Com. v. Washington, A. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ALVIN WASHINGTON
Appellant No. 778 MDA 2020
Appeal from the PCRA Order entered May 15, 2020
In the Court of Common Pleas of Berks County
Criminal Division at No: CP-06-CR-0005006-2013
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY STABILE, J.: FILED: OCTOBER 22, 2021
Appellant, Alvin Washington, appeals pro se from the May 15, 2020
order entered in the Court of Common Pleas of Berks County denying his
second petition for collateral relief filed pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.
The factual background and procedural history of this case are not at
issue. Briefly, on September 28, 2013, Appellant struck victim Lisa Ganns
with a machete. Victim suffered a significant knee injury because of this
attack. On January 6, 2014, the Commonwealth charged Appellant via an
amended criminal information with two counts of attempted murder, two
counts of aggravated assault, two counts of simple assault, and one count
each of making terroristic threats, recklessly endangering another person,
possessing an instrument of crime, and criminal trespassing. On January
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20, 2015, Appellant pled guilty to one count of aggravated assault and was
immediately sentenced to 9 to 20 years’ imprisonment. On direct appeal,
we affirmed the judgment of sentence. See Commonwealth v.
Washington, No. 422 MDA 2015, unpublished memorandum (Pa. Super.
filed August 28, 2015).
On November 12, 2015, Appellant filed his first PCRA petition.
Counsel was appointed and filed a petition to withdraw and a no-merit letter
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super 1988) (en banc). On
September 30, 2016, the PCRA court granted counsel’s petition to withdraw.
On November 2, 2016, Appellant filed a pro se amended PCRA petition. On
March 9, 2017, the PCRA court issued Pa.R.Crim.P. 907 notice of its intent to
dismiss the petition. On March 30, 2017, the PCRA dismissed the petition.
Appellant timely appealed.1 Addressing the merits of the claims raised on
____________________________________________
1 In his brief accompanying Appellant’s appeal from the dismissal of his first
PCRA petition, Appellant raised several issues for our review. For clarity, we
restated them as follows:
1. Was the trial court devoid of subject-matter jurisdiction over
Appellant’s criminal proceedings due to the Commonwealth’s
failure to file a valid bill of information?
2. Was Appellant’s guilty plea knowing, intelligent, and voluntary
where trial counsel failed to advise Appellant of the
jurisdictional defect?
(Footnote Continued Next Page)
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appeal, we affirmed the PCRA court’s order dismissing Appellant’s first PCRA
petition. See Commonwealth v. Washington, No. 638 MDA 2017,
unpublished memorandum at *3-6 (Pa. Super. filed December 21, 2017).
On June 6, 2019, Appellant filed the instant PCRA petition. As the
PCRA court explained:
In his second PCRA petition, [Appellant] provides an eight-page
recitation of allegations in support of his assertion of actual
innocence and claims that “the entire judicial process afforded to
[Appellant] has been unfair as he was without effective
representation of counsel throughout pre-trial, plea and
sentencing.” PCRA Pet. at 8. [Appellant] then sets forth claims
that he is eligible for relief due to constitutional violations,
ineffective assistance of counsel, unlawfully induced guilty plea,
illegal sentence and that the proceeding was before a tribunal
without jurisdiction. While admitting that the second PCRA
petition is untimely, [Appellant] alleges that several of the
exceptions to jurisdiction pursuant to 42 Pa.C.S.A. § 9545 apply,
including the previously unknown facts exception and the newly
recognized constitutional right exception.
In support of his contention that the previously unknown facts
exception applies, [Appellant] asserts that the amended
information was fatally defective in failing to specifically define
the crime in nature and cause and fails to conform to
Pa.R.Crim.P. 560(B)(5). [Appellant] further claims that he was
charged in the information at count three pursuant to 18
(Footnote Continued) _______________________
3. Was trial counsel ineffective for failing to raise a claim under
Apprendi v. New Jersey, 530 U.S. 466 (2000) and its
progeny?
4. Was PCRA counsel ineffective for failing to raise trial counsel’s
ineffectiveness in these respects?
Commonwealth v. Washington, No. 638 MDA 2017, unpublished
memorandum at *3 (Pa. Super. filed December 21, 2017).
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Pa.C.S.A. § 2702(a)(4), but sentenced pursuant to 18 Pa.C.S.A.
§ 2702(a)(1).
In support of his claim of eligibility for the newly-recognized
constitutional right exception, [Appellant] cites to the U.S.
Supreme Court case of McCoy v. Louisiana, 138 S.Ct. 1500
(2018) and to the Pennsylvania Supreme Court case of
Commonwealth v. Peterson, 192 A.3d 1123 (Pa. 2018).
