Com. v. Hartman, C. ( 2017 )

J-S56036-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
COLLEEN HARTMAN,
Appellant No. 343 EDA 2017
Appeal from the PCRA Order December 27, 2016
in the Court of Common Pleas of Delaware County
Criminal Division at No.: CP-23-CR-0008202-2014
BEFORE: BOWES, J., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 26, 2017
Appellant, Colleen Hartman, appeals from the denial of her first
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546, as untimely. Specifically, she contends that she is entitled to
relief because the United States Supreme Court decision in Birchfield v.
North Dakota, 136 S. Ct. 2160 (2016),1 rendered her sentence illegal. We
affirm.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
In Birchfield, the United States Supreme Court held that the Fourth
Amendment of the United States Constitution does not permit warrantless
blood tests incident to arrest for driving under the influence, and a state
may not criminalize a refusal to comply with a demand for blood testing.
See Birchfield, supra at 2185-86.
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We glean the relevant factual and procedural history in this matter
from the PCRA court’s March 21, 2017 opinion, and our review of the
certified record. On December 16, 2014, Appellant was arrested for driving
under the influence.2 The crime was graded as a misdemeanor of the first
degree because it was Appellant’s third offense and she refused blood
testing.3 On March 31, 2015, she entered into an open guilty plea before
the trial court. The court sentenced Appellant to twenty-three months of
intermediate punishment. (See PCRA Court Opinion, 3/21/17, at 1).
Appellant did not file a direct appeal.
On November 4, 2015, after a Gagnon[4] II hearing, the court found
Appellant in violation of the terms of her original sentence. After granting
Appellant’s motion for reconsideration of sentence, the court sentenced her
to not less than one nor more than twelve months of incarceration at the
Delaware County prison, followed by two years of consecutive probation, and
ordered that Appellant be immediately paroled. (See Order, 12/15/15).
On March 16, 2016, after another Gagnon II hearing, the court found
Appellant in violation of her probation. At a sentencing hearing on June 14,
2016, the court revoked Appellant’s probation and sentenced her to “a split
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2
See 75 Pa.C.S.A. § 3802(a)(1).
3
See 75 Pa.C.S.A. § 3803(b)(4).
4
Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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sentence of (1) full back time of 220 days in Delaware County prison
effective March 16, 2016 with release on the max date, and (2) [not less
than twelve nor more than twenty-four] months[’] SCI to run concurrent to
parole, effective March 16, 2016.” (PCRA Ct. Op., at 2).
On August 17, 2016, Appellant, acting pro se, filed her first PCRA
petition, arguing that she was entitled to relief from her original sentence
because Birchfield, supra rendered her sentence for driving under the
influence, with refusal, illegal. (See Pro Se Motion for Post Conviction
Collateral Relief, 8/17/16, at 3). The trial court appointed counsel on August
19, 2016.5 On December 5, 2016, Appellant pro se filed a PCRA petition,
wherein she argued that she was entitled to relief both because she was
serving an illegal sentence and because counsel was ineffective for failing to
file a motion for reconsideration of her violation of probation sentence. (See
[Supplemental] Motion for Post Conviction Collateral Relief, 12/05/16).6
The PCRA court conducted a hearing on Appellant’s petition on
December 22, 2016. At the hearing, counsel for Appellant argued that
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5
Although counsel stated that he submitted a memorandum in support of
Appellant’s pro se PCRA petition to the PCRA court on November 17, 2015,
the certified record does not contain a copy of it. (See N.T. Hearing,
12/22/16, at 4).
6
“[T]here is no constitutional right to hybrid representation either at trial or
on appeal[,]” therefore, Appellant’s petition is a nullity. Commonwealth v.
Ellis, 626 A.2d 1137, 1139 (Pa. 1993) (citation omitted).
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subsequent to her June 14, 2016 sentencing, Appellant asked her revocation
attorney to file a motion to reconsider based on the Birchfield decision and
her attorney failed to do so. (See N.T. Hearing, 12/22/16, at 5-6). On
December 27, 2016, the PCRA court dismissed Appellant’s PCRA petition as
untimely. This timely appeal followed.7
Appellant raises one issue on appeal: “Was the [PCRA] court in error
for dismissing [Appellant’s] petition for post conviction relief in that the
sentence she received as to a conviction for driving under the influence was
unconstitutional pursuant to Birchfield[, supra]?” (Appellant’s Brief, at 4)
(most capitalization omitted).8
Our 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. The PCRA court’s
findings will not be disturbed unless there is no support for the
findings in the certified record.
