Com. v. Pettaway, W.

J-S11035-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WAYNE PETTAWAY :
:
Appellant : No. 1203 WDA 2016
Appeal from the PCRA Order June 8, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0005725-2006,
CP-02-CR-0005729-2006, CP-02-CR-0006010-2006,
CP-02-CR-0006031-2006
BEFORE: OLSON, RANSOM, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 21, 2017
Appellant Wayne Pettaway appeals the Order entered in the Court of
Common Pleas of Allegheny County on June 8, 2016, dismissing as untimely
1
his serial petition filed pursuant to the Post Conviction Relief Act (PCRA).
We affirm.
Appellant was charged in four separate Criminal Informations in July of
2006. The PCRA court previously set forth the facts and procedural history
as follows:
On October 24th, 2007, [Appellant] entered into a
negotiated plea whereby the Commonwealth agreed not to
pursue additional penalties, and [Appellant] agreed to plead
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S.A. §§ 9541-9546.
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guilty but mentally ill to all counts of CC Nos. 200605725,
20065729, 200606010, and 200606031 for a sentence of 10
years but not more than 20 years at Count 1 of CC No.
200605725, Attempted Serious Bodily harm, a felony of the first
degree, and a sentence of 10 years but not more than 20 years
at Count 2 of CC No. 200606010, Serious Bodily Harm
Committed in the Course of Theft, a felony of the first degree,
with no further penalty at the remaining counts of all criminal
informations.
Due to [Appellant’s] alleged mental illness and the need
for psychological evaluation, sentencing was deferred until March
18th, 2008, at which time [Appellant] once again agreed to the
plea. The sentences at CC Nos. 200705725 and 200606010
were to run concurrent to one another. [Appellant] was
represented by Alan Patterson, III, Esq. at both the plea and at
the sentencing hearing. No direct appeal was taken from the
judgment of sentence.
A pro se Post-Conviction Relief Act (PCRA) Petition was
filed by [Appellant] on April 9th, 2008, and on April 30, 2008,
attorney Charles R. Pass III, Esq., was appointed by this [c]ourt
to represent [Appellant] on his PCRA claim. Attorney Pass also
filed an amended PCRA Petition on September 17, 2008, and an
evidentiary hearing was heard on November 14th. At the hearing,
Attorney Pass informed the [c]ourt that [Appellant] intended to
withdraw his Amended PCRA Petition. The [c]ourt questioned
[Appellant] to determine if that was truly [Appellant’s] intention,
as Attorney Pass represented, to which [Appellant] replied “Yes,
sir.”
This [c]ourt accordingly entered an Order to Grant
[Appellant’s] withdrawal of the Amended PCRA Petition. No
further action was initiated by any of [Appellant’s] subsequent
counsel, or by the Petitioner in a pro se capacity, in regard to the
Amended PCRA petition.
PCRA Court Opinion, filed 2/25/13, at 1-2 (unnumbered).
Despite Appellant’s decision to withdraw his initial PCRA petition, he
has filed numerous pro se documents and PCRA petitions since 2008. The
instant appeal arises from Appellant’s pro se Writ of Error filed on May 9,
2016, which the PCRA court had treated as an untimely PCRA petition and
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denied in its Order of June 8, 2016. On August 20, 2016, the PCRA court
directed Appellant to file a concise statement of matters complained of on
appeal pursuant to Pa.R.A.P. 1925(b), and Appellant filed a document
purporting to be the same on September 5, 2016. Spanning more than two
pages of single-spaced typed text, Appellant’s Rule 1925(b) statement is
essentially an unfocused and sparsely punctuated assortment of what he
terms “error” and “major error.”
