J-S50027-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT HAVILAND
Appellant No. 2184 MDA 2015
Appeal from the PCRA Order entered November 19, 2015
In the Court of Common Pleas of Schuylkill County
Criminal Division at Nos: CP-54-CR-0000218-2011, CP-54-CR-0000421-
2011
BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 16, 2016
Appellant, Robert Haviland, appeals from the order the Court of
Common Pleas of Schuylkill County entered on November 19, 2015, denying
his request for collateral relief under the Post Conviction Relief Act, 42
Pa.C.S.A. §§ 9451-46. Upon review, we affirm.
The PCRA court summarized the relevant background of this matter in
its October 20, 2015 opinion, which we incorporate here by reference. PCRA
Court Opinion, 10/20/15, at 1-3. Briefly, on February 2, 2012, Appellant
pled guilty to delivery of a controlled substance, possession with intent to
deliver a controlled substance, possession of drug paraphernalia and driving
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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under the influence of a controlled substance. See Commonwealth v.
Haviland, No. 937 MDA 2012, unpublished memorandum at 2 (Pa. Super.
filed November 30, 2012). On March 26, 2012, the trial court sentenced
Appellant to an aggregate term of four years and three months to eleven
and one-half years in prison. Id.
Appellant filed a direct appeal to this Court, challenging the
voluntariness of his guilty pleas. We affirmed Appellant’s judgment of
sentence on November 30, 2012. Id. at 1, 10. On January 14, 2013,
Appellant filed his first PCRA petition, alleging plea counsel’s ineffective
assistance and the voluntariness of his guilty pleas. The PCRA court denied
relief. We affirmed on February 4, 2014. See Commonwealth v.
Haviland, No. 690 MDA 2013, unpublished memorandum at 1, 8 (Pa.
Super. filed February 4, 2014). On June 12, 2014, the Supreme Court
denied Appellant’s petition for allowance of appeal. See Commonwealth v.
Haviland, 94 A.3d 1008 (Pa. 2014). Appellant filed the instant petition on
September 18, 2015, alleging his prior counsel (plea and first PCRA) were
both ineffective. The PCRA court denied relief because the petition was
untimely, in addition to finding the claims waived or previously litigated.
See PCRA Court Opinion, 10/20/15, at 5. This appeal followed.
Appellant alleges prior counsel were ineffective for failing to challenge
the legality of his sentence. Appellant’s Brief at 1. Appellant alleges that he
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is entitled to relief based on Commonwealth v. Musau, 69 A.3d 754 (Pa.
Super. 2013), appeal denied, 117 A.3d 296 (Pa. 2005).1
“[A]n appellate court reviews the PCRA court’s findings of fact to
determine whether they are supported by the record, and reviews its
conclusions of law to determine whether they are free from legal error.”
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).
A PCRA petition, including a second or a subsequent petition, must be
filed within one year of the judgment becoming final. See 42 Pa.C.S.A.
§ 9545(b)(1). A judgment is deemed 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). There are some
exceptions to this general rule. It is Appellant’s duty, however, to allege and
prove the applicability of the exceptions, and that the petition was filed
within 60 days of the date the claim could have been presented. See
42 Pa.C.S.A § 9545(b)(2). Failure to do so precludes further review of the
petition. See, e.g., Commonwealth v. Beasley, 741 A.2d 1258, 1261
(Pa. 1999).
____________________________________________
1
In Musau we interpreted 75 Pa.C.S.A. § 3803 as providing a six-month
maximum sentence for a second DUI offense involving refusal to submit to
chemical testing.
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Here, as also noted by the PCRA court, there is no question that
Appellant’s PCRA petition is facially untimely.2 See PCRA Court Opinion at 4.
Thus, Appellant had to allege and prove he met one of the exceptions to the
time bar. Appellant did not do so. Indeed, despite citing authorities to
support the merits of his claim, nowhere did Appellant explain on what basis
his PCRA petition could be entertained. Appellant seems to believe that a
challenge to the legality of sentence is not waivable and it is not subject to
the PCRA’s jurisdictional time limitations. Appellant is mistaken. It is well-
established that “[a]lthough legality of sentence is always subject to review
within the PCRA, claims must still first satisfy the PCRA’s time limits or one
of the exceptions thereto. Thus, Appellant’s contention is easily dismissed.”
Commonwealth v Fay, 737 A.2d 214, 223 (Pa. 1999) (citation omitted).
