Com. v. Smallis, P. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
PAMELA SMALLIS
Appellant No. 1660 WDA 2015
Appeal from the PCRA Order September 1, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0015152-2012
BEFORE: BENDER, P.J.E., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED NOVEMBER 7, 2016
Pamela Smallis appeals, pro se, from the order entered in the
Philadelphia County Court of Common Pleas, dated September 1, 2015,
dismissing her second petition filed under the Post-Conviction Relief Act
(“PCRA”),”1 without a hearing. Smallis seeks relief from the judgment of
sentence imposed on August 7, 2013, following her negotiated guilty plea to
multiple counts of possession of child pornography, production of child
pornography, endangering the welfare of children, and corruption of minors.2
Smallis also filed a motion asserting a conflict of interest against the Office
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1
42 Pa.C.S. §§ 9541-9546.
2
18 Pa.C.S. §§ 6312(d), 6312(b), 4304(b)(1), and 6301(a)(1),
respectively.
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of the Attorney General. Because we agree the petition is untimely, we
affirm the PCRA court’s order. We also deny the motion of conflict of
interest.
The facts and procedural history are as follows. On August 7, 2013,
Smallis entered a negotiated guilty plea to 12 consolidated counts of
possessing child pornography, 13 consolidated counts of production of child
pornography, five counts of endangering welfare of children, and five counts
of corruption of minors. That same day, the trial court sentenced Smallis to
an aggregate term of two to four years’ incarceration, with a consecutive
period of three years’ probation.3 Smallis did not file post-sentence motions
or a direct appeal. Her plea counsel filed a motion to withdraw, which was
granted on October 25, 2013. The court then appointed the Allegheny
County Public Defender’s Office to represent Smallis.
On December 13, 2013, Smallis filed a timely PCRA petition, arguing
plea counsel was ineffective for failing to adequately advise her about her
post-sentence and direct appeal rights. After reviewing the matter, the
PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss the
petition without first conducting an evidentiary hearing on February 12,
2014. Specifically, the court found: “[I]t does not appear from the record
that [Smallis] asked counsel to file post-sentence motions or an appeal.
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3
Her sentence was imposed to run consecutively to a two to four year term
of incarceration in an unrelated case.
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Furthermore, the record, including [Smallis]’s own statements, supports a
finding that [Smallis] understood the nature of the plea agreement.” Order
of Court, 2/12/2014. Smallis did not respond to the notice. On March 10,
2014, the PCRA court issued an order dismissing her petition. Smallis
appealed, and on October 22, 2014, a panel of this Court affirmed,
concluding Smallis failed to plead sufficient facts in support of her claims
alleging counsel’s ineffectiveness, and therefore, the PCRA court did not err
in denying her petition without a hearing. The Pennsylvania Supreme Court
denied her petition for allowance of appeal on April 24, 2015. See
Commonwealth v. Smallis, 108 A.3d 121 [562 WDA 2014] (Pa. Super.
2014) (unpublished memorandum), appeal denied, 2015 Pa. LEXIS 882 [537
WAL 2014] (Pa. 2015).
Subsequently, on July 27, 2015, Smallis filed the present, pro se PCRA
petition, in which she asserted both the governmental interference and
newly-discovered fact exceptions to the timeliness requirement.4 On August
5, 2015, the PCRA court again issued a Rule 907 notice of its intent to
dismiss the petition without first conducting an evidentiary hearing. Smallis
filed a response to the notice on August 28, 2015. Nevertheless, on
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4
See 42 Pa.C.S. 9545(b)(1)(i), (ii).
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September 1, 2015, the PCRA court dismissed Smallis’s second PCRA
petition as untimely filed.5 This appeal followed.6
Smallis raises the following issues for our review:
1. Did the court abuse it’s [sic] discretion by dismissing a
PCRA petition without an evidentiary hearing since the
petition presented factual issues that could not be resolved
without a special relief hearing[?]
2. Did the court deceive [Smallis] by withholding beknown
information while [Smallis] had no court documents or
discovery? Did Jessica Herndon from the Public Defender’s
Office exersize [sic] ineffective and unprofessional conduct
by not examining the contents of documents provided by
the Courts and Attorney General’s Office? Did the Public
Defender[’]s Office err by not providing discovery and
court documents when requested by [Smallis] through the
Clerk of Courts?
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5
The order was not timestamped until two days later.
