Com. v. Parker, P. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
PAUL PARKER :
:
Appellant : No. 1105 EDA 2019
Appeal from the PCRA Order Entered March 11, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0410451-1994
BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 14, 2020
Appellant, Paul Parker, appeals from the order dismissing his untimely
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§
9541-9546. As Appellant has failed to successfully prove the applicability of
an exception to the PCRA’s timeliness requirements, we are compelled to
affirm.
On February 6, 1995, Appellant entered a guilty plea to first-degree
murder, robbery, burglary, and possessing an instrument of crime (PIC). The
trial court sentenced him that same day to a mandatory term of life
imprisonment without the possibility of parole for first-degree murder, and to
consecutive terms of 5-10 and 2½-5 years’ incarceration for robbery and PIC,
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* Former Justice specially assigned to the Superior Court.
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respectively. Appellant did not file a direct appeal from his judgment of
sentence.
Appellant subsequently filed four PCRA petitions, not including the at-
issue petition, on December 8, 2005 (First Petition), January 3, 2007 (Second
Petition), June 5, 2012 (Third Petition), and March 22, 2016 (Fourth Petition).
The PCRA court denied the First Petition as untimely on September 13, 2006,
and Appellant did not file an appeal from that decision. The Second Petition
successfully sought to reinstate his appellate rights from the denial of the First
Petition; however, Appellant discontinued his subsequently filed nunc pro tunc
appeal on May 16, 2007. The PCRA court denied the Third Petition as untimely
on July 23, 2013. This Court affirmed that order, and our Supreme Court
denied further review. Commonwealth v. Parker, 105 A.3d 36 (Pa. Super.
2014) (unpublished memorandum), appeal denied, 105 A.3d 736 (Pa. 2014).
The PCRA court denied the Fourth Petition on August 17, 2017, and Appellant
did not appeal. All of these prior PCRA petitions were filed pro se by Appellant.
On July 9, 2018, Appellant filed the petition currently under review, his
fifth petition overall (albeit his first counseled PCRA petition to date). On
February 22, 2019, the PCRA court entered an order pursuant to Pa.R.Crim.P.
907, indicating its intent to dismiss the petition without a hearing. Appellant
filed a reply thereto on March 6, 2019. On March 11, 2019, the PCRA court
dismissed the petition. Appellant filed a timely appeal from that decision. The
PCRA court did not order Appellant to file a statement pursuant to Pa.R.A.P.
1925(b). The court issued its Rule 1925(a) opinion on July 10, 2019.
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Appellant now presents the following questions for review:
I. Whether the [PCRA] court deprived Appellant of his right to
due process when it issued a notice pursuant to
Pa.R.Cr[im].P. 907 stating that his PCRA petition was
without merit but then issued a [Rule] 1925[(a)] opinion for
the appeal concluding that the petition was untimely?
II. Whether Appellant’s fifth PCRA petition was timely?
III. Whether the PCRA court denied procedural due process
when [it] refused to hold an evidentiary hearing to take
testimony from … Appellant and defense counsel?
IV. Whether Appellant’s 6th Amendment right to effective
assistance of counsel was violated when counsel misadvised
Appellant about the life sentence and interfered in the right
to make choices reserved to … Appellant?
V. Whether Appellant was denied due process of law and equal
protection guaranteed by the 14th Amendment?
Appellant’s Brief at 2-3 (unnecessary capitalization omitted).
This Court’s standard of review regarding an order denying a PCRA
petition is whether the determination of the PCRA court is supported by the
evidence of record and is free of legal error. Commonwealth v. Ragan, 923
A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the timeliness of
Appellant’s petition, because the PCRA’s time limitations implicate our
jurisdiction and may not be altered or disregarded in order to address the
merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.
2007). Under the PCRA, any petition for post-conviction relief, including a
second or subsequent one, must be filed within one year of the date the
judgment of sentence becomes final, unless one of the following exceptions
set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
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(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition alleges
and the petitioner proves that:
(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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke one of
these exceptions “shall be filed within one year of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).1
Appellant argues that his petition satisfies two exceptions to the PCRA’s
timeliness requirements. First, he asserts that the facts upon which his
ineffectiveness-of-plea-counsel claim is based were previously unknown to
him, thereby invoking Section 9545(b)(1)(ii). Second, he claims that he is
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1 When Appellant’s current PCRA petition was filed, Section 9545(b)(2)
required PCRA petitions invoking a timeliness exception to be filed within 60
days of the date the claim could have been first presented. Therefore,
Appellant’s petition is subject to the 60-day limitation under the pre-amended
version of the statute.
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entitled to the retroactive application of a newly-recognized constitutional
right pursuant to Section 9545(b)(1)(iii).
Section 9545(b)(1)(ii)
Appellant claims that the newly-discovered fact at issue is the United
States Supreme Court’s decision in McCoy v. Louisiana, 138 S. Ct. 1500
(2018), which was decided on May 14, 2018. See Appellant’s Brief at 21. As
Appellant’s PCRA petition was filed 56 days later, on July 9, 2018, his claim is
in compliance with the 60-day rule set forth in the prior version of Section
9545(b)(2). Nevertheless, our Supreme Court has held that “subsequent
decisional law does not amount to a new ‘fact’ under Section 9545(b)(1)(ii) of
the PCRA.” Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011).
