Com. v. Vukich, W. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
WILLIAM E. VUKICH
Appellant No. 427 WDA 2015
Appeal from the PCRA Order of February 11, 2015
In the Court of Common Pleas of Beaver County
Criminal Division at Nos.: CP-04-CR-0001236-2008
CP-04-CR-0001869-2008
CP-04-CR-0001862-2008
CP-04-CR-0001864-2008
BEFORE: SHOGAN, J., WECHT, J., and OLSON, J.
MEMORANDUM BY WECHT, J.: FILED NOVEMBER 4, 2015
William E. Vukich appeals the February 11, 2015 order dismissing his
petition for relief pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-46, as untimely. We affirm.
In 2008, Vukich entered a guilty plea to theft and burglary offenses.
Vukich received an aggregate sentence of two to four years’ imprisonment,
and seven years’ probation. In 2013, Vukich violated his probation, and was
re-sentenced to one to three years’ imprisonment. The PCRA court
summarized the relevant procedural history of this case as follows:
On November 7, 2014, Vukich filed pro se a Petition under
the PCRA. On December 9, 2014, the court entered an
order appointing conflicts counsel to represent Vukich in
his PCRA Petition and granting counsel sixty (60) days to
amend Vukich’s PCRA Petition. On January 26, 2015,
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counsel for Vukich filed a No-Merit Memorandum and
Petition to Withdraw from the PCRA Proceeding. On
January 29, the court entered an Order granting counsel’s
motion to withdraw and an Order for Rule to Show Cause
why Vukich’s PCRA Petition should not be dismissed, which
notified Vukich of the court’s intent to dismiss the Petition
and of Vukich’s right to proceed either pro se or by private
counsel.
On February 6, 2015, Vukich filed a request for Leave to
Amend [his] PCRA Petition. . . . On February 11, 2015,
the court entered an Order denying Vukich’s Request for
Leave to Amend, an Order dismissing Vukich’s PCRA
Petition Without Hearing, and an Order granting Vukich
leave to proceed in forma pauperis and directing Vukich to
specify which transcripts he was requesting.
PCRA Court Opinion (“P.C.O.”), 4/10/2015, at 1-2 (minor modifications for
clarity).
On February 23, 2015, Vukich timely filed a notice of appeal. On
March 12, 2015, the PCRA court ordered Vukich to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Vukich
timely complied. On April 10, 2015, the PCRA court filed a Pa.R.A.P.
1925(a) opinion.
On appeal, we interpret Vukich’s brief as raising the following issues
for our consideration:
1. Whether the sentence that followed [Vukich’s] revocation of
probation was illegal and unconstitutional under the United
States Constitution and [the] Pennsylvania Constitution?
2. Whether [Vukich’s] sentence breached his plea agreement?
3. Whether [Vukich’s] appointed counsel was ineffective and
incompetent?
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See Brief for Vukich at 6-9.
Our standard of review for an order denying PCRA relief is well-settled:
This Court’s standard of review regarding a PCRA court’s order is
whether the determination of the PCRA court is supported by the
evidence of record and is free of legal error. Great deference is
granted to the findings of the PCRA court, and these findings will
not be disturbed unless they have no support in the certified
record. Moreover, a PCRA court may decline to hold a hearing
on the petition if the PCRA court determines that a petitioner’s
claim is patently frivolous and is without a trace of support in
either the record or from other evidence.
Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations
and quotation marks omitted).
Before we can consider the merits of Vukich’s issues, we first must
determine whether his PCRA petition was timely filed, thereby conferring
jurisdiction upon the PCRA court to rule upon the petition in the first
instance. In Commonwealth v. Jackson, 30 A.3d 516 (Pa. Super. 2011),
we articulated the timeliness standards under the PCRA as follows:
The PCRA “provides for an action by which persons convicted of
crimes they did not commit and persons serving illegal sentences
may obtain collateral relief.” 42 Pa.C.S.A. § 9542. When an
action is cognizable under the PCRA, the PCRA is the “sole
means of obtaining collateral relief and encompasses all other
common law and statutory remedies for the same purpose[.]”
42 Pa.C.S.A. § 9542.
In order for a court to entertain a PCRA petition, a petitioner
must comply with the PCRA filing deadline. See
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa.
2003). The time for filing a petition is set forth in
42 Pa.C.S.A. § 9545(b), which provides in relevant part:
(b) Time for filing petition.—
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(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.
***
42 Pa.C.S.A. § 9545(b).
“[T]he time limitations pursuant to . . . the PCRA are
jurisdictional.” Commonwealth v. Fahy, 737 A.2d 214, 222
(Pa. 1999). “[Jurisdictional time] limitations are mandatory and
interpreted literally; thus, a court has no authority to extend
filing periods except as the statute permits.” Id. “If the petition
is determined to be untimely, and no exception has been pled
and proven, the petition must be dismissed without a hearing
because Pennsylvania courts are without jurisdiction to consider
the merits of the petition.” Commonwealth v. Perrin, 947
A.2d 1284, 1285 (Pa. Super. 2008).
