Com. v. Rivera, M. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL RIVERA :
:
Appellant : No. 1620 MDA 2022
Appeal from the PCRA Order Entered October 18, 2022
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0000972-2001
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED: OCTOBER 5, 2023
Appellant, Michael Rivera, appeals pro se from the October 18, 2022
order denying as untimely his petition for collateral relief under the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546. The PCRA court
concluded that Appellant failed to establish an exception to the statutory time-
bar. We affirm.
The Commonwealth charged Appellant with, inter alia, murder, alleging
that Appellant, using a stolen gun, shot and killed the victim in an alley.
Appellant entered a negotiated guilty plea on December 6, 2001, to one count
of homicide in the third degree, carrying a firearm without a license,
possessing an instrument of crime, and receiving stolen property. The parties
agreed to an aggregate sentence of 30 to 60 years of incarceration, and the
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* Former Justice specially assigned to the Superior Court.
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trial court ordered a pre-sentence report before agreeing to accept the term.
On December 14, 2001, the court imposed the agreed-upon sentence, and
also imposed a $1,300 fine, which was not specified in the plea agreement.
Appellant did not file a direct appeal. In January of 2002, Appellant filed
his first PCRA petition, alleging that plea counsel informed him that the
negotiated sentence called for an aggregate sentence of 20 to 40 years of
incarceration. Appointed counsel filed a Turner/Finley “no merit” letter,1
and the PCRA court ultimately granted her petition to withdraw and dismissed
Appellant’s petition. Appellant appealed to this Court, but we dismissed due
to Appellant’s failure to file a brief. Order at 1065 MDA 2002, 3/21/03.
Appellant has since filed at least three more PCRA petitions.2 Appellant
filed a second PCRA petition on or about October 6, 2003, alleging that his
sentence was illegal due to the imposition of the fine, as well as costs and
restitution. The PCRA court denied the petition and, in its subsequent
Pa.R.A.P. 1925(a) opinion, it determined that Appellant waived his appellate
claims for failing to file a concise statement as directed. On appeal, we
affirmed, noting in the alternative that Appellant’s PCRA petition was untimely
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1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
2 In addition to the petitions discussed infra, Appellant filed two other motions
that should have been treated as PCRA petitions. On July 19, 2007, Appellant
filed a motion for reconsideration of his sentence, which the court struck on
October 17, 2007. On September 13, 2011, Appellant filed another motion
for modification of sentence, which the court denied but did not treat as a
PCRA petition.
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and that he failed to plead and prove any exception to the time-bar.
Commonwealth v. Rivera, 864 A.2d 583 (Pa. Super. 2004) (unpublished
memorandum).
Appellant filed his third PCRA petition on May 22, 2012, alleging that
trial counsel was ineffective for failing to object to the imposition of the fine
and for failing to inform Appellant that court costs would be included. He also
asserted that the sentence was illegal in any event as fines and costs were
not part of his plea bargain. The PCRA court issued a Pa.R.Crim.P. 907 notice
of its intent to dismiss the petition without a hearing on the basis that
Appellant failed to plead and prove a time-bar exception. The PCRA court
subsequently dismissed the petition on June 22, 2012. Appellant appealed,
and we again dismissed the appeal due to Appellant’s failure to file a brief.
Order at 1274 MDA 2012, 2/14/13.
On April 28, 2014, Appellant filed his fourth PCRA petition, styled as a
petition for a writ of habeas corpus, raising claims similar to those in his May
of 2012 petition. The PCRA court denied the petition on the merits, and on
appeal, we concluded that the court should have treated the petition under
the PCRA’s framework. Commonwealth v. Rivera, 118 A.3d 451 (Pa. Super.
2015) (unpublished memorandum)
Appellant, pro se, filed the petition at issue here on April 11, 2022.
Appellant generically alleged that all his prior attorneys were ineffective for
failing to properly present the aforementioned claims. Appellant also asserted
that his illegal-sentence claims were reviewable independent of the PCRA as
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the illegal nature of his sentence was “obvious on the face of the record,”
implicating the court’s authority to correct the sentence at any point in time.
See Commonwealth v. Holmes, 933 A.2d 57, 66 (Pa. 2007) (discussing the
“time-honored inherent power of courts” to correct patent errors). As to the
claims not implicating the legality of his sentence, Appellant argued that our
Supreme Court’s decision in Commonwealth v. Bradley, 261 A.3d 381 (Pa.
2021), which held that PCRA petitioners are not required to raise a challenge
to PCRA counsel’s ineffectiveness in a response to a Rule 907 notice of intent
to dismiss, qualified as an exception to the PCRA’s time-bar. The PCRA court
issued a notice of intent to dismiss citing cases holding that Bradley does not
authorize the filing of an untimely PCRA petition. The PCRA court
subsequently dismissed the petition on October 18, 2022.
