Com. v. Hann, C.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CAROL ANN HANN :
:
Appellant : No. 430 MDA 2022
Appeal from the PCRA Order Entered February 22, 2022
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0002501-2011
BEFORE: PANELLA, P.J., BENDER, P.J.E., and LAZARUS, J.
MEMORANDUM BY LAZARUS, J.: FILED: NOVEMBER 8, 2022
Carol Ann Hann appeals from the order, entered in the Court of Common
Pleas of Luzerne County, dismissing as untimely her petition filed pursuant to
the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful
review, we affirm.
Following a jury trial, Hann was convicted of rape of a child, conspiracy
to commit rape of a child, incest, corruption of minors, and endangering the
welfare of children.1 The court sentenced Hann to an aggregate term of
imprisonment of 20 years and 9 months to 41 years and 6 months (249
months to 498 months). Hann filed a direct appeal, and this Court affirmed
her judgment of sentence. See Commonwealth v. C.A.H., 628 MDA 2013
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1The Sexual Offenders Assessment Board (SOAB) evaluated Hann and opined
she was a sexually violent predator (SVP). A Megan’s Law hearing was held
on March 4, 2013, and, thereafter, the court found, by clear and convincing
evidence, that Hann was an SVP. See 42 Pa.C.S. § 9799.12; 9799.24.
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(Pa. Super. filed August 26, 2014) (unpublished memorandum decision).
Hann did not seek allowance of appeal in the Pennsylvania Supreme Court.
At the conclusion of Hann’s direct appeal, on October 8, 2014, this Court
remanded the record to Luzerne County. See Certificate of Remittal/Remand
of Record, 10/8/14. At this point, as the Commonwealth acknowledges in its
brief, the procedural history of the case becomes “muddy.” See
Commonwealth’s Brief, at 1. In light of this procedural history, we are now
presented with Hann’s issue on appeal—whether the PCRA court erred in
dismissing her PCRA petition as untimely. See Appellant’s Brief, at 1.
It is well-settled that the standard of review on appeal from the denial
of PCRA relief is limited to “whether the PCRA court’s findings of fact are
supported by the record, and whether its conclusions of law are free from legal
error.” Commonwealth v. Small, 238 A.3d 1267, 1280 (Pa. 2020) (citation
omitted). Our “scope of review is limited to the findings of the PCRA court
and the evidence of record, viewed in the light most favorable to the prevailing
party at the PCRA court level.” Commonwealth v. Koehler, 36 A.3d 121,
131 (Pa. 2012) (citation omitted). The PCRA court’s credibility determinations
that are supported by the record are binding. Commonwealth v. Spotz, 18
A.3d 244, 259 (Pa. 2011). “If a PCRA petition is untimely, courts lack
jurisdiction over the petition.” Commonwealth v. Woolstrum, 271 A.3d
512, 513 (Pa. 2022).
Here, Hann did not seek allowance of appeal in our Supreme Court;
therefore, her judgment of sentence became final on September 25, 2014,
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thirty days after this Court’s order affirming her judgment of sentence. See
Pa.R.A.P. 1113 (providing petition for allowance of appeal shall be filed within
30 days of entry of Superior Court order). Thus, Hann had one year, or until
September 25, 2015, to file a timely PCRA petition. See 42 Pa.C.S. §
9545(b)(1) (“Any petition [] shall be filed within one year of the date the
judgment becomes final[.]”); id. at § 9545(b)(3) (“For purposes of this
subchapter, 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, or at the expiration of time for seeking
the review.”).
