Com. v. Gardner, S. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
STEVEN A. GARDNER,
Appellant No. 418 WDA 2014
Appeal from the PCRA Order entered February 7, 2014,
in the Court of Common Pleas of Butler County,
Criminal Division, at No(s): CP-10-CR-0000219-1995
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and ALLEN, JJ.
MEMORANDUM BY ALLEN, J.: FILED AUGUST 11, 2014
pro se from the order denying
his serial petition for post-conviction relief filed pursuant to the Post
42 Pa.C.S.A. §§ 9541-46. We affirm.
The pertinent facts and protracted procedural history have been
summarized as follows:
On October 20, 1995, a jury convicted [Appellant] of
first degree murder in connection with the January 10,
1995 shooting of a man who was renting a room in
sentenced to life imprisonment on October 23, 1995. This
[C]ourt affirmed the judgment of sentence on August 29,
2000, and our supreme court denied appeal on January
22, 2001. Commonwealth v. Gardner, 764 A.2d 122(Pa. Super. 2000) (unpublished memorandum), appeal
denied, 576 Pa. 710, 785 A.2d 87 (2001). We note that
during the pendency of both his direct appeal and
subsequent PCRA petitions, [Appellant] has repeatedly
filed additional pro se PCRA petitions or similar pleadings
despite the fact that he already had a petition pending.
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On February 15, 2001, [Appellant] filed his first valid
PCRA petition. Counsel was appointed and an amended
PCRA petition was filed. A hearing was held on January
21, 2004, and the petition was ultimately denied on March
4, 2004. This [C]ourt affirmed the decision on October 24,
2006, and our supreme court denied appeal on May 18,
2007. Commonwealth v. Gardner, 913 A.2d 941 (Pa.
Super. 2006) (unpublished memorandum), appeal
denied, 592 Pa. 765, 923 A.2d 1173 (2007).
On November 19, 2008, [Appellant] filed a second pro
se PCRA petition. On February 10, 2011, an order was
second PCRA petition. On February 24, 2011, Appellant
filed a motion to reconsider. On March 8, 2011, the court
denied the motion to reconsider. On April 5, 2011,
[Appellant] filed a notice of appeal, attempting to appeal
the orders entered on February 10, 2011 and March 8,
2011. This [appeal was docketed] at 733 WDA 2011.
On March 9, 2011, [Appellant] filed a third pro se PCRA
petition. On March 25, 2011, an order was entered (dated
On April 6, 2011, [Appellant] filed a motion to reconsider.
On April 7, 2011, the court denied the motion to
reconsider. On May 5, 2011, [Appellant] filed a notice of
appeal, attempting to appeal the orders entered on March
25, 2011 and April 7, 2011. This [appeal was docketed] at
No. 1275 WDA 2011.
On August 26, 2011, Appellant filed a fourth pro se
PCRA petition. On September 7, 2011, an order was
entered (dated September 1, 2011) denying and
September 23, 2011, [Appellant] filed a motion to
reconsider. On September 30, 2011, the court entered an
order (dated September 28, 2011) denying the motion to
reconsider. On October 14, 2011, [Appellant] filed a
notice of appeal, attempting to appeal the orders entered
on September 7, 2011 and September 30, 2011. This
[appeal was docketed] at No. 1681 WDA 2011.
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Commonwealth v. Gardner, 50 A.3d 237 (Pa. Super. 2012), unpublished
memorandum at 3-5 (footnotes omitted)).
On May 8, 2012, this Court addressed all three appeals together and
quashed at each docket. Gardner, unpublished memorandum at 2. In
doing so, we stated:
Appellant has committed the same fatal error in each of
the three appeals before us. In each instance, after the
court below entered an order denying [his] PCRA petition,
[Appellant] filed a motion to reconsider and then waited
until this motion was decided before filing the notice of
appeal. In each case, the notice of appeal was filed
beyond 30 days after the original order was entered
denying the PCRA petition, resulting in an untimely appeal.
See Pa.R.A.P., Rule 903(a). 42 Pa.C.S.A.
It is well-settled that a motion for reconsideration does
not toll the 30-day appeal clock unless the court grants the
motion within the 30-day appeal period. Commonwealth
v. Moir, 766 1253, 1254 (Pa. Super. 2000). Otherwise, a
notice of appeal must be filed within the 30-day appeal
Id.we have consistently held that an appeal from an order
Id.***
Since all three notices of appeal were filed beyond their
respective 30-day appeal periods, all three appeals are
untimely and must be quashed.
Id., unpublished memorandum at 5-6.
petition for mandamus and application to proceed in forma pauperis.
