Com. v. Ferguson, A.

J-S27019-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ARTHUR M. FERGUSON
Appellant No. 2504 EDA 2014
Appeal from the PCRA Order entered June 11, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No: CP-23-CR-0001856-2009
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 01, 2015
Appellant, Arthur M. Ferguson, appeals pro se from the June 11, 2014
order entered in the Court of Common Pleas of Delaware County, dismissing
as untimely Appellant’s second petition for collateral relief filed pursuant to
the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. Following
review, we affirm.
On appeal from the dismissal of Appellant’s first PCRA petition, a panel
of this Court provided the following factual and procedural background:
Appellant was arrested and subsequently convicted of seven
counts of aggravated indecent assault, one count of criminal
solicitation to commit involuntary deviate sexual intercourse, and
eight counts of indecent assault of his daughter’s girlfriend (the
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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victim), who was eleven years old at the time of trial. On August
9, 2010, Appellant was sentenced to an aggregate term of ten to
twenty years’ incarceration and eight years of consecutive
probation. Appellant’s post-sentence motions were denied by
the trial court and Appellant filed a timely direct appeal arguing
that the trial court erred in admitting hearsay testimony under
the tender years exception. On August 4, 2011, a panel of this
Court affirmed Appellant’s judgment of sentence. See
Commonwealth v. Ferguson, 3052 EDA 2010 (Pa. Super. filed
August 4, 2011) (unpublished memorandum). Appellant did not
petition our Supreme Court for review.
On December 14, 2011, Appellant filed a timely pro se PCRA
petition raising three claims of ineffective assistance of counsel
related to the trial counsel’s [refusal to present medical records
evidence, refusal to call an expert relating to those records, and
failure to object to admission of the Commonwealth expert’s
report]. The PCRA court appointed counsel, who after review of
the record determined that Appellant’s issues lacked merit and
submitted 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 March 16, 2012, the PCRA court filed a notice of intent to
dismiss his PCRA petition without a hearing pursuant to
Pa.R.Crim.P. 907. Counsel’s Turner/Finley letter was attached
to the notice. [Appellant requested additional time to respond to
the 907 notice by motion that was not docketed but was
incorporated into the record by the trial court in its opinion dated
September 20, 2012.]
On April 18, 2012, Appellant mailed to the PCRA court a pro se
response to the 907 notice. Once more, Appellant did not file his
response with the clerk of courts; however, pursuant to
Pa.R.A.P. 1926, the PCRA court incorporated it into the record.
Appellant’s response raised seven new claims of trial counsel’s
and direct appeal counsel’s ineffectiveness.[fn.4]
[fn.4]
These new claims included: (1) trial counsel’s failure
to challenge the victim’s failure to lodge a prompt
complaint or to request a prompt complaint instruction;
(2) trial counsel’s failure to present evidence of
[Appellant’s] good character for truthfulness; (3) direct
appeal counsel’s failure to file a petition for allowance of
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appeal with the Supreme Court; (4) direct appeal
counsel’s failure to raise speedy trial issues; (5) trial
counsel’s failure to demonstrate bias of the
Commonwealth’s expert witness; (6) direct appeal
counsel’s failure to raise a hearsay/confrontation issue;
and (7) direct appeal counsel’s failure to challenge trial
counsel’s ineffectiveness. PCRA Court Opinion,
9/20/2012, at 3-4.
On May 22, 2012, the PCRA court entered an order dismissing
Appellant’s PCRA petition and granting counsel’s request to
withdraw. On June 8, 2012, the PCRA court ordered Appellant to
file his Pa.R.A.P. 1925(b) concise statement of errors complained
of on appeal within 21 days, or by July 3, 2012. On June 19,
2012, Appellant mailed the PCRA court a pro se motion for
enlargement of time within which to file his concise statement,
claiming he “needed additional time to obtain the transcripts and
record in order to prepare his concise statement.” The PCRA
court “found this claim unacceptable but did not enter any order
in response.” On July 12, 2012, Appellant mailed a pro se
1925(b) statement to the PCRA court, wherein he complained
the PCRA court erred in dismissing his petition. Appellant raised
[four issues: the PCRA court failed to conduct an independent
review of the issues; PCRA counsel failed to address each issue
raised in Appellant’s PCRA petition; PCRA counsel failed to raise
issues he knew Appellant wanted to raise; and the PCRA court
failed to address issues Appellant asked PCRA counsel to raise in
an amended PCRA petition].
Commonwealth v. Ferguson, 1702 EDA 2012 at 1-4 (Pa. Super. filed
October 24, 2013) (unpublished memorandum) (some footnotes and
citations to PCRA court opinion omitted).