Id. at 518-19.
Instantly, Vukich was sentenced for violating his probation in each of
the above-captioned cases on January 13, 2013. Vukich did not file a direct
appeal. Thus, his judgment of sentence became final on February 13, 2013.
See 42 Pa.C.S. § 9545(b)(3) (“A judgment becomes final at the conclusion
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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.”). To be timely, Vukich had to file his PCRA
petition within one year of that date, on or before February 13, 2014. See
42 Pa.C.S. § 9545(b)(1) (“[A]ny petition under this subchapter, including a
second or subsequent petition, shall be filed within one year of the date the
judgment becomes final.”). Vukich filed the instant petition on November 7,
2014, approximately one year and nine months after his judgment of
sentence became final. Consequently, Vukich’s PCRA petition facially is
untimely.
Nonetheless, as noted above, an untimely PCRA petition will be
deemed to be timely filed if the petitioner has pleaded and proven in his
PCRA petition one of the three enumerated exceptions to the PCRA’s time
bar. See 42 Pa.C.S. § 9545(b)(1). The PCRA court noted in its opinion that
Vukich has failed to demonstrate that one of the exceptions applies. See
P.C.O. at 5. We agree.
In his pro se PCRA petition, Vukich checked two boxes alleging
interference by government officials and newly-discovered facts, referencing
42 Pa.C.S. § 9545(b)(i)-(ii). The core of Vukich’s claim for relief, as set
forth in his PCRA petition and in his brief to this Court, are his contentions
that the sentence imposed following his probation violation was illegal, that
he received ineffective assistance of counsel, and that he was subject to
double jeopardy due to an alleged breach of his plea agreement.
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The PCRA court highlighted that Vukich’s argument for governmental
interference is strongly rooted in his claim of ineffective assistance of
counsel. We agree. Ineffective counsel will not satisfy the requirements to
meet the government interference exception. Thus, Vukich’s argument is
without merit. 42 Pa.C.S. § 9545(b)(4) (“For purposes of this subchapter,
‘governmental officials’ shall not include defense counsel, whether appointed
or retained); Commonwealth v. Crews, 863 A.2d 498, 503 (Pa. 2004) (“It
is well settled that the alleged ineffectiveness of all prior counsel, including
the first PCRA counsel, does not fall within the governmental interference
exception.”).
Similarly, Vukich’s newly discovered facts claim is primarily tied to his
claim of ineffective assistance of counsel, as he asserts that his appointed
counsel lied to him. Once more, an allegation of ineffective assistance of
counsel will not suffice to satisfy the newly discovered facts exception.
Commonwealth v. Edmiston, 65 A.3d 339, 349 (Pa. 2013) (“[W]e have
previously rejected attempts to circumvent the timeliness requirements of
the PCRA by asserting prior counsel’s ineffectiveness for failing timely to
raise a claim. As we have explained, the nature of the constitutional
violations alleged has no effect on the application of the PCRA time bar.
Rather, the only cognizable exceptions are set forth at Section
9545(b)(1).”).
Vukich finally argues that his sentence was illegal, constituting both a
breach of his plea agreement and double jeopardy because he is serving a
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second sentence for the same offense. We recognize that “the legality of a
sentence is a non-waivable issue subject to review at any stage of the
judicial process or sua sponte by the court.” Commonwealth v. Sharpe,
665 A.2d 1194, 1195 (Pa. Super. 1995). But, it is well-settled that such a
claim does not, ipso facto, provide a PCRA court with jurisdiction. Although
it is true that claims regarding the legality of a sentence generally cannot be
waived, See Commonwealth v. Foster, 960 A.2d 160, 163 (Pa. Super.
2008), waiver and jurisdiction are separate matters. “Though not technically
waivable, a legality [of sentence] claim may nevertheless be lost should it be
raised for the first time in an untimely PCRA petition for which no time-bar
exception applies, thus depriving the court of jurisdiction over the claim.”
Commonwealth v. Slotcavage, 939 A.2d 901, 903 (Pa. Super. 2007)
(citing Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (“Although
legality of sentence is always subject to review within the PCRA, claims must
still first satisfy the PCRA’s time limits or one of the exceptions thereto.”)).
Vukich has not established the PCRA court’s jurisdiction to grant relief
on his untimely PCRA petition. Vukich filed his PCRA petition approximately
one year and nine months after his judgment of sentence became final.
Vukich has not proved the applicability of any of the enumerated exceptions
to the PCRA’s time bar. Thus, the PCRA court lacked jurisdiction over his
petition, and did not err or abuse its discretion in dismissing the petition on
that basis.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/4/2015
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