[Appellant] provides quotations from each of these cases
indicating that the alleged newly-recognized right he is asserting
seems to be a defendant’s fundamental right to be the head of
his own defense and a defendant’s right against counsel
abandonment.
Appellant proceeded to further claims of ineffective assistance of
appellate counsel and PCRA counsel, unconstitutional sentence,
violation of his due process rights, [the trial court]’s abuse of
discretion in failing to hold an evidentiary hearing on his return
of property petition, and alleging that the earlier appellate
reviews [] on direct appeal and pursuant to the PCRA were
unmeaningful for defects in the record. Appellant again asserted
that his guilty plea was not knowing and voluntary and
challenged [the trial court]’s jurisdiction for a supposed fatally
deficient amended information. Appellant continued by asserting
that his Rule 600 rights to a speedy trial were violated and that
he was prejudiced by an interview the victim participated in with
a local television station, rendering any chance of a trial before
an impartial jury impossible. Finally, Appellant claimed that he
was entitled to the return of his property as a matter of law and
that the fines, costs, and restitution imposed should have been
vacated. [Appellant] seeks [] release from custody and
discharge, vacation of the fines, costs and restitution ordered at
sentencing and the return of the full value of all properties taken
for which he asserts a total of $9,800.00
On January 10, 2020, [the PCRA court], having determined that
Appellant’s petition was untimely, and that he failed to
adequately plead an exception to the time bar, filed a notice of
intention to dismiss the petition without a hearing. Appellant
filed a response in which he again claimed that he could avail
himself of the one year timeliness requirement because he was
“actually innocent” and that the court should retain jurisdiction
because his conviction was manifest injustice. Notably,
Appellant again failed to plead an exception applicable to his
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petition. By order dated May 15, 2020, [the PCRA] court
dismissed the petition.
Appellant filed his notice of appeal on May 26, 2020. On June 5,
2020, [the PCRA court] issued an order directing Appellant to file
a concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(b).
PCRA Court Opinion, 3/8/21, at 2-4 (minor editing throughout).
Appellant pro se filed a concise statement on June 25, 2020, which
was supplemented on January 15, 2021.
Appellant’s concise statement asserts thirty (30) separate
alleged errors, mirroring in substantial part, his claims made in
his PCRA. Notably, Appellant’s concise statement does not
address the issue of the dismissal of his petition, namely, that
the petition is untimely and that he has failed to plead and prove
any of the 42 Pa.C.S.A. § 9545 exceptions to the time bar.
Id. at 5.
Despite Appellant’s failure to challenge in his concise statement the
PCRA court’s timeliness determination, the PCRA court addressed the issue
in its Rule 1925(a) opinion as follows:
In his untimely second PCRA petition, Appellant recognized that
his petition was untimely, but claimed that he is eligible for relief
under both the previously unknown facts exception and the
newly-recognized constitutional right exception. . . .
Appellant first claims that he qualifies for an exception to the
time bar under the previously unknown facts exception because
of a fatally defective amended information. Specifically,
Appellant contends that the amended information “contained no
specific fact of a crime being committed by [Appellant] that
comported with the complaint.” [PCRA petition, at 11].
....
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Our review of Appellant’s second PCRA petition reveals nothing
supporting his assertion that the facts supporting his claim were
previously unknown to him. In fact, many of the claims made
have been waived as they have already been raised and
addressed in earlier proceedings. More importantly, the exhibits
that Appellant has attached to his second PCRA petition reveal
that he was both aware of, and had notice of all the facts he
alleged were the basis for his assertion of the exception.
Therefore, we find that the exception for previously unknown
facts is not applicable in this matter and Appellant cannot
overcome the time bar to his petition on such a basis.
Id. at 7-8 (citations omitted).
Regarding the newly-recognized constitutional right exception, the
PCRA Court noted that Appellant’s reliance on McCoy and/or Peterson was
misplaced. Regarding McCoy,2 the PCRA court noted that McCoy was
inapplicable because
Appellant failed to provide any support that his trial counsel
admitted his guilt over his objections. Nothing in the record
indicates that Appellant ever instructed his trial counsel in
contradiction of his open guilty plea. Appellant raised the issue
on appeal to the Superior Court and the Court likewise found
that “the certified record belies [Appellant’s] claim that his guilty
plea was in any way unknowing, unintelligent, or involuntary.”
Commonwealth v. Washington, 422 MDA 2015 at 4 (Pa.
Super. Aug. 28, 2015) (unpublished memorandum).
Consequently, McCoy is inapplicable to Appellant’s case.
Id. at 9.