Before addressing the merits of Appellant’s claims, the panel
considered whether the claims were properly preserved for review by this
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Court.1 The Court explained it “is willing to construe liberally materials filed
by a pro se litigant, [but] pro se status generally confers no special benefit
upon an appellant.” Id. at 6 (quoting Commonwealth v. Lyons, 833 A.2d
245, 252 (Pa. Super. 2003) (citations omitted)). “Accordingly a pro se
litigant must comply with the procedural rules set forth in the Pennsylvania
Rules of Court.” Id. Because Appellant failed to file a 1925(b) statement in
accordance with the PCRA court’s order, this Court concluded that “while
Appellant did preserve his claims of trial and appellate counsel
ineffectiveness by raising those issues in his response to the PCRA court’s
907 notice, he has effectively abandoned those claims on appellate review
by failing to raise them in a timely 1925(b) statement.” Id. at 7 (citations
omitted). Accordingly, the order of the PCRA court was affirmed.
On December 19, 2013, Appellant filed a second PCRA petition, which
is the subject of this appeal. On February 18, 2014, the PCRA court
appointed counsel2 who filed a motion to withdraw and a Turner/Finley no-
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1
Prior to reaching a decision, this Court remanded the case to the PCRA
court “for a determination as to whether counsel had abandoned
appellant . . . .” Order, 12/19/12. In response, the PCRA judge, current
Superior Court Judge Patricia H. Jenkins, issued seven written findings,
“conclud[ing] that there has been no abandonment of [Appellant] by either
of the attorneys who represented him, and that he has elected to proceed on
a pro se basis.” Letter from Judge Jenkins to Superior Court Prothonotary,
1/3/13.
2
It is not clear from the record why the PCRA court appointed counsel for
Appellant’s second PCRA petition. As this Court noted in Commonwealth v.
(Footnote Continued Next Page)
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merit letter on May 6, 2014. On May 7, 2014, the PCRA court granted
counsel’s motion to withdraw and issued a Rule 907 notice of intent to
dismiss the petition without a hearing. On May 19, 2014, Appellant filed a
pro se response to the Rule 907 notice. By order entered June 11, 2014, the
PCRA court dismissed Appellant’s petition as time-barred.
In this timely appeal, Appellant asks us to consider two issues:
[1.] Did the court erred [sic] in failing to determine that the
Appellant was abandoned for the purpose of appeal?
[2.] And did the PCRA court err in failing to perform an
independent review of the issue’s [sic] to determine if a
constitutional or due-process violation had taken place prior to
dismissing the P.C.R.A. petition? []
Appellant’s Brief at 3.
As our Supreme Court has explained:
Our standard of review of the PCRA court’s grant of relief is
clear: we examine whether the court’s findings are supported by
the record and whether its conclusions of law are free from legal
error. Commonwealth v. Colavita, 606 Pa. 1, 993 A.2d 874,
886 (2010). 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
_______________________
(Footnote Continued)
Kubis, 808 A.2d 196 (Pa. Super. 2002), the automatic right to counsel in
collateral appeals applies only to first PCRA petitions. Id. at 200 (citing
Pa.R.Crim.P. 904(A)). In Commonwealth v. Jackson, 965 A.2d 280, 283
(Pa. Super. 2009), we recognized that a PCRA petitioner who satisfies the
judge of the inability to afford or otherwise procure counsel is entitled to
appointment of PCRA counsel under Pa.R.Crim.P. 904(D) for a second or
subsequent petition if an evidentiary hearing is required under Pa.R.Crim.P.
908. No evidentiary hearing was deemed to be required in the case before
us.
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applies. 42 Pa.C.S. § 9545(b)(1). “The PCRA’s time restrictions
are jurisdictional in nature. Thus, [i]f 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, 586 Pa. 468, 895 A.2d 520, 522
(2006) (first alteration in original) (internal citations and
quotation marks omitted). As timeliness is distinct from the
merits of the underlying claims, we must first determine whether
[appellant’s] PCRA petition was timely filed in order to decide
whether this Court has legal authority to address its substantive
claims. See Commonwealth v. Stokes, 598 Pa. 574, 959 A.2d
306, 310 (2008) (consideration of Brady claim separate from
consideration of its timeliness).
Commonwealth v. Williams, 105 A.3d 1234, 1239 (Pa. 2014).3
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3
Section 9545(b)(1) provides:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
(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.