6
On November 3, 2015, the PCRA court ordered Smallis to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
within 21 days. Smallis’s concise statement was received by the PCRA judge
on November 30, 2015, and was filed with the Clerk of Courts on March 10,
2016. That same day, the PCRA court issued an opinion pursuant to
Pa.R.A.P. 1925(a).
We note that even with the November 30, 2015 timestamp, Smallis’s
concise statement appears to be untimely filed. Generally, an untimely
concise statement results in waiver. See Greater Erie Indus. Dev. Corp.
v. Presque Isle Downs, Inc., 88 A.3d 222, 224-225 (Pa. Super. 2014) (en
banc). Here, based on the record before us, it is unclear whether the
prisoner mailbox rule would apply and further assessment would be
necessary. See Commonwealth v. Little, 716 A.2d 1287, 1288 (Pa.
Super. 1998); Pa.R.A.P. 1925(c)(1). Moreover, the PCRA court inexplicably
did not docket the statement for approximately three months. Therefore, in
the interests of judicial economy, and because the PCRA court addressed the
claims in its Rule 1925(a) opinion, we will treat Smallis’s concise statement
as timely filed.
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3. Did the court abuse it’s [sic] discretion by permitting illegal
activity to occur with the Moon Township Police
Department and Attorney General’s Office? Why was there
illegal search and seizure of cellular telephone contents
permitted five months prior to arrest on September 16,
2012, also violating [Smallis]’s constitutional rights (14 th
Amendment)[?]
Smallis’s Brief at unnumbered 13.
Preliminarily, it merits mention that there are numerous procedural
concerns we must consider before addressing the substantive issues.
Initially, we must determine whether the present appeal is timely. The order
from which Smallis appeals was dated September 1, 2015, and docketed two
days later. Smallis is incarcerated, and her notice of appeal was docketed
on October 9, 2015, which was well past the 30-day appeal period. See
Pa.R.A.P. 903(a) (“[T]he notice of appeal ... shall be filed within 30 days
after the entry of the order from which the appeal is taken.”). Generally,
“[u]pon receipt of the notice of appeal the clerk shall immediately stamp it
with the date of receipt, and that date shall constitute the date when the
appeal was taken, which date shall be shown on the docket.” Pa.R.A.P.
905(a)(3). Here, a Rule to Show Cause was entered on November 17, 2015,
requesting Smallis demonstrate why her notice of appeal was not untimely.
Smallis filed a response on November 30, 2015.
Under the “prisoner mailbox rule,” a pro se prisoner’s document is
deemed filed on the date she delivers it to prison authorities for mailing.
See generally, Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa.
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Super 2006). However, to avail oneself of the mailbox rule, a prisoner must
supply sufficient proof of the date of the mailing. See Commonwealth v.
Jones, 700 A.2d 423 (Pa. 1997); Commonwealth v. Perez, 799 A.2d 848(Pa. Super. 2002) (documentation required to support when notice of appeal
was placed in the hands of prison authorities for filing).
Smallis did not date the notice of appeal, however the postmark on the
envelope is dated October 1, 2015, which was within the 30-day appeal
period. Furthermore, Smallis attached to her response to the rule to show
cause, an approved Department of Corrections cash slip, dated September
29, 2015, asking the department to deduct for legal postage and to mail to
the Allegheny County Clerk of Courts. Based on the record, and applying
the “prisoner mailbox rule,” we conclude that Smallis has provided sufficient
proof that she filed a timely notice of appeal.
Second, “[c]rucial to the determination of any PCRA appeal is the
timeliness of the underlying petition. Thus, we must [] determine whether
the instant PCRA petition was timely filed.” Commonwealth v. Smith, 35
A.3d 766, 768 (Pa. Super. 2011), appeal denied, 53 A.3d 757 (Pa. 2012).
The PCRA timeliness requirement … is mandatory and
jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
1035, 1038 (Pa. Super. 2007), appeal denied, 597 Pa. 715, 951
A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa.