Hann claims she timely filed her petition in April, 2015. However, there
are no docket entries between this Court’s remand of the record on October
8, 2014, and January 17, 2017, when Hann filed a pro se habeas corpus
petition.2 The record before us contains Hann’s pro se “Habeas Petition,” filed
on January 17, 2017, and a pro se “Petition for Notes of Testimony and Related
Documents,” filed on July 24, 2017. On July 30, 2018, Hann filed a pro se
PCRA petition. On August 16, 2019, the PCRA court appointed counsel and
directed counsel to file an amended petition, if necessary, by September 20,
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2 See 42 Pa.C.S. § 9542 (“The action established in this subchapter shall be
the sole means of obtaining collateral relief and encompasses all other
common law and statutory remedies for the same purpose that exist when
this subchapter takes effect, including habeas corpus and coram nobis.”). See
also Commonwealth v. West, 938 A.2d 1034, 1043 (Pa. 2007) (“[T]]he
PCRA subsumes all forms of collateral relief, including habeas corpus, to the
extent a remedy is available under such enactment.”) (emphasis omitted).
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2019. The PCRA court also ordered “that defense counsel may file a
comprehensive brief in support of [Hann’s petition] and/or supplemental
[petition] by October 20, 2019.” See Order, 8/16/19. The court scheduled
a hearing for December 2, 2019.3 Notably, the court’s order was prefaced
with the following:
On August 5, 2019, [this court] was notified via correspondence
from the Luzerne County District Attorney’s Office that [Hann],
pro se, filed a series of documents at the Luzerne County Clerk of
Courts Office that were never forwarded to the court or any other
listed parties[.] Upon receipt of said information, a docket search
was conducted[,] wherein the [pro se] PCRA [petition] filed July
30, 2018, and subsequent documents requesting discovery in
pursuit of the PCRA[,] were docketed and never provided to the
[c]ourt by [Hann] or the Luzerne County Clerk of Courts.
Id.For reasons unclear to this Court, on August 28, 2019, twelve days after
the court had entered its order appointing counsel, Hann filed a pro se “Motion
to Appoint PCRA Counsel.” In that motion, Hann averred that her July 30,
2018 pro se PCRA petition was “filed April 2015 and January 2016[,] but not
docketed until July 30, 2018.” See Motion To Appoint PCRA Counsel, 8/28/19
(emphasis added).4
On September 17, 2019, Leonard Gryskewicz, Jr., Esquire, entered his
appearance as court-appointed counsel for Hann. On October 18, 2019,
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3 The hearing was continued several times, in part due to the COVID-19
shutdown. The PCRA hearing ultimately took place on November 15, 2021.
4 The January 2016 date is beyond the one-year time requirement, and,
therefore, we confine our review to the April 2015 date.
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counsel filed an amended PCRA petition, which included the following
averment: “[Hann] alleges that she mailed and filed her first PCRA petition in
2015. However, the Clerk of Courts never forwarded this petition to th[e PCRA
c]ourt, to the District Attorney’s Office, or any other party of record.”
Amended PCRA Petition, 10/18/19, at ¶ 5.5
At the PCRA hearing, Hann testified that she had made a handwritten
notation on her “PCRA appeal” on the top corner, indicating it was “filed April
of 2015” and “No response given.” N.T. PCRA Hearing, 11/15/21, at 6. Hann
also testified as to why she made that notation:
I did it. I mailed it out. Not only that if you’ll notice in the corners
where it says DC-198, the PCRA packets changed in 2017. If you’ll
notice, the one—the earlier ones, they have nine pages. The later
ones that than, that I submitted in 2018, have ten pages because
now they entered that even if you had a guilty plea you can put a
PCRA in if you had ineffective counsel.
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5 On February 3, 2020, prior to the scheduled hearing, the Commonwealth
filed a motion to dismiss Hann’s amended PCRA petition. The Commonwealth
averred that if the PCRA court were to grant relief in the form of a new trial,
the Commonwealth would be prejudiced because, in preparing for the hearing,
it learned that: the victim’s whereabouts were unknown; the victim’s aunt,
one of the main witnesses, was deceased; and, one of the investigating
detectives was unavailable due to health issues. Commonwealth’s Motion to
Dismiss, 2/3/20, at ¶21. See 42 Pa.C.S. § 9543(b) (“Exception- Even if the
petitioner has met the requirements of subsection (a), the petition shall be
dismissed if it appears at any time that, because of delay in filing the petition,
the Commonwealth has been prejudiced either in its ability to respond to the
petition or in its ability to re-try the petitioner. A petition may be dismissed
due to delay in the filing by the petitioner only after a hearing upon a motion
to dismiss. This subsection does not apply if the petitioner shows that the
petition is based on grounds of which the petitioner could not have discovered
by the exercise of reasonable diligence before the delay became prejudicial to
the Commonwealth.”). The PCRA court denied the Commonwealth’s motion.
