J-S53003-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LYNN ALAN PADGETT, :
:
Appellant : No. 516 MDA 2014
Appeal from the PCRA Order February 18, 2014,
Court of Common Pleas, Bradford County,
Criminal Division at No. CP-08-CR-0000888-1997
BEFORE: DONOHUE, OTT and MUSMANNO, JJ.
MEMORANDUM BY DONOHUE, J.: FILED AUGUST 17, 2015
Lynn A. Padgett (“Padgett”) appeals from the February 18, 2014 order
of the Bradford County Court of Common Pleas dismissing his sixth petition
filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546
(“PCRA”), as untimely. We affirm.1
1
On May 12, 2015, Padgett filed a motion in this Court entitled, “Objections
to Defects in the Record,” seeking for this Court to make certain corrections
to the “List of Items Sent to the Superior Court” that he received from the
lower court’s prothonotary, as Padgett believes the list “to be defective in
some areas and lacking information in others.” Pro Se Motion, 5/12/15. We
consider this to be a motion filed pursuant to Pa.R.A.P. 1926, which states,
in relevant part:
(b) If anything material to a party is omitted from
the record by error, breakdown in processes of the
court, or accident or is misstated therein, the
omission or misstatement may be corrected by the
following means:
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We previously summarized the factual and procedural histories of the
case when deciding a prior appeal as follows:
On January 8, 1998, [Padgett] entered guilty
pleas in two cases to two counts of involuntary
deviate intercourse and one count of rape. The
offenses took place in Lycoming and Bradford
Counties, and were prosecuted together in Bradford
County. [Padgett]’s initial sentence entered on March
5, 1998 was vacated, and he was resentenced on
October 7, 1999, to an aggregate term of fifteen to
thirty years’ imprisonment. [Padgett] then filed a
direct appeal which raised challenges to jurisdiction.
This Court affirmed [Padgett]’s judgment of sentence
on October 10, 2001. [Padgett] did not file a timely
petition for allowance of appeal.
On February 12, 2003, [Padgett] filed his first
PCRA petition, which was dismissed as untimely on
June 10, 2003. We affirmed on June 10, 2004.
[Padgett] filed a second PCRA petition on October
22, 2007, which the PCRA court dismissed as
untimely on October 2, 2008. [Padgett] filed a pro se
appeal to this Court, and subsequently also filed with
this Court a motion for remand and stay of
proceedings, seeking a remand so that the PCRA
court could consider an amended petition
([Padgett]’s third PCRA petition) that was filed on
November 17, 2009. On September 8, 2010, this
Court affirmed the dismissal of [Padgett]’s second
(1) by the trial court or the appellate court upon
application or on its own initiative at any time; in the
event of correction or modification by the trial court,
that court shall direct that a supplemental record be
certified and transmitted if necessary[.]
Pa.R.A.P. 1926(b)(1). Although Padgett avers that the items missing from
“the list” “are essential” to the claims raised, he does not aver that the items
were excluded “by error, breakdown in processes of the court, or by
accident.” See Pro Se Motion, 5/12/15. As such, we cannot grant him the
relief requested.
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PCRA petition and denied the motion for remand.
Our Supreme Court denied [Padgett]’s petition for
allowance of appeal on April 20, 2011.
[Padgett] filed his fourth PCRA petition on April
12, 2010. The PCRA court issued an order on April
21, 2010, directing [Padgett] to file an amended
petition within 30 days. On June 21, 2010, the PCRA
court issued a notice of its intent to dismiss pursuant
to Pa.R.Crim.P. 907, which specified five reasons
why [Padgett] is not entitled to PCRA relief. The
PCRA court then entered an order on June 24, 2010,
granting [Padgett] “leave to re-submit his claim for
relief as a petition for relief under the Post Conviction
Relief Act” within 30 days. On July 8, 2010,
[Padgett] filed a pro se notice of appeal of the June
21, 2010, [Rule] 907 order to this Court.
Because [Padgett] filed his 2010 appeal during
the pendency of his prior appeal from the denial of
his second PCRA petition, and his motion for remand
for consideration of his third PCRA petition, this
Court quashed his appeal. Undaunted, on September
29, 2011, [Padgett] filed a “Petition for a hearing to
strike the court’s judgment of conviction in the
above-captioned matter as being void ‘ab initio.’” On
October 11, 2011, [Padgett] filed a motion for the
appointment of counsel and leave to supplement his
petition. By order dated October 12, 2011, the PCRA
court stated that it would treat [Padgett]’s latest
petition as a PCRA petition and afforded [Padgett]
thirty days in which to file an amended petition. On
November 14, 2011, [Padgett] filed an amended
PCRA petition, his fifth. By order entered December
2, 2011, the PCRA court issued notice pursuant to
Pa.R.Crim.P. 907, of its intent to dismiss [Padgett]’s
petition as untimely. [Padgett] did not file a
response. By order dated January 11, 2012, the
PCRA court dismissed [Padgett]’s fifth PCRA petition.
