Com. v. Cherrington, O.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ONEIL A. CHERRINGTON
Appellant No. 2035 MDA 2016
Appeal from the Order Entered January 6, 2017
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0002889-2011
BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MOULTON, J.: FILED SEPTEMBER 01, 2017
Oneil A. Cherrington appeals, pro se, from the January 6, 2017 order
entered in the Luzerne County Court of Common Pleas dismissing his
petition filed under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-46.
We affirm.
On April 19, 2012, Cherrington pled guilty to carrying a firearm
without a license and disorderly conduct (create hazardous or physically
offensive condition).1 That same day, the trial court sentenced Cherrington
to time served to 6 months’ incarceration for the firearm conviction, on
which the trial court granted him immediate parole, and a concurrent 6
months’ probation for the disorderly conduct conviction.
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1
18 Pa.C.S. §§ 6106(a)(2) and 5503(a)(4), respectively.
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On January 6, 2016, Cherrington filed a petition to reopen case, set
aside conviction, and dismiss charges due to ineffective assistance of
counsel, unlawful procedures, and insufficient evidence.2 Treating this
petition as a first PCRA petition, the PCRA court appointed counsel. On
August 8, 2016, counsel filed a motion to withdraw and a Turner/Finley3
“no-merit” letter, which counsel served on the court and Cherrington. On
August 15, 2016, the PCRA court issued a notice of intent to dismiss PCRA
petition pursuant to Pennsylvania Rule of Criminal Procedure 907 and
granted counsel’s motion to withdraw.
On December 12, 2016, Cherrington, acting pro se, filed a notice of
appeal4 and a petition for a writ of coram nobis, asserting ineffective
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2
On August 15, 2016, the PCRA court determined that Cherrington’s
January 6, 2016 petition had not been filed with Clerk of Courts and ordered
the petition to be filed and docketed. In its opinion, the PCRA court
concluded that Cherrington’s petition was filed on January 6, 2016 under the
prisoner mailbox rule. Trial Ct. Op., 4/20/17, at 2 n.1. We agree. See
Commonwealth v. Little, 716 A.2d 1287, 1289 (Pa.Super. 1998) (holding
that prisoner mailbox rule applies to PCRA petitions).
3
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
4
On January 5, 2017, this Court issued a rule upon Cherrington to
show cause as to why his appeal should not be quashed as having been
taken from a purported order which is not entered upon the docket of the
trial court. On January 27, 2017, we discharged this rule, noting that the
trial court docket reflects a January 6, 2017 entry of an order dismissing
both of Cherrington’s petitions. Based on the PCRA court’s later entry of an
order dismissing the January 6, 2016 petition, we accept Cherrington’s
premature appeal as timely filed on January 6, 2017. See Commonwealth
v. Schwartzfager, 59 A.3d 616, 617-18 (Pa.Super. 2012) (allowing appeal
(Footnote Continued Next Page)
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assistance of plea counsel. On January 4, 2017, the PCRA court dismissed
Cherrington’s January 6, 2016 and December 12, 2016 petitions, concluding
that he is ineligible for PCRA relief.
Although Cherrington’s brief does not include a statement of questions
involved, we are able to discern the following issues:5 (1) whether the PCRA
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(Footnote Continued)
where petitioner filed notice of appeal after Rule 907 notice but before entry
of final order denying PCRA relief).
5
Cherrington has failed to comply with the Pennsylvania Rules of
Appellate Procedure in several respects. Cherrington’s brief contains none of
the required sections except an argument section, which he titled
“procedural posture.” Further, Cherrington’s arguments are disjointed and
fail to show where in the record he preserved these issues for appeal. See
Pa.R.A.P. 2119(b), (c). “Although Pennsylvania courts endeavor to be fair to
pro se litigants in light of the challenges they face conforming to practices
with which attorneys are far more familiar, [we] nonetheless long have
recognized that we must demand that pro se litigants comply substantially
with our rules of procedure.” Commonwealth v. Spuck, 86 A.3d 870, 874
(Pa.Super. 2014) (internal citation omitted). Further, “‘[t]his Court will not
act as counsel’ for an appellant who has not substantially complied with our
rules.” Id. (quoting Bombar v. W. Am. Ins. Co., 932 A.2d 78, 93
(Pa.Super. 2007)).
Based on Cherrington’s failure to adhere to the Rules of Appellate
Procedure, this Court has the right to quash or dismiss the appeal. See
Pa.R.A.P. 2101 (noting that parties appearing before this Court “shall
conform in all material respects with the requirements of these rules as
nearly as the circumstances of the particular case will admit . . . and, if the
defects are in the brief or reproduced record of the appellant and are
substantial,” we may quash or dismiss the appeal). However, “in the
interest of justice we address the arguments that can reasonably be
discerned from this defective brief.” Commonwealth v. Lyons, 833 A.2d
245, 252 (Pa.Super. 2003).
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court erred in dismissing his petitions and (2) whether the PCRA court erred
in construing his petition for a writ of coram nobis as a PCRA petition.
