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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
WAYNE DOUGLAS TILLEY, JR. :
:
Appellant : No. 1390 MDA 2017
Appeal from the PCRA Order August 14, 2017
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0003781-2014,
CP-40-CR-0003782-2014
BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.
MEMORANDUM BY GANTMAN, P.J.: FILED MAY 22, 2018
Appellant, Wayne Douglas Tilley, Jr., appeals from the order entered in
the Luzerne County Court of Common Pleas that denied his pro se petitions to
reinstate and amend his first petition filed under the Post Conviction Relief Act
(“PCRA”),1 which he filed after the court had denied PCRA relief. We affirm.
The relevant facts and procedural history of this case are as follows. On
December 14, 2015, Appellant entered nolo contendere pleas to one count of
reckless burning or exploding at Docket Numbers 3781-2014 and 3782-2014,
respectively. The court sentenced Appellant on February 18, 2016, to an
aggregate term of twenty-eight (28) to fifty-six (56) months’ incarceration,
plus two (2) years’ probation. Appellant did not pursue direct review, so the
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1 42 Pa.C.S.A. §§ 9541-9546.
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judgment of sentence became final as of Monday, March 21, 2016.
On February 17, 2017, Appellant timely filed his first PCRA petition
through counsel, arguing plea/sentencing counsel rendered ineffective
assistance when they failed, inter alia, to request that Appellant undergo a
mental health evaluation before sentencing. On May 12, 2017, the PCRA court
conducted an evidentiary hearing, at which Appellant testified he unknowingly
and involuntarily entered his nolo contendere pleas, because he was under
the influence of several medications during the nolo contendere hearing. The
PCRA court denied Appellant’s PCRA petition on May 16, 2017. On May 22,
2017, PCRA counsel filed a motion for reconsideration and for leave to
withdraw as counsel. The PCRA court denied the reconsideration motion and
granted PCRA counsel leave to withdraw on May 23, 2017. Appellant did not
file an appeal.
Instead, on June 12, 2017, Appellant filed a pro se “Petition for PCRA
Reinstatement and Effective Counsel,” arguing PCRA counsel was ineffective
allegedly for failing to assert issues Appellant wished to raise and
incompetently presenting other claims. Appellant filed on July 6, 2017, a pro
se motion to amend his June 12th filing. The PCRA court denied Appellant’s
pro se filings on August 14, 2017. On August 31, 2017, Appellant filed a
request for appellate counsel and a notice of appeal purportedly from the May
16, 2017 order and the August 14, 2017 order. On September 1, 2017, the
PCRA court appointed appellate counsel and ordered Appellant to file a concise
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statement of errors complained of on appeal per Pa.R.A.P. 1925(b). Appellant
timely complied on September 20, 2017.
Appellant raises two issues for our review:
WHETHER TRIAL COUNSEL WAS INEFFECTIVE IN FAILING
TO BRING TO THE [PLEA] COURT’S ATTENTION
THAT…APPELLANT WAS OVERMEDICATED AT THE TIME OF
HIS [NOLO CONTENDERE] PLEA, THUS MAKING HIS PLEA
INVOLUNTARY[?]
WHETHER TRIAL COUNSEL WAS INEFFECTIVE IN FAILING
TO REQUEST THAT THE [SENTENCING] COURT
ORDER…APPELLANT TO SUBMIT TO A MENTAL HEALTH
EVALUATION PRIOR TO SENTENCING[?]
(Appellant’s Brief at 1).
As a prefatory matter, we must address the timeliness of Appellant’s
appeal. Pennsylvania Rule of Appellate Procedure 903 provides:
Rule 903. Time for Appeal
(a) General rule. Except as otherwise prescribed by
this rule, the notice of appeal required by Rule 902 (manner
of taking appeal) shall be filed within 30 days after the entry
of the order from which the appeal is taken.
Pa.R.A.P. 903(a). Time limitations for taking appeals are strictly construed
and cannot be extended as a matter of grace. Commonwealth v. Valentine,
928 A.2d 346 (Pa.Super. 2007). This Court can raise the matter sua sponte,
as the issue is one of jurisdiction to entertain the appeal. Id. This Court has
no jurisdiction to entertain an untimely appeal. Commonwealth v.