Commonwealth v. Padgett, 1003 MDA 2012, at 1-3 (Pa. Super. Jan. 7,
2013) (unpublished memorandum) (internal citations omitted).
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On August 30, 2013, Padgett filed the instant PCRA petition. On
October 7, 2013, the PCRA court appointed counsel to represent Padgett.
On December 23, 2013, appointed counsel filed a Turner/Finley2 “no-
merit” letter and petition to withdraw as counsel. On December 30, 2013,
the PCRA court issued notice of its intent to dismiss Padgett’s sixth PCRA
petition pursuant to Pa.R.Crim.P. 907. Padgett filed a objections to the
PCRA court’s 907 on January 24, 2014. On January 31, 2014, the PCRA
court dismissed Padgett’s petition and granted appointed counsel’s petition
to withdraw. Nonetheless, Padgett filed objections to counsel’s no-merit
letter on February 3, 2014.
On February 21, 2014, Padgett filed a timely pro se notice of appeal.
He raises the following questions for our review:
I. Was the [PCRA] court’s denial of relief based on the
misapplication of the clearly established standard for
a timely filed PCRA petition under 42[] Pa.C.S. §
9545(b)(1)(i)-(iii); (2), an abuse of discretion?
II. [crossed out]
III. Did the PCRA court abuse its discretion[] and err by
allowing [Padgett] to be prosecuted[] and convicted
of an offense that was not included in the criminal
information?
IV. Given that [Padgett] was convicted of a Bradford
County offense that did not occur, and he did not
commit, is [Padgett]’s judgment of conviction a void
judgment?
2
Commonwealth v. Turner, 544 A.2d 927, 928 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213, 215 (Pa. Super. 1988).
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V. [crossed out]
VI. Was the District Attorney’s neglect to provide
[Padgett]’s defense counsel with exculpatory
evidence that was under the exclusive control of the
Pennsylvania State Police a violation of [Padgett]’s
right to due process of the law and contrary to
clearly established law?
VII. Did a manifest injustice occur when the court below
abused its discretion by neglecting to provide
[Padgett] an opportunity to address the court before
he was sentenced?
VIII. Did the court below abuse its discretion by
appointing counsel to represent [Padgett] that could
not raise [Padgett]’s claims of counsel’s prior
ineffectiveness?
IX. Did the court below abuse its discretion by issuing
orders and opinions that are not supported by the
record?
X. Did defense counsel’s representation fall below a
reasonable standard of objectiveness where counsel
neglected to: (1) pursue discovery before advising
[Padgett] to enter a guilty plea to an offense that did
not occur, and [Padgett] did not commit; (2) raise a
viable alibi defense[;] (3) [] interview [Padgett]’s
alibi/character witness; (4) [] interview the state[’]s
witnesses; and (5) generally neglect to put the
prosecution[’]s case to a proper adversarial testing?
XI. Was [Padgett] abandon[ed] by appellate counsel
that filled [sic] a “no[-]merit” letter in which counsel
acknowledged several of [Padgett]’s claims to be
valid claims?
XII. Was [Padgett] abandon[ed] by appellate counsel
that failed to file a timely petition for allowance of
appeal to the state Supreme Court as instructed by
[Padgett]?
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XIII. Did the PCRA court abuse its discretion[] and violate
[Padgett]’s right to due process of the law by holding
that [Padgett] entered a voluntary, knowing, and
intelligent plea of guilty to an offense that did not
occur?
XIV. Did the Commonwealth violate [Padgett]’s due
process of the law right by executing a warrantless
search and seizure on [Padgett]’s property without
probable cause?
XV. Has [Padgett] presented sufficient facts[] and
evidence to demonstrate that a miscarriage of justice
occurred in this case?
Padgett’s Brief at 3-4.
We review the denial of a PCRA petition on timeliness grounds
according to the following standard:
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. The
PCRA timeliness requirement, however, is mandatory
and jurisdictional in nature. The court cannot ignore
a petition’s untimeliness and reach the merits of the
petition. Section 9545(b)(1) requires a petitioner to
file a PCRA petition within one year of the date the
judgment [became] final.
Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013) (internal
citations and quotations omitted). “[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.” 42 Pa.C.S.A. § 9545(b)(3).