Commonwealth v. Gardner, 2013 Pa. LEXIS 199.
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On June 29, 2012, Appellant filed another PCRA petition, styled as an
procedural error, and sought the reinstatement of his right to file his appeals
because we did not rule on their merits. According to Appellant, his
have overlooked. Subsequently, on November 9, 2012, Appellant filed with
t
notice of appeal to this Court.
filings as requests for post-conviction relief, and believing that two of
See Order of Court, 12/19/12 (citing
Commonwealth v. Jones, 811 A.2d 944, 1008 (Pa. 2002);
Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000)). That same day,
appeal and requested a Pa.R.A.P. 1925(b) statement of errors complained of
on appeal. Subsequently, both Appellant and the PCRA court complied with
Pa.R.A.P. 1925.
In a judgment order entered July 8, 2013, this Court quashed
ant filed his appeal
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prematurely because no appealable order had been entered upon the
See Commonwealth v. Gardner, 82 A.3d 1059 (Pa. Super.
reargument and/or reconsideration.
Undaunted, on September 6, 2013, Appellant filed another PCRA
or Restoration of Appellate Rights &
Appellant further asserted that his latest filing was timely because it was
f Commonwealth v. Beasley, 741 A.2d 1259On December 20, 2013, the PCRA court issued Pa.R.Crim.P. 907 notice
because it was untimely and Appellant had not established any exception to
petition. On February 14, 2014, Appellant filed a motion for reconsideration,
which the PCRA court denied on March 11, 2014. Learning from his past
mistakes, Appellant also filed a timely appeal to this Court on March 3,
2014. Subsequently, both Appellant and the PCRA court have complied with
Pa.R.A.P. 1925.
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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.
Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA
findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,
1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a
hearing on the petition i
claim is patently frivolous and is without a trace of support in either the
record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011tition for post-
subsequent post-conviction request for relief will not be entertained unless a
strong prima facie showing is offered to demonstrate that a miscarriage of
justice m Commonwealth v. Burkhardt, 833 A.2d 233,
236 (Pa. Super. 2003) (en banc
prima facie showing if he demonstrates that either the proceedings which
resulted in his conviction were so unfair that a miscarriage of justice
occurred which no civilized society could tolerate, or that he was innocent of
Id.Appellant seeks to reinstate his right to appeal and have his
previously-filed triad of PCRA petitions considered on their merits. Before
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doing so, we must determine whether the PCRA court properly determined
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conviction petition is jurisdictional. Commonwealth v. Albrecht, 994 A.2d
1091, 1093 (Pa. 2010) (citation omitted). Thus, if a petition is untimely,
neither an appellate court nor the PCRA court has jurisdiction over the
petition. Id
raised in an untimely petition.
Id.Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
becomes final unless the petition alleges, and the petitioner proves, an
exception to the time for filing the petition. Commonwealth v. Gamboa-
Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under
been interference by government officials in the presentation of the claim; or
(2) there exists after-discovered facts or evidence; or (3) a new
Commonwealth v. Fowler, 930
A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition
inv
Gamboa-Taylor, 753
A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to
the time restrictions of the PCRA must be pled in the petition, and may not
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be raised for the first time on appeal. Commonwealth v. Burton, 936
A.2d 521, 525 (Pa. Super. 2007); see also
raised before the lower court are waived and cannot be raised for the first
Because Appellant did not file a writ of certiorari to the United States
allowance of appeal on January 22, 2001, his judgment of sentence became
final on or about April 23, 2001, when the ninety-day time period for filing a
writ of certiorari with the United States Supreme Court expired. See
U.S.Sup.Ct.R. 13; 42 Pa.C.S.A. § 9545(b)(3). Therefore, Appellant had to
file the instant petition by April 23, 2002, in order for it to be timely. As
Appellant filed the instant petition on September 6, 2013, it is patently
untimely unless he has satisfied his burden of pleading and proving that one
of the enumerated exceptions applies. See Commonwealth v. Beasley,
741 A.2d 1258, 1261 (Pa. 1999).
time bar. See 9545(b)(1)(i-iii). Instead, within his brief, Appellant
within the time exceptions of 42 Pa.C.S.A. § 9545 (b)(1)(ii) the 60 day
notice of appeal should be excused as he was
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that the filing of a motion for reconsideration would toll the thirty-day appeal
own ineffectiveness as a basis for satisfying a PCRA time bar exception. See
generally
not include defense counsel); Commonwealth v. Crews, 863 A.2d 498(Pa. 2004).
In sum, the PCRA court correctly determined that it lacked jurisdiction
s substantive issues raised in his latest filing. We
-conviction
relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2014
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