Com. v. Mulligan, J. ( 2021 )

J-S15015-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEREMY RANDELL MULLIGAN :
:
Appellant : No. 513 WDA 2020
Appeal from the PCRA Order Entered March 17, 2020
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0003020-2006
BEFORE: LAZARUS, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY LAZARUS, J.: FILED: August 2, 2021
Jeremy Randell Mulligan appeals from the order, entered in the Court of
Common Pleas of Erie County, dismissing his serial petition filed pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon
review, we affirm.
This Court previously summarized the history of this case as follows:
A jury convicted Mulligan of attempted homicide and related
crimes[i] in 2007, based on Mulligan’s shooting of his girlfriend.
The court sentenced him to serve 23 ½ to 47 years’ incarceration.
We affirmed Mulligan’s judgment of sentence on October 17,
2008. [See Commonwealth v. Mulligan, 964 A.2d 442 (Pa.
Super. 2008) (Table).] Mulligan filed his first two PCRA petitions
in 2009 and 2010.[ii] The PCRA court dismissed both petitions, and
this Court affirmed. [See Commonwealth v. Mulligan, 23 A.3d
597 (Pa. Super. 2010) (Table); Commonwealth v. Mulligan, 47
A.3d 1242 (Pa. Super. 2012) (Table), appeal denied, 50 A.3d 125(Pa. 2012).]
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* Retired Senior Judge assigned to the Superior Court.
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i The jury convicted Mulligan of attempted homicide,
aggravated assault, recklessly endangering another person,
firearms not to be carried without a license, and possessing
an instrument of crime. See 18 Pa.C.S.A. §§ 2501(a),
2702(a)(1), 2705, 6106(a)(1), and 907(b), respectively.
ii The court appointed counsel on Mulligan’s first and second
PCRA petitions. The court permitted counsel on the second
petition to withdraw after the dismissal of the petition was
under appeal, following a hearing pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
[In May of 2017,] Mulligan filed a third PCRA petition, with the
assistance of counsel. Mulligan argued that his trial counsel was
ineffective for failing to object to the trial court’s attempted
murder instruction, which allegedly permitted the jury to convict
Mulligan of attempted third-degree murder, a legal impossibility.
Mulligan also argued that his previous PCRA counsel were
ineffective for failing to raise the claim of trial counsel’s
ineffectiveness. Mulligan asserted the petition was timely because
the PCRA statute was subject to equitable tolling, and Mulligan
had diligently pursued his rights through a direct appeal and
multiple PCRA petitions. Approximately two months later, the
PCRA court issued a [Pa.R.Crim.P.] 907 notice of its intent to
dismiss Mulligan’s third petition without a hearing. See
Pa.R.Crim.P. 907. Mulligan’s counsel did not respond to the
notice.
Mulligan thereafter filed a pro se “Application for Assignment of
Counsel.” Mulligan asserted that he had hired counsel to
represent him [and] fil[e] his third petition, counsel had agreed to
represent Mulligan through an appeal of the third petition, and
Mulligan had been unable to contact counsel.
Before the court ruled on that Application, and while his third PCRA
petition was still pending, Mulligan filed a pro se “Petition for
Modification of Relief,” in which he sought a Recidivism Risk
Reduction Incentive (“RRRI”) sentence (“the RRRI Petition”) [See
61 Pa.C.S.A. §§ 4501-4512.] The PCRA court did not forward a
copy of this petition to Mulligan’s counsel. Instead, the court
treated it as a fourth PCRA petition[] and issued Rule 907 notice
of its intent to dismiss it. The court stated that the petition was
untimely and that, in any event, Mulligan’s convictions for
attempted homicide and aggravated assault disqualified him from
RRRI eligibility. The PCRA court thereafter issued a final order
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dismissing the RRRI Petition for the reasons stated in its Rule 907
notice (“the RRRI Order”).
Mulligan, through counsel, filed a notice of appeal from the RRRI
Order. The only issues Mulligan [raised] on appeal relate[d] to
the claims in his third PCRA petition, which [was] still pending in
the PCRA court.[1]
Commonwealth v. Mulligan, 145 WDA 2019, 1-4 (Pa. Super. filed Dec. 10,
2019) (unpublished memorandum decision) (some internal footnotes
omitted).
Because Mulligan’s third PCRA petition was still pending before the PCRA
court at the time he filed his pro se RRRI Petition, which the PCRA court did
not forward to Mulligan’s counsel, and because Mulligan’s counsel had not yet
been granted leave to withdraw, this Court vacated the PCRA court’s order
dismissing the RRRI Petition on its merits and remanded for further
proceedings. See id.; see also Commonwealth v. Williams, 151 A.3d 621,
623 (Pa. Super. 2016) (while petitioner represented by counsel, any pro se
filings are legal nullities); Commonwealth v. Jette, 23 A.3d 1032, 1044 (Pa.
2011) (“[T]he proper response to any pro se pleading is to refer the pleading
to counsel, and to take no further action on the pro se pleading unless counsel
forwards a motion.”).
