Com. v. Colon, H. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
HECTOR D. COLON :
:
Appellant : No. 1379 MDA 2019
Appeal from the PCRA Order Entered July 3, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0002462-2009
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HECTOR DAVID COLON :
:
Appellant : No. 1380 MDA 2019
Appeal from the PCRA Order Entered July 3, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0002458-2009
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HECTOR DAVID COLON :
:
Appellant : No. 1381 MDA 2019
Appeal from the PCRA Order Entered July 3, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0002461-2009
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BEFORE: OLSON, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY MURRAY, J.: FILED MAY 15, 2020
Hector David Colon (Appellant) appeals from the order dismissing his
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546. Upon review, we quash.
This appeal arises from Appellant’s convictions of numerous sex crimes
involving children. “At trial, it was established that over the course of several
years beginning in the late 1990’s, [Appellant] regularly sexually assaulted
three young girls, A.M., S.C., and B.S. Each victim reported the conduct
commenced around age 5 to 6 and ended around age 12 to 13.” PCRA Court
Opinion, 7/3/18, at 1 n.1 (unnumbered).
The PCRA court summarized the procedural history that ensued after
Appellant was criminally charged:
Following a jury trial held on May 16, 2011 through May 19,
2011, [Appellant] was convicted of the following: at docket
number 2458-CR-2009 – indecent assault, corruption of minors,
and unlawful contact with a minor; at docket number 2461-CR-
2009 – indecent assault (2 counts), unlawful contact with a minor
(2 counts), corruption of minors (2 counts), and criminal attempt;
at docket 2462-CR-2009 – rape (2 counts), indecent assault,
unlawful contact/communication with a minor, and corruption of
minors. On November 7, 2011, [Appellant] was sentenced to
serve a total of twenty-five (25) to fifty-five (55) years of
imprisonment.
[Appellant] appealed to the Superior Court, and his judgment
of sentence was affirmed on August 14, 2013. [Appellant did not
file a petition for allowance of appeal with the Supreme Court.]
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* Retired Senior Judge assigned to the Superior Court.
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[Appellant] was represented by [Trial Counsel] at his jury trial and
sentencing, and by [Appellate Counsel], for his post-sentence
motion and direct appeal. On June 18, 2014, [Appellant] filed a
pro se PCRA petition, and [the PCRA court] appointed [PCRA
Counsel] to represent [Appellant]. On April 28, 2017, [PCRA
Counsel] filed an [a]mended PCRA [p]etition on [Appellant]’s
behalf, raising several issues of ineffective assistance of counsel.
Specifically, [Appellant] asserts that [T]rial [C]ounsel was
ineffective for failing to call witnesses, failing to request a bill of
particulars, and not presenting an alibi defense.
A PCRA hearing was held before [the PCRA court] on July 31,
2017. Following the hearing, the Commonwealth filed a brief in
opposition to [Appellant]’s petition. On January 9, 2018, [PCRA
Counsel] filed a “Brief in Support of Amended PCRA Petition, New
Matter, and Request to Supplement the Record.” [The PCRA
court] granted the request to supplement the record[.]
Id. at 1-2.
On July 3, 2018, the PCRA court issued an order dismissing Appellant’s
PCRA petition. Importantly, in a subsequent “Memorandum Statement in Lieu
of Opinion,” the PCRA recounted the more recent procedural history:
On July 27, 2018, [Appellant] filed a notice of appeal to the
Superior Court [at only one of the three pertinent docket
numbers]. . . . In a memorandum opinion filed on February 4,
2019, the Superior Court quashed [Appellant]’s appeal based on
the Pennsylvania Supreme Court decision in Commonwealth v.
Walker, 185 A.3d 969 (Pa. 2018) (requiring appellants to file
separate notices of appeal for each lower court docket number).
On March [18], 2019, [Appellant] filed a pro se “Motion to
Proceed Pro Se Under Grazier via Video Hearing and that
Appellate Rights be Reinstated.” A hearing was held on July 22,
2019, and [PCRA Counsel] was again appointed as [Appellant]’s
counsel. On August 19, 2019, [Appellant], through [PCRA
Counsel], filed three separate notices of appeal for each docket
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(2458, 2461, 2462-CR-2009).[1] On September 4, 2019,
[Appellant] filed a Statement of Matters Complained of on Appeal,
which mirror the issues raised in his previously-quashed appeal.
On October 10, 2019, by order of the Superior Court, all three
dockets were consolidated.
Memorandum Statement in Lieu of Opinion, 11/15/19, at 1-3.
On October 11, 2019, this Court entered an order directing Appellant to
“show cause why the instant appeals should not be quashed as untimely filed.”
Order, 10/11/19. The order also stated: “The trial court docket does not
indicate that Appellant’s right to appeal was reinstated nunc pro tunc. A notice
of appeal must be filed within 30 days of the entry of the order being appealed.