Accordingly, Section 9545(b)(1)(ii) cannot excuse the untimeliness of
Appellant’s petition.2
Section 9545(b)(1)(iii)
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2 Moreover, it is clear from the record and Appellant’s admissions that the
facts pertaining to plea counsel’s alleged ineffectiveness were not newly
discovered. As noted by Appellant, “[w]ithin a few days” of his judgment of
sentence, “Appellant asked to withdraw his plea and [subsequently] filed three
PCRA petitions claiming that his attorney misled him as to the sentencing
consequences of his plea.” Appellant’s Brief at 24. Simply put, there are no
previously unknown facts at issue in this case and, therefore, Appellant cannot
successfully avail himself of the exception set forth in Section 9545(b)(1)(ii).
Further, as noted by the PCRA court, Appellant raised an identical
ineffectiveness claim in his Third PCRA petition. See PCRA Court Opinion
(PCO), 7/10/19, at 6.
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Appellant also attempts to invoke the newly-created-constitutional-right
exception to the PCRA’s timeliness requirements, Section 9545(b)(1)(iii), by
citing McCoy.3 In McCoy, the High Court held that, under the 6th
Amendment, a defendant has the right to insist that his counsel refrain from
conceding guilt during the guilt phase of a capital trial, even when his attorney
reasonably believes the concession is essential to a strategy of avoiding the
death penalty. See McCoy, 138 S. Ct. at 1509. The McCoy Court also
determined that allowing McCoy’s attorney to proceed with that strategy over
his client’s objections was a structural error on the part of the trial court that
entitled McCoy to a new trial and did not necessitate a finding of prejudice.
Id. at 1511.
Instantly, the PCRA court determined that Section 9545(b)(1)(iii) does
not apply to Appellant’s petition because 1) McCoy is not applicable to the
facts of this case and, 2) the McCoy decision has not been held by the United
States Supreme Court to apply retroactively. See PCO at 7-8. The PCRA
court rejected the applicability of McCoy because, unlike McCoy, Appellant did
not have a trial (he pled guilty), and he was not facing the possibility of the
death penalty. See id. Moreover, the court stated, “[a]t no point did
[Appellant]’s counsel admit guilt to a jury or judge over [Appellant]’s
objection. Therefore, McCoy is factually inapplicable to the case at bar.” Id.
at 8.
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3 As noted above, this claim satisfies Section 9545(b)(2)’s 60-day rule.
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Appellant states the holding in McCoy in far more general terms,
arguing that the decision stands for the proposition that “a criminal defendant
has the right to make his own decision about whether to concede guilt or not.”
Appellant’s Brief at 30. However, that general principle is not at all unique to
McCoy. Indeed, the McCoy decision is merely a more specific application of
a principle already recognized decades earlier. See, e.g., Jones v. Barnes,
463 U.S. 745 (1983) (“It is also recognized that the accused has the ultimate
authority to make certain fundamental decisions regarding the case, as to
whether to plead guilty, waive a jury, testify in his or her own behalf, or take
an appeal.”). Thus, nothing in McCoy has changed the landscape of case law
applicable to Appellant’s guilty plea, and the decision itself did not even involve
circumstances analogous to the instant case. Thus, we agree with the PCRA
court that Appellant cannot invoke McCoy to satisfy the untimeliness
exception set forth in Section 9545(b)(1)(iii).
In any event, even if McCoy was applicable to the case at hand, Section
9545(b)(1)(iii) would still be inapplicable. Our Supreme Court has held that:
Subsection (iii) of Section 9545 has two requirements. First, it
provides that the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or this court
after the time provided in this section. Second, it provides that
the right “has been held” by “that court” to apply retroactively.
Thus, a petitioner must prove that there is a “new” constitutional
right and that the right “has been held” by that court to apply
retroactively. The language “has been held” is in the past tense.
These words mean that the action has already occurred, i.e., “that
court” has already held the new constitutional right to be
retroactive to cases on collateral review.
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Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002).
Here, Appellant has failed to establish that McCoy “has been held” by
the United States Supreme Court to apply retroactively on collateral review.
Nothing in the McCoy decision itself suggests the United States Supreme
Court’s intent to have it apply retroactively on collateral review, and Appellant
fails to cite any subsequent decisions applying it retroactively, or otherwise
declaring McCoy to have such retroactive effect. Thus, for this reason as well,
Appellant cannot successfully avail himself of the timeliness exception set
forth in Section 9545(b)(1)(iii).4
For the preceding reasons, Appellant’s untimely petition cannot satisfy
any of the PCRA’s timeliness exceptions and, therefore, the court did not err
or abuse its discretion in dismissing it. Furthermore, to the extent that the
PCRA court dismissed Appellant’s petition as lacking merit, rather than as
untimely, we note that we are not bound by that court’s rationale as this Court
can affirm an order denying a PCRA petition on any legal basis. See
Commonwealth v. Doty, 48 A.3d 451, 456 (Pa. Super. 2012). Moreover,
regarding Appellant’s claim that the PCRA court erred by not holding an
evidentiary hearing, he has failed to assert any genuine issue of material fact
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4 We also find persuasive this Court’s recent memorandum in
Commonwealth v. Hoffman, 2020 WL 200838, at *2 (Pa. Super. January
13, 2020), in which this Court determined that McCoy does not create or
otherwise recognize a new constitutional right for purposes of Section
9545(b)(1)(iii).
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that could be resolved in his favor in such a manner that would prove the
applicability of an exception to the PCRA’s timeliness requirements.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/20
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