s ineffectiveness for
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addressing “some issues that [Appellant] brought up, but in the P.C.R.A.
they were very limited in the arguments and key arguments were never
raised.” Appellant’s Brief at 7. He suggests he declined to file a petition for
allowance of appeal in the first PCRA proceeding based on prior PCRA
counsel’s representation that “the arguments he raised had a low probability
of being granted.” Id. He further argues his right to a direct appeal was
obstructed by government officials, namely, post-trial counsel’s
ineffectiveness. Id. at 8-9. He continues that he is entitled to consideration
of the merits of his claims because he sets forth a credible claim of actual
innocence and “had no prior knowledge of any of the constitutional violations
listed in his [PCRA petition].” Id. at 10-11. After reiterating his substantive
claims for relief, Appellant concludes that he is entitled to file a PCRA
petition, or in the alternative, to a new trial or release from custody. Id. at
12-21. No relief is due.
“Our standard of review of a PCRA court’s dismissal of a PCRA petition
is limited to examining whether the PCRA court’s determination is supported
by the evidence of record and free of legal error.” Commonwealth v.
Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).
As our Supreme Court has explained:
the PCRA timeliness requirements are jurisdictional in
nature and, accordingly, a PCRA court is precluded from
considering untimely PCRA petitions. See, e.g.,
Commonwealth v. Murray, 753 A.2d 201, 203 ([Pa.]
2000) (stating that “given the fact that the PCRA’s
timeliness requirements are mandatory and jurisdictional
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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. Fahy, 737 A.2d 214, 220 ([Pa.] 1999)
(holding that where a petitioner fails to satisfy the PCRA
time requirements, this Court has no jurisdiction to
entertain the petition). We have also held that even where
the PCRA court does not address the applicability of the
PCRA timing mandate, th[e] Court will consider the issue
sua sponte, as it is a threshold question implicating our
subject matter jurisdiction and ability to grant the
requested relief.
Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003) (some
citations and parallel citations omitted).
A PCRA petition “must normally be filed within one year of the date the
judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-
(iii) applies and the petition is filed within 60 days of the date the claim
could have been presented.” Commonwealth v. Copenhefer, 941 A.2d
646, 648 (Pa. 2007) (some citations and footnote omitted). The three
exceptions to the general one-year time limitation 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;
(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.
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42 Pa.C.S. § 9545(b)(1)(i)-(iii).
As discussed by the Pennsylvania Supreme Court,
[i]n [Commonwealth v. Gamboa-Taylor, 753 A.2d 780,
785 (Pa. 2000)] and subsequent cases, we addressed
situations when PCRA counsel had allegedly ineffectively
narrowed the class of claims raised by not including all of
the viable claims in the first petition. In such instances,
we concluded that by allowing the claim to go forward “the
timeliness requirements crafted by the legislature would
thus effectively be eviscerated by any petitioner who was
willing to file serial PCRA petitions alleging ineffective
assistance of counsel.” Thus, we firmly rejected any such
attempts “to circumvent the one-year time limitation” via
claims of PCRA counsel ineffectiveness.
Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (some
citations omitted). Similarly, the PCRA directs that “defense counsel,
whether appointed or retained[,]” are not “government officials” for the
purpose of the governmental interference exception under Section
9545(b)(1)(i). 42 Pa.C.S. § 9545(b)(4).
Instantly, there is no dispute that Appellant’s second PCRA petition,
which was mailed bearing a postage date of September 22, 2016, was not
filed by March 18, 2014, when the one-year period for filing a facially timely
PCRA petition expired. See 42 Pa.C.S. § 9545(b)(1), (3); Pa.R.A.P.
903(c)(3). Having reviewed the record, we agree with the PCRA court’s
determination that Appellant failed to plead a time-bar exception in either
his pro se petition or response to the court’s Rule 907 notice. Appellant’s
reliance on prior counsels’ ineffectiveness fails to state a time-bar exception
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under Section 9545(b)(1)(i) or (b)(1)(ii). See 42 Pa.C.S. § 9545(b)(4);
Bennett, 930 A.2d at 1272. Lastly, although Appellant asserts he was
dissuaded from filing a petition of allowance of appeal from this Court’s
affirmance of the order denying his first PCRA petition, his assertions
establish that prior PCRA counsel did not abandon him. See Bennett, 930
A.2d at 1273; Appellant’s Brief at 7 (indicating prior PCRA counsel informed
Appellant that there was a low probability that the Pennsylvania Supreme
Court would grant relief and Appellant agreed not to file a petition for
allowance of appeal). Thus, we affirm the PCRA court’s order dismissing
Appellant’s second PCRA petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/30/2017
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