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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
JOHN F. PRESTON :
: No. 1167 EDA 2017
Appellant
Appeal from the PCRA Order February 28, 2017
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0002375-2014,
CP-15-CR-0002380--2014
BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J.*
MEMORANDUM BY NICHOLS, J.: FILED FEBRUARY 13, 2018
Appellant John F. Preston appeals pro se from the order dismissing his
first Post Conviction Relief Act1 (PCRA) petition as untimely. Appellant asserts
that his petition was timely filed and that he was coerced into providing a
blood sample for testing after being stopped for driving under the influence
(DUI)2 in contravention of Birchfield v. North Dakota, 136 S. Ct. 2160
(2016). We affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
2 75 Pa.C.S. § 3802.
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On October 29, 2014, Appellant entered an open guilty plea to two
counts of DUI-highest rate of alcohol3 based on two separate incidents in
which his blood alcohol content (BAC) exceeded .2 percent. In one incident,
Appellant submitted to a breath test, and in the other incident, he consented
to have a blood sample drawn to test his BAC. Appellant was sentenced on
February 13, 2015, to an aggregate sentence of two to six years’
incarceration. Appellant did not file a direct appeal from his judgment of
sentence.
On June 23, 2016, the United States Supreme Court decided Birchfield
and held that the Fourth Amendment does not permit warrantless blood tests
incident to arrests for DUI. Appellant filed a first pro se PCRA petition
postmarked August 24, 2016, in which he argued that Birchfield announced
a newly recognized constitutional right that would afford him relief. The PCRA
court appointed counsel from the Public Defender of Chester County to
represent Appellant.
On October 27, 2016, PCRA counsel filed a Turner/Finley4 petition for
leave to withdraw as counsel based upon the untimeliness of Appellant’s PCRA
petition and Appellant’s failure to file his petition within sixty days of the date
Birchfield was decided. See 42 Pa.C.S. § 9545(b)(2). Appellant submitted
an affidavit that Birchfield was not placed on the prison’s computers until
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3 75 Pa.C.S. § 3802(c).
4 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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July 25, 2016, and that he could not have discovered the case until the prison
library was updated. On December 2, 2016, the PCRA court issued a notice
pursuant to Pa.R.Crim.P. 907 advising Appellant of its intent to dismiss his
petition without a hearing. Appellant wrote a pro se response postmarked
December 19, 2016, in which he cited the prisoner mailbox rule5 and claimed
that he placed his PCRA petition with prison authorities for mailing on Friday,
August 19, 2016, within sixty days of the date Birchfield was decided.
In response, the PCRA court directed PCRA counsel to investigate the
procedures used for collecting inmate mail at SCI Pittsburgh. Counsel spoke
with Rick Sams, the prison’s mailroom supervisor. According to Mr. Sams,
mail is postmarked the same day it is placed in the prison mailbox unless it is
placed in the mailbox after the mail run for that day, which occurs at 11:00
a.m. If mail is placed in the mailbox after 11:00 a.m., it is postmarked the
next day. Mail runs are conducted every weekday. See PCRA Counsel’s
Correspondence, 2/23/17, at 2. Thus, counsel opined that if Appellant had
placed his PCRA petition “in the block mail on Friday, August 19, 2016, after
the mail had been collected by the mailroom that day, it still would have been
collected Monday, August 22, 2016 and been postmarked Monday August 22,
2016.” Id. at 4.
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5 See Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa. Super. 2006)
(stating that “[p]ursuant to the ‘prisoner mailbox rule,’ a document is deemed
filed when placed in the hands of prison authorities for mailing).
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Meanwhile, Appellant filed a pro se “Motion Filed for Ineffective
Coun[sel],” which was dated February 16, 2017, and sought the appointment
of new PCRA counsel. The PCRA court initially scheduled a hearing to
determine whether irreconcilable differences existed between Appellant and
PCRA counsel that would warrant the appointment of new counsel.