Before addressing the issues presented on appeal, we
must determine whether Appellant’s instant PCRA petition was
timely filed. Our Supreme Court has stressed that [t]he PCRA’s
timeliness requirements are jurisdictional in nature and must be
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7
Pursuant to the PCRA court’s order, Appellant filed her concise statement
of errors complained of on appeal on February 14, 2017. The trial court
entered its opinion on March 21, 2017. See Pa.R.A.P. 1925.
8
To the extent that Appellant claims she is entitled to relief based on
ineffective assistance of counsel at the revocation hearing, such argument is
waived for failure to include it in her 1925(b) statement of errors complained
of on appeal. (See Rule 1925(b) Concise Statement of Errors Complained of
on Appeal, 2/14/17); Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the
Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.”).
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strictly construed; courts may not address the merits of the
issues raised in a petition if it is not timely filed. It is well settled
that [a]ny and all PCRA petitions must be filed within one year of
the date on which the petitioner’s judgment became final, unless
one of three statutory exceptions applies. “A judgment becomes
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.A. § 9545(b)(3).
Commonwealth v. Garcia, 23 A.3d 1059, 1061–62 (Pa. Super. 2011),
appeal denied, 38 A.3d 823 (Pa. 2012) (case citations, some quotation
marks, and footnote omitted).
Here, Appellant was originally sentenced for her DUI conviction on
March 31, 2015, and she did not file post-sentence motions or a direct
appeal. Thus, her judgment of sentence became final on April 30, 2015.
See Pa.R.A.P. 903(a). Accordingly, Appellant had until April 30, 2016, to file
a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1).
We recognize that, on June 14, 2016, Appellant’s probation was
revoked and a sentence imposed for her violation of probation. Both
Appellant and the Commonwealth contend that this revocation should reset
the clock and the June 14, 2016 date should be considered the sentencing
date for PCRA purposes. (See Appellant’s Brief, at 8; Commonwealth’s
Brief, at 4-5). We disagree.
A probation revocation and resentencing “reset[s] the clock for
purposes of determining the timeliness” of a petition only “where the issues
presented in the PCRA petition relate to the validity of the probation
revocation hearing or the legality of the new sentence[.]” Garcia, supra
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at 1062 n.3 (emphasis added) (internal quotation marks and citations
omitted).
Here, Appellant has challenged the legality of her original sentence
arguing that pursuant to Birchfield, supra, her sentence exceeds the lawful
maximum. (See Pro Se Motion for Post Conviction Collateral Relief,
8/17/16, at 1). Thus, the revocation of her probation does not affect the
timeliness of her petition. See Garcia, supra at 1062 n.3. Appellant did
not file the instant PCRA until August 17, 2016, thus it is patently untimely.
This does not end our review, however. As suggested
supra, this Court will review an untimely PCRA petition if the
petitioner has alleged and can prove that one of the following
three exceptions in Section 9545 applies:
(i) the failure to raise the claim previously was
the result of interference of government officials with
the presentation of the claim in violation of the
Constitution or law 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)(1)(i), (ii), and (iii). The petitioner bears
the burden to allege and prove [that] one of the timeliness
exceptions applies. A PCRA petition invoking one of these
statutory exceptions must be filed within [sixty] days of the date
the claims could have been presented. [See] 42 Pa.C.S.A. §
9545(b)(2). This Court has provided that [w]ith regard to an
after-recognized constitutional right, . . . the sixty-day period
begins to run upon the date of the underlying judicial decision.
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Id. at 1062-63 (case citations, some quotation marks, and footnote
omitted).
Here, Appellant asserts that her petition is timely and does not
attempt to prove that one of the timeliness exceptions applies. (See
Appellant’s Brief, at 8-11). Therefore, she has not met her burden under the
PCRA. See Garcia, supra at 1062-63. Moreover, we note that, even if
Appellant had so argued, the newly recognized and retroactively applied
constitutional right exception at 42 Pa.C.S.A. § 9545(b)(1)(iii), would not
apply in this case. Neither our Supreme Court nor the United States
Supreme Court has held that Birchfield is to be applied retroactively to
cases in which the judgment of sentence has become final.
In sum, we conclude Appellant has not met her burden of proving that
her untimely PCRA petition fits within one of the three exceptions to the
PCRA’s time-bar. See id. Accordingly, we affirm the order of the PCRA
court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/2017
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