Com. v. Miller, A ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AMIR MILLER :
:
Appellant : No. 2468 EDA 2022
Appeal from the PCRA Order Entered September 1, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008701-2014
BEFORE: STABILE, J., KUNSELMAN, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED NOVEMBER 20, 2023
Amir Miller appeals pro se from the order denying his Post Conviction
Relief Act (“PCRA”) petition. See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In September 2015, Miller pled guilty to third-degree murder and
carrying a firearm on a public street in Philadelphia.1 He was sentenced to 12
½ to 30 years’ imprisonment on November 20, 2015. Miller did not file a direct
appeal.
Miller previously filed a timely, pro se PCRA petition in 2016, his first.
Miller claimed ineffectiveness of counsel surrounding his guilty plea and that
his sentence was excessive. Counsel was appointed, and subsequently filed a
Finley2 no-merit letter and a motion to withdraw as counsel. In his no-merit
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1 18 Pa.C.S.A. §§ 2502(c) and 6108, respectively.
2 Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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letter, PCRA counsel stated that he was unable to review the notes of
testimony from Miller’s guilty plea hearing because he was informed by the
court reporter that those notes were inadvertently destroyed. No-Merit Letter,
filed 11/13/17, at 1. PCRA counsel nonetheless concluded that Miller’s claims
were without merit. Id.The PCRA court issued a notice of its intent to dismiss the petition
pursuant to Pa.R.Crim.P. 907. Miller filed a pro se response to the court’s Rule
907 notice, in which he claimed, inter alia, his trial counsel was ineffective for
causing him to enter an unknowing plea and PCRA counsel was ineffective for
failing to allege trial counsel’s ineffectiveness. Pro Se Response to Rule 907
Notice, filed 12/28/17, at 1, 3. Miller also requested that PCRA counsel
“explain why his claims have no merit especially since the [court] lost the
record of [his] notes of testimony[.]” Id. at 4.
The court dismissed the petition and granted PCRA counsel’s request to
withdraw in January 2018. In an opinion, the court confirmed that the notes
of testimony from Miller’s plea hearing were inadvertently destroyed by the
court reporter, but Miller “present[ed] no evidence or argument indicating that
any supplemental oral colloquy conducted at the time of the plea contradicted
the averments memorialized in his written colloquy.” PCRA Court Opinion, filed
1/11/18, at 4-5, 5 n.3. As a result, the court concluded that Miller entered a
knowing, intelligent, and voluntary guilty plea. Id. at 4-5. The court also found
Miller’s remaining claims to be without merit. Miller appealed, and this Court
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dismissed his appeal for failure to file a brief. Commonwealth v. Miller, 510
EDA 2018 (Pa.Super. filed January 4, 2019) (per curium order).
Miller filed the instant PCRA petition, pro se, on July 21, 2022. The PCRA
court issued a Rule 907 notice, on August 3, 2022. Miller filed a pro se
response to the court’s Rule 907 notice. On September 1, 2022, the court
dismissed the petition. This appeal followed.
Preliminary, we observe that Miller’s brief is in violation of Rule of
Appellate Procedure 2111(a) because it lacks a statement of jurisdiction, a
statement of the scope of review and standard of review, a statement of the
questions involved, a statement of the case, and a summary of the argument.
See Pa.R.A.P. 2111(a)(1), (3), (4), (5), and (6). An issue not presented in
the statement of questions involved is generally deemed waived. Krebs v.
United Ref. Co. of Pa., 893 A.2d 776, 797 (Pa.Super. 2006). However, we
believe we can discern the questions Miller presents from the argument
section of his brief. His failure to comply with the Rules of Appellate Procedure
does not impede our review, and we decline to find waiver. See Werner v.
Werner, 149 A.3d 338, 341 (Pa.Super. 2016).
Miller argues that the destruction of the transcripts of his plea hearing
denied him his right to appeal, and he is entitled to a new trial. See Miller’s
Br. at 2 (unpaginated). We do not reach the merits of that argument because
his PCRA petition was untimely.
On appeal from the denial or grant of relief under the PCRA, our review
is limited to determining “whether the PCRA court’s ruling is supported by the
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record and free of legal error.” Commonwealth v. Presley, 193 A.3d 436,
442 (Pa.Super. 2018) (citation omitted).
Any petition for PCRA relief, including second and subsequent petitions,
must be filed within one year of the date on which the judgment of sentence
becomes final, unless the petitioner pleads and proves an exception to the
one-year bar. 42 Pa.C.S.A. § 9545(b)(1). For purposes of the PCRA, “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.” Id. at § 9545(b)(3).
Courts may consider a PCRA petition filed more than one year after a
judgment of sentence has become final only if the petitioner pleads and proves
one of the following three statutory exceptions:
(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.
Id. at § 9545(b)(1)(i)-(iii).
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Any petition attempting to invoke an exception “shall be filed within one
year of the date the claim could have been presented.” Id. at § 9545(b)(2).
The PCRA’s time restrictions are jurisdictional, and “[i]f a PCRA petition is
untimely, 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. Albrecht, 994 A.2d
1091, 1093 (Pa. 2010) (citation omitted).
Miller’s instant PCRA petition was filed more than six years after his
judgment of sentence became final. Therefore, the petition is facially untimely,
and Miller was required to plead and prove at least one of the time-bar
exceptions.
Miller attempts to invoke the governmental interference exception to
the PCRA time-bar. Miller’s Br. at 2 (unpaginated). His sole claim is that the
destruction of the notes of testimony of his guilty plea hearing by the Court
Reporter Administration constitutes a governmental interference. Miller’s
Reply Br. at 2. In his view, the unavailability of the notes of testimony has
denied him a fair opportunity to challenge his guilty plea. Id. at 5. He
concludes that “meaningful appellate review is impossible absent a full
transcript.” Miller’s Br. at 3 (unpaginated).
To establish the governmental interference exception, a petitioner must
plead and prove that the government interfered with the petitioner’s ability to
present a claim. See 42 Pa.C.S.A. § 9545(b)(1)(i). The petitioner must show
that he would have filed his claim sooner, if not for the interference of a
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government actor. Commonwealth v. Staton, 184 A.3d 949, 955 (Pa.
2018).
Here, Miller failed to file his instant PCRA petition within one year of
learning of the destruction of the notes of testimony. See 42 Pa.C.S.A. §
9545(b)(2). He was first made aware of the destruction of the transcript in
PCRA counsel’s no-merit letter dated November 13, 2017. Miller himself
acknowledged the destruction of the transcript in his pro se response to the
court’s Rule 907 notice to dismiss his first PCRA petition that he filed on
December 28, 2017. The PCRA court’s January 11, 2018 opinion, which
dismissed Miller’s first PCRA petition, also discussed the destruction of the
transcript. Miller did not file the instant petition until July 21, 2022, more than
four years after first learning of the destruction of the transcript. Since Miller
did not file his petition within one year of the date the claim could have been
presented, it is time-barred. Accordingly, the PCRA court was without
jurisdiction to entertain his claim and properly dismissed his petition as
untimely.
Order affirmed.
Date: 11/20/2023
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