Com. v. Moore, S. ( 2015 )

J-S53023-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SCOTT MOORE
Appellant No. 126 MDA 2015
Appeal from the Order Entered December 11, 2014
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0003213-2006
BEFORE: DONOHUE, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED NOVEMBER 24, 2015
Scott Moore appeals, pro se, from the order entered on December 11,
2014, in the Lackawanna County Court of Common Pleas, which dismissed
his second petition for post-conviction collateral relief.1 Moore seeks relief
from the judgment of sentence of an aggregate 14 to 40 years’
imprisonment imposed on August 15, 2007, following a negotiated guilty
plea agreement to one count each of rape of a child and involuntary deviate
sexual intercourse with a child.2 Based on the following, we affirm.
The PCRA court set forth the facts and procedural history as follows:
____________________________________________
1
See Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.
2
18 Pa.C.S. §§ 3121(c) and 3123(a)(7), respectively.
J-S53023-15
On March 26, 2007, [Moore] pled guilty to one count of
rape of a child, one count of involuntary deviate intercourse with
a child, and one count of indecent assault and in exchange the
Commonwealth agreed to nolle prosse [sic] the other charges
pending against [Moore]. These charges arose between
November 2005 and November 2006 when [Moore] sexually
assaulted his girlfriend’s minor daughter. [Moore] filed a motion
to withdraw his plea on May 16, 2007. On June 1, 2007, the
court granted the motion, and [Moore] entered a new plea to
one count of rape of a child, and one count of involuntary
deviate intercourse with a child. On August 15, 2007, [Moore]
was sentenced by this court to an aggregate sentence of 14 to
40 years. [Moore] was represented by Christopher Osborne,
Esq.
On July 28, 2008, [Moore] filed his first Petition for Post
Conviction Collateral Relief. Kurt Lynott, Esq. was appointed to
represent [him]. On July 3, 2012 [Moore] filed another [pro se]
petition. On May 28, 2013, Mr. Lynott filed a Motion to
Withdraw as Counsel Pursuant to a Turner-Finley[3] Letter. On
October 3, 2013, his motion was granted. Also on October 3,
2013, this court issued a [Pa.R.Crim.P. 907] Notice of Intent to
Dismiss and on November 14, 2013, dismissed the petition.
PCRA Court Memorandum and Notice of Intent to Dismiss, 11/6/2014, at 1-
2.4
On September 16, 2014, Moore filed a second, pro se PCRA petition.
On November 6, 2014, the PCRA court issued its notice of its intention to
dismiss the petition without a hearing pursuant to Rule 907. Moore did not
____________________________________________
3
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
4
On November 21, 2012, prior to the PCRA court’s order dismissing Moore’s
petition, he filed a pro se notice of appeal. By per curiam order, this Court
quashed his appeal because a final order had not been entered in the
matter. See Order, 3/15/2013. He did not file another notice of appeal
after the PCRA court dismissed his petition on November 14, 2013.
-2-
J-S53023-15
file a response. On December 11, 2014, the court entered an order,
dismissing the petition. This appeal followed.5
Moore has identified 22 issues of contention in his appellate brief:
1. Did Christopher Osborne pressure [Moore] into the plea
deal?
2. Did Osborne refuse to file any sentence-modification after
being directed to by [Moore]?
3. Did Osborne refuse to file any direct appeal after the
sentencing when requested to do so by [Moore]?
4. Is it true Osborne failed to obtain any discovery from the
Commonwealth, and then go over with [Moore] the
information so a defense could be built?
5. Did trial counsel fail to explain the plea deal th[o]roughly
to [Moore]?
6. Did Osborne waive the preliminary hearing without
[Moore] having any knowledge of what rights he was
waiving by doing as such?
7. Did attorney Osborne promise [Moore] he would receive
a lesser sentence than what he actually did?
8. Did attorney Osborne fail to put a motion in for [Moore]
to receive a [second] opinion in determining him [to be]
a sexually violent predator by a psychological expert?
