Com. v. Rankin, L. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
LARRY KERMIT RANKIN
Appellant No. 982 WDA 2020
Appeal from the PCRA Order entered August 14, 2020
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0015802-2010
BEFORE: STABILE, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY STABILE, J.: FILED: AUGUST 10, 2021
Appellant, Larry Kermit Rankin, appeals pro se from the August 14, 2020
order entered in the Court of Common Pleas of Allegheny County denying his
third petition for collateral relief filed pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.
We previously summarized the relevant factual and procedural
background as follows:
On September 11, 2011, Appellant pled guilty [to third-degree
murder and carrying a firearm without a license] based upon an
incident in which he shot and killed Keith Pack during a drug deal.
Appellant was sentenced to an aggregate sentence of twenty-two-
and-one-half to forty-five years’ incarceration. Appellant did not
file a direct appeal from his judgment of sentence.
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* Retired Senior Judge assigned to the Superior Court.
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On approximately August 14, 2012, the trial court received
Appellant’s pro se first PCRA petition. Counsel was appointed, and
after a series of extensions of time, on June 20, 2014, counsel
filed an amended petition on Appellant’s behalf. The amended
PCRA petition raised several claims, including that (1) trial counsel
was ineffective for failing to file a motion to withdraw Appellant’s
guilty plea; (2) trial counsel was ineffective for failing to order a
mental health and competency hearing prior to Appellant’s guilty
plea; and (3) Appellant’s guilty plea was not knowing and
voluntary because he was not made aware of the maximum
sentence for third-degree murder.
The PCRA court ordered an evidentiary hearing on Appellant’s first
amended PCRA petition. Before an evidentiary hearing was held,
however, Appellant requested that his PCRA petition be
withdrawn, stating in a letter to counsel that he felt as though he
was making the right decision to withdraw the matter after
evaluating his situation. Counsel filed a motion requesting to
withdraw the matter, and the PCRA court entered an order
granting the motion on April 24, 2015, which was mailed to
counsel.
Appellant mailed [his second PCRA petition] on May 27, 2017, and
it was received and docketed on June 7, 2017. . . . On July 28,
2017, the PCRA court entered an order indicating the intent to
dismiss Appellant’s second PCRA petition as untimely[.]
[O]n August 29, 2017, the PCRA court entered an order, dated
August 29, 2017, which dismissed Appellant’s second PCRA
petition.
Commonwealth v. Rankin, No. 1434 WDA 2017, unpublished memorandum
at 1-3 (Pa. Super. filed July 10, 2018) (footnotes and citations to the record
omitted).
Appellant filed a timely notice of appeal from the dismissal of his second
PCRA petition. Upon review, we affirmed the dismissal. See id. On November
26, 2018, our Supreme Court denied Appellant’s petition for leave to file a
petition for allowance of appeal nunc pro tunc.
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On January 8, 2020, Appellant filed the instant PCRA petition, his third.
On June 2, 2020, the PCRA court issued a notice of intent to dismiss
Appellant’s third PCRA petition. The PCRA court dismissed the petition on
August 14, 2020. This appeal followed.
“[A]n appellate court reviews the PCRA court’s findings of fact to
determine whether they are supported by the record, and reviews its
conclusions of law to determine whether they are free from legal error.”
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).
All PCRA petitions, “including a second or subsequent petition, shall be filed
within one year of the date the judgment becomes final” unless an exception
to timeliness applies. 42 Pa.C.S.A. § 9545(b)(1). “The PCRA’s time
restrictions are jurisdictional in nature. Thus, if a PCRA petition is untimely,
neither this Court nor the [PCRA] court has jurisdiction over the petition.
Without jurisdiction, we simply do not have the legal authority to address the
substantive claims.” Commonwealth v. Chester, 895 A.2d 520, 522 (Pa.
2006) (internal citations and quotation marks omitted) (overruled on other
grounds by Commonwealth v. Small, 238 A.3d 1267 (Pa. 2020)). As
timeliness is separate and distinct from the merits of Appellant’s underlying
claims, we first determine whether this PCRA petition is timely filed.
Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008).
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As noted above, Appellant filed the instant petition on January 8, 2020,
more than eight years after his judgment of sentence became final. As such,
the instant petition is facially untimely.
Again, all PCRA petitions, “including a second or subsequent petition,
shall be filed within one year of the date the judgment becomes final.” 42
Pa.C.S.A. § 9545(b)(1). The one-year time limitation, however, can be
overcome if a petitioner (1) alleges and proves one of the three exceptions
set forth in Section 9545(b)(1)(i)-(iii) of the PCRA, and (2) files a petition
raising this exception within one year of the date the claim could have been
presented. 42 Pa.C.S.A. § 9545(b)(2).1
Appellant argues he meets the requirements of the newly-discovered
fact exception set forth in Section 9545(b)(1)(ii). This exception requires a
petitioner to plead and prove two components: 1) the facts upon which the
claim was predicated were unknown, and (2) these unknown facts could not
have been ascertained by the exercise of due diligence. See Commonwealth
v. Burton, 158 A.3d 618, 638 (Pa. 2017).