Patterson, 940 A.2d 493 (Pa.Super. 2007), appeal denied, 599 Pa. 691, 960
A.2d 838 (2008). Generally, an appellate court may not enlarge the time for
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filing a notice of appeal. Pa.R.A.P. 105(b). Extension of the filing period is
permitted only in extraordinary circumstances, such as fraud or some
breakdown in the court’s operation. Commonwealth v. Braykovich, 664
A.2d 133 (Pa.Super. 1995), appeal denied, 544 Pa. 622, 675 A.2d 1242
(1996).
When an appellant files a motion for reconsideration of a final order, he
must file a protective notice of appeal to ensure preservation of his appellate
rights, in the event the court does not expressly grant reconsideration within
the thirty-day appeal period. Commonwealth v. Moir, 766 A.2d 1253, 1254
(Pa.Super. 2000). See also Cheathem v. Temple University Hosp., 743
A.2d 518, 520-21 (Pa.Super. 1999) (stating: per “the Rules of Appellate
Procedure, the 30-day period may only be tolled if that court enters an order
‘expressly granting’ reconsideration within 30 days of the final order. There
is no exception to this Rule, which identifies the only form of stay allowed. A
customary order and rule to show cause, fixing a briefing schedule and/or
hearing date, or any other order except for one ‘expressly granting’
reconsideration, is inadequate”).2 In other words, the mere filing of a motion
for reconsideration does not toll the thirty-day appeal period; the court must
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2 Generally, the Rules of Appellate Procedure apply to criminal and civil cases
alike; the principles enunciated in civil cases construing those rules are equally
applicable in criminal cases. See Commonwealth v. Levanduski, 907 A.2d
3, 29 n.8 (Pa.Super. 2006) (en banc), appeal denied, 591 Pa. 711, 919 A.2d
955 (2007) (stating rules of appellate procedure apply to criminal and civil
cases alike).
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expressly grant reconsideration of the order at issue within thirty days of entry
of that order. Moir, supra. An appeal “from an order denying reconsideration
is improper and untimely.” Id. In this context, the appeal does not lie from
the order denying reconsideration; filing an appeal from that order is
insufficient to preserve appellate rights, as “we will not permit appellant to do
indirectly that which he cannot do directly.” Provident Nat. Bank v.
Rooklin, 378 A.2d 893, 897 (Pa.Super. 1977). Accord Cheathem, supra.
Instantly, the PCRA court denied Appellant’s first PCRA petition on May
16, 2017. The May 16th order was a final order for purposes of appeal. PCRA
counsel subsequently filed a reconsideration motion, which the PCRA court
denied on May 23, 2017. Therefore, Appellant had until June 15, 2017, to file
an appeal from the order denying his first PCRA petition. Instead, Appellant
chose to file on June 12, 2017, a pro se “Petition for PCRA Reinstatement and
Effective Counsel.” Appellant later filed a pro se petition to amend the June
12th filing on July 6, 2017. The PCRA court denied both pro se filings on August
14, 2017. On August 31, 2017, Appellant filed a notice of appeal purporting
to appeal from the May 16, 2017 order and the August 14, 2017 order.
Here, Appellant filed the notice of appeal 107 days after the PCRA court
had denied Appellant’s first PCRA petition on May 16, 2017. Thus, to the
extent Appellant tried to appeal the May 16th order on August 31, 2017, his
appeal is patently untimely. See Pa.R.A.P. 903(a). The record contains no
extraordinary circumstances such as a breakdown in the operations of the
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court to excuse Appellant’s untimely challenge to the May 16th order. See
Braykovich, supra. Further, nothing PCRA counsel or Appellant filed after
May 16, 2017, tolled the applicable 30-day appeal period. See Provident
Nat. Bank, supra. Appellant’s failure to file a timely appeal from the May
16th order precludes our review of any issue pertaining to Appellant’s first
PCRA petition. See Pa.R.A.P. 903; Patterson, supra. Appellant’s appeal
from the August 14th order, however, was timely filed on August 31, 2017.
See Pa.R.A.P. 903.