In its Rule 1925(a) Opinion, the PCRA court endeavored to
characterize Appellant’s claims set forth in his “(Concise Statement of Error
Complained of on Appeal)” as follows:
First, a City of McKeesport police officer and another
induvial [sic] conspired and committed perjury or making a false
statement. Second, the trial judge—John Zotolla-erred when he
convicted [Appellant] without any evidence, failing to dismiss the
case in a pre-trial setting and for participating in plea
negotiations. Third, his trial lawyer, Alan Patterson, failed to
make make [sic] objections, failed to ask for a postponement or
dismissal. Fourth, his constitutional protection against double
jeopardy was compromised. Fifth, using a previous conviction
that is later vacated to enhance a sentence should not be
allowed. Sixth, the US Supreme Court’s Alleyne[2] decision
applies here. Seventh, evidence must be admitted before a fact
finder can use it to support its guilt determination. Eight, there
is a problem with the Allegheny County Court of Common Pleas
having the necessary power to adjudicate these matters. His
ninth and final error (as best as this [c]ourt can ascertain from
his writing) concerns a lack of documents in his prison file to
justify that facility from detaining him.
____________________________________________
2
Alleyne v. U.S., ___ U.S. ____, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).
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Trial Court Opinion, filed 9/22/16, at 1-2. Upon noting Appellant’s
instant PCRA was untimely filed and that no exception to the PCRA
time-bar applied, the PCRA court observed that even if the petition had
been timely:
Having the proper documents in one’s prison file is not
relief which the PCRA speaks to. The matters of which he was
convicted happened in McKeesport, Pennsylvania. That city is in
Allegheny County. Jurisdiction was proper. The Alleyne decision
has been determined to not apply in retroactive fashion.
Commonwealth v. Washington, 37 EAP 2015 (Pa. July 19, 2016)
(“We hold that Alleyne does not apply retroactively to cases
pending on collateral review…”). The remaining claims are all
matters which could have been part of a direct appeal or an
otherwise timely post-conviction petition.
Id. at 2.
As the trial court’s inability to discern the issues Appellant wishes to
present on appeal makes clear, Appellant’s “(Concise Statement of Error
Complained of on Appeal)” fails to set forth specific, reviewable claims, and
his appellate brief does little to clarify or develop the issues he wishes to
present. Instead, his brief fails in numerous ways to comport with the
Pennsylvania Rules of Appellate Procedure. See Pa.R.A.P. 2116(a)(“The
statement of the questions involved must state concisely the issues to be
resolved, expressed in the terms and circumstances of the case but without
unnecessary detail”); Pa.R.A.P. 2119(a) (“The argument shall be divided into
as many parts as there are questions to be argued; and shall have as the
head of each part-in distinctive type or in type distinctively displayed-the
particular point treated therein, followed by such discussion and citation of
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authorities as are deemed pertinent”). In addition, Appellant fails to develop
legal arguments with citation to meaningful authority rationally related to
support of any of his claims Pa.R.A.P. 2119(b). Indeed, his assertions are
often simply unintelligible. The following quotation illustrates the type of
averments Appellant makes throughout his brief:
8. Rule 126 Citation of authority, at sentencing double jeopardy
was committed against me…. 9. Rule 126 Citation of Authority,
under the mandatory minimum sentence U.S. v. Alleyne the
mandatory minmum [sic] sentence [sic] is unconstitutional.
Appellant’s Brief at 10 (unnumbered) (ellipsis in original, unnecessary
capitalization omitted). Moreover, Appellant fails to set forth an argument
as to why the PCRA court erred by dismissing as time-barred his latest PCRA
petition.
While this Court is willing to construe liberally materials filed by a pro
se litigant, pro se status generally confers no special benefit upon an
appellant. Accordingly, a pro se litigant must comply with the Pennsylvania
Rules of Appellate Procedure, and this Court may quash or dismiss an appeal
if an appellant fails to conform with the requirements set forth in the
Pennsylvania Rules of Appellate Procedure. Pa.R.A.P. 2101. In the instant
case, the defects in Appellant's brief are substantial, and his argument is
rambling and often incoherent. However, to the extent he attempts to
challenge the legality of his sentence under Alleyne, we will consider that
claim below.
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When reviewing the propriety of an order denying PCRA relief, this
Court is limited to a determination of whether the evidence of record
supports the PCRA court’s conclusions and whether its ruling is free of legal
error. Commonwealth v. Robinson, ___ Pa. ____, ____, 139 A.3d 178,
185 (2016). This Court will not disturb the PCRA court’s findings unless
there is no support for them in the certified record. Commonwealth v.
Lippert, 85 A.3d 1095, 1100 (Pa.Super. 2014).
