Com. v. Rhoades, M. ( 2023 )

J-S13037-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL RHOADES :
:
Appellant : No. 2056 EDA 2022
Appeal from the PCRA Order Entered July 26, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): MC-51-CR-0041569-2007
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL RHOADES :
:
Appellant : No. 2058 EDA 2022
Appeal from the PCRA Order Entered July 26, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008038-2012
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL RHOADES :
:
Appellant : No. 2059 EDA 2022
Appeal from the PCRA Order Entered July 26, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008039-2012
J-S13037-23
BEFORE: NICHOLS, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 04, 2023
In this consolidated appeal, Michael Rhoades appeals from the July 26,
2022 order dismissing his serial petition filed pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, as untimely. After careful
review, we affirm.
The PCRA court summarized the relevant facts and procedural history
of this case as follows:
On September 25, 2012, [Appellant] entered into a
negotiated plea before the Honorable Denis P. Cohen,
Judge of the Philadelphia Court of Common Pleas. The
plea was to two (2) counts of trafficking of persons,
two (2) counts of criminal conspiracy, and one (1)
count each of aggravated assault, arson, simple
assault, and false imprisonment, stemming from the
kidnapping of two victims. [Appellant] received a
sentence of fifteen (15) to thirty (30) years of
incarceration for Case Nos. CP-51-CR-0008038-2012
and for CP-51-CR-0008039-2012, the two sentences
to run concurrent to each other. These convictions
stem from the kidnapping, assault, torture, and cover-
up against two victims, [A.D.] and [A.H.].
In addition, on November 7, 2012, the Honorable Joan
A. Brown, retired Judge of the Philadelphia Court of
Common Pleas, sentenced [Appellant], in a violation
of probation hearing, to two (2) to four ( 4) years of
incarceration for one (1) count each of simple assault
and recklessly endangering another person in Case
No. MC-51-CR-0041569-2007.
On April 10, 2013, [Appellant] filed a timely pro se
petition for relief under the [PCRA]. Th[e PCRA c]ourt
issued a Rule 907 Notice of Dismissal on July 16,
____________________________________________
* Former Justice specially assigned to the Superior Court.
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2015, finding the PCRA Petition had no merit. This
first PCRA was formally dismissed on November 30,
2015 and December 1, 2015. On August 17, 2017,
the Superior Court affirmed the dismissal of
[Appellant’s] PCRA petition. [Commonwealth v.
Rhoades, 175 A.3d 1084 (Pa.Super. 2017)
(unpublished memorandum)].
On September 30, 2019, [Appellant] filed a
subsequent PCRA petition. On January 9, 2020,
[Appellant] filed an amended PCRA petition. On April
28, 2020, the Commonwealth submitted a letter brief
to this Court arguing that [Appellant’s] PCRA petition
was untimely. On July 13, 2020, [Appellant] filed a
letter brief as an answer to the Commonwealth’s
filing.
On September 22, 2020, th[e PCRA c]ourt filed a Rule
907 Notice of Dismissal. On October 2, 2020 and
October 13, 2020, [Appellant] filed responses to the
September 22, 2020 Rule 907 Notice of Dismissal. On
March 19, 2021, the Commonwealth submitted
another letter brief consequent to [Appellant’s]
responses.
On July 12, 2021, [Appellant] filed an amended PCRA
petition. On August 10, 2021, [Appellant] filed
another amended PCRA petition. On October 28,
2021, th[e PCRA c]ourt filed a second Rule 907 Notice
of Dismissal. On November 10, 2021, [Appellant] filed
a response to [the] October 28, 2021 Rule 907
Dismissal.
On February 16, 2022, th[e PCRA c]ourt filed a third
Rule 907 Notice of Dismissal. On May 16, 2022 and
May 18, 2022, [Appellant filed responses to [the]
February 16, 2022 Rule 907 Notice of Dismissal. On
May 23, 2022, th[e PCRA c]ourt formally dismissed
[Appellant’s] PCRA petition. Also on May 23, 2022,
[Appellant] filed a subsequent PCRA petition. On June
13, 2022, th[e PCRA c]ourt vacated its May 23, 2022
formal dismissal of the instant PCRA petition.
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On July 21, 2022, [Appellant], through counsel, Scott
P. Sigman, Esquire, filed a Memorandum of Law in
Support of the amended PCRA petition. On July 26,
2022, th[e PCRA c]ourt once again formally dismissed
[Appellant’s] PCRA Petition.
PCRA court opinion, 12/16/22 at 1-3 (citations, footnotes and extraneous
capitalization omitted).
This timely appeal followed on August 6, 2022. Appellant and the PCRA
court have complied with Pa.R.A.P. 1925.