Regarding the authority Appellant relies upon, we note that Musau, to the
extent it is applicable, was decided on June 28, 2013, whereas the instant
PCRA petition was filed on September 18, 2015, which is well beyond the
60-day window provided under 42 Pa.C.S.A. § 9545(b)(2). Appellant
provides no explanation why he meets the jurisdictional requirements
____________________________________________
2
As noted, we affirmed the judgment of sentence on November 30, 2012.
Appellant’s judgment became final on December 30, 2012, at the expiration
of the 30-day window to file a petition for allowance of appeal with the
Supreme Court. Appellant had one year from December 30, 2012, that is
December 30, 2013, to file a timely PCRA petition. Since Appellant filed the
instant petition on September 18, 2015, the PCRA petition is facially
untimely.
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despite the patent untimeliness of his petition. As such, we conclude the
instant PCRA petition is untimely and Appellant failed to establish the
applicability of any of the exceptions to the PCRA’s time bar.3 We direct that
a copy of the PCRA court’s October 20, 2015 opinion be attached to any
future filings in this case.
____________________________________________
3
To the extent Appellant’s claims can be construed as claims of ineffective
assistance of counsel, assuming we could review the merits of the challenge,
we note that Appellant failed to plead and prove that prior counsel rendered
ineffective assistance of counsel. See 42 Pa.C.S.A. § 9543(a)(2)(ii). “To
prevail on an [ineffectiveness] claim, a PCRA petitioner must plead and
prove by a preponderance of the evidence that (1) the underlying legal claim
has arguable merit; (2) counsel had no reasonable basis for acting or failing
to act; and (3) the petitioner suffered resulting prejudice.”
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super.
2015) (en banc). “A petitioner must prove all three factors of the
‘[Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987)] test,’ or the claim
fails.” Id. Having failed to plead and prove ineffective assistance of counsel
his claim fails also in its merits.
The PCRA court also noted the issues raised in the instant petition were both
waived and/or previously litigated. In light of our disposition, we need not
address this conclusion by the PCRA court.
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Order affirmed.
Judge Mundy did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2016
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Circulated 08/31/2016 11:55 AM
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IN THE COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY--CRIMINAL
COMMONWEALTH OF PENNSYLVANIA NO.: 218-2011 & 421-2011
VS.
ROBERT HAVILAND,
Defendant
Christine Holman, District Attorney - for the Commonwealth
Robert Haviland - Defendant Pro Se
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The matter before the Court involves the Defendant's Second PCRA~eti~n filmi
September 18, 2015. On September 23, 2015 the Court issued a Rule to Show Cause
on the Commonwealth to show why a Hearing on Defendant's PCRA Petition should not
be granted. The Commonwealth timely filed its Answer to the Rule and filed a Motion to
Dismiss Without Hearing on October 5, 2015. The Commonwealth alleges that
Defendant's second PCRA Petition is untimely and therefore the Court is without
jurisdiction to consider its merits, if any. It also argues that the present claims of the
defendant have been waived or previously finally litigated.
In its Motion the Commonwealth points out that Defendant was sentenced on
Mary 26, 2012 to an aggregate sentence of four (4) years, three (3) months to 11 Y2
years in a State Correctional Institution. Thereafter Defendant filed a Motion to Vacate
Sentence and Withdraw his Guilty Plea, which was subsequently denied. He appealed
1
the decision to the Pennsylvania Superior Court. The Superior Court affirmed the
judgment of sentence on November 30, 2012. He did not file a Petition for Allowance of
Appeal so his sentence became final on December 30, 2012. See 42 C.S.A. sec.
9545(b)(1)
The Defendant then filed a PCRA Petition on January 14, 2013. A Hearing was
held on said Petition on February 26, 2013 at which Defendant and his Trial attorney,
Andrea Thompson, Esquire testified. Attorney Mark Barket was Defendant's Court
appointed counsel in this proceeding. On March 15, 2013 the Court denied Defendant's
first PCRA Petition. On February 4, 2014 the Superior Court affirmed the Trial Court's
decision and denied Defendant's appeal.
Defendant then filed a Petition for Allowance of Appeal to the Supreme Court of
Pennsylvania. On June 12, 2014, the Pennsylvania Supreme Court denied Defendant's
Petition for Allowance of Appeal. The Defendant's second PCRA Petition was not filed
until September 18, 2015. It is noted that Court appointed private counsel, Julia Werdt,
Esquire, represented Defendant in his appeals to the Pennsylvania Superior and
Supreme Courts.