At the outset, we consider whether this appeal is properly before us.
The question of whether a petition is timely raises a question of law, and
where a petitioner raises questions of law, our standard of review is de novo
and our scope of review is plenary. Commonwealth v. Callahan, 101 A.3d
118, 121 (Pa.Super. 2014).
All PCRA petitions must be filed within one year of the date upon which
the judgment of sentence became final, unless one of the statutory
exceptions set forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) applies. The
petitioner bears the burden to plead and prove an applicable statutory
exception. If the petition is untimely and the petitioner has not pled and
proven an exception, the petition must be dismissed without a hearing
because Pennsylvania courts are without jurisdiction to consider the merits
of the petition. Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super.
2013).
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) states:
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(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 of sentence 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.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). In addition, any petition attempting to
invoke one of these exceptions “shall be filed within 60 days of the date the
claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2). Moreover,
“[a] plea of guilty effectively waives all nonjurisdictional defects and
defenses.” Commonwealth v. Gibson, 561 A.2d 1240, 1242 (Pa.Super.
1989), appeal denied, 525 Pa. 642, 581 A.2d 568 (1990).
Herein, Appellant was sentenced on March 18, 2008, and he filed
neither a post-sentence motion nor a direct appeal with this Court. Thus,
Appellant’s judgment of sentence became final thirty days thereafter on
April 18, 2008. See 42 Pa.C.S.A. § 9545(b)(3) (“a judgment 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,
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or at the expiration of time for seeking the review”). A timely PCRA petition
had to be filed by April 18, 2009; therefore, the instant PCRA petition filed
on May 9, 2016, is patently untimely, and the burden fell upon Appellant to
plead and prove that one of the enumerated exceptions to the one year
time-bar. See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Perrin, 947
A.2d 1284, 1286 (Pa.Super. 2008) (to invoke a statutory exception to the
PCRA time-bar, a petitioner must properly plead and prove all required
elements of the exception).
Liberally construed, Appellant’s PCRA petition purports to invoke 42
Pa.C.S.A. § 9545(b)(1)(iii), the “newly recognized constitutional right”
exception to the time-bar under Alleyne. However, in Commonwealth v.
Washington, ___ Pa. ____, 142 A.3d 810 (2016), the Pennsylvania
Supreme Court addressed a situation in which the defendant raised an
Alleyne claim in a timely PCRA petition but his judgment of sentence had
become final prior to the Alleyne decision. The Washington Court held that
“Alleyne does not apply retroactively to cases pending on collateral review,
and that [a]ppellant’s judgment of sentence, therefore, is not illegal on
account of Alleyne.” Id. at ___, 142 A.3d at 815. In addition, Alleyne was
decided in 2013, and Appellant did not file the instant PCRA petition until
May 9, 2016. Accordingly, Appellant failed to comply with 42 Pa.C.S.A. §
9545(b)(2), (“Any petition invoking an exception provided in paragraph (1)
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shall be filed within 60 days of the date the claim could have been
presented”).
For the foregoing reasons, Appellant's PCRA petition is untimely, and
he has failed to plead and prove an exception to the statutory time bar. The
PCRA court correctly determined it lacked jurisdiction to review the merits of
Appellant's petition and properly dismissed it, and we discern no other basis
on which to disturb the PCRA court's dismissal of Appellant's petition as
untimely.
Order affirmed.3
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/21/2017
____________________________________________
3
On December 22, 2016, Appellant filed pro se his “Disposition Without
Reaching the Merits,” and we denied the same in a Per Curiam Order filed on
December 29, 2016. On January 23, 2017, Appellant filed an “Application
For Clarification: On Disposition without Reaching the Merits of the Case.”
Docketed by the Prothonotary as an “Application for Clarification,” this filing
reads in its entirety as follows: “I received a date of January, [sic] 30 2017,
Deputy Prothonotary Nicholas Corsetti Esq. Sir I was wondering should I file
another brief sir….” (ellipsis in original). In light of our foregoing
determination, and Appellant’s subsequent filing on January 26, 2017, of an
“Application to Strike January 23, 2017, Application for Clarification,”
Appellant’s Application for Clarification is dismissed as moot.
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