On appeal, Appellant raises the following three claims of counsel’s
ineffectiveness:
1. Whether the [PCRA] court erred in denying
[Appellant’s PCRA petition], by Court Order of
July 26, 2022, without affording him an
evidentiary hearing since [Appellant’s]
conviction and sentence resulted from the
ineffective assistance of counsel which, in the
circumstances of the particular case, so
undermined the truth-determining process that
no reliable adjudication of guilt or innocence
could have taken place?
2. Whether the [PCRA] court erred in denying
[Appellant’s PCRA petition], by Court Order of
July 26, 2022, without affording him an
evidentiary hearing since, under the totality of
circumstances, there are genuine issues
concerning material facts and legitimate
purposes would be served by such hearing?
3. Whether the [PCRA] court erred in denying
[Appellant’s PCRA petition], by Court Order of
July 26, 2022, without affording him an
evidentiary hearing since [Appellant’s] petition
makes out a prima facie case warranting such
hearing where under the totality of
circumstances, trial counsel provided ineffective
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assistance that lacked any reasonable basis
which prejudiced [Appellant]?
Appellant’s brief at 6-7.
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s
findings will not be disturbed unless there is no support for the findings in the
certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)
(citations omitted). “This Court grants great deference to the findings of the
PCRA court, and we will not disturb those findings merely because the record
could support a contrary holding.” Commonwealth v. Hickman, 799 A.2d
136, 140 (Pa.Super. 2002) (citation omitted).
We must first consider the timeliness of Appellant’s PCRA petition
because it implicates the authority of this court to grant any relief.
Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014) (citation
omitted). All PCRA petitions, including second and subsequent petitions, must
be filed within one year of when an Appellant’s judgment of sentence becomes
final. See 42 Pa.C.S.A. § 9545(b)(1). “[A] judgment 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 the review.” 42 Pa.C.S.A. § 9545(b)(3).
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Here, the record reveals that Appellant’s judgment of sentence became
final on October 25, 2012, 30 days after the trial court imposed sentence in
Case Nos. CP-51-CR-0008038-2012 and CP-51-CR-0008039-2012, and the
time for filing a direct appeal with this Court expired. See id. Accordingly,
Appellant had until October 25, 2013 to file a timely PCRA petition. See id.
at § 9545(b)(1). Appellant’s instant serial petition was filed on September 30,
2019, nearly 6 years late, and is patently untimely, unless he can plead and
prove that one of the three statutory exceptions to the one-year jurisdictional
time-bar applies.
The three statutory exceptions to the PCRA time-bar are as follows:
(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.A. § 9545(b)(1)(i-iii).
Instantly, we find that Appellant has failed to explicitly plead, let alone
prove, any of the statutory exceptions to the PCRA time-bar set forth in
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Section § 9545(b)(1). Our Supreme Court has repeatedly recognized that
“allegations of ineffective assistance of counsel will not overcome the
jurisdictional timeliness requirements of the PCRA.” Commonwealth v.
Wharton, 886 A.2d 1120, 1127 (Pa. 2005) (citation omitted).1
Moreover, despite Appellant’s claims to the contrary, we emphasize that
“there is no absolute right to an evidentiary hearing on a PCRA petition, and
if the PCRA court can determine from the record that no genuine issues of
material fact exist,” as is the case here, “then a hearing is not necessary.”
Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa.Super. 2019) (citation
and internal brackets omitted), appeal denied, 218 A.3d 380 (Pa. 2019).
____________________________________________
1 Even assuming that Appellant’s argument could be construed as an attempt
to invoke the “new constitutional right” exception to the time-bar based upon
our Supreme Court’s recent decision in Commonwealth v. Bradley, 261
A.3d 381 (Pa. 2021), which Appellant fails to argue in his brief, we find that
this claim would be meritless. Bradley permits a PCRA petitioner to “raise
claims of PCRA counsel’s ineffectiveness at the first opportunity to do so,” id.
at 401, which is not the case in the instant matter. Here, Appellant has filed
several untimely PCRA petitions years after the denial of his first petition. This
Court has continually declined to extend the holding of Bradley to cases
involving untimely or serial petitions. See Commonwealth v. Dixon, 290
A.3d 702 (Pa.Super. 2022) (unpublished memorandum) (holding Bradley
does not trigger the timeliness exception at Section 9545(b)(1)(iii));
Commonwealth v. Mead, 277 A.3d 1111 (Pa.Super. 2022) (unpublished
memorandum), appeal denied, 284 A.3d 118 (Pa. 2022) (emphasizing that
Bradley involved a timely first PCRA petition and did not apply to appellant’s
appeal from order denying his untimely petition); Commonwealth v.
Morton, ___ A.3d ___, 2023 WL 118686 (Pa.Super. 2023) (unpublished
memorandum) (holding that appellant’s reliance on Bradley does not afford
relief in his appeal from the denial of his untimely, second PCRA petition).
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Based on the foregoing, we discern no error on the part of the PCRA
court in dismissing Appellant’s petition as untimely and affirm its July 26, 2022
order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/2023
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