Thereafter, on February 28, 2017, the PCRA court determined that
Appellant had not mailed his petition until after August 22, 2016, based upon
the mail procedures used at the prison and the postmark of August 24, 2016,
on the envelope used to mail Appellant’s petition. The PCRA court granted
PCRA counsel’s petition for leave to withdraw, dismissed Appellant’s PCRA
petition, and denied Appellant’s motion alleging PCRA counsel’s
ineffectiveness without a hearing. Appellant filed a timely notice of appeal.6
On April 24, 2017, Appellant filed a timely court-ordered statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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6 Because the order dismissing Appellant’s PCRA was filed on February 28,
2017, Appellant had until March 30, 2017, to timely file his notice of appeal.
See Pa.R.A.P. 903(a). Appellant dated his notice of appeal March 28, 2017,
and it was postmarked March 29, 2017. Pursuant to the prisoner mailbox
rule, the notice of appeal was timely filed, even though it was not filed in the
Clerk of Courts until April 3, 2017. Additionally, the notice of appeal was
mailed directly to the judge’s chambers rather than the Clerk of Courts.
However, this does not affect whether the filing is timely. See Pa.R.A.P.
905(a)(4) (providing that where a notice of appeal is mistakenly filed in an
incorrect office within the unified judicial system, the notice of appeal shall be
date-stamped and transmitted to the clerk of court for filing and shall be
deemed filed in the trial court on the date originally filed). Accordingly,
quashal of the appeal on grounds that the notice of appeal was not timely filed
is inappropriate.
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Appellant raises the following issues for our review:
1. Should the new substantive rule of constitutional law that
Birchfield set precedent be applied retroactively to allow
Appellant’s PCRA?
2. Was Appellant’s PCRA denied by Common Pleas Court when it
did not consider whether his PCRA was 2 days (of the 60 day
limit determined by 42 Pa.C.S.A. § 9545(b)(2)) late in filing
because of government interference (Appellant has sworn
affidavit signed and notarized by SCI Pittsburgh Law Librarian
stating so)?
3. Was Appellant’s Court Appointed Counsel’s Withdraw Notice
(due to lack of merit) wrongfully granted by the PCRA
(Common Pleas) Court?
4. Did the PCRA Court err when Appellant wasn’t allowed to file
an amended PCRA after his Court Appointed Counsel filed her
Withdraw Notice (Finley Letter)?
5. Did the PCRA Court err when it denied Appellant’s Petition for
ineffective counsel?
Appellant’s Brief at 7.
Our standard of review of the denial of a PCRA petition is well-settled.
We review the PCRA court’s findings of fact to determine whether they are
supported by the record and review its conclusions of law to determine
whether they are free from legal error. Commonwealth v. Spotz, 84 A.3d
294, 311 (Pa. 2014).
Before we address the merits of Appellant’s claims on appeal, we must
determine whether his PCRA petition was timely filed. Generally, a petition
for PCRA relief, including a second or subsequent petition, must be filed within
one year of the date the judgment of sentence becomes final. See 42 Pa.C.S.
§ 9545(b)(1). Exceptions to the timeliness requirement exist, however, as
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set forth at 42 Pa.C.S. § 9545(b). The timeliness requirements of the PCRA
are jurisdictional in nature, and, accordingly, a PCRA court cannot hear
untimely petitions. Commonwealth v. Robinson, 837 A.2d 1157 (Pa.
2003).
The three statutory exceptions for a facially untimely petition under the
PCRA consist of the following:
(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. § 9545(b)(1)(i)-(iii). Additionally, a petition invoking a timeliness
exception must “be filed within 60 days of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Appellant was sentenced on February 13, 2015. Because he did
not file a direct appeal, his sentence became final for purposes of the PCRA
on Monday, March 16, 2015. See 42 Pa.C.S. § 9545(b)(3) (stating “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”); Pa.R.A.P.