9. Did attorney Osborne fail to contact [Moore] after
sentencing, and waited until [he] was actually in a state
facility before he made contact, which violated [Moore]’s
appeal rights?
____________________________________________
5
The court did not order Moore to file a concise statement of errors
complained of on appeal under Pa.R.A.P. 1925(b). On March 10, 2015, the
PCRA court issued an opinion under Pa.R.A.P. 1925(a), relying on its
November 6, 2014, memorandum and Rule 907 notice.
-3-
J-S53023-15
10. Did attorney Osborne being a public defender tell [Moore]
for $5,000[,] he could have evidence suppressed except
he never did so, because [Moore] was unable to pay any
amount to Osborne?
11. Did Judge Geroulo cause a miscarriage of justice by
failing to inform [Moore] he had the right to have a
[second] opinion by a psychologist expert to represent
him in a hearing to determine him a[n] SVP?
12. Did Judge Geroulo fail to appoint competent counsel to
represent [Moore] in the filing of his [second] PCRA
[petition], and instead kept first counsel whom was
appointed [four] years earlier on [Moore]’s case, when in
fact the [second] PCRA [petition] raised ineffective
counsel claims on the first appointed PCRA counsel being
Mr. Lynott?
13. Did Judge Geroulo except a coerced plea?
14. Did PCRA counsel “Kurt Lynott” fail to amend [Moore]’s
first PCRA [petition] … which was timely filed?
15. Did PCRA counsel, Lynott[,] wait until June 11th 2013 to
file a [F]inley letter to withdraw from [Moore]’s case,
when in fact [his second] PCRA [petition] raised
ineffective claims of Mr. Lynott himself and was filed on
July 3rd 2012, timely, since no order was ever granted
on [the] first PCRA [petition] … which was filed almost
[four] years earlier?
16. Is it true PCRA counsel, Lynott[,] abandoned [Moore]
with his Post Conviction Relief [A]ct proceedings when in
fact over a [four year] period time lapse occurred from
the time 1st PCRA [petition] was filed, and the 2nd PCRA
[petition] was filed and Mr. Lynott failed to give [Moore]
any response as to what was occurring with the first
PCRA [petition]?
17. Did PCRA counsel at one point, and only one point[,]
respond to [Moore] and tell him his first PCRA [petition]
was dismissed, when in fact, no ruling was ever made on
such?
-4-
J-S53023-15
18. Was [Moore] pressured by trial counsel, Osborne, into
taking a plea deal, due to the comments made by Mr.
Osborne to [Moore]; “That if he payed [sic] him
$5,000[,] he would have evidence suppressed and for
$10,000[,] he would have the charges dismissed”; Mr.
Osborne was a public defender and appointed by the
courts; Did he [Osborne] violate his rights by trying to
bribe [Moore]; as per did this cause prejudice and a
conflict of interest, as per change the outcome of the
proceedings?
19. Is it true [Moore] submitted various letters to … Mr.
Lynott (PCRA counsel) trying to find out the status of his
PCRA [petition], and counsel failed to respond to his
requests?
20. Is it true, that [Moore] was filing his appeals timely and
at his home facility being SCI Albion he was transferred
to Michigan … which caused his appeals to become
untimely?
21. Does [Moore] have an illegal sentence, and were his
appellant [sic] rights violated as per has a “manifest
injustice occurred”?
22. Should this court over-turn the PCRA court’s denial and
remand this case back to the trial court with specific
instructions to allow [Moore] to have an evidentiary
hearing to address these issues on the record with new
compentent [sic] appointed counsel to represent him and
hold the evidentiary hearing, video court?
Moore’s Brief at 4a-5b.
Our standard of review is as follows:
Our standard of review of an order denying PCRA relief is
whether the record supports the PCRA court’s determination and
whether the PCRA court’s decision is free of legal error. The
PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record.