____________________________________________
2 In McCoy, the Supreme Court held that it is unconstitutional and a
structural error, requiring no showing of prejudice, for defense counsel to
concede guilt over a defendant’s “intransigent and unambiguous objection”
to doing so. McCoy, 138 S.Ct. at 1507 (I), 1511 (III).
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The PCRA court also noted that even if McCoy announced a newly-
recognized constitutional right, Appellant has failed to establish that the
McCoy decision applied retroactively to cases on collateral review. The
PCRA court noted that our Supreme Court has expressly stated that “the
language ‘has been held’ in Section 9545(b)(1)(iii) means that a retroactivity
determination must exist at the time that the petition is filed.” Id. (citing
Commonwealth v. Abdul-Salaam, 812 A.2d 497, 502 (Pa. 2002)).
“Appellant failed to establish that the McCoy decision has been held to be
retroactively applicable to cases on collateral review. As such, McCoy does
not afford Appellant an exception to the time bar.” Id. at 10.
Regarding Peterson,3 the PCRA Court found “Appellant’s assertion
unsupportive of an exception to a newly-recognized constitutional right
contained in Peterson in order to apply the exception under 42 Pa.C.S.A. §
9545(b)(1)(iii). . . . Appellant fell woefully short of pleading or proving any
newly-recognized constitutional right therein.” Id. at 11.
____________________________________________
3 In Peterson, our Supreme Court held that counsel's negligence per se in
filing an untimely PCRA petition constitutes adequate grounds to permit the
filing of a new PCRA petition beyond the one-year time bar pursuant to the
exception in subsection 9545(b)(1)(ii).
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Because Appellant failed to plead and prove the timeliness of his
second PCRA petition, the PCRA court found his petition untimely. Id. at
12.4
“[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)).
____________________________________________
4 Appellant’s judgment of sentence became final 30 days after we denied
relief on direct appeal, i.e., September 28, 2015; accordingly, Appellant had
one year from that date to file a timely PCRA petition, i.e., September 28,
2016. The instant petition, which was filed on June 6, 2019, is therefore
patently untimely. Appellant does not challenge this fact. Appellant’s more
recent reiteration of his timeliness argument seems to focus on the
applicability of two exceptions, i.e., the newly-discovered fact and the
newly-recognized constitutional right exceptions. As explained infra, neither
of the claimed exceptions is applicable to the instant petition.
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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).
Despite timeliness being the only ground relied upon by the PCRA
court for dismissing Appellant’s second petition, once again, Appellant failed
to address that finding even in his appellate brief. Before us, Appellant
raises five issues for our review, and none of them addresses the PCRA
court’s timeliness findings and conclusions. The first four issues deal with
the jurisdiction of the trial court, the legality of his sentence, the validity of
his guilty plea, and abandonment by counsel on direct appeal. In his last
issue, Appellant argues that his second PCRA petition is timely “when the
Default Standard pursuant to Martinez v. Ryan, 566 U.S. 1 (2012) is
applied to the 1 year exception as the Appellant asserted in his final PCRA
Supplement[.]” Appellant’s Brief at 2 (verbatim). Appellant’s brief does not
make clear what is meant by this argument. Appellant states the instant
petition should be considered timely
because it is counsel’s responsibility to file timely petitions in
behalf of the Appellant, but here PCRA counsel has abandoned
the Appellant on his first PCRA petition thereby handicapping
layman and now pro se Appellant. Appellant’s Direct Appeal
right as requested within his PCRA petition must be reinstated
nunc pro tunc due to abandonment by counsel on his first Direct
Appeal along with his PCRA rights nunc pro tunc in lieu of any
subsequent Denial of his Direct Appeal.
On the same premises of the above default concept, Appellant’s
petition must be deemed timely filed under 42 Pa.C.S.A.
9545(b)(1)(iii) as the right asserted by the Appellant is a
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constitutional right that was recognized by the Supreme Court of
Pennsylvania after the time period when Judgment became final
and in this matter, retroactivity of that right may not apply on
Appellant’s matter by default as the Appellant has asserted
violations of constitutional rights pursuant to Peterson also see
Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264(2007) and [McCoy] and upon reinstatement of Appellant’s
Direct Appeal rights, by default the new right would no longer
require to be retroactive as it is now the year 2021 and the new
rights that the Appellant became aware of on June 3, 2018 was
decided in 2018. This pro se, Appellant was not aware of
Bennett that was decided in 2007 and it was the PCRA counsel’s
responsibility to raise the issue of abandonment of the Appellant
per se, his Appellate counsel pursuant to Bennett, which she
failed to because of her abandonment of the Appellant, per se.
Appellant’s Brief at 4 (verbatim).