In his PCRA petition, Appellant argued that plea counsel was ineffective
for advising Appellant to take the plea and that PCRA counsel was ineffective
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1 Section 9545(b)(2) was amended to enlarge the deadline from sixty days to
one year. The amendment applies only to claims arising on or after December
24, 2017. Here, although Appellant claims he learned of the new facts on
October 18, 2019, the record reveals that he was aware of them well before
December 24, 2017. Regardless, whether it is 60 days or one year, as noted
infra, Appellant’s third PCRA petition is untimely.
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for advising Appellant to withdraw his first PCRA petition, and that he learned
of counsel’s ineffectiveness only after speaking to another inmate, Robert
Stringer, on October 18, 2019. PCRA Petition, 1/8/20, at 2-3 (unnumbered).
Appellant further explains his claims as follows: “it was ‘unknown’ to him that
he had a right to insist on going to trial despite Trial Counsel’s advice to take
a plea” and that “it was unknown to him that he did not have to withdraw his
initial PCRA petition despite PCRA Counsel’s advice to do so.” Id. at 3
(unnumbered).2
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2 In his brief before us, Appellant raises two additional claims: (i) the PCRA
court erred in not holding an evidentiary hearing on his petition, which would
have proved the timeliness of the same, and (ii) the PCRA court misinterpreted
and misapplied the due diligence prong of the newly-discovered fact exception
in that a hearing was necessary to establish whether Appellant exercised due
diligence. Appellant’s Brief at 3. These claims will not be addressed as they
were not raised below. As such, they are waived. See Pa.R.A.P. 302(a). In
any event, no relief is due, even if properly raised.
An evidentiary hearing cannot be used as a “fishing expedition that may
support some speculative claim of ineffectiveness.” Commonwealth v.
Jones, 811 A.2d 994, 1003 n.8 (Pa. 2002).
Additionally, “[t]he PCRA court has the discretion to dismiss a petition without
a hearing when the court is satisfied ‘that there are no genuine issues
concerning any material fact, the defendant is not entitled to post-conviction
collateral relief, and no legitimate purpose would be served by any further
proceedings.’” Commonwealth v. Hutchinson, 25 A.3d 277, 294 (Pa. 2011)
(quoting Pa.R.Crim.P. 909(B)(2)). “[T]o obtain reversal of a PCRA court’s
decision to dismiss a petition without a hearing, an appellant must show that
he raised a genuine issue of fact which, if resolved in his favor, would have
entitled him to relief, or that the court otherwise abused its discretion in
denying a hearing.” Id. at 295 (quoting Commonwealth v. D'Amato, 856
A.2d 806, 820 (Pa. 2004)).
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Appellant’s claims are unsupported by the law and the record. First, it
is well-established that “counsel’s ineffectiveness may not be invoked as a
newly-discovered ‘fact’ for purposes of invoking the subsection 9545(b)(1)(ii)
exception.” Commonwealth v. Peterson, 192 A.3d 1123, 1129 (Pa. 2018)
(citing Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785 (Pa. 2000)).
Second, to the extent Appellant argues that the newly-discovered fact
consists of him recently becoming aware that he was not required to take the
guilty plea and that he was not required to withdraw his PCRA petition, we are
unaware of any decision or statute that supports the proposition advanced
herein by Appellant, i.e., ignorance of law can be invoked as a newly-
discovered ‘fact’ for purposes of subsection 9545(b)(1)(ii). See
Commonwealth v. Yohe, 2019 WL 2246618, at *5 (Pa. Super. May 24,
____________________________________________
As explained infra, there are no issues of material fact requiring a hearing.
Indeed, the record belies Appellant’s allegations about when he learned of
counsel’s ineffectiveness, or about Appellant’s unawareness about his rights.
Based on the record, therefore, we would have concluded that Appellant’s
petition is untimely and that he failed to establish any of the exceptions to the
general rule on timeliness. Accordingly, even if properly raised, we would not
have found the PCRA court erred or abused its discretion in not holding a
hearing on Appellant’s petition. See Commonwealth v. Marshall, 947 A.2d
714, 723 (Pa. 2008) (finding no error in the PCRA court’s refusal to hold an
evidentiary hearing for an untimely PCRA petition to which no exceptions
applied).
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2019) (“[L]ater-acquired knowledge of a legal principle does not constitute a
newly-discovered fact.”).3
Similarly, the PCRA court noted that “becoming aware of a legal principle
[i.e., Appellant was not required to take the plea offered and was not required
to withdraw his first PCRA petition] one claims to have not been aware of
previously is not discovering ‘. . . the facts upon which the claim is
predicated.’” PCRA Court Opinion, 6/2/21, at 2.4
Finally, the record belies Appellant’s claim of ignorance. Indeed, the
PCRA court noted:
The written guilty plea conducted by the [trial] court at his plea
colloquy [Appellant] completed before entering his plea advised
him that he would be giving up his right to proceed to trial by
entering his plea. That and the oral colloquy conducted by [the
trial court] at his plea hearing made him aware that he was under
no obligation to plead guilty and could proceed to trial if he wished.