In his present Motion Defendant presents claims attacking Attorney Andrea
Thompson's representation of him during Pre-Trial proceedings, at his Guilty Plea,
Sentencing and Post-Sentence. These claims have been raised and rejected
previously. He also asserts claims against Attorney Mark Barket's representation of him
during his first PCRA Petition at the Trial Court level. Any other claims presently made
should have been presented in his first PCRA. Because they were not presented they
2
are waived. 42 Pa. C.S.A. sec. 9544(b) Any claims pertaining to Attorney Barket's
representation should have been presented to the Pennsylvania Superior Court during
appellate review of his first PCRA. Commonwealth v. Burkett, 5, A.3d 1260, 1272-73
(Pa. Super. 2010)
At the appellate review of Attorney Barket's representation of Defendant,
Defendant was represented by Court appointed, private counsel, Julia Werdt, Esquire.
Since the attacks on his prior counsel's representation were not presented at that time
they are waived. 42 Pa. C.S.A. sec. 9544(b) The Commonwealth now moves the Court
to Dismiss the instant PCRA Petition for untimeliness and asserts that all claims therein
are waived. See Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013).
All PCRA petitions, including second (emphasis added) or subsequent petitions,
must be filed within one year of the date the judgment of sentence becomes final,
that is either at the conclusion of direct review or the expiration of the deadline for
seeking review. 42 Pa.C.S.A. 9545(b)(3). On this point appellate court decisions
are clear, holding that a conviction becomes final, for purposes of Pennsylvania's
Post Conviction Relief Act, at the conclusion of direct review, including
discretionary review in the Supreme Court of Pennsylvania, or at the expiration of
the time for seeking the review. Whitney v. Horn, C.A. 3 (Pa.) 2002, 280 F.3d
240, certiorari denied 123 S.Ct. 1351, 537 U.S. 1195, 154 L.Ed 2d 1030. In that
case the court held that for purposes of the one-year statute of limitations for
petitions seeking relief under the PCRA, the defendant's conviction became final
after the Pennsylvania Supreme Court affirmed his sentence, when the time for
3
filing for writ of certiorari with the United States Supreme Court expired. In Com.
v. Callahan, 101 A.3d 118, Super. 2014, the court held that in fixing the date
upon which a judgment of sentence becomes final, the PCRA does not refer to
the conclusion of collateral review or the time for appealing a collateral review
determination. The plain language of the PCRA statute provides that a judgment
of sentence becomes final immediately upon expiration of the time for seeking
direct review, even if collateral proceedings are still ongoing. In the case at bar
the Pennsylvania Superior Court, on direct appeal of the judgment of sentence
affirmed the judgment of sentence on November 30, 2012. Defendant would
have had 30 days to appeal the decision of the Superior Court which would have
been December 30, 2012, the date on which under the PCRA the judgment
would have been deemed final. The defendant filed no such Petition for
Allowance of Appeal by December 30, 2012. Defendant, under the PCRA and
the relevant foregoing decisions, would have had one year from that date of
December 30, 2012, that is by December 30, 2013, to file his PCRA petition.
The Defendant filed his present (second) PCRA petition on September 18, 2015.
His petition is untimely and the Court does not have jurisdiction to consider it.
Untimely PCRA petitions must be dismissed unless the petitioner alleges and
proves that his claims were not raised previously because of one of the following:
(1) the unconstitutional interference of governmental officials, (2) the discovery of
facts that could not have previously been ascertained by due diligence, or (3) the
recognition of a newly recognized constitutional right that applies retroactively. 42
4
Pa.C.S.A. 9545(b)(1 )(i-iii). Based on the present record before the court,
including the assertions made in the Defendant's petition, none of these
exceptions apply to the untimely filing of the defendant's petition in this case.
The defendant, based on the credible evidence of record, has not alleged nor
proven that the claims he now raises were not raised previously because of any
of the foregoing reasons. This case does not involve any unconstitutional
interference of governmental officials. The defendant was aware of his present
claims some time before he even filed his first PCRA petition and did not raise
them at the time he was aware of them. This case does not involve the
recognition of a new constitutional right that applies retroactively.
The court further agrees, based on the record, that the present claims of the
defendant have been waived or finally litigated. Certain claims pertaining to Attorney
Thompson's representation were raised and ruled upon, adversely to the Defendant by
this Court and the appellate courts. Any other of the defendant's present claims could
have been raised by the defendant but he failed to do so before trial, at trial, during
unitary review, on appeal , or in a prior state post conviction proceeding. 42 Pa.C.S.A.
9544(b).
Accordingly the Court enters the following:
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