1, 753 A.2d 201, 203 (2000)). The court cannot ignore a
petition’s untimeliness and reach the merits of the petition. Id.Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied,
134 S. Ct. 2695 (U.S. 2014).
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A PCRA petition must be filed within one year of the date the
underlying judgment becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment
is deemed 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 review.” 42 Pa.C.S. §
9545(b)(3). Here, Smallis’s judgment of sentence became final 30 days
after August 7, 2013, on September 6, 2013, when the time period within
which to file a direct appeal expired. See 42 Pa.C.S. § 9545(b)(3);
Pa.R.A.P. 1113. Moreover, pursuant to Section 9545(b)(1), Smallis had one
year from the date her judgment of sentence became final to file a PCRA
petition, which would have been September 7, 2014.7 See Taylor, supra.The instant petition was not submitted until July 27, 2015, making it
patently untimely.
An untimely PCRA petition may, nevertheless, be considered if one of
the following three exceptions applies:
(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
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7
September 6, 2014, fell on a Sunday. See 1 Pa.C.S. § 1908 (whenever
the last day of the appeal falls on a weekend or a legal holiday, such day
shall be omitted from the computation of time).
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(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). Furthermore, a PCRA petition alleging any of
the exceptions under Section 9545(b)(1) must be filed within 60 days of
when the PCRA claim could have first been brought. 42 Pa.C.S. §
9545(b)(2).8
As stated above, Smallis raises three issues in her statement of
questions involved. Smallis’s Brief at unnumbered 13. However, in the
argument section of her brief, Smallis focuses her contention on the issue of
whether the PCRA court denied her Fourth and Fourteenth Amendment
rights because “it did not require prosecution to correct false, incomplete,
manipulated information.” Id. at unnumbered 16. Specifically, she
complains that police conducted an illegal, warrantless search of her cellular
phone during the investigation and no exception to the search warrant
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8
Additionally, we note our well-settled standard of review. When reviewing
an order dismissing a PCRA petition, we must determine whether the ruling
of the PCRA court is supported by evidence of record and is free of legal
error. Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa. Super. 2010).
“Great deference is granted to the findings of the PCRA court, and these
findings will not be disturbed unless they have no support in the certified
record.” Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011)
(citation omitted), appeal denied, 72 A.3d 600 (Pa. 2013).
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requirement applied to the facts of the case. Id. at unnumbered 16-18.
Moreover, Smallis states:
This occured [sic] in enclosed affidavit where it states that
phone was viewed but waited to get search warrant. Phone was
viewed from 7-23 – 8-30-2012. Search warrant was not
obtained until September 13 [or] 14, 2012. Claims were made
that one item was viewed. Attorney General documents show
that numerous items were viewed, written and created.
Id. at unnumbered 17.
We note Smallis’s sparse allegation touches upon the governmental
interference exception in Section 9545(b)(1)(i).9 To establish the
governmental interference exception, “the petitioner must plead and prove
the failure to previously raise the claim was the result of interference by
government officials, and the information could not have been obtained
earlier with the exercise of due diligence.” Commonwealth v. Abu-Jamal,
941 A.2d 1263, 1268 (Pa. 2008), cert. denied, 555 U.S. 916 (2008).
With regard to due diligence, we are guided by the following: “Due
diligence demands that the petitioner take reasonable steps to protect h[er]
own interests. A petitioner must explain why [s]he could not have learned
the new fact(s) earlier with the exercise of due diligence. This rule is strictly
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9
Moreover, we are mindful that “although this Court is willing to construe
liberally materials filed by a pro se litigant, pro se status generally confers
no special benefit upon an appellant.” Commonwealth v. Lyons, 833 A.2d
245, 252 (Pa. Super. 2003) (citation omitted), appeal denied, 879 A.2d 782(Pa. 2005). It merits mention that Smallis’s brief is disjointed and lacking at
various points.
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enforced.” Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super.
2015) (citations omitted), appeal denied, 125 A.3d 1197 (Pa. 2015).
Here, the PCRA court found the following:
[Smallis] first raises the governmental interference
exception to the timeliness requirement. In order to meet this
criteria, [Smallis] must establish that her failure to raise a claim
previously was the result of interference by government officials.
42 P.S. § 9545(b)(1)(i). [Smallis] makes no coherent legal
argument in support of her claim. [Smallis] makes a variety of
blanket statements alleging that search warrants may or may
not have been obtained and information was withheld from her.
These statements are incorrect, incoherent, and vague.
[Smallis] is required to plead and prove [her] assertions by a
preponderance of the evidence. Commonwealth v. Rivers,
786 A.2d 923, 927 (Pa. 2001). Th[e PCRA c]ourt may not
exchange its role of neutral arbiter to advocate or develop
[Smallis]’s deficient claims. [Smallis] did not adequately plead
or prove any assertions, therefore, the governmental
interference exception to the PCRA timeliness requirement does
not apply.