. . . It is also beyond doubt that [Appellant]’s decision to withdraw
his first PCRA petition was knowing and voluntary and that his
claim that he was not aware that he could proceed with that
petition is not truthful. Attached to his petition are several letters
____________________________________________
3 See Pa.R.A.P. 126(b) (unpublished non-precedential decisions of the
Superior Court filed after May 1, 2019, may be cited for their persuasive
value).
4 The Commonwealth similarly noted that “Pennsylvania law does not regard
legal principles and case law as ‘facts’.” Commonwealth’s Brief at 14 (citing
Commonwealth v. Reid, 235 A.3d 1124, 1146 (Pa. 2020) (in-court rulings
and judicial opinions “do not satisfy the newly discovered fact exception
because ‘an in-court ruling or published judicial opinion is law, for it is simply
the embodiment of abstract principles applied to actual events. The events
that prompted the analysis, which must be established by presumption or
evidence, are regarded as fact.’”) (quoting Commonwealth v. Watts,
23.A3d 980, 987 (Pa. 2011)).
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from his PCRA counsel explaining to him the consequences of
proceeding with his petition. Beginning with a letter dated July 3,
2013, to [Appellant] from chief counsel of the Allegheny County
Office of Conflict Counsel, Richard Narvin, [Appellant] was advised
that should he be successful in his [post conviction relief]
proceeding and be awarded a new trial, he would, once again, face
the charge of first degree murder and the possibility of a life
sentence if he was convicted of that charge. Mr. Narvin wrote:
In my opinion, under these facts, the jury will
determine that you are the person that did this, and
first-degree murder would be inevitable. I know your
sentence is a long one and I understand you were
doing time, I am not, but I feel you need to be advised
of this before proceeding further.
Mr. Narvin concluded with the following:
On the other hand, if you decide that you wish to
proceed, we will do everything we can to see
that you receive a new trial.
(Emphasis supplied). Later, on May 11, 2014, associate counsel
Brandon Herring, advised [Appellant]:
Please bear in mind that the remedy that will be
sought for you pursuant to your PCRA petition would
be to withdraw your guilty plea and you will proceed
to trial. Accordingly, you could be sentenced to
more incarceration. Specifically, if you are
convicted of murder in the first degree, you will be
sentence to a life sentence. Based on my review of
your file, I believe this is a strong possibility. I will be
happy to file your PCRA petition for you, but you must
decide if you wish to possibly subject yourself to
significantly higher sentence than the one you are
serving now.
(Emphasis in original).
The same message was conveyed on October 16, 2014, by
Mr. Herring when he again advised [Appellant] of his
concern that [Appellant] could face a sentence of life
imprisonment if he were granted a new trial. Mr. Herring
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advised him to withdraw his petition but did conclude his
letter by assuring [Appellant] that if he chose otherwise, “.
. . we will proceed with your hearing.” This letter was sent
after counsel had filed an Amended Post Conviction Relief
Act petition on [Appellant]’s behalf and after the initial
hearing had been scheduled. It was after this letter that
counsel filed a motion asking to be allowed to withdraw the
Post Conviction Relief Act petition.
These letters, supplied by [Appellant] and attached to his
pro se PCRA petition, establish that [Appellant]’s claim that
he was not given proper advice regarding his pending PCRA
petition is false. PCRA counsel properly advised him of the
possible consequences should his petition succeed in
securing a new trial. Counsel’s warning that if successful on
the PCRA petition, he would proceed to trial on a charge of
first-degree murder and would face a sentence, if convicted,
of life in prison without the possibility of parole, was not only
the proper advice, counsel would have been derelict in not
giving that advice. Nor was it inappropriate for counsel to
offer their view that based on the evidence, should he be
awarded a new trial, he would likely be convicted of first-
degree murder.
The communications with [Appellant] establish that
[Appellant] was given proper advice from his counsel but
that, ultimately, it was his decision whether to proceed with
the petition or withdraw it. They gave him what he needed
to make an informed decision; they did not coerce him or in
any way prevent him from proceeding in any manner he
chose. Accordingly, because the documents that
[Appellant] attached to his pleading established, as a matter
of fact, that the averments he is offering in support of his
request for relief are factually incorrect and that the facts
actually defeat his claims, those claims will be dismissed
without a hearing.
PCRA Court Opinion, 6/2/21, at 2-5 (unnecessary capitalization removed).
We agree with the PCRA court’s analysis and assessment: the record
does not support Appellant’s claims it was “unknown” to him that he had a
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right to insist on going to trial and that it was “unknown” to him that he did
not have to withdraw his initial PCRA petition.
In light of the foregoing, therefore, we conclude the instant PCRA
petition is untimely and that Appellant failed to meet the “newly-discovered”
fact exception to the timeliness bar. To the extent the claims could be deemed
timely, they are nonetheless without merit for the reasons stated above.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/10/2021
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