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THE COURT: Okay. I want to stop. I’m confused. Is there
any filing earlier than this July of ’18 that’s docketed? Does
anyone have anything? [] Is there a PCRA –she’s saying in
April of ’15 she filed a PCRA. Is there one docketed?
DEFENSE COUNSEL: No, Your Honor.
****
DEFENSE COUNSEL: Do you see the timestamp from the clerk of courts
on that document?
A: Yes.
DEFENSE COUNSEL: You would agree that says July 30, 2018?
A: It does, but [] they stamped both of them together, the one from
2015 and the one from 2018. They stamped them both at the same
time, but they are two different ones. Like I said, one is nine pages,
and one is ten pages. One’s got a different number than the other one
on the top left corner.
Id. at 10-13.
Hann went on to explain that the document time-stamped July 30, 2018
was drafted in early 2015 and mailed between February 23 and April 23 of
that year. Id. at 13. Hann acknowledged, however, that she did not have
the cash slips for that mailing from SCI Muncy. Id. at 26-27. See
Commonwealth v. Jones, 700 A.2d 423 (Pa. 1997) (cash slip from prison
authorities noting deduction from prisoner account for mailing to prothonotary
and date of mailing sufficient evidence to prove mailing date).
In concluding, defense counsel remarked that “we’re here on an
argument that the PCRA is timely because [Hann] testified that she mailed
her first PCRA petition in either February or April of 2015[,] within the one-
year time limit.” Id. Counsel emphasized that the court should find Hann
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credible “because of how she described it [had] happened.” Id. The PCRA
court, however, did not find Hann credible, id. at 36, and it found this
argument unconvincing. See id. at 30 (court stating, “No one got this
petition. The Commonwealth doesn’t have it. I don’t have it. So you’re
expecting me to simply say that she says she sent it out to lock in her
timeframe and that’s proof enough?”). Other than Hann’s testimony, no
evidence was presented to establish that a timely PCRA petition was filed in
April 2015. Jones, supra. The court stated on the record:
[T]here is no other evidence other than she says, I mailed it in
’15. There is no proof. There’s no documentation. There’s no
cash slip. [] More importantly, as we go forward, even in the ’18
PCRA, it’s not forwarded. It’s not sent to anyone. It just sits there
until the district attorney says there’s outstanding documentation
because a letter is finally forwarded to the DA’s Office to say
there’s outstanding matters. There’s no evidence except some
confusing testimony. I’m going to add in she claims she filed it in
April of ’15. It’s not docketed. There’s no proof of that. There’s
no evidence supporting her statement that she mailed it in April
of ’15. [] I find the testimony not to be credible. . . . [T]here’s
nothing of record to support that the PCRA was filed timely in this
matter.
Id. at 35-36.
After our review of the record, we find the court correctly determined
Hann’s PCRA petition was untimely filed. See Commonwealth v. Murray,
753 A.2d 201, 203 (Pa. 2000). See also Commonwealth v. Bennett, 930
A.2d 1264, 1267 (2007) (PCRA time limitations implicate jurisdiction and may
not be altered or disregarded in order to address merits of petition). The
court’s determination that Hann’s testimony was not credible is supported in
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the record and, therefore, it is binding on this Court. See Spotz, 18 A.3d at
259. See also Commonwealth v. Medina, 92 A.3d 1210, 1214 (Pa. Super.
2014) (“PCRA court’s credibility determinations, when supported by the
record, are binding on this Court.”). Accordingly, we affirm the PCRA court’s
order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/8/2022
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