This court may not extend the time for filing a notice of appeal.” Id. (citations
omitted). Appellant responded with a request that the appeal not be quashed,
conceding that “the trial court docket does not indicate that Appellant’s right
to appeal was [re]instated nunc pro tunc. . . . However, on July 22, 2019 a
hearing was held before the Honorable Scott A. Evans at which time
Appellant’s rights were reinstated, Nunc Pro Tunc.” Response to Rule to Show
Cause, 10/21/19. This Court subsequently issued an order discharging the
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1 Although the docket shows “Hearing Held” on July 22, 2019, and “Miss Grella
appointed as counselor,” the record contains no transcript from the hearing,
and the docket does not show a dispositional order. The next entries are
Appellant’s August 8, 2019 “Pro Se Correspondence to Wendy Grella, Esq.”
and the August 19, 2019 Notice of Appeal filed by Attorney Grella. There is
no indication anywhere in the record, including the court’s November 15, 2019
“Statement in Lieu of Opinion,” explaining why the court permitted Appellant
to file a second notice of appeal from its July 3, 2018 order denying PCRA
relief.
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rule to show cause, stating that we “would take no action at this time and will
refer the issue to the merits panel to be assigned this case.” Order, 1/6/20.
On appeal, Appellant presents the following issue:
WHETHER THE [PCRA] COURT ERRED IN DISMISSING
[APPELLANT]’S PCRA PETITION WHEN TRIAL COUNSEL WAS
INEFFECTIVE IN FAILING TO (A) CALL WITNESSES, (B) REQUEST
A BILL OF PARTICULARS, AND (C) PRESENT AN ALIBI DEFENSE
AND WHETHER APPELLANT IS DUE RELIEF UNDER MUNIZ?
Appellant’s Brief at 4 (unnumbered and per table of contents).
Preliminarily, we examine whether we have jurisdiction. See
Commonwealth v. Borrero, 692 A.2d 158, 159 (Pa. Super. 1997) (stating
that appellate court may sua sponte examine its jurisdiction). For the reasons
that follow, we conclude that we lack jurisdiction.
The record reflects that on July 3, 2018, the PCRA court dismissed
Appellant’s petition, and on July 27, 2018, Appellant timely appealed to this
Court. On February 4, 2019, this Court quashed that appeal on the basis of
our Supreme Court’s decision in Walker.2
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2 Appellant filed a notice of appeal at one criminal docket number from the
July 3, 2018 order denying his PCRA petition at three docket numbers.
Commonwealth v. Colon, 1247 MDA 2018 at 4-5 (Pa. Super. Feb. 4, 2019).
Such practice is no longer permitted under our Supreme Court’s decision in
Walker. In Walker, our Supreme Court held that “prospectively, where a
single order resolves issues arising on more than one docket, separate
notices of appeal must be filed for each case.” Walker, 185 A.3d at 971
(emphasis added). The Supreme Court observed that the Official Note to Rule
341 of the Pennsylvania Rules of Appellate Procedure “provides a bright-line
mandatory instruction to practitioners to file separate notices of appeal,” and
accordingly, determined that “the failure to do so requires the appellate
court to quash the appeal.” Id. at 976-77 (emphasis added).
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Following this Court’s quashal of Appellant’s first appeal from the order
denying his PCRA petition, Appellant sought neither reconsideration nor
further review, and the PCRA court’s order denying the petition became final
30 days following the Superior Court’s decision. See Commonwealth v.
Robinson, 837 A.2d 1157, 1162 (Pa. 2003). As noted, on March 18, 2019,
Appellant filed a “Motion to Proceed Pro Se Under Grazier Via Video Hearing
and that Appellate Rights Be Reinstated” (Motion). See Motion, 3/18/19.
Appellant requested, inter alia, the reinstatement of his right to appeal the
denial of his PCRA petition based on PCRA Counsel’s failure to perfect his
appeal by filing a notice of appeal at each docket number. See id. at 2-4.
Significantly, our Supreme Court has held that “the PCRA subsumes all forms
of collateral relief, to the extent a remedy is available under such
enactment.” Commonwealth v. West, 938 A.2d 1034, 1043 (Pa. 2007)
(emphasis in original). Consequently, Appellant’s Motion, in which he sought
the reinstatement of his appeal rights, was his second PCRA petition. As such,
we consider its timeliness.
“Pennsylvania law makes clear no court has jurisdiction to hear an
untimely PCRA petition.” Commonwealth v. Monaco, 996 A.2d 1076, 1079
(Pa. Super. 2010) (quoting Robinson, 837 A.2d at 1161). A petitioner must
file a PCRA petition within one year of the date on which the petitioner’s
judgment became final, unless one of the three statutory exceptions apply:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
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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.A. § 9545(b)(1). A petitioner must file a petition invoking one of
these exceptions one year of the date the claim could have been presented.
42 Pa.C.S.A. § 9545(b)(2).3 If a petition is untimely, and the petitioner has
not pled and proven any exception, “neither this Court nor the trial court has
jurisdiction over the petition. Without jurisdiction, we simply do not have the
legal authority to address the substantive claims.” Commonwealth v.
Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007) (quoting Commonwealth
v. Chester, 895 A.2d 520, 522 (Pa. 2006)).
Our Supreme Court emphasized:
This Court has repeatedly stated that the PCRA timeliness
requirements are jurisdictional in nature and, accordingly, a PCRA
court cannot hear untimely PCRA petitions. In addition, we have
noted that [t]he PCRA confers no authority upon this Court to
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3 Act 146 of 2018 amended 42 Pa.C.S.A. §9545(b)(2) to provide that a PCRA
petition invoking a timeliness exception must be filed within one year of the
date the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(1). The
amendment took effect on December 24, 2018 and “shall apply to claims
arising on Dec[ember] 24, 2017 or thereafter.” Id. This amendment does
not impact our disposition.
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fashion ad hoc equitable exceptions to the PCRA time-bar in
addition to those exceptions expressly delineated in the Act.
Robinson, 837 A.2d at 1161.
Here, Appellant’s March 18, 2019 Motion was a de facto second PCRA
petition — filed nearly six and a half years after the Superior Court affirmed
Appellant’s judgment of sentence — and is patently untimely.4 Upon review,
we conclude that Appellant failed to raise an exception to the PCRA’s time-
bar. Although Appellant references PCRA Counsel’s failure to perfect his
appeal as the basis for seeking reinstatement of his appellate rights, Appellant
does not do so in the context and as mandated by the exceptions set forth in
Section 9545(b)(1). Moreover, our Supreme Court has stated that “a claim
for ineffective assistance of counsel does not save an otherwise untimely
petition for review on the merits.” Commonwealth v. Gamboa-Taylor, 753
A.2d 780, 785 (Pa. 2000). Therefore, because Appellant’s petition was
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4 The Superior Court affirmed Appellant’s judgment of sentence on August
14, 2013, and he did not file a petition of allowance of appeal to the Supreme
Court. Appellant had 30 days from the date of the Superior Court’s order, or
September 13, 2013, to file a petition for allowance of appeal with the
Supreme Court. See Pa.R.A.P. 1113(a) (“Except as otherwise prescribed by
this rule, a petition for allowance of appeal shall be filed with the Prothonotary
of the Supreme Court within 30 days after the entry of the order of the
Superior Court . . . sought to be reviewed.”). Because Appellant did not file a
petition for allowance of appeal, his judgment of sentence became final on
September 13, 2013.
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untimely and he did not plead or prove an exception to the time-bar, the PCRA
court did not have jurisdiction to reinstate Appellant’s appeal rights.5
Finally, we note that we cannot construe Appellant’s Motion/second
PCRA petition as an extension of his first, timely PCRA petition. Our Supreme
Court has consistently rejected “various theories devised to avoid the effects
of the [PCRA’s] one-year time limitation[.]” Robinson, 837 A.2d at 1157
(citing Commonwealth v. Baroni, 827 A.2d 419 (Pa. 2003)). Specifically,
in Robinson, the extension theory was explicitly rejected after our Supreme
Court concluded that “neither the language of the statute nor [the Supreme
Court’s] decisional law authorize[] suspension of the time-bar in instances
where the petitioner is . . . reiterating claims which were litigated on a previous
petition.” Id. at 1161. The Court further explained:
[T]he . . . ‘extension’ theory ignores bedrock principles of finality.
Once a PCRA petition has been decided and the ruling on it has
become final, there is nothing for a subsequent petition or
pleading to ‘extend.’ Far from continuing into perpetuity, the trial
court’s jurisdiction over a matter generally ends once an appeal is
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5 We reiterate that the record does not show a dispositional order at the time
of, or as a result of, the July 22, 2019 hearing. The court is likewise silent in
its recitation of the procedural background:
On March 25, 2019, [Appellant] filed a pro se “Motion to Proceed
Pro Se Under Grazier via Video Hearing and that Appellate Rights
be Reinstated.” A hearing was held on July 22, 2019, and [PCRA
Counsel] was again appointed as [Appellant]’s counsel. On
August 19, 2019, [Appellant], through [PCRA Counsel], filed three
separate notices of appeal for each docket (2458, 2461, 2462-CR-
2009).
Memorandum in Lieu of Opinion, 11/15/19, at 2.
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taken from a final order or, if no appeal is taken, thirty days elapse
after the final order.
Id. at 1162 (citation omitted).
Accordingly, we conclude that Appellant’s March 18, 2019 Motion, in
which he sought inter alia, the reinstatement of his right to appeal the denial
of his timely first PCRA petition, was an untimely second PCRA petition. There
is no order or express evidence of record that the PCRA court expressly
reinstated Appellant’s appeal rights; however, the court would have lacked
jurisdiction had it done so. As this appeal is not properly before us, we quash.
Appeal quashed.
Judge Colins joins the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/15/2020
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