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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TERRENCE BARKER :
:
Appellant : No. 3482 EDA 2016
Appeal from the PCRA Order October 18, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0001937-2008
BEFORE: LAZARUS, SOLANO, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 28, 2017
Appellant Terrence Barker appeals pro se from the order entered in the
Court of Common Pleas of Delaware County on October 18, 2016, dismissing
as untimely his second1 petition filed pursuant to the Post Conviction Relief
Act (PCRA).2 We affirm.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
While Appellant filed two previous PCRA petitions, the first concerned the
restoration of his right to petition the Pennsylvania Supreme Court for
allowance of appeal nunc pro tunc. Thus, the trial court erroneously deemed
the current petition to be Appellant’s third PCRA petition. Trial Court Opinion,
filed 12/12/16, at 3. See Commonwealth v. Karanicolas, 836 A.2d 940,
944 (Pa.Super. 2003) (noting that “[w]hen a petitioner is granted a direct
appeal nunc pro tunc in his first PCRA petition, a subsequent PCRA petition is
considered a first PCRA petition for timeliness purposes”) (citation omitted).
2
42 Pa.C.S.A. §§ 9541-9546.
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A panel of this Court previously related the relevant facts and
procedural history herein as follows:
On September 4, 2008, [Appellant] was convicted on two
counts of rape, one count of burglary, and one count of criminal
trespass. On December 18, 2008, [Appellant] was sentenced to
an aggregate term of fourteen to forty years’ incarceration. Trial
counsel filed a timely post-sentence motion alleging that the
Commonwealth failed to turn over to the defense both
documentation relating to the chain of custody of a knife and the
victim’s medical records. The trial court denied the motion.
[Appellant] then filed a notice of appeal. In its Rule 1925(a)
opinion, the trial court found that [Appellant] suffered no
prejudice from the Commonwealth’s failure to turn over that
documentation. This Court adopted the trial court’s findings and
rationale and affirmed the judgment of sentence. See
Commonwealth v. Barker, 1152 EDA 2009 (Pa. Super. April
30, 2010) (unpublished memorandum).[3]
On July 22, 2010, [Appellant] filed a PCRA petition seeking
the reinstatement of his right to file a petition for allowance of
appeal with the Pennsylvania Supreme Court. On November 23,
2010, the PCRA court granted the petition. [Appellant] filed his
petition for allowance of appeal. On September 26, 2011, the
Supreme Court denied the petition.[4]
On March 14, 2012, [Appellant] filed a second PCRA
petition. The court appointed counsel, who then filed an
amended petition on January 22, 2013. The amended petition
asserted that trial counsel was ineffective for various reasons,
only two of which are relevant for the purposes of this appeal:
that trial counsel was ineffective for entering into stipulations
and that trial counsel was ineffective for failing to discuss those
stipulations with [Appellant] prior to agreeing to them. On June
13 and August 20, 2013, the PCRA court held hearings on the
petition.
____________________________________________
3
The official docket entries indicate this Court affirmed Appellant’s judgment
of sentence on June 14, 2010.
4
The United States Supreme Court denied Appellant’s petition for writ of
certiorari on January 23, 2012. See Barker v. Pennsylvania, 565 U.S.
1181, 132 S.Ct. 1149, 181 L.Ed.2d. 1023 (2012).
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The testimony at the PCRA hearing supports the following
summary. At trial, [Appellant’s] counsel stipulated to the chain
of custody of the knife that [Appellant] used during the
commission of his crimes. Notes of Testimony (“N.T.”), PCRA
Hearing, 8/20/2013, at 8. Trial counsel also stipulated to the
victim’s medical records, which consisted of an emergency room
report indicating that there was no apparent trauma noted
during the victim’s examination. Id. at 14. After trial, trial
counsel’s associate picked up discovery for an unrelated case
and was given a discovery packet pertaining to the instant case.
In that packet were four pages of property records, including the
victim’s rape kit with the name of the nurse who provided the kit
to the police and other items recovered. The knife in question
was not among the items listed. Id. at 8, 15-16. Trial counsel
testified that, had he known of this information prior to trial, he
would not have entered into the stipulations. Id. at 16, 18.
On September 25, 2013, the PCRA court issued an order
denying the petition. As to the two issues discussed above, the
PCRA court found that [Appellant] failed to demonstrate that he
was prejudiced by either stipulation or by trial counsel’s failure
to consult him.
On October 16, 2013, [Appellant] filed a notice of appeal.
The PCRA court ordered, and [Appellant] timely filed, a concise
statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). On November 26, 2013, the PCRA court
issued its Rule 1925(a) opinion, in which it incorporated the
reasoning set forth in its September 25 order.
Commonwealth v. Barker, No. 2897 EDA 2013, unpublished
memorandum at 1-3 (Pa.Super. filed June 3, 2014). Finding the issues
Appellant had raised for review lacked merit, this Court affirmed the PCRA
court’s order denying Appellant’s PCRA petition. Id. at 7. The Pennsylvania
Supreme Court denied Appellant’s Petition for Allowance of Appeal on
December 30, 2014.
Appellant filed pro se the instant PCRA petition on September 6, 2016,
wherein he challenged the legality of his sentence. Pursuant to Pa.R.Crim.P.
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907, the PCRA court provided Appellant with notice of its intent to dismiss
his PCRA petition without a hearing on September 15, 2016, and on
September 30, 2016, Appellant filed a response thereto.
On November 7, 2016, Appellant filed his concise statement of errors
complained of on appeal wherein he contended the following:
A. The lower court committed error by not allowing petitioner
an evidentiary hearing on an illegal sentence.