Preliminarily, we conclude that the PCRA court correctly treated
Cherrington’s December 12, 2016 coram nobis petition as a PCRA petition,
but should not have accepted it. The PCRA “is the sole means of obtaining
collateral relief and encompasses all other common law and statutory
remedies for the same purpose that exist . . . , including habeas corpus and
coram nobis.” 42 Pa.C.S. § 9542. Further, a “claim of ineffective assistance
of plea counsel, which is based on counsel’s failure to advise him of the
collateral consequences of his plea, [is] cognizable under the PCRA.”
Commonwealth v. Descardes, 136 A.3d 493, 501 (Pa. 2016).
However, Cherrington filed a “notice of appeal” with regard to his first
PCRA petition simultaneously with his coram nobis petition. “[W]hen an
appellant’s PCRA appeal is pending before a court, a subsequent PCRA
petition cannot be filed until the resolution of review of the pending PCRA
petition by the highest state court in which review is sought, or upon the
expiration of the time for seeking such review.” Commonwealth v. Lark,
746 A.2d 585, 588 (Pa. 2000). Thus, after Cherrington filed his notice of
appeal, he was barred from filing a second PCRA petition until the appeal
was resolved. Therefore, the trial court erred in accepting the December 12,
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2016 petition,6 and we will only consider the PCRA court’s dismissal of
Cherrington’s January 6, 2016 PCRA petition.
“Our standard of review from the grant or denial of post-conviction
relief is limited to examining whether the PCRA court’s determination is
supported by the evidence of record and whether it is free of legal error.”
Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011). The
PCRA court dismissed Cherrington’s petition because Cherrington was no
longer serving a sentence of imprisonment, probation, or parole, thereby
rendering him ineligible for PCRA relief.
We agree with the trial court’s determination that Cherrington was
ineligible for PCRA relief,7 but we are constrained to conclude that the PCRA
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6
We recognize that, in some circumstances, a subsequent PCRA
petition may be construed as an amendment to the initial PCRA petition.
However, PCRA petitioners “may not automatically ‘amend’ their PCRA
petitions via responsive pleadings”; rather, under Pennsylvania Rule of
Criminal Procedure 905, “leave to amend [a PCRA petition] must be sought
and obtained.” Commonwealth v. Baumhammers, 92 A.3d 708, 730 (Pa.
2014). Here, Cherrington did not seek leave to amend his January 6, 2016
PCRA petition. Therefore, we will not treat Cherrington’s coram nobis
petition as an amendment to his first PCRA petition.
7
Under the PCRA, a petitioner is only eligible for relief if the petitioner
is:
(i) currently serving a sentence of imprisonment,
probation or parole for the crime;
(ii) awaiting execution of a sentence of death for the
crime; or
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court lacked jurisdiction to consider the petition because Cherrington’s
petition was untimely filed. It is well settled that “the timeliness of a PCRA
petition is a jurisdictional requisite.” Commonwealth v. Brown, 111 A.3d
171, 175 (Pa.Super.), app. denied, 125 A.3d 1197 (Pa. 2015). A PCRA
petition “including a second or subsequent petition, shall be filed within one
year of the date the judgment becomes final.” 42 Pa.C.S. § 9545(b)(1). A
judgment is 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 [] review.” 42 Pa.C.S.
§ 9545(b)(3).
Cherrington’s judgment of sentence became final on May 21, 2012,
when his time to seek review in this Court expired.8 He had one year from
that date, or until May 21, 2013, to file a timely PCRA petition. Therefore,
his current petition, filed on January 6, 2016, is facially untimely.
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(Footnote Continued)
(iii) serving a sentence which must expire before the
person may commence serving the disputed
sentence.
42 Pa.C.S. § 9543(a)(1)(i)-(iii). Because Cherrington was sentenced to a
maximum period of 6 months’ incarceration with a concurrent period of 6
months’ probation, the trial court properly determined that Cherrington was
no longer serving a sentence under section 9543(a)(1)(i) of the PCRA.
8
Cherrington had 30 days from his judgment of sentence to file a
notice of appeal with this Court. See Pa.R.A.P. 903(a). Because the
thirtieth day, May 19, 2012, was a Saturday, Cherrington had until the next
business day, May 21, 2012, to file his notice of appeal. See 1 Pa.C.S. §
1908.
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Courts may consider a PCRA petition filed more than one year after a
judgment of sentence became final only if the petitioner alleges 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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii); see Brown, 111 A.3d at 175-76. In
addition, when invoking an exception to the PCRA time bar, the petition
must “be filed within 60 days of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2).
Cherrington’s petition neither pled nor proved a time-bar exception.
Cherrington instead argues, for the first time on appeal, that Padilla v.
Kentucky, 559 U.S. 356 (2010), created a new rule of law that applies
retroactively to his case. We disagree.
First, the United States Supreme Court decided Padilla in 2010, and
Cherrington was convicted in 2012; therefore, Padilla could not apply
retroactively to Cherrington’s case. Second, even if Cherrington had been
convicted before Padilla was decided, it is well settled that “Padilla did not
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recognize a new ‘constitutional right’ as envisioned by our Legislature in
enacting [s]ubsection 9545(b)(1)(iii).” Commonwealth v. Garcia, 23 A.3d
1059, 1064 (Pa.Super. 2011). Because Cherrington has neither pled nor
proven a time-bar exception, the trial court’s dismissal of his petition was
proper.
Order affirmed.
Judge Olson and President Judge Emeritus Ford Elliott concur in the
result
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/1/2017
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