Com. v. Palach, J. ( 2015 )

J-S69034-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN PALACH,
Appellant No. 496 EDA 2015
Appeal from the PCRA Order of January 13, 2015
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0002157-2005, CP-48-CR-0002158-
2005, CP-48-CR-0002159-2005 and CP-48-CR-0002160-2005
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 14, 2015
Appellant, John Palach, appeals, pro se, from the order entered on
January 13, 2015, dismissing his second petition filed under the Post-
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court ably summarized the facts and procedural posture
underlying this appeal. As the PCRA court explained:
Following a jury trial [in October] 2005, [Appellant] was
convicted of conspiracy to commit burglary, conspiracy to
commit receiving stolen property, conspiracy to commit
theft by unlawful taking, receiving stolen property, theft by
unlawful taking, burglary, criminal trespass, conspiracy to
commit criminal trespass, and use or possession of drug
paraphernalia[,] for his involvement in a string of seven
home burglaries. [Appellant] was subsequently sentenced
on February 22, 2006, to an aggregate period of 31 ½ to 63
years’ imprisonment. [Appellant] filed [a] timely post-
sentence motion[,] wherein he alleged, among other
things[,] that[] his sentence was excessive.
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On August 2, 2006, the [trial court] . . . grant[ed]
[Appellant’s] motion in part and den[ied] it in part.
Specifically[,] the [trial] court reduced [Appellant’s]
aggregate sentence to 12 to 24 years’ imprisonment in light
of the post-sentence revelation that [Appellant’s] co-
defendant, Lloyd Philhower, who was the undisputed
ringleader of the burglaries, only received an aggregate
term of [ten] to 20 years’ imprisonment for his participation
in all [of] the burglaries pursuant to a negotiated guilty
plea. In all other respects, [Appellant’s] post-sentence
motion was denied.
[Appellant] filed a direct appeal to the Superior Court of
Pennsylvania[,] which affirmed [his] judgment of sentence
on November 21, 2007. See Commonwealth v. Palach,
[944 A.2d 797 (Pa. Super. 2007) (unpublished
memorandum) at 1-9, appeal denied, 982 A.2d 65 (Pa.
2009)]. [Appellant] did not [immediately] file a petition for
allowance of appeal with the [Pennsylvania] Supreme Court.
...
On July 14, 2008, [Appellant] filed a number of pro se
documents, which were ultimately treated as a PCRA
petition. On February 18, 2009, [the PCRA] court
reinstated [Appellant’s] [] right[] to [file a] petition for
allowance of appeal with the [Pennsylvania] Supreme Court.
The Supreme Court denied [Appellant’s petition for
allowance of appeal] on August 4, 2009. . . . [Appellant did
not file a petition for a writ of certiorari with the United
States Supreme Court] and, on November 3, 2009,
[Appellant’s] judgment of sentence became final. . . .
[On] January 21, 2010, [Appellant] filed a timely pro se
PCRA petition. Counsel was appointed[. However, on
October 21, 2010, the PCRA court dismissed Appellant’s
PCRA petition and, on March 9, 2012, the Superior Court
affirmed the PCRA court’s order. Commonwealth v.
Palach, 47 A.3d 1238 (Pa. Super. 2012) (unpublished
memorandum) at 1-8. Appellant did not file a petition for
allowance of appeal with the Pennsylvania Supreme Court].
[Appellant] filed the instant PCRA petition, his second, . . .
on July 25, 2012. . . .
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PCRA Court Opinion, 6/9/15, at 1-4 (some internal citations and
capitalization omitted).
Within his second PCRA petition, Appellant claimed that he was
entitled to an “absolute discharge” because he was tried by a court that did
not have subject matter jurisdiction. Appellant’s “Petition for a Writ of
Habeas Corpus Seeking Absolute Discharge,” 7/25/12, at 1-2. Appellant
later filed an amended second PCRA petition, wherein Appellant raised a
boilerplate claim that all prior counsel had provided him with ineffective
assistance. See Appellant’s Response and Opposition to Oder of Court
Dated August 9, 2012, 8/31/12, at 1-2.