Nevertheless, any petition for collateral relief will generally be
considered a PCRA petition if the petition raises issues cognizable under the
PCRA. See Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638 (1998);
42 Pa.C.S.A. § 9542 (stating PCRA shall be sole means of obtaining collateral
relief and encompasses all other common law and statutory remedies for same
purpose). Regardless of its label, a subsequent PCRA petition does not
automatically become part of the initial PCRA proceeding. Commonwealth
v. Porter, 613 Pa. 510, 523-24, 35 A.3d 4, 12 (2012) (explaining
Pa.R.Crim.P. 905 explicitly requires leave of court to file amendment to PCRA
petition). The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016).
A PCRA petition, including a second or subsequent petition, shall be filed
within one year of the date the underlying judgment of sentence becomes
final. 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence is deemed final “at
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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). The
three statutory exceptions to the timeliness provisions in the PCRA allow for
very limited circumstances under which the late filing of a petition will be
excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a petition must
allege and the petitioner must prove:
(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)(i)-(iii). A common allegation of ineffective
assistance of counsel, even if cast in the language of a statutory exception,
does not generally establish jurisdiction over an otherwise untimely PCRA
petition. Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 80, 753 A.2d
780, 785 (2000). Only in rare instances, will the law allow a petitioner to
proceed with a second, albeit untimely, PCRA petition. See, e.g.,
Commonwealth v. Bennett, 593 Pa. 382, 399-400, 930 A.2d 1264, 1274
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(2007) (allowing prompt, untimely petition under “newly-discovered facts
exception” where petitioner claims specific abandonment of counsel on prior
appeal).
Instantly, Appellant filed a pro se document, titled as a “Petition for
PCRA Reinstatement and Effective Counsel,” on June 12, 2017. In his June
12th petition, Appellant asserted claims of PCRA counsel’s ineffectiveness.
Ineffective assistance of counsel claims are generally cognizable under the
PCRA. See 42 Pa.C.S.A. § 9543(a)(2)(ii) (stating claim of ineffective
assistance of counsel is cognizable under PCRA). Appellant’s June 12th pro se
filing constituted a second PCRA petition. See Zeigler, supra at 852 (holding
petitioner does not have to wait for expiration of thirty-day appeal period from
order denying PCRA relief in order to file subsequent PCRA petition; if
petitioner files another PCRA petition within thirty-day appeal period and then
decides to file appeal from denial of his prior petition also within appeal period,
then petitioner’s appeal takes priority, and petitioner’s subsequent PCRA
petition is subject to dismissal under Commonwealth v. Lark, 560 Pa. 487,
746 A.2d 585 (2000)).
Here, Appellant’s judgment of sentence became final on Monday, March
21, 2016, upon expiration of the 30-day period for filing a direct appeal. See
Pa.R.A.P. 903(a). Appellant filed the second and current PCRA petition on
June 12, 2017, which is patently untimely. See 42 Pa.C.S.A. § 9541(b)(1).
In the petition, Appellant asserts first PCRA counsel was ineffective for
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incompetently presenting claims related to Appellant’s nolo contendere pleas
and for allegedly failing to present other claims Appellant wanted to raise.
These kinds of ineffectiveness of counsel claims, however, do not render
Appellant’s second PCRA petition timely. See Gamboa-Taylor, supra.
Therefore, Appellant’s second and current PCRA petition was untimely filed,
and the PCRA court lacked jurisdiction to review it.3 See Zeigler, supra.
Accordingly, we affirm. See Commonwealth v. Reese, 31 A.3d 708, 727
(Pa.Super. 2011) (en banc) (stating appellate court may affirm order of trial
court on any basis if ultimate decision is correct).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/2018
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3We observe the PCRA court failed to issue Rule 907 notice before it denied
what we have determined was Appellant’s second PCRA petition. Appellant
has not raised this issue on appeal, so he waived any defect in notice. See
Commonwealth v. Taylor, 65 A.3d 462 (Pa.Super. 2013) (explaining
appellant’s failure to raise on appeal PCRA court’s failure to provide Rule 907
notice results in waiver of claim). Moreover, the court’s failure to issue Rule
907 notice is not reversible error where the record is clear that the petition is
untimely. Id.
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