Com. v. Plaza, F. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee
v.
FRANCIS TIMOTHY PLAZA
Appellant No. 1794 MDA 2019
Appeal from the PCRA Order entered October 4, 2019
In the Court of Common Pleas of York County
Criminal Division at No: CP-67-CR-0005283-2009
BEFORE: STABILE, J., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY STABILE, J.: FILED JUNE 16, 2020
Appellant, Francis Timothy Plaza, appeals pro se from the October 4,
2019 order entered in the Court of Common Pleas of York County, denying as
untimely Appellant’s petition for collateral relief filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Following review,
we affirm.
The factual and procedural history of this case, based on our review of
the record and the PCRA court’s October 4, 2019 opinion1, can be summarized
as follows:
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* Retired Senior Judge assigned to the Superior Court.
1 The PCRA court issued a Rule 1925(a) opinion on December 16, 2019,
incorporating its October 4, 2019 opinion and order in which the court set
forth its reasons for denying of Appellant’s PCRA petition.
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On July 25, 2009, Appellant shot his wife, Michelle Plaza, six times,
killing her in their bedroom. He was arrested and charged with criminal
homicide. At trial, he testified he was upset with his wife because she was
constantly on the computer and not spending enough time with him. Prior to
the shooting, the two engaged in a lengthy conversation in their bedroom.
Appellant had earlier taken his gun from his dresser drawer with plans to
secure it before possibly leaving for New York for the weekend. In the course
of their conversation, Michelle announced she was leaving Appellant and he
became enraged. His hand brushed the nearby gun and the next thing he
knew, he was holding the gun in his hand and Michelle was dead, though he
did not remember shooting her.
A jury convicted Appellant of first-degree murder and, on September
30, 2010, he was sentenced to life in prison. This Court affirmed his judgment
of sentence. On December 3, 2012, our Supreme Court denied allowance of
appeal.
On October 9, 2013, Appellant timely filed his first PCRA petition.
Counsel was appointed and filed an amended petition. Following an
evidentiary hearing, the PCRA court denied the petition. On February 19,
2015, we affirmed. Appellant did not file a petition for allowance of appeal.
Appellant filed pro se motions in August 2015 and July 2016 claiming, inter
alia, that counsel was ineffective for failing to file a petition for allowance of
appeal. The PCRA court denied both motions.
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On April 10, 2017, counsel filed a motion for leave to file a petition for
allowance of appeal nunc pro tunc. On May 22, 2017, the Supreme Court
denied the petition.
On June 8, 2017, Appellant filed a pro se PCRA petition alleging PCRA
counsel ineffectiveness for failing to file a petition for allowance of appeal. The
PCRA court denied the petition as untimely on December 18, 2017.
As the PCRA court explained in its October 4, 2019 opinion, during 2017
and 2018, Appellant filed numerous grievances relating to PCRA counsel’s
“abandonment.” He then filed a motion for a Grazier hearing on November
7, 2018, complaining he was precluded from advocating on his own behalf
because Attorney Dubbs was still noted as attorney of record. Opinion,
10/4/19, at 4.
The court conducted a Grazier2 on January 3, 2019 and granted
Appellant’s request, removing Attorney Dubbs as counsel. On January 15,
2019, Appellant filed a request for appointment of counsel, which the PCRA
court denied on January 25, 2019. Appellant filed an appeal to this Court. On
July 1, 2019, we quashed the appeal as one taken from an interlocutory order.
Meanwhile, on June 3, 2019, Appellant filed a motion to reinstate appeal
rights nunc pro tunc, followed on July 2, 2019, by a motion for disposition of
his motion to reinstate. The court treated Appellant’s motion as a PCRA
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2 Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998).
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petition and, on August 22, 2019, issued a Rule 907 notice of its intent to
dismiss the petition. On August 30, 2019, Appellant filed a response to the
Rule 907 notice.
On October 4, 2019, the court issued an order dismissing the motion.
In its accompanying opinion, the court explained that the June 3, 2019 motion
was untimely filed from a judgment of sentence that became final on March
3, 2013 and that Appellant did not plead an exception to the PCRA’s timeliness
requirements. This timely appeal followed. Both Appellant and the PCRA court
complied with Pa.R.A.P. 1925.
Appellant presents one issue for our consideration:
[1.] Was Appellant’s constitutional right of appeal denied where
counsel failed to file timely [petition for allowance of appeal], and
did the court err in failing to determine counsel’s ineffectiveness
and abandonment for appeal?
Appellant’s Brief at 3.
“On appeal from the denial of PCRA relief, our standard of review is
whether the findings of the PCRA court are supported by the record and free
of legal error.” Commonwealth v. Abu-Jamal, 833 A.2d 719, 723 (Pa.
2003) (citation omitted). Importantly, under the PCRA, any petition “including
a second or subsequent petition, shall be filed within one year of the date the
judgment [of sentence] becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1). A
judgment of sentence 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
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the review.” 42 Pa.C.S.A. § 9545(b)(3). The PCRA’s timeliness requirements
are jurisdictional in nature, and a court may not address the merits of the
issues raised if the PCRA petition was not timely filed. Commonwealth v.
Spotz, 171 A.3d 675, 678 (Pa. 2017).
On direct appeal, our Supreme Court denied Appellant’s petition for
allowance of appeal on December 3, 2012. He did not seek a writ of certiorari
to the United States Supreme Court. Therefore, his judgment of sentence was
final 90 days later, on March 3, 2013. U.S.Sup.Ct. Rule 13. In accordance
with 42 Pa.C.S.A. § 9545(b), Appellant had until March 3, 2014 to file a PCRA
petition, absent an exception to the PCRA’s one-year time limitation.
Appellant’s June 3, 2019 petition was filed more than five years after
the deadline for doing so and was, therefore, facially untimely. He did not
plead or prove any exception to the PCRA’s timeliness requirements.
Therefore, the petition was untimely and this Court lack jurisdiction to consider
its merits.
In his brief, Appellant complains that the PCRA court’s primary reason
for dismissing his petition was untimeliness. He argues, inter alia, that the
court failed to consider our Supreme Court’s decision in Commonwealth v.
Stock, 679 A.2d 760 (Pa. 1996), as well as this Court’s decision in
Commonwealth v. Carter, 21 A.3d 680 (Pa. Super. 2011). First, Stock was
not a PCRA case and is irrelevant to our discussion. Second, Carter involved
a timely-filed PCRA petition seeking reinstatement of Carter’s direct appeal
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rights based on counsel’s failure to consult with Carter about filing an appeal
from Carter’s judgment of sentence. In that case, the PCRA court dismissed
the petition without a hearing. We remanded for a hearing, finding that,
without a hearing, Carter faced an unsurmountable burden of proving counsel
did not consult with him about an appeal. Carter is clearly inapposite.
Appellant fails to appreciate that the PCRA’s timeliness requirements are
jurisdictional in nature. His June 3, 2019 petition was clearly untimely and he
neither pled nor proved any exception to the timeliness requirement.
Therefore, neither the PCRA court nor this Court has jurisdiction to consider
the merits, if any, of the petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/16/2020
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