On November 10, 2022, Appellant filed a pro se notice of appeal and
attached a concise statement of matters complained of on appeal, listing six
points of error. The PCRA court issued an order on November 29, 2022,
directing Appellant to file a concise statement, specifying that issues “not
properly included in the Statement … shall be deemed waived.” Order,
12/1/22 (single page). Appellant did not file a duplicate or amended concise
statement. In its Pa.R.A.P. 1925(a) opinion, the court concluded that
Appellant “failed to preserve any matters for appellate review pursuant to Rule
1925(b).” PCRA Court Opinion, 1/13/23, at unnumbered 2. The
Commonwealth agrees that Appellant has failed to preserve any issues for
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review, and, alternatively, that Appellant’s petition is untimely and that he
failed to plead and prove an exception.
We decline to find that Appellant has waived all issues for failing to
comply with the PCRA court’s November 29, 2022, order. The PCRA court’s
opinion does not mention Appellant’s joint notice of appeal and attached
concise statement. The purpose of a Rule 1925(b) statement is “to aid trial
judges in identifying and focusing upon those issues which the parties plan to
raise on appeal.” Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998).
By attaching a concise statement to the notice of appeal, Appellant indicated
which points of error he intended to raise. Thus, this is not a case where the
“failure to comply with the court’s order to file a Rule 1925(b) statement
compelled the court to speculate which of those claims [the appellant] would
maintain on appeal.” Commonwealth v. Butler, 812 A.2d 631, 633 (Pa.
2002). While it would have been preferable for Appellant to comply with the
order by filing a duplicate copy, we decline to find that Appellant waived all
claims in the absence of authority directly addressing this scenario. As stated
in Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d
222, 225 (Pa. Super. 2014) (en banc), “it is the trial court’s order that triggers
an appellant’s obligation” in determining whether an appellant has waived his
appellate issues based on non-compliance with Rule 1925. The trial court
order merely stated that issues “not properly included” in the concise
statement would be waived. Neither the Commonwealth nor the trial court
cited a case holding that an anticipatory concise statement does not serve the
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“notice” function of Rule 1925. We will assume, for purposes of our
disposition, that Appellant preserved his issues by including them in the
anticipatory filing.
We now address Appellant’s issues, all of which concern the merits of
his underlying PCRA claims. We agree with the Commonwealth that Appellant
failed to establish that his petition met an exception to the time-bar, which
precludes discussion of the merits. The PCRA states that all petitions must be
filed within one year of the judgment of sentence becoming final, and “the
timeliness requirements of the PCRA leave a court without jurisdiction to
consider the merits of an untimely petition[.]” Commonwealth v. Smith,
818 A.2d 494, 499 (Pa. 2003). The PCRA codifies three statutory exceptions
to this requirement:
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
(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.
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42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, any petition attempting to
invoke one of these exceptions must “be filed within one year of the date the
claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).
Appellant’s brief does not specifically discuss the three possible time-
bar exceptions. He does not cite any interference by government officials
pursuant to (i). As to (ii), in Commonwealth v. Stahl, 292 A.3d 1130, 1136
(Pa. Super. 2023), we rejected the argument that a PCRA petition filed after
Bradley’s publication represented the first opportunity to raise a claim
challenging initial PCRA counsel’s ineffectiveness, as the appellant there “was
fully aware of those claims of ineffectiveness of PCRA counsel” prior to the
decision in Bradley. Commonwealth v. Stahl, 292 A.3d 1130, 1135 (Pa.
Super. 2023). The same point applies here. Moreover, publication of new
cases cannot serve as a “fact” that triggers the (ii) exception.
Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011) (holding that
“subsequent decisional law does not amount to a new ‘fact’ under section
9545(b)(1)(ii) of the PCRA”).
Finally, regarding the new-constitutional-right exception, it does not
appear that any reported decision has directly addressed this claim to date.
We note that the right to counsel during a timely PCRA proceeding is by
legislative grace, as it is rule-based in nature and not required by the United
States Constitution. See generally Pennsylvania v. Finley, 481 U.S. 551,
555 (1987) (“We have never held that prisoners have a constitutional right to
counsel when mounting collateral attacks upon their convictions … and we
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decline to so hold today. Our cases establish that the right to appointed
counsel extends to the first appeal of right, and no further.”). The United
States Supreme Court has affirmed that “the Constitution does not guarantee
the assistance of counsel at all” in collateral proceedings. Davila v. Davis,
582 U.S. 521, 529 (2017). The Bradley decision dictated a process by which
PCRA petitioners could effectuate their rule-based right to effective assistance
of counsel. Bradley, 261 A.3d at 397 (explaining that, pre-Bradley, “a
petitioner was required to raise PCRA counsel’s ineffectiveness in response to
the PCRA court’s Rule 907 notice of intention to dismiss the petition”).
