Com. v. Swick, J.

J-S12023-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMIE LYNN SWICK
Appellant No. 1172 MDA 2016
Appeal from the PCRA Order June 27, 2016
In the Court of Common Pleas of Bradford County
Criminal Division at No(s): CP-08-CR-0000310-2008
BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED APRIL 21, 2017
Jamie Lynn Swick appeals pro se from the order entered June 27,
2016, in the Court of Common Pleas of Bradford County, dismissing her
second petition for relief pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S. §§ 9541–46. A jury found Swick guilty of two counts each of
involuntary deviate sexual intercourse and statutory sexual assault, 1 and
Swick was ultimately sentenced to 180 to 360 months’ imprisonment. In
this appeal, Swick contends the PCRA court erred in (1) denying and
dismissing the PCRA petition as being untimely, (2) denying and dismissing
the PCRA petition on the basis that time served is not a remedy for relief,
(3) not granting relief on the claims of ineffective assistance of trial and
____________________________________________
1
18 Pa.C.S. §§ 3123(a), and 3122.1, respectively.
J-S12023-17
appellate counsel, and (4) failing to take Pennsylvania and United States
constitutional violations of government officials into consideration. See
Swick’s Brief at 4. Because we agree with the PCRA court that the petition is
untimely, we affirm.
The facts underlying Swick’s arrest and convictions are summarized in
the memorandum decision of this Court affirming the denial of her first PCRA
petition, and we need not reiterate them herein. See Commonwealth v.
Swick, 131 A.3d 102 (Pa. Super. 2015) (unpublished memorandum), appeal
denied, 130 A.3d 1289 (Pa. 2016). We simply state that the charges arose
after law enforcement authorities discovered that Swick, who was twenty-
seven years-old at the time, was having a sexual relationship with a
fourteen-year-old boy. On December 15, 2008, the trial court sentenced
Swick to serve an aggregate term of 206 to 412 months’ incarceration.
However, following a successful direct appeal, in part,2 Swick was
resentenced on July 19, 2010, to 180 to 360 months’ incarceration.
Swick’s first PCRA petition was filed on August 12, 2011. The PCRA
court dismissed all but two of Swick’s various ineffectiveness claims. On
September 17, 2014, following an evidentiary hearing on the two remaining
claims, the PCRA court issued an order dismissing Swick’s first PCRA
petition. On August 25, 2015, this Court affirmed the denial of PCRA relief
____________________________________________
2
See Commonwealth v. Swick, 4 A.3d 181 (Pa. Super. 2010)
(unpublished memorandum).
-2-
J-S12023-17
and, on February 1, 2016, the Pennsylvania Supreme Court denied
allowance of appeal. See Swick, 131 A.3d 102 (Pa. Super. 2015)
(unpublished memorandum), appeal denied, 130 A.3d 1289 (Pa. 2016).
Swick filed this second PCRA petition on April 27, 2016. The PCRA
court issued Pa.R.Crim.P. 907 notice on June 1, 2016, and Swick filed a
response to the Rule 907 notice on June 16, 2016. The PCRA court
dismissed the petition on June 27, 2016. This appeal timely followed.3
Our standard of review is well established:
“In reviewing the denial of PCRA relief, we examine whether the
PCRA court's determination ‘is supported by the record and free
of legal error.’” Commonwealth v. Taylor, 620 Pa. 429, 67
A.3d 1245, 1248 (Pa. 2013) (quoting Commonwealth v.
Rainey, 593 Pa. 67, 928 A.2d 215, 223 (Pa. 2007)).
Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016). At
the outset, we address the timeliness of Swick’s second PCRA petition, which
is the first issue raised in this appeal.
“It is well-settled that the PCRA’s time restrictions are jurisdictional in
nature.” Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). A
PCRA petition must be filed within one year of the date the judgment
becomes final. See 42 Pa.C.S. § 9545(b)(1). Under the PCRA, “a judgment
becomes final at the conclusion of direct review, including discretionary
____________________________________________
3
The PCRA court did not order Swick to file a Pa.R.A.P. 1925(b) concise
statement.
