Com. v. Voneida, S. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 ANDREW VONEIDA
Appellant No. 1608 MDA 2014
Appeal from the PCRA Order August 22, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0003356-2007
BEFORE: PANELLA, J., OTT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JANUARY 05, 2016
Appellant Steven Andrew Voneida appeals from the order of the
Dauphin County Court of Common Pleas dismissing as untimely his petition
filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541
et seq. We affirm.
On January 14, 2008, following a bench trial, the trial court found
Appellant guilty of persons not to possess firearms.1 On March 18, 2008,
the trial court sentenced Appellant to three to ten years’ incarceration. On
August 6, 2009, this Court affirmed the judgment of sentence. Appellant did
not file a petition for allowance of appeal with the Supreme Court of
Pennsylvania.
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1
18 Pa.C.S. § 6105(a)(1).
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On February 23, 2010, Appellant filed a timely pro se PCRA petition.
The PCRA court appointed counsel, who filed a Turner/Finley2 no merit
letter. Appellant filed objections to the motion to withdraw. On November
1, 2010, the PCRA court issued notice of its intent to dismiss the PCRA
petition pursuant to Pennsylvania Rule of Criminal Procedure 907. On
December 6, 2010, the PCRA court appointed new counsel. On February 7,
2011, new counsel filed a motion to withdraw and a Turner/Finley no merit
letter. Appellant filed objections. On March 7, 2011, the PCRA court
dismissed the PCRA petition without a hearing, but did not issue an order
addressing the motions to withdraw. Appellant filed a timely notice of
appeal and this Court vacated the PCRA court’s order and remanded for a
determination as to counsels’ motions to withdraw.
Following remand, the PCRA court granted the motions to withdraw
and issued a notice of intent to dismiss the PCRA petition without a hearing.
Appellant filed a pro se amendment. On July 30, 2012, the PCRA court
denied Appellant’s petition. This Court affirmed. The Supreme Court denied
Appellant’s petition for allowance of appeal on March 26, 2014 and denied
his application for reconsideration on April 25, 2014.
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2
Commonwealth v. Turner, 544 A.2d 927 (Pa.1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1998) (en banc).
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In April and/or June of 2014, Appellant filed a document treated as a
second PCRA petition and a motion to amend a second PCRA petition.3 On
July 28, 2014, the PCRA court issued notice of its intent to dismiss the PCRA
petition and denied the motion to amend. On August 18, 2014, Appellant
filed a motion for extra time to respond to the court’s notice of intent to
dismiss. On August 22, 2014, the PCRA court denied Appellant’s motion for
extra time to respond and dismissed the PCRA petition as untimely.
Appellant filed a timely notice of appeal.4
Both Appellant and the PCRA court complied with Pennsylvania Rule of
Appellate Procedure 1925.
Appellant raises the following questions on appeal:
A. Did the [t]rial [c]ourt err when it found that [Appellant]
had not raised any claims for relief in [his] second PCRA
petition?
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3
A document dated June 11, 2014 and filed June 16, 2014 was entitled
“Motion for Leave to Amend and Supplement The Defendant’s Second PCRA
Petition,” and had the amended petition attached to the motion. A prior
letter to the Honorable Andrew J. Dowling dated March 24, 2014 and
received April 10, 2014, referenced the Superior Court case
Commonwealth v. Hale, 85 A.3d 570, 585 (Pa.Super.2014), petition for
allowance of appeal granted at, 113 A.3d 1228 (Pa.2014). The trial
court responded to this letter informing Appellant it lacked jurisdiction
because his appeal was pending in the Supreme Court of Pennsylvania.
4
On October 24, 2015, the trial court issued a second order also dismissing
Appellant’s second PCRA petition. Appellant filed a notice of appeal of this
order, which was docketed at 1876 MDA 2014. In response from an order
from this Court, the trial court responded that the October order was
redundant. This Court then dismissed the second appeal, as it was
duplicative of the current appeal.
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B. Did the [t]rial [c]ourt err when it denied [Appellant’s]
leave to amend [his] second PCRA petition?
C. Did the [t]rial [c]ourt err when it found that
[Appellant’s] second PCRA petition was untimely?
