Com. v. Buchter, B. ( 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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
v. :
:
BARRY R. BUCHTER, : No. 1131 MDA 2017
:
Appellant :
Appeal from the PCRA Order, June 21, 2017,
in the Court of Common Pleas of Lancaster County
Criminal Division at No. CP-36-CR-0002916-2011
BEFORE: SHOGAN, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 27, 2018
Barry R. Buchter appeals pro se from the order filed in the Court of
Common Pleas of Lancaster County that dismissed his petition filed pursuant
to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.
Because we agree with the PCRA court that appellant’s facially untimely
petition failed to establish a statutory exception to the one-year jurisdictional
time limit for filing a petition under the PCRA, we affirm.
The PCRA court set forth the following factual and procedural history in
its opinion filed September 7, 2017:
On January 10, 2012, after a jury trial,
[appellant] was convicted of one count of
rape,[Footnote 1] four counts of involuntary deviate
sexual intercourse with a person less than 16 years
of age,[Footnote 2] two counts of aggravated
indecent assault of a person less than 16 years of
age,[Footnote 3] one count of incest,[Footnote 4]
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one count of unlawful contact with a minor,
[Footnote 5] one count of corruption of a
minor[Footnote 6] and two counts of indecent
assault of a person less than 16 years of
age.[Footnote 7] On April 17, 2012, he was
sentenced to an aggregate term of 24 to 48 years[’]
incarceration followed by five years[’] consecutive
probation.
[Footnote 1] 18 Pa.C.S.[A.] § 3121(a)(2).
[Footnote 2] 18 Pa.C.S.[A.] § 3123(a)(7).
[Footnote 3] 18 Pa.C.S.[A.] § 3125(a)(8).
[Footnote 4] 18 Pa.C.S.[A.] § 4302.
[Footnote 5] 18 Pa.C.S.[A.] § 6813(a)(1).
[Footnote 6] 18 Pa.C.S.[A.] § 6301(a)(1).
[Footnote 7] 18 Pa.C.S.[A.] [§] 3126(a)(8).
The judgment of sentence was affirmed on
April 5, 2013. Commonwealth v. Buchter, 75
A.3d 546 (Pa.Super. 2013) (table). [Appellant] did
not seek further review in the Pennsylvania Supreme
Court.
On April 15, 2013, [appellant] filed a pro se
motion for post conviction collateral relief and
counsel was appointed. Counsel filed an amended
motion on July 29, 2014. After a hearing on
[appellant’s] motion on October 28, 2014, the
[c]ourt entered an order denying the motion on
August 31, 2015. [Appellant] filed his notice of
appeal on September 16, 2015, and the Superior
Court affirmed this [c]ourt’s decision on May 17,
2016. Commonwealth v. Buchter, 151 A.3d 1150(Pa.Super. 2016) (table). The Supreme Court
denied [appellant’s] petition for allowance of appeal
on September 13, 2016. Commonwealth v.
Buchter, 157 A.[3]d 483 (Pa. 2016) (table).
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[Appellant] filed a second pro se motion for
post conviction collateral relief on October 3, 2016,
and counsel was again appointed for him. On
December 30, 2016, counsel sent a no merit
letter[Footnote 8] to [appellant], with a copy to the
[c]ourt, expressing his opinion that [appellant’s]
motion was untimely and that the court lacked
jurisdiction to hear it. On January 9, 2017, and
again on March 16, 2017, [appellant] filed pro se
motions to re-appoint reliable counsel to amend the
motion for post[-]conviction collateral relief, but he
presented no new evidence which would affect
counsel’s conclusion. Counsel filed a brief response
on April 5, 2017, reiterating the original no merit
letter and noting that [appellant] had failed to
present evidence to establish the [c]ourt’s
jurisdiction.
[Footnote 8] Commonwealth v. Finley,
[] 550 A.2d 213 ([Pa.Super.] 1988).
