Com. v. Poller, C. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
CHRISTOPHER POLLER,
Appellant No. 1181 EDA 2017
Appeal from the PCRA Order Entered March 20, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1124322-1993
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 28, 2018
Appellant, Christopher Poller, appeals pro se from the post-conviction
court’s March 20, 2017 order denying his petition for writ of habeas corpus,
which the court treated as untimely petition under the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.
The facts of Appellant’s underlying criminal conviction are not
necessary to our disposition of his appeal. The PCRA court summarized the
procedural history of Appellant’s case, as follows:
On June 2, 1994, following a jury trial before the
Honorable Paul Ribner, [Appellant] was convicted of second
degree murder, criminal conspiracy, robbery and possession of
an instrument of crime. On December 7, 1994, Judge Ribner
imposed a sentence of life imprisonment without parole for the
murder conviction, and concurrent terms of imprisonment for the
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* Former Justice specially assigned to the Superior Court.
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other convictions. [Appellant] filed a direct appeal and the
Pennsylvania Superior Court affirmed the trial court’s judgment
of sentence on May 8, 1996.2 The Pennsylvania Supreme Court
denied allocator December 20, 1996.3
2 Commonwealth v. Poller, 679 A.2d 849 (Pa. Super.
1996) (unpublished memorandum).
3 Commonwealth v. Poller, 687 A.2d 377 (Pa. 1996).
[Appellant] filed his first pro se petition for collateral relief
pursuant to the [PCRA] on December 15, 1997. Counsel was
appointed and subsequently filed a “no merit” letter pursuant to
Turner/Finley.5 On February 25, 1999, the PCRA court
dismissed [Appellant’s] petition. The Pennsylvania Superior
[C]ourt affirmed the dismissal on October 17, 2000, and the
Pennsylvania Supreme Court denied allocatur on March 30,
2001.6 Thereafter, [Appellant] filed several PCRA petitions. All
were denied.
5Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988).
6 Commonwealth v. Poller, 767 A.2d 1112 (Pa. Super.
2000) (unpublished memorandum), appeal denied, 786
A.2d 987 (Pa. 2001).
On December 19, 2016, [Appellant] filed the instant pro se
PCRA petition, styled as a writ of habeas corpus. This court sent
a notice of its intent to dismiss7 the petition as untimely without
exception on January 31, 2017. [Appellant] filed a response to
the 907 notice on February 10, 2017. The PCRA petition was
formally dismissed by this court on March 20, 2017. [Appellant]
timely filed a notice of appeal to the Pennsylvania Superior Court
on April 3, 2017.
7 Pursuant to Pa.R.Crim.P. 907.
PCRA Court Opinion (PCO), 5/22/17, at 1-2.
The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b)
statement, but it filed a Rule 1925(a) opinion on May 22, 2017. Herein,
Appellant raises the following issue for our review: “The lower court abused
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its discretion when it dismissed the petition filed by [] Appellant and
pertaining to this instant case.” Appellant’s Brief at 3.
In the Argument section of Appellant’s brief, he contends that the
PCRA court erred by treating his writ of habeas corpus as a PCRA petition,
where his sentencing claim is not cognizable under the PCRA. According to
Appellant, the statute under which he was sentenced, 18 Pa.C.S. § 1102(b),
“violates due process and is unconstitutional, and void under the vagueness
doctrine, because the statute fails to give a person of ordinary intelligence
fair notice that its true penalty is life imprisonment ‘without parole.’”
Appellant’s Brief at 7. Appellant avers that the PCRA does not offer relief for
this claim, because “the PCRA … provides ‘only’ for challenges to sentences
that have been imposed in excess of the lawful maximum.” Id. at 9
(emphasis omitted). Thus, Appellant maintains that his challenge to the
constitutionality of section 1102(b) should have been considered by the
lower court as a writ of habeas corpus claim.
We disagree. Appellant is challenging the legality of his sentence, and
our Supreme Court has stated that, “legality of sentence is always subject to
review within the PCRA” even where, as here, the claim is not grounded on
an assertion that the sentence exceeds the lawful maximum.
Commonwealth v. DiMatteo, 177 A.3d 182, 192 (Pa. 2018) (finding that
the appellant was not precluded from obtaining relief under the PCRA where
he alleged that his sentence was illegal because the statute under which his
sentence was imposed is unconstitutional under Alleyne) (quoting
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Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999)). Therefore, the
lower court did not err in treating Appellant’s writ of habeas corpus as a
PCRA petition.
Because Appellant’s petition presents a cognizable PCRA claim, we
must next assess the timeliness of his petition, because the PCRA time
limitations implicate our jurisdiction and may not be altered or disregarded
in order to address the merits of a petition. See Commonwealth v.
Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the PCRA, any petition
for post-conviction relief, including a second or subsequent one, must be
filed within one year of the date the judgment of sentence becomes final,
unless one of the following exceptions set forth in 42 Pa.C.S. §
9545(b)(1)(i)-(iii) applies:
(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 [Appellant] 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 [Appellant] 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
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the time period provided in this section and has been
held by that court to apply retroactively.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, as the PCRA court points out, Appellant’s “judgment of sentence
became final on or about March 20, 1997, ninety (90) days after the
Pennsylvania Supreme Court denied allocator and the time for filing a
petition for writ of certiorari with the United States Supreme Court expired.”
PCO at 4. Therefore, his present petition, filed on August 13, 2015, is
patently untimely and, for this Court to have jurisdiction to review the merits
thereof, Appellant must prove that he meets one of the exceptions to the
timeliness requirements set forth in 42 Pa.C.S. § 9545(b).
Appellant wholly fails to meet this burden, as he does not argue the
applicability of any timeliness exception. Instead, he merely claims that his
petition does not raise a claim that is cognizable under the PCRA, and he
then proceeds to discuss why 18 Pa.C.S. § 1102(b) is unconstitutionally
vague. Because, for the reasons stated supra, Appellant’s sentencing
challenge is reviewable under the PCRA, and he fails to plead, let alone
prove, the applicability of any timeliness exception, we do not have
jurisdiction to address the merits of his sentencing argument. Accordingly,
the record supports the PCRA court’s decision to dismiss, as untimely,
Appellant’s petition, and we ascertain no legal error in that determination.
See Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007) (stating
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that an appellate court’s standard of review regarding an order denying a
petition under the PCRA is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/18
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