(Footnote Continued Next Page)
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In Commonwealth v. Crews, 863 A.2d 498 (Pa. 2004), our Supreme
Court reiterated:
The [PCRA] makes clear that where . . . the petition is untimely,
it is the petitioner’s burden to plead in the petition and prove
that one of the exceptions applies. 42 Pa.C.S. § 9545(b)(1).
That burden necessarily entails an acknowledgement by the
petitioner that the PCRA petition under review is untimely but
that one or more of the exceptions apply.
Id. at 501 (quoting Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa.
1999) (emphasis in original)).
In his Turner/Finley no-merit letter, appointed counsel concluded
that Appellant’s second PCRA petition was untimely filed and was not saved
from the PCRA’s time restrictions by any exception recognized under 42
Pa.C.S.A. § 9545(b)(1). Counsel explained, inter alia:
[First PCRA] appointed counsel filed a “No Merit” letter on March
15, 2012. [Appellant] raised timely objections to counsel’s “no
merit” letter following the [c]ourt’s 907 Notice. The [c]ourt
issued its final Order dismissing [Appellant’s] PCRA on May 22,
2012, and granted counsel’s application to withdraw.
[Appellant] was left with the option to proceed pro se or with
private counsel if he wished to pursue an appeal to Superior
Court. [Appellant] chose the former option and filed a pro se
timely Notice of Appeal.
[Appellant] had the opportunity to raise some or all of [his]
issues following denial of his PCRA. He pursued litigation of
some claims while discarding others. Thus, [Appellant] cannot
allege any new claims within the instant PCRA which he could
have pursued during the course of his prior PCRA appeal.
Moreover, any new claims would still need to be raised within
one year from the date that judgment of sentence became final,
_______________________
(Footnote Continued)
42 Pa.C.S.A. § 9545(b)(1).
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or by September 4, 2012. As the instant PCRA was filed on
December [19], 2013, the current PCRA is untimely on its face.
***
Moreover, [Appellant] does not provide any information that
would suggest that any of the instant claims constituted after-
discovered evidence, that would allow him to plead that or any
other statutory exception under [§] 9545(b)(1). On this basis
alone, [Appellant] is further time-barred from raising this second
PCRA.
Turner/Finely No-Merit Letter, 5/6/14, at 6-7.
Our review confirms appointed counsel’s determination that Appellant
failed to allege or prove any exception to the time bar to save his facially
untimely petition. See Appellant’s Second PCRA Petition, 12/19/13, at § 4A,
in which Appellant marked two boxes, one indicating his petition was his first
PCRA petition being utilized solely to obtain nunc pro tunc restoration of
direct appeal rights abandoned by counsel, and a second indicating the
petition was a second PCRA petition being filed within one year of the date
his conviction became final. A petitioner is to mark the final box in § 4A if
the petition is outside the one-year PCRA time limitation and then designate
the time bar exception(s) claimed. Appellant did not mark any box
signifying his petition was filed beyond the one-year deadline or claiming
any exception to the time bar.
Appellant has continued to maintain that his December 19, 2013
petition was timely filed. In his response to the PCRA court’s Rule 907
notice, Appellant asserts that his petition was not untimely, “that the tolling
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time stops at each stage of appeal,” and that he had “at least five months in
which to file a [PCRA, w]hich is one year from the time that he had to seek
review.” Response to Rule 907 Notice at ¶ 8. Further, in his brief, Appellant
asserted that “[a]t the time Appellant filed this second [PCRA p]etition he
had at least six (6) months remaining on his time to file.” Appellant’s Brief
at 5. Again, Appellant’s judgment of sentence was final on September 4,
2011. His second PCRA petition, filed on December 19, 2013, was clearly
not filed within one year of September 4, 2011.
In its Rule 1925(a) opinion, the PCRA court explained it lacked
jurisdiction over Appellant’s petition because the petition was time-barred
and Appellant failed to allege or establish any exception to the PCRA’s one-
year time requirement. PCRA Court 1925(a) Opinion, 8/12/14, at 3 (citing
and incorporating by reference appointed counsel’s no-merit letter).
Further, in light of the heightened standard when reviewing a second or
subsequent PCRA petition, the court determined that Appellant failed to
demonstrate that a miscarriage of justice occurred or that he was innocent
of the crimes with which he was charged. Id. at 3-5 (citing
Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) and
Commonwealth v. Austin, 721 A.2d 375 (Pa. Super. 1998)).
We agree with the PCRA court that Appellant’s second PCRA petition is
time-barred and that he has failed to plead and prove any exception to save
it from the PCRA’s one-year time restriction. Therefore, we are without
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jurisdiction to review either of the issues Appellant asks us to consider in this
appeal.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/1/2015
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