However, the statutory language “has been held” in the Section 9545(b)(1)(iii)
exception has been interpreted by our Supreme Court to mean that the
relevant Supreme Court, in this case the Supreme Court of Pennsylvania, must
have recognized the right at the time the petition is filed. Commonwealth
v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002) (“By employing the past
tense in writing this provision, the legislature clearly intended that the right
was already recognized at the time the petition was filed.”). In other words,
even if a case decides a new constitutional right that must be afforded
retroactive status as a matter of constitutional law, the Supreme Court of
Pennsylvania must first recognize the retroactivity of the decision per its
interpretation of the statutory language. Commonwealth v. Reid, 235 A.3d
1124, 1160 (Pa. 2020) (“While Montgomery [v. Louisiana, 577 U.S. 190(2016)] … enshrined Teague [v. Lane, 489 U.S. 288 (1989),] as a
constitutional command that extends to state post-conviction proceedings, it
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in no way alters the Abdul-Salaam Court’s statutory interpretation of Section
9545(b)(1)(iii).”).3 Our Supreme Court has not held that Bradley qualifies as
a case that must be applied retroactively.
The only real support for Appellant’s claim that Bradley satisfies a time-
bar exception is his citation, for its persuasive value, to our unpublished
decision in Commonwealth v. Riley, 1818 EDA 2020 (Pa. Super. filed Sept.
2, 2022), which Appellant notes states that a claim of PCRA counsel
ineffectiveness may be raised under Bradley so long as it “‘sprang’ from the
original, timely PCRA petition and did not constitute a second or subsequent
petition.” Appellant’s Brief at 5. This is an accurate statement of the law, but
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3 We recognize that the Reid decision involved only four Justices of the
Supreme Court participating, with the tie broken by a special appointment of
three Judges from this Court. Justice Dougherty’s opinion, joined by Justice
Mundy, sharply disagreed with Justice Donohue’s dissenting opinion, joined
by Justice Wecht, on the continued viability of the Abdul-Salaam
interpretation with respect to cases that would qualify under the retroactivity
framework developed in Teague.
There is no need to elaborate on the nuances of that doctrine as the
Bradley decision, which does not involve any federal constitutional right in
the first place, would clearly not satisfy either of the two categories of cases
recognized by Teague as requiring retroactive application. The decision
clearly does not place “certain kinds of primary, private individual conduct
beyond the power of the criminal law-making authority to proscribe” as the
Bradley case has nothing to do with substantive criminal law. Teague, 489
U.S. at 307. Nor could it qualify as a “watershed” rule of procedure as the
High Court has since declared that no ruling will ever qualify under that
exception. Edwards v. Vannoy, 141 S.Ct. 1547, 1560-61 (2021) (“The
watershed exception is moribund. … [N]o stare decisis values would be served
by continuing to indulge the fiction that Teague’s purported watershed
exception endures.”).
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Appellant does not address the fact that his petition was not timely under the
PCRA. Bradley applies to claims raised on appeal from the denial of a timely
PCRA, but as we have explained, the case does not qualify as an exception to
the time-bar. Because the instant petition is facially untimely, Riley is of no
help to Appellant.
Alternatively, Appellant argues that his illegal-sentence claim, i.e., that
the portion of his sentence imposing a fine must be vacated as it was not
specified in the original plea agreement, may be examined outside of the PCRA
as the sentencing order reveals a patent error. In Commonwealth v.
Jackson, 30 A.3d 516 (Pa. Super. 2011), we held that a claim that a sentence
is patently illegal is still subject to the PCRA and its time requirements. Id.
at 521 (“[Holmes, supra,] recognized the limited authority of a trial court to
correct patent errors in sentences absent statutory jurisdiction[;] … it did not
establish an alternate remedy for collateral relief that sidesteps the
jurisdictional requirements of the PCRA.”). Our Supreme Court has granted
allowance of appeal to determine whether Jackson was correctly decided.
Commonwealth v. McGee, 276 A.3d 701 (Pa. 2022) (granting allowance of
appeal to determine whether Jackson should be overruled). Thus, even
accepting arguendo that Appellant’s illegal sentence claim implicates the
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legality of his sentence, Jackson remains good law.4 The PCRA court
therefore did not err in dismissing the petition as untimely.
Order affirmed.
Date: 10/05/2023
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4 The fact that Appellant relies on the transcript of the guilty plea to establish
that the parties did not include a fine undermines the claim that the error is
patent. Holmes, 933 A.2d at 66 (“Holmes’s sentencing order … contained a
patent mistake, a fact apparent from a review of the docket without resort to
third-party information.”).
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