Following the appointment and withdrawal of two separate attorneys,
the PCRA court appointed another attorney to represent Appellant.
However, on November 18, 2014, appointed counsel filed a “no merit” letter
and a petition to withdraw as counsel, pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc). On December 15, 2014, the PCRA court
granted counsel’s petition to withdraw and provided Appellant with notice
that it intended to dismiss Appellant’s PCRA petition in 20 days, without
holding a hearing. PCRA Court Order, 12/15/14, at 1; see also
Pa.R.Crim.P. 907(1). The PCRA court finally dismissed Appellant’s PCRA
petition on January 13, 2015.
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After Appellant filed his timely, pro se notice of appeal, the PCRA court
ordered Appellant to file and serve a concise statement of errors complained
of on appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).
Appellant, however, did not file a Rule 1925(b) statement.
We conclude that the PCRA court properly dismissed Appellant’s
patently untimely, serial PCRA petition.
The PCRA contains a jurisdictional time-bar, which is subject to limited
statutory exceptions. This time-bar demands that “any PCRA petition,
including a second or subsequent petition, [] be filed within one year of the
date that the petitioner’s judgment of sentence becomes final, unless [the]
petitioner pleads [and] proves that one of the [three] exceptions to the
timeliness requirement . . . is applicable.” Commonwealth v. McKeever,
947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b). Further,
since the time-bar implicates the subject matter jurisdiction of our courts,
we are required to first determine the timeliness of a petition before we are
able to consider any of the underlying claims. Commonwealth v. Yarris,
731 A.2d 581, 586 (Pa. 1999). Our Supreme Court has explained:
the PCRA timeliness requirements are jurisdictional in
nature and, accordingly, a PCRA court is precluded from
considering untimely PCRA petitions. See, e.g.,
Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)
(stating that “given the fact that the PCRA's timeliness
requirements are mandatory and jurisdictional in nature, no
court may properly disregard or alter them in order to reach
the merits of the claims raised in a PCRA petition that is
filed in an untimely manner”); Commonwealth v. Fahy,
737 A.2d 214, 220 (Pa. 1999) (holding that where a
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petitioner fails to satisfy the PCRA time requirements, this
Court has no jurisdiction to entertain the petition). [The
Pennsylvania Supreme Court has] also held that even where
the PCRA court does not address the applicability of the
PCRA timing mandate, th[e court would] consider the issue
sua sponte, as it is a threshold question implicating our
subject matter jurisdiction and ability to grant the requested
relief.
Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003).
In the case at bar, Appellant’s judgment of sentence became final on
November 3, 2009, when his time for filing a petition for writ of certiorari
with the United States Supreme Court expired. See U.S.Sup.Ct.R. 13(1).
As Appellant did not file his current petition until July 25, 2012, the current
petition is manifestly untimely and the burden thus fell upon Appellant to
plead and prove that one of the enumerated exceptions to the one-year
time-bar applied to his case. See 42 Pa.C.S.A. § 9545(b)(1);
Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008) (to
properly invoke a statutory exception to the one-year time-bar, the PCRA
demands that the petitioner properly plead and prove all required elements
of the relied-upon exception).
In the case at bar, Appellant did not properly plead any exception to
the PCRA’s one-year time-bar. Further, to the extent Appellant attempted to
raise a boilerplate claim that he was entitled to relief because his first PCRA
counsel was ineffective, we note that Appellant filed his current PCRA
petition more than 100 days after we affirmed the PCRA court’s order that
dismissed Appellant’s first PCRA petition. Thus, to the extent Appellant’s
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current ineffective assistance of counsel claim constitutes “newly discovered
facts,” the claim fails because it was not brought “within 60 days of the date
the claim could have been presented.” See 42 Pa.C.S.A. § 9545(b)(2).
We conclude that Appellant’s petition is time-barred and that our
“courts are without jurisdiction to offer [Appellant] any form of relief.”
Commonwealth v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011).
Therefore, we affirm the PCRA court’s order dismissing Appellant’s second
PCRA petition without a hearing.
Order affirmed. Jurisdiction relinquished.
Ford Elliott, P.J.E., joins.
Gantman, P.J., concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2015
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