Upon remand, on March 17, 2020, the PCRA court dismissed Mulligan’s
third PCRA petition. Mulligan timely filed a notice of appeal and court-ordered
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1 Mulligan raised the issues of whether Commonwealth v. Peterkin, 722
A.2d 638 (Pa. 1988), which holds that the PCRA does not recognize equitable
tolling, was correctly decided under statutory construction principles, and
whether trial counsel was ineffective for failing to object to the court’s jury
instructions regarding attempted homicide.
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Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Mulligan raises the following issues for our review:
1. Whether Commonwealth v. Peterkin, 722 A.2d 638 (Pa.
1988), which holds that the PCRA [] does[ not] recognize
equitable tolling, was correctly decided under statutory
construction principles[, the] U.S. Const[itution, Amendments]
6, 8, [and] 14[, and the Pennsylvania Constitution, Article] I,
§[§] 8 [and] 9.
2. Whether trial counsel was ineffective for failing to object to the
trial court’s attempted murder instruction because it permitted
the jury to convict [] Mulligan for attempted third-degree
murder[,] a nonexistent criminal offense under the
Pennsylvania Criminal Code[.]
Brief of Appellant, at 3.
Before discussing the merits of those issues, we must first determine
whether Mulligan’s serial petition for post-conviction relief was timely filed. It
is well-settled that “[the PCRA’s] time requirement is mandatory
and jurisdictional in nature, and the court may not ignore it in order to reach
the merits of the petition.” Commonwealth v. Hernandez, 79 A.3d 649,
651 (Pa. Super. 2013). Generally, a petition for relief under the PCRA,
including a second or subsequent petition, must be filed within one year of the
date the judgment of sentence becomes final unless the petitioner alleges,
and proves, that an exception to the time limit for filing the petition, set forth
at 42 Pa.C.S.A. §§ 9545(b)(1)(i), (ii), and (iii), is met. 2 A PCRA petition
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2 The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference of government officials with the presentation of the
(Footnote Continued Next Page)
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invoking one of these statutory exceptions “must be filed within sixty days of
the date the claim could first have been presented.” See Commonwealth v.
Hernandez, 79 A.3d 649, 651-52 (Pa. Super. 2013) (citations omitted); see
also 42 Pa.C.S.A. § 9545(b)(2).3 Under the PCRA, a judgment of sentence
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).4
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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), (ii), and (iii).
3 On October 24, 2018, the General Assembly amended subsection 9545(b)(2)
to enlarge the time in which a petitioner may invoke a PCRA time-bar
exception from 60 days to one year from the date the claim arises. See Act
2018, Oct. 24, P.L. 894, No. 146, § 2, effective in 60 days [Dec. 24, 2018].
However, the amendment applies only to claims arising on December 24,
2017, or thereafter. Id. at § 3. In this case, Mulligan’s claim arises from the
alleged ineffectiveness of trial counsel during his criminal trial in 2007.
Therefore, the sixty-day deadline applies.
4 This Court affirmed Mulligan’s judgment of sentence on October 17, 2008.
See Commonwealth v. Mulligan, 964 A.2d 442 (Pa. Super. 2008) (Table).
Pursuant to Pa.R.A.P. 1113(a), Mulligan had 30 days therefrom to file a
petition for allowance of appeal with the Pennsylvania Supreme Court. See
(Footnote Continued Next Page)
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Instantly, Mulligan does not argue any exception to the PCRA’s time-
bar. Instead, Mulligan asserts that the Pennsylvania Supreme Court
wrongfully decided Peterkin in that the General Assembly did not intend for
the PCRA’s “one-year limitations period [to be] jurisdictional,” and did not
intend to prohibit equitable tolling under extraordinary circumstances where
the defendant diligently pursued his PCRA rights. See Brief of Appellant, at
15-38. Mulligan asks “[t]hat th[is] Court overturn Peterkin” and
“substantively review his defaulted trial counsel ineffectiveness claim.” Id. at
46. This, we cannot do. See Commonwealth v. Santiago, 160 A.3d 814,
831 n.6 (Pa. Super. 2017) (“As an intermediate appellate court, [] we cannot
refuse to apply [precedent from the Supreme Court of Pennsylvania], much
less overturn it.”); see also Commonwealth v. Abu-Jamal, 833 A.2d 719,
728 n.5 (Pa. 2003) (declining to overturn Peterkin).
Because Mulligan has failed to plead and prove an exception to the
PCRA’s time-bar, the PCRA court properly dismissed his serial petition as
untimely. See Peterkin, supra; see also Hernandez, supra.Order affirmed.
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Pa.R.A.P. 1113(a). Mulligan did not do so. Therefore, his judgment of
sentence became final on November 16, 2008, upon the expiration of time for
seeking direct review. See 42 Pa.C.S.A. § 9545(b)(3). The instant petition,
filed on May 22, 2017, is patently untimely.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/2/2021
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