After conducting its own review, the [c]ourt
filed a Rule 907 notice on April 21, 2017, advising
[appellant] of its intent to dismiss the motion and
explaining the reasons for that decision. [Appellant]
filed a pro se response which was docketed on
May 26, 2017,[Footnote 9] in which he reasserted
his claim that he was serving an illegal sentence and
was entitled to relief under the United States
Supreme Court’s decision in Alleyne v. United
States, 570 U.S. [99] (2013). The [c]ourt entered
an order dismissing [appellant’s] motion for lack of
jurisdiction and granting counsel leave to withdraw
on June 21, 2017.
[Footnote 9] Although this response was
docketed after passage of the 20 days
the [c]ourt had granted [appellant] to
respond, it was treated as timely
because it was post[-]marked May 9,
2017.
[Appellant] filed his pro se notice of appeal of
that decision on July 20, 2017, and his concise
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statement of errors complained of on appeal on
August 3, 2017. In his concise statement of errors
complained of on appeal, [appellant] raises five
allegations of ineffective assistance of counsel
against his original trial counsel, a claim that police
violated his constitutional right not to be questioned
outside the presence of his attorney and a claim that
the [c]ourt had imposed an illegal sentence.
Trial court opinion, 9/7/17 at 1-3.
Appellant raises the following issues for this court’s review:
I. Was counsel ineffective for failure to properly
(pre_trial [sic]) challenge a breach in the
chain-of-custody regarding physical/DNA
evidence used at trial[?]
II. Counsel was ineffective for failure to challenge
impeachment evidence regarding testimony of
arresting officer[.]
III. Counsel was ineffective for failure to challenge
and/or assert exculpatory evidence offered by
Doctor Julie Stover and RN Kimberly Sbarra
regarding rape kit showing no evidence of
sexual intercourse[.]
IV. It was ineffective assistance of counsel for
failure to challenge and/or suppress
inculpatory statement made by [appellant]
after invoking Fifth Amendment rights without
benefit of Miranda[1] warnings, and/or
statement being coerced[.]
V. Counsel was ineffective for failure to introduce
exculpatory evidence of daughter’s statement
averring actual innocense [sic] of [appellant.]
VI. Counsel was ineffective for failure to examine
material witness/alibi to [appellant’s]
innocense [sic][.]
1Miranda v. Arizona, 384 U.S. 436 (1966).
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VII. Did the trial court impose an illegal sentence
on [appellant] in violation of the double
jeopardy clause, when the court abused
it’s [sic] discretion by seperately [sic]
sentencing [appellant] to a consecutive five (5)
years[’] probation[?]
Appellant’s brief at 2, 6 (capitalization omitted).
Subsequent PCRA petitions beyond a petitioner’s first petition are
subject to the following standard:
A second or subsequent petition for post-conviction
relief will not be entertained unless a strong
prima facie showing is offered to demonstrate that
a miscarriage of justice may have occurred.
Commonwealth v. Allen, 732 A.2d 582, 586 (Pa.
1999). A prima facie showing of entitlement to
relief is made only by demonstrating either that the
proceedings which resulted in conviction were so
unfair that a miscarriage of justice occurred which no
civilized society could tolerate, or the defendant’s
innocence of the crimes for which he was charged.
Id. at 586. Our standard of review for an order
denying post-conviction relief is limited to whether
the trial court’s determination is supported by
evidence of record and whether it is free of legal
error. Commonwealth v. Jermyn, 709 A.2d 849,
856 (Pa. 1998).
A PCRA petition, including a second or subsequent
petition, must be filed within one year of the date
that judgment of sentence becomes final.
42 Pa.C.S.[A.] § 9545(b)(1). A judgment becomes
final for purposes of the PCRA “at the conclusion of
direct review, including discretionary review in the
Supreme Court of the United States and the
Supreme Court of Pennsylvania, or the expiration of
time for seeking the review.” 42 Pa.C.S.[A.]
§ 9543(b)(3). PCRA time limits are jurisdictional in
nature, implicating a court’s very power to
adjudicate a controversy. Commonwealth v. Fahy,
737 A.2d 214 (Pa. 1999). Accordingly, the “period
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for filing a PCRA petition can be extended only if the
PCRA permits it to be extended, i.e., by operation of
one of the statutorily enumerated exceptions to the
PCRA time-bar. Id. at 222.