-3-
J-S12023-17
review in the Supreme Court of the United States and the Supreme Court of
Pennsylvania, or at the expiration of time for seeking the review.” 42
Pa.C.S. § 9545(b)(3).
There are three statutory exceptions to the PCRA’s time bar.
Specifically, to overcome the timeliness requirements, a petitioner must
plead and prove one of the following exceptions:
(i) the failure to raise a claim previously was the result of
interference by government officials with the presentation of the
claim in violation of the Constitution or the law of this
Commonwealth or the Constitution or law 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). Furthermore, a petitioner invoking a
timeliness exception must file a petition within 60 days of the date the claim
could have been presented. 42 Pa.C.S. § 9545(b)(2).
Here, Swick’s judgment of sentence became final on August 18, 2010,
30 days following resentencing, when the time for a direct appeal expired.
See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a) (stating notice of appeal with
this Court “shall be filed within 30 days after the entry of the order from
which the appeal is taken”). As such, the present petition, filed in 2016 —
over five years after the judgment became final — is patently untimely.
-4-
J-S12023-17
Swick maintains that she had 60 days to file the present PCRA petition,
following the Pennsylvania Supreme Court’s order on February 1, 2016,
regarding her first PCRA petition, and that the 60-day deadline was “April
25, 2016 (excluding weekends and holidays).” Swick’s Brief at 10.
Furthermore, Swick argues that her petition should be deemed filed on April
23, 2016, by application of the “prisoner mailbox rule.”4 Having reviewed
Swick’s argument, we conclude that the PCRA court properly dismissed her
second petition.
In Commonwealth v. Lark, 746 A.2d 585, 588 (2000), the
Pennsylvania Supreme Court explained the procedure for filing a PCRA
petition when a pending PCRA petition is resolved:
[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. If the subsequent petition is not filed
within one year of the date when the judgment became
final, then the petitioner must plead and prove that one of
the three exceptions to the time bar under 42 Pa.C.S. §
9545(b)(1) applies. The subsequent petition must also be
filed within sixty days of the date of the order which
finally resolves the previous PCRA petition, because this is
____________________________________________
4
Pursuant to the prisoner mailbox rule, a PCRA petition is considered filed
on the date it was delivered to prison authorities for mailing. See
Commonwealth v. Castro, 766 A.2d 1283, 1287 (Pa. Super. 2001);
Commonwealth v. Little, 716 A.2d 1287 (Pa. Super. 1998). Instantly,
Swick attaches to her appellate brief a cash slip for postage dated April 23,
2016.
-5-
J-S12023-17
the first “date the claim could have been presented.” 42 Pa.C.S.
§ 9545(b)(2).
Id. at 588 (emphasis supplied).
Applying Lark, Swick’s argument that her second petition is timely
fails. As discussed above, Swick’s present petition is filed more than one
year after the judgment of sentence became final. Our review confirms that
the petition fails to invoke any PCRA exception to overcome the time bar.
See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). See Lark, supra. In addition, Swick’s
present petition does not meet the 60-day requirement of Section
9545(b)(2), since 60 days from February 1, 2016, is April 1, 2016, as
calculated pursuant to 1 Pa.C.S. § 1908 (“Calculation of time”). 5 See Lark,
supra. As such, the PCRA court correctly concluded Swick’s petition fails to
overcome the jurisdictional timebar.
Therefore, we affirm.
____________________________________________
5
Section 1908 provides:
When any period of time is referred to in any statute, such
period in all cases, ...shall be so computed as to exclude the first
and include the last day of such period. Whenever the last day of
any such period shall fall on Saturday or Sunday, or on any day
made a legal holiday by the laws of this Commonwealth or of the
United States, such day shall be omitted from the computation.
1 Pa.C.S. § 1908.
-6-
J-S12023-17
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2017
-7-