D. Did the [t]rial [c]ourt have jurisdiction when it
dismissed [Appellant’s] PCRA petition on October 24,
2014?
Appellant’s Brief at 4.
Pursuant to Pennsylvania law, no court has jurisdiction to hear an
untimely PCRA petition. Commonwealth v. Monaco, 996 A.2d 1076, 1079
(Pa.Super.2010) (citing Commonwealth v. Robinson, 837 A.2d 1157,
1161 (Pa.2003)). The PCRA provides that a petition, “including a second or
subsequent petition, shall be filed within one year of the date the judgment
becomes final.” 42 Pa.C.S. § 9545(b)(1); accord Monaco, 996 A.2d at
1079; Commonwealth v. Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003). A
judgment is 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.” 42
Pa.C.S. § 9545(b)(3).
Three exceptions to the PCRA’s statute of limitations exist. The
exceptions allow for limited circumstances under which a court may excuse
the late filing of a PCRA petition. 42 Pa.C.S. § 9545(b)(1); Monaco, 996
A.2d at 1079. The late filing of a petition will be excused if a petitioner
alleges and proves:
(i) the failure to raise the claim previously was the
result of interference by government officials with
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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. § 9545(b)(1)(i)-(iii). When invoking a PCRA time-bar exception,
the petition must “be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2).
Appellant’s judgment of conviction became final on September 7,
2009, when the time to seek review by the Supreme Court of Pennsylvania
expired.5 He had one year from that date, i.e., September 7, 2010, to file a
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5
Appellant had 30 days from the date this Court affirmed his judgment of
sentence to file a petition for allowance of appeal with the Pennsylvania
Supreme Court. See Pa.R.A.P. 113(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 or the Commonwealth Court sought to be
reviewed.”). Thirty days from August 6, 2009, the date this Court affirmed
Appellant’s judgment of sentence, was Saturday, September 5, 2009.
Appellant had until Monday, September 7, 2009 to appeal to the Supreme
Court of Pennsylvania. 1 Pa.C.S. § 1908 (When last day of time period
“fall[s] on Saturday or Sunday, . . . such day shall be omitted from the
computation”); Pa.R.A.P. 107 (“Chapter 19 of Title 1 of the Pennsylvania
Consolidated Statutes (rules of construction) so far as not inconsistent with
any express provision of these rules, shall be applicable to the interpretation
of these rules . . . .”).
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timely PCRA petition. Therefore, his current petition, filed in April or June of
2014, is facially untimely.
Appellant attempts to invoke the government interference exception.
Appellant maintains he attempted to raise the claims in his first PCRA
petition, but the PCRA court interfered because it permitted PCRA counsel to
withdraw and because it denied Appellant leave to amend the first PCRA
petition. He further maintains this Court interfered because we affirmed the
PCRA court. Appellant’s Brief at 19. However, Appellant was granted time
to respond to counsel’s Turner/Finley letter. The PCRA court appointed a
second PCRA counsel, who also filed a Turner/Finley letter, and Appellant
was again permitted to respond to the letter. Accordingly, the PCRA court
afforded Appellant numerous opportunities to present his claims and did not
interfere with his ability to do so. Appellant, therefore, fails to establish the
government interference exception to the PCRA time-bar.6
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6
This Court recently held that a juvenile adjudication was not a conviction
and the adjudication could not be used to grade a person not to possess a
firearm offense as a second-degree felony under 6105(a.1)(1).
Commonwealth v. Hale, 85 A.3d 570, 585 (Pa.Super.2014), petition for
allowance of appeal granted at, 113 A.3d 1228 (Pa.2014). However, this
Court did not conduct a constitutional analysis, the decision was not issued
by the Supreme Court of Pennsylvania or the Supreme Court of the United
States, and the holding has not be found to apply retroactively to cases on
collateral appeal. Further, judicial determinations are not new fact for
purposes of the PCRA time-bar. Commonwealth v. Watts, 23 A.3d 980,
986 (Pa.2011). Accordingly, Appellant fails to establish any PCRA time-bar
exception applies.
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The PCRA court did not err when it dismissed Appellant’s PCRA petition
as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/5/2016
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