B. The lower court errored [sic] when it gave [Appellant] 10
years more than the maximum sentence required by law.
C. The lower court erred when it did not correct [Appellant’s]
sentence.
However, in his brief Appellant abandoned these claims and instead
presented the following Statement of Questions Involved, which we
reproduce verbatim:
A. Whether the Commonwealth through D.A. Pearl Kim Esq.
committed prosecutorial misconduct when she deliberately
withheld information that would have shown that petitioner and
complaintant [sic] had consensual sex and that the medical
report went against everything that the Commonwealth argued.
B. Whether the court erred when it allowed the Complaintant
[sic] to use the Court to mislead and deceived them into
believing that a crime occurred by stating [Appellant] broke into
her home when in fact she offered for him to stay since he had
no place to go.
C. Whether District Attorney Kim committed prosecutorial
misconduct when she wrongfully stating [sic] that items
stipulated into evidence when indeed they remained in the
custody of the Chester Police Department.
Brief for Appellant at 2 (unnecessary capitalization omitted).
When reviewing the propriety of an order denying PCRA relief, this
Court is limited to a determination of whether the evidence of record
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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 of pleading and proving 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:
(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
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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). 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).
Herein, this Court affirmed Appellant’s judgment of sentence on June
14, 2010. On September 26, 2011, the Pennsylvania Supreme Court denied
Appellant’s petition for allowance of appeal filed nunc pro tunc, and the
United States Supreme Court denied his petition for writ of certiorari on
January 23, 2012. Thus, Appellant’s judgment of sentence became final for
purposes of the PCRA on January 23, 2012. 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 or at the expiration of time for seeking the
review”); see also U.S. Sup.Ct.R. 13.1. A timely PCRA petition had to have
been filed by January 23, 2013; therefore, the instant petition filed on
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September 6, 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 applied to his case. 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).
Appellant’s issues presented in his appellate brief are without merit or
waived because he either raised them or could have raised them on direct
appeal or failed to preserve them for our review by failing to include them in
his Rule 1925(b) statement. See 42 Pa.C.S.A. § 9543(a)(3) (requiring that
the allegation of error an appellant presents in a PCRA petition has not been
previously litigated or waived); see also 42 Pa.C.S.A. § 9544(a)(2) (an
issue is previously litigated if “the highest appellate court in which the
petitioner could have had review as a matter of right has ruled on the merits
of the issue”); See also Commonwealth v. Turetsky, 925 A.2d 876, 879
(Pa.Super. 2007), appeal denied, 940 A.2d 365 (Pa. 2007) (finding a claim
raised in a PCRA petition waived because appellant could have raised it on
direct appeal but failed to do so); 42 Pa.C.S.A. § 9544(b) (stating, “an issue
is waived if the petitioner could have raised it but failed to do so before trial,
at trial, during unitary review, on appeal or in a prior state post conviction
proceeding”).
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In addition, it is well-settled that issues not raised in a PCRA or
amended PCRA petition are waived on appeal. See Commonwealth v.
Lauro, 819 A.2d 100, 103 (Pa.Super. 2003), appeal denied, 830 A.2d 975
(Pa. 2003) (waiving five issues not in original or amended PCRA petition).
Further, an appellant cannot raise a new legal theory for the first time on
appeal. See Commonwealth v. Hanford, 937 A.2d 1094, 1098 n. 3 (Pa.
Super. 2007), appeal denied, 956 A.2d 432 (Pa. 2008); Pa.R.A.P. 302(a).
Moreover, Pennsylvania Rule of Appellate Procedure 1925 provides that
issues not included in the Rule 1925(b) statement or raised in accordance
with Rule 1925(b)(4) are waived. See Pa.R.A.P. 1925(b)(4)(vii); see also
Commonwealth v. Lord, 553 Pa. 415, 420, 719 A.2d 306, 308 (1998).
Insofar as Appellant asserted in his PCRA petition that his sentence is
greater than the lawful maximum, See PCRA petition, filed 9/6/16, at 4, he
did not actually argue therein that his sentence is illegal. See id. Rather, as
the trial court noted in its Rule 1925(a) Opinion, Appellant’s challenge to the
legality of his sentence was premised upon his misunderstanding of the
length of his sentence, for the sentencing court “was deliberate in its
sentencing, which was based on the sentencing guidelines and meticulous as
to its reason for Appellant’s sentence.” Trial Court Opinion, filed 12/12/16,
at 5 citing N.T. Sentencing, 12/18/08 at 17-21. Thus, Appellant has not
raised a non-waivable challenge to the legality of his sentence.
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Indeed, the fact that Appellant purported to challenge the legality of
his sentence does not allow him to evade the PCRA's timeliness
requirements. In Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214
(1999), the Pennsylvania Supreme Court rejected this contention. The Fahy
Court stated, “[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.” Id. at 331, 737 A.2d at 223 (citation omitted).
Thus, Appellant cannot escape the PCRA's timeliness requirements based
upon a claim of an illegal sentence. See id. Furthermore, Appellant failed to
develop an argument in his appellate brief that his sentence is illegal in light
of any specific statutory provision or recent holding in any case.
As Appellant has failed to plead and prove one of the aforementioned
exceptions to the PCRA time-bar, the courts of this Commonwealth are
without jurisdiction to offer Appellant any form of relief. Commonwealth v.
Jackson, 30 A.3d 516, 523 (Pa.Super. 2011). Accordingly, the PCRA court
properly denied Appellant’s patently untimely PCRA petition without a
hearing.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/28/2017
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Com. v. Barker, T.
Combined Opinion