Appellant’s reliance on Peterson (which the PCRA court briefly
addressed) and Martinez (which Appellant mentions for the first time in his
appellate brief) to overcome the untimeliness of his second PCRA petition is
misplaced.5
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5 In his second PCRA petition, Appellant also attempts to establish timeliness
through McCoy. The PCRA court adequately and correctly addressed the
matter, supra, and we see no need to add any further discussion on
Appellant’s reliance on McCoy.
Reliance on Bennett is also misplaced. To the extent Appellant argues that
the newly-discovered fact consists of him recently becoming aware of
Bennett, 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). In fact, the opposite is true. See Commonwealth v.
Watts, 23 A.3d 980, 987 (Pa. 2011) (“subsequent decisional law does not
amount to a new ‘fact’ under [S]ection 9545(b)(1)(ii) of the PCRA”); see
also Commonwealth v. Baroni, 795 A.2d 1007, 1009-10 (Pa. Super.
2002) (holding discovery of standing rule of law does not constitute a fact
(Footnote Continued Next Page)
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In Peterson, the Supreme Court held that PCRA counsel’s
ineffectiveness may constitute a newly discovered fact for purposes of the
Section 9545(b)(1)(ii) timing exception “where PCRA counsel’s
ineffectiveness per se completely forecloses review of collateral claims.”
Peterson, 192 A.3d at 1130. In that case, the Supreme Court concluded
PCRA “[c]ounsel’s untimely filing of [the petitioner's] first PCRA petition[,
just one day late,] constituted ineffectiveness per se, as it completely
foreclosed [him] from obtaining review of the collateral claims set forth in
his first PCRA petition.” Id. at 1132.
Here, Appellant fails to recognize some basic facts. First, Appellant
seems to argue that had counsel appointed in connection with his first PCRA
petition not withdrawn her appearance, trial counsel’s ineffectiveness could
have been properly challenged. Apparently, Appellant believes that PCRA
counsel’s filing of a no-merit letter under Turner/Finley along with a
petition to withdraw, followed by an order by the PCRA Court granting said
petition, constitutes “abandonment” as defined in Peterson. However,
Appellant provides no authority for his novel understanding of Peterson.
Indeed, what happened here bears no resemblance whatsoever to what
happened in Peterson. In other words, Peterson is easily distinguishable.
(Footnote Continued) _______________________
for purposes of the newly-discovered fact exception); Commonwealth v.
Yohe, 2019 WL 2246618, at *5 (Pa. Super. May 24, 2019) (“[L]ater-
acquired knowledge of a legal principle does not constitute a newly-
discovered fact”).
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Second, after PCRA counsel’s petition to withdraw was granted,
Appellant acted pro se. In his pro se appeal from the denial of his first PCRA
petition, Appellant did not claim ineffective assistance of PCRA counsel or
direct appeal counsel. Thus, the claim, at best, is waived.
Third, and equally important, Appellant appears to believe that he can
challenge in the instant appeal determinations that were made in connection
with the first PCRA petition and/or the appeal from the dismissal of his first
PCRA petition. We are not aware of any way that this can be done, nor does
Appellant provide any explanation or authority supporting his position.
In Martinez, the U.S. Supreme Court held that, where counsel is
ineffective in a prior, initial state collateral review proceeding, and where the
ineffectiveness caused the petitioner to procedurally default on a substantive
claim, counsel’s ineffectiveness “may provide cause [to excuse a] procedural
default in a federal habeas proceeding.” Martinez, 566 U.S. at 8 (emphasis
added). A state PCRA proceeding, like the instant one, is not the same as a
federal habeas proceeding. Second, the Martinez Court explicitly stated
that it was not handing down a “constitutional ruling” and that it was not
recognizing a new constitutional right. Martinez, 566 U.S. at 16-17. Thus,
Martinez affords Appellant no relief. See Commonwealth v. Holmes, 79A.3d 562, 583 (Pa. 2013) (“As the [Supreme] Court made clear, Martinez
did not recognize a new constitutional right that the [s]tates are obliged to
accommodate in any specific fashion.”); Commonwealth v. Saunders, 60
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A.3d 162 (Pa. Super. 2013), appeal denied, 72 A.3d 603 (Pa. 2013), cert.
denied, 571 U.S. 1144 (2014) (explaining that Martinez represents
significant development in federal habeas corpus law, but it is of no moment
with respect to the PCRA’s time bar).
Because Appellant did not challenge at any point the PCRA court’s
conclusions that Appellant’s second PCRA petition is untimely, we affirm the
order of the PCRA Court dismissing Appellant’s second PCRA petition. To the
extent that timeliness was addressed by Appellant, for the reasons stated
above, we conclude that Appellant failed to plead and prove that he met any
of the claimed exceptions to the time bar of the PCRA.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/2021
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