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The record reflects that Padgett filed a direct appeal from his
resentencing hearing and this Court affirmed in an unpublished
memorandum dated October 10, 2001. See Commonwealth v. Padgett,
1941 MDA 2000 (Pa. Super. Oct. 10, 2001) (unpublished memorandum).
Padgett did not file a petition for allowance of appeal with the Pennsylvania
Supreme Court, and thus, his judgment of sentence became final on
November 9, 2001. See Pa.R.A.P. 1113(a). He therefore had one year to
timely file a PCRA petition – here, until November 12, 2002.3 The instant
petition, filed on August 30, 2013, was patently untimely.4
Section 9545(b)(1) of the PCRA provides three statutory exceptions to
the timeliness provisions that allow for very limited circumstances under
which the late filing of a PCRA petition will be excused:
3
Although Padgett would typically have had to have filed his PCRA petition
on or before November 9, 2002, that day fell on a Saturday, and the
following Monday, November 11, 2002, was a holiday. He therefore had
until Tuesday November 12, 2002 for his PCRA petition to be considered
timely. See 1 Pa.C.S.A. § 1908 (“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.”).
4
In his PCRA petition, Padgett avers that his petition was timely because he
filed it within a year of the decision on his fifth PCRA petition. See PCRA
Petition, 8/30/13, ¶ 32. As the law cited above makes clear, this is not the
starting point for the one-year timeframe. Furthermore, our Supreme Court
has held that apart from the specifically enumerated exceptions contained in
section 9545(b), “the period for filing a PCRA petition is not subject to the
doctrine of equitable tolling[.]” Commonwealth v. Fahy, 737 A.2d 214,
222 (Pa. 1999); Commonwealth v. Rienzi, 827 A.2d 369, 371 (Pa. 2003).
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(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). “Any petition invoking an exception provided in
paragraph (1) shall be filed within [sixty] days of the date the claim could
have been presented.” 42 Pa.C.S.A. § 9545(b)(2). It is the petitioner’s
burden to plead and prove, by a preponderance of the evidence, that his
facially untimely petition falls under one of the three timeliness exceptions;
that he filed it within sixty days of the date it could have been presented;
and that the information could not have been obtained earlier.
Commonwealth v. Williams, 105 A.3d 1234, 1239 (Pa. 2014);
Commonwealth v. Ali, 86 A.3d 173, 178 (Pa. 2014), cert. denied sub
nom., Ali v. Pennsylvania, 135 S. Ct. 707 (U.S. 2014).
In his PCRA petition and his brief on appeal, Padgett raised numerous
arguments, including claims that the plea court lacked jurisdiction over the
matter; the absence of charges arising out of Lycoming County in the
Bradford County criminal information; the Commonwealth improperly
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withheld Brady information; ineffective assistance of counsel based upon
the insufficiency of the evidence to support his convictions and counsel’s
failure to prepare a defense and preserve issues below; denial of his right to
allocution prior to sentencing; violation of his Sixth Amendment right to
counsel based on the trial court’s appointment of plea counsel to represent
him on direct appeal (thus precluding him from raising plea counsel’s
ineffectiveness on direct appeal); inaccuracies in the lower court’s orders as
reflected in the certified record; ineffectiveness of PCRA counsel appointed to
represent Padgett on his sixth PCRA petition; ineffectiveness of direct appeal
counsel based upon his failure to file a petition for allowance of appeal to the
Pennsylvania Supreme Court; that his guilty plea to the Bradford County
rape was not knowing, voluntary and intelligent; and the 1997 search and
seizure effectuated of Padgett’s home was done without probable cause or a
lawful warrant. See Padgett’s Brief at 12-43; PCRA Petition, 8/30/13, ¶¶
24-110. He includes a claim at the beginning of his brief that he satisfied
the exception to the PCRA’s timeliness requirement, as the above arguments
constitute government interference and newly discovered facts that could
not have been discovered with the exercise of due diligence. Padgett’s Brief
at 6; PCRA Petition, 8/30/13, ¶ 18.
We have carefully reviewed Padgett’s appellate brief and the
underlying PCRA petition. Nowhere in either filing does he indicate when he
became aware of the information that provides the basis for his arguments.
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Thus, assuming solely for the sake of this argument that any of the above
information satisfies the time bar exceptions in subsections (b)(1)(i) and/or
(ii), his failure to plead that he discovered the information within sixty days
of the date he filed his latest PCRA petition leaves both the PCRA court and
this Court without jurisdiction to address the substantive arguments raised.
See Williams, 105 A.3d at 1239; Ali, 86 A.3d at 178; Taylor, 67 A.3d at
1248; 42 Pa.C.S.A. § 9545(b)(2).
Order affirmed. Motion denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2015
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