Commonwealth v. Ali, 86 A.3d 173, 176-177 (Pa. 2014), cert. denied,
135 S.Ct. 707 (2014). Before addressing appellant’s issues on the merits,
we must first determine if we have jurisdiction to do so.
As noted above, a PCRA petitioner has one year from the date his or
her judgment of sentence becomes final in which to file a PCRA petition.
This court has held the following regarding when a judgment becomes final:
The plain language of the PCRA provides that a
judgment of sentence becomes final at the
conclusion of direct review or when the time seeking
direct review expires. See 42 Pa.C.S.A.
§ 9545(b)(3). In fixing the date upon which a
judgment of sentence becomes final, the PCRA does
not refer to the conclusion of collateral review or the
time for appealing a collateral review determination.
Thus, the plain language of the PCRA statute shows
that a judgment of sentence becomes final
immediately upon expiration of the time for seeking
direct review, even if other collateral proceedings are
still ongoing. As this result is not absurd or
unreasonable, we may not look for further
manifestations of legislative intent. See
Commonwealth v. Hall, 80 A.3d 1204, 1211 (Pa.
2013) (internal quotation marks omitted) (We may
“look beyond the plain language of the statute only
when words are unclear or ambiguous, or the plain
meaning would lead to a result that is absurd,
impossible of execution, or unreasonable.”).
Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa.Super. 2014).
In the instant case, the trial court sentenced appellant on April 17,
2012. He filed a direct appeal to this court. This court affirmed the
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judgment of sentence on April 5, 2013. Commonwealth v. Buchter, 75
A.3d 546 (Pa.Super. 2013). Appellant did not petition for allowance of
appeal with the Pennsylvania Supreme Court. Accordingly, appellant’s
judgment of sentence became final on May 6, 2013.2 Appellant filed the
instant petition on October 3, 2016, more than three years after his
judgment became final and more than two years after a PCRA petition could
be considered timely. See 42 Pa.C.S.A. § 9545(b)(1).
As noted above, the PCRA does enumerate exceptions to the one-year
requirement. A petitioner may file a petition under the PCRA after one year
has passed from the final judgment of sentence for any of the following
reasons:
(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.
2 Normally, the deadline would be May 5, 2013. However, May 5, 2013 was
a Sunday. The deadline to file an allocator petition is extended to the next
business day. 1 Pa.C.S.A. § 1908.
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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Section 9545 also mandates that any
petition filed under these exceptions must be filed within 60 days of the date
the claim could have been presented. Id. at § 9545(b)(2).
Here, appellant fails to demonstrate any of the exceptions to the PCRA
time-bar. In the first six issues appellant brings to this court for its review,
appellant asserts that his trial counsel was ineffective for various reasons.
These issues address the substantive question of whether he is entitled to
relief under the PCRA but do not address whether he meets an exception to
the time bar.
In his remaining issue appellant contends that the trial court imposed
an illegal sentence because he was sentenced to a mandatory minimum
sentence in violation of Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016)
which applied Alleyne v. United States, 570 U.S. 99 (2013), on a direct
appeal. He also states that the imposition of a five-year probationary
sentence was illegal because it made his sentence eight months over the
maximum sentence that could have been issued, that the consecutive
five-year probationary term was illegal because a mandatory sentence had
already been imposed, and that he was sentenced twice for the same
offense with a term of confinement and a term of probation.
To the extent appellant is arguing that his sentence is illegal, this claim
does not allow him to skirt the timeliness requirement. “[E]ven claims that
a sentence was illegal, an issue deemed incapable of being waived, are not
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beyond the jurisdictional time restrictions.” Commonwealth v. Grafton,
928 A.2d 1112, 1114 (Pa.Super. 2007), citing Fahy, 737 A.2d 214 (Pa.
1999); Commonwealth v. Beck, 848 A.2d 987 (Pa.Super. 2004).
Therefore, appellant’s illegal sentencing claim does not operate as an
independent exception to the PCRA’s jurisdictional time-bar. Furthermore,
with respect to Alleyne, the Pennsylvania Supreme Court determined in
Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016), that
Alleyne does not apply retroactively to cases pending on collateral review.
Therefore, we find that appellant failed to establish that he met an exception
to the timeliness requirements of the PCRA.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/27/2018
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