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903(a) (stating that “the notice of appeal . . . shall be filed within 30 days”);
see also 1 Pa.C.S. § 1908. Accordingly, Appellant would have had until March
16, 2016 to file a timely PCRA petition. See 42 Pa.C.S. § 9545(b)(1) (stating
that a PCRA petition, “including a second or subsequent petition, shall be filed
within one year of the date the judgment becomes final”). Appellant’s PCRA
petition was not postmarked until August 24, 2016, making it facially
untimely. Thus, we must determine whether Appellant pleaded and proved
an exception to the PCRA time-bar.
Appellant first asserts that his PCRA petition falls under the timeliness
exception in 42 Pa.C.S. § 9545(b)(1)(iii) providing for untimely petitions when
a new constitutional right is recognized, specifically the right recognized in
Birchfield. To avail himself of this timeliness exception, Appellant had to file
his petition within sixty days of the Birchfield decision, or by Monday, August
22, 2016. Even though Appellant’s PCRA petition was not postmarked until
August 24, 2016, two days after the sixty-day period following the filing of the
Birchfield decision ended, Appellant argues that he actually deposited his
petition with prison authorities on August 19, 2016, which would have been
within the sixty-day timeframe.
However, the PCRA court determined that there was a lack of reasonably
verifiable evidence that Appellant placed his petition in the prisoner’s mailbox
on August 19, 2016. Additionally, the court concluded that the prison’s
mailing procedures refuted Appellant’s bare allegation regarding the date on
which he deposited his pro se PCRA petition with prison officials. Had
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Appellant deposited his petition for mailing on Friday, August 19, 2016, it
would have been postmarked on August 22, 2016, the following Monday, at
the latest. Since Appellant’s PCRA petition was postmarked August 24, 2016,
it was reasonable for the PCRA court to infer that Appellant did not deposit his
petition by Monday, August 22, 2016. Because the PCRA court’s
determination that Appellant failed to produce reasonably verifiable evidence
that he filed his petition within sixty days of Birchfield is supported by the
record, we have no basis to disturb that finding. See Spotz, 84 A.3d at 311.
Even if Appellant’s PCRA petition had been filed within sixty days of the
Birchfield decision, Appellant would not be entitled to relief. In
Commonwealth v. Wilcox, 174 A.3d 670 (Pa. Super. 2017), this Court
noted that “[n]either the United States Supreme Court nor our Supreme Court
has held that Birchfield is to be applied retroactively to cases like the one
herein where the judgment of sentence had become final prior to its
disposition.” Id. at 672. Accordingly, Appellant’s claim that Birchfield
announces a new constitutional right triggering the timeliness exception under
42 Pa.C.S. § 9545(b)(1)(iii) is without merit.
Appellant also asserts that his PCRA petition fell within the timeliness
exception under 42 Pa.C.S. § 9545(b)(1)(i) based on governmental
interference, specifically, the lack of timely updates in the prison’s law library
and the lack of access due to a lockdown during the sixty days after Birchfield
was decided. However, Pennsylvania courts have consistently rejected similar
claims. See Commonwealth v. Albrecht, 994 A.2d 1091, 1095 (Pa. 2010);
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Commonwealth v. Leggett, 16 A.3d 1144, 1146-47 (Pa. Super. 2011)
(citing Commonwealth v. Baldwin, 789 A.2d 728, 731 (Pa. Super. 2001),
for the proposition that “[n]either the court system nor the correctional
system is obliged to educate or update prisoners concerning changes in case
law”). Thus, Appellant’s assertion of governmental interference under 42
Pa.C.S. § 9545(b)(1)(i) fails.
Lastly, Appellant raises several claims based on PCRA counsel’s
ineffectiveness. However, our review reveals no genuine issues of material
facts considering the untimeliness of Appellant’s PCRA petition. Therefore,
Appellant’s intended claims of ineffective assistance of PCRA counsel warrant
no relief.
In sum, we discern no error on the part of the PCRA court in dismissing
Appellant’s PCRA petition without a hearing based upon untimeliness. For the
same reasons, the court did not err in denying Appellant’s request to file an
amended PCRA or to have a hearing regarding the ineffectiveness of his court-
appointed PCRA counsel.
Order affirmed.Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/13/18
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