PCRA Court Opinion, 3/10/2016, at 4.
We agree with the court’s well-reasoned analysis. Moreover, Smallis
has failed to demonstrate that she acted with due diligence in acquiring the
information regarding the purported governmental interference. Likewise,
she does not explain why she could not have learned about the
governmental interference earlier with the exercise of due diligence.
Brown, 111 A.3d at 176. Indeed, in her brief, she has failed to supply the
court with any specific facts to support her assertion. Additionally, in her
PCRA petition, she merely states: “Information was not in discovery. I
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didn’t even know this information existed” and “[l]egal documents [were]
received by mistake.” Smallis’ Pro Se PCRA Petition, 7/27/2015, at 4-5.
Further, it merits mention that Smallis entered a negotiated guilty
plea, and therein, would have waived any ability to challenge the
suppression of the allegedly improper search warrant. Commonwealth v.
Reichle, 589 A.2d 1140, 1141 (Pa. Super. 1991) (noting that when a
defendant has entered a negotiated guilty plea, her plea “amounts to a
waiver of all defects and defenses except those concerning the jurisdiction of
the court, the legality of the sentence, and the validity of the guilty plea.”).
Furthermore, in her summary of argument, Smallis asserts that the trial
court “along with Jessica Herndon (Public Defender) did deceive and
exersized [sic] unprofessional and ineffective conduct by not examining the
contents and data provided by the Attorney General’s Office.” Smallis’s Brief
at unnumbered 14. By her own acknowledgment, Smallis admits counsel
was provided with the relevant discovery material by the Commonwealth.
Any claim of ineffectiveness, however slight in the present matter, does not
overcome the timeliness exceptions to the PCRA. See Commonwealth v.
Robinson, 139 A.3d 178, 182 (Pa. 2016) (noting “the well-settled
proposition that couching post-conviction issues in terms of ineffectiveness
cannot ‘save’ an untimely filed PCRA petition that does not fall into any of
the exceptions to the PCRA’s jurisdictional time bar.”).
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As such, Smallis has failed to sufficiently develop her governmental
interference claim. Accordingly, we conclude she has failed to prove she
qualifies for an exception to the PCRA’s time bar. Therefore, we find the
PCRA court did not err in dismissing her petition as untimely, and the court
was without the jurisdiction to further consider the matter.
With respect to Smallis’s motion asserting a conflict of interest, she
baldly and nonsensically states:
Brief for Appellee was submitted by: Gregory J. Simatic
Deputy Attorney General which is the same office that my
complaint is against.
The Attorney General’s Office is representing the
Commonwealth of Pennsylvania and formed an opinion without
adequate basis.
Motion of Conflict of Interest, 6/8/2016.
We note that Smallis raises this issue for the first time on appeal.
Accordingly, it is waived for failure to raise it with the PCRA court. See
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”); see also 42 Pa.C.S. §
9544(b) (“an issue is waived if the petitioner could have raised it but failed
to do so … in a prior state postconviction proceeding.”). Assuming arguendo
Smallis did not waive the issue, she has not met her burden in establishing
there was a conflict of interest.
Our standard of review is well-settled:
Absent an abuse of discretion, we are constrained to accept the
trial court’s finding that there was no conflict of interest. See
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Commonwealth v. Khorey, 521 Pa. 1, 555 A.2d 100, 110
(1989). A “prosecution is barred when an actual conflict of
interest affecting the prosecutor exists in the case; under such
circumstances a defendant need not prove actual prejudice in
order to require that the conflict be removed.” Eskridge,
[supra, at 702]. Mere allegations of a conflict of interest,
however, are insufficient to require replacement of a district
attorney. See Commonwealth v. Mulholland, 549 Pa. 634,
702 A.2d 1027, 1037 (1997).
Commonwealth v. Stafford, 749 A.2d 489, 494 (Pa. Super. 2000), appeal
denied, 795 A.2d 975 (Pa. 2000). As stated above, Smallis merely alleged
there was a conflict of interest and presented no further explanation or
specific evidence of prejudice on the part of the deputy attorney general.
Accordingly, Smallis’s argument would not be meritorious, and we decline to
address her motion further.
Order affirmed. Motion of conflict of interest denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/7/2016
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