-5-
J-S53023-15
Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citations
omitted).
“Crucial to the determination of any PCRA appeal is the timeliness of
the underlying petition. Thus, we must first 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).
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, Moore’s judgment of sentence was entered on August
15, 2007. He did not file post-sentence motions or a direct appeal.
Accordingly, his sentence became final on September 14, 2007, when his
-6-
J-S53023-15
time to file a direct appeal with this Court expired. See Pa.R.A.P. 903(a).6
Therefore, pursuant to Section 9545(b)(1), Moore had one year from the
date his judgment of sentence became final to file a PCRA petition. See
Taylor, supra. The instant petition was not filed until September 16, 2014,
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
(iii) the right ascertained 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 the
date when the PCRA claim could have first been brought. 42 Pa.C.S.
§ 9545(b)(2).
Moreover, we are mindful that “although this Court is willing to
construe liberally materials filed by a pro se litigant, pro se status generally
____________________________________________
6
The thirtieth day, January 2, 2010, fell on a Saturday.
-7-
J-S53023-15
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 Moore’s brief is generally
incoherent and disjointed, and it does not adhere to the Pennsylvania Rules
of Appellate Procedure at some points.
Here, the PCRA court found the following:
One of the limited exceptions to the timeliness
requirement is if the defendant proves that the facts upon which
the claim is predicated were unknown to the defendant and
could not have been ascertained by the exercise of due
diligence. 42 Pa.C.S.A. § 9545(b)(1)(ii). [Moore] asserts in his
petition that his PCRA counsel was ineffective and that he should
have had an evidentiary hearing. These are issues that [Moore]
could have raised in an appeal of his first PCRA petition. He has
waited 10 months after the dismissal of his first petition to raise
these issues and is out of time.
PCRA Court Memorandum and Notice of Intent to Dismiss, 11/6/2014, at 2-
3.
We agree. Furthermore, after scouring Moore’s brief, we note he
raises a plethora of bald allegations concerning the ineffective assistance of
trial and PCRA counsel,7 the legality of his sentence,8 and the validity of his
____________________________________________
7
For example, he claims plea counsel, Osbourne, failed to file a direct
appeal, even though he admits subsequently that he did not request counsel
file an appeal. Compare Moore’s Brief at 11a with id. at 14b-15a.
8
Moore claims his sentence was illegal because he was determined to be a
sexually violent predator without a hearing. However, our review of the
records reveals there was a Megan’s Law hearing on August 15, 2007.
-8-
J-S53023-15
guilty plea.9 None of his arguments qualifies under the timeliness
exceptions pursuant to Section 9545. To the extent Moore attempts to
invoke the governmental interference and newly discovered facts
exceptions,10 we note that he has failed to make any assertion that he raised
these exceptions within 60 days of the date when the PCRA claim could have
first been brought. See 42 Pa.C.S. § 9545(b)(2).
As such, we conclude Moore is entitled to no relief based upon his
failure to pled and prove the applicability of a PCRA timeliness exception.
Therefore, there is no basis upon which to disturb the PCRA court’s denial of
relief.
Order affirmed.
____________________________________________
9
For example, Moore asserts he was never informed of the maximum
possible sentence for his offense at the guilty plea hearing. See Moore’s
Brief at 11a.
10
For example, Moore fails to plead and prove when he “discovered” that
PCRA counsel, Lynott, allegedly abandoned him. See id. at 23b-24a.
Likewise, to the extent Moore argues the Lackawanna County Clerk of
Judicial Records interfered with his right to seek information regarding the
status of his first PCRA petition, we note that in his brief, Moore
acknowledged he received a letter from the clerk on January 30 2012,
informing him only that he should contact his attorney. See id. at 25a-25b.
Accordingly, it bears remarking he received this letter prior to the PCRA
court’s dismissal of his first petition on November 14, 2013, and more than
60 days before he filed his second PCRA petition.
-9-
J-S53023-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/24/2015
- 10 -