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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
CHRISTOPHER JACKSON CARTER :
:
Appellant : No. 1942 EDA 2017
Appeal from the PCRA Order May 17, 2017
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0002272-2012
BEFORE: SHOGAN, J., NICHOLS, J., and PLATT, J.*
MEMORANDUM BY NICHOLS, J.: FILED JUNE 25, 2018
Appellant Christopher Jackson Carter appeals from the order dismissing
his first Post Conviction Relief Act1 (PCRA) petition following a hearing.
Appellant contends that the PCRA court erred in suggesting that his petition
was untimely filed and denying relief on the merits of the petition. We agree
with Appellant that his petition was timely filed but affirm the order denying
relief.
The PCRA court summarized the procedural history of this matter as
follows:
On December 3, 2012, a Criminal Information was filed charging
[Appellant] with 5 counts of Rape by Forcible Compulsion, 18
Pa.C.S.A. § 3121(1), (F1); 5 counts of Rape of a Mentally Ill or
Deficient Victim, 18 Pa.C.S.A. § 3121(4), (F1); 5 counts of
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
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Involuntary Deviate Sexual Intercourse-Compulsion, 18 Pa.
C.S.A. §3121(1), (F1); 5 counts of Involuntary Deviate Sexual
Intercourse-Victim Less than 16, 18 Pa.C.S.A. § 3123(5), (F1); 5
counts of Aggravated Indecent Assault-Without Consent, 18 Pa
C.S.A. § 3125(1), (F2); 4 counts of Indecent Assault-Over
18/Under 14, 18 Pa.C.S.A. § 3126(a)(6), (M1); 5 counts of
Indecent Assault of Person less than 13 years of age, 18 Pa.C.S.A.
§ 3126 (a)(1), (M2); 5 counts of Endangering Welfare of Children,
18 Pa.C.S.A. § 4304, (M1); and 5 counts of Corruption of Minors,
18 Pa.C.S.A. § 6301 (a), (M1).
These charges stem from ongoing sexual abuse suffered by K.M.B.
[Victim] at the hands of [Appellant]. [Victim] testified that she
was sexually abused by her mother’s paramour, [Appellant], since
the age of 4, from 1991 to 1994. On October 21, 2013, a jury trial
commenced and on October 22, 2013, the jury returned a verdict
of guilty to the following:
1. 1 count of Rape by Forcible Compulsion;
2. 5 counts of Involuntary Deviate Sexual Intercourse
Person Less than 16;
3. 5 counts of Aggravated Indecent Assault;
4. 4 counts of Indecent Assault;
5. 5 counts of Endangering Welfare of Children; and
6. 5 counts of Corruption of Minors.
On February 18, 2014, the Honorable Jennifer Harlacher Sibum
sentenced [Appellant] to a state correctional institution for an
aggregate term of incarceration of no less than 240 months and
not to exceed 480 months.[2] [Appellant] filed an appeal to the
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2 The trial court’s aggregate sentence was composed of the following
sentences of imprisonment: (1) seven to fourteen years on Count 1 – rape by
forcible compulsion; (2) a consecutive seven to fourteen years on Counts 16
– IDSI person less than 16 years old; (3) six to twelve years on Count 17 -
IDSI person less than 16 years old; (4) concurrent six to twelve years on
Counts 17-20 - IDSI person less than 16 years old, each; (5) concurrent one
to two years on Count 35-39 – endangering welfare of children, each.
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Pennsylvania Superior Court and on March 19, 2015, [and this]
Court affirmed [Appellant]’s judgment of sentence.
[Commonwealth v. Carter, 111 A.3d 1221 (Pa. Super. 2015)]
A request for allowance of appeal was not filed by counsel and on
or about September 10, 2015, Petitioner filed a Nunc Pro Tunc
Petition for Allowance of Appeal with the Pennsylvania Supreme
Court. On December 21, 2015, the Pennsylvania Supreme Court
issued an Order granting [Appellant]’s Nunc Pro Tunc Petition for
Allowance of Appeal. On June 1, 2016, the Pennsylvania Supreme
Court denied [Appellant]’s Petition for Allowance of Appeal.
PCRA Ct. Op., 8/11/16, 1-3.
Appellant filed a pro se PCRA petition, which the PCRA court received on
August 11, 2016. The court appointed counsel, who filed an amended PCRA
petition on September 26, 2016.3 The Commonwealth filed an answer,
asserting that Appellant’s petition was not timely filed. According to the
Commonwealth, Appellant’s conviction became final on April 19, 2015, thirty
days after this Court affirmed the judgment of sentence and Appellant failed
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The trial court’s sentencing order referred to mandatory sentencing under 42
Pa.C.S. § 9718(a)(3) with respect to Counts 1 and 16-20, for rape and IDSI,
respectively. However, the applicable mandatory minimum provision was
former section 9718(a)(1) which, inter alia, required that a person convicted
of rape and IDSI when the victim is under sixteen years of age be sentenced
to not less than five years’ imprisonment. See 1982, Dec. 30, P.L. 1472 No.
334, § 1; see also Commonwealth v. Arnold, 514 A.2d 890, 891 n.1 (Pa.
Super. 1986) (quoting former section 9718).
This Court has held that a sentence greater than the prescribed mandatory
minimum provision is not subject to a challenge under United States v.
Alleyne, 570 U.S. 99 (2013). See Commonwealth v. Zeigler, 112 A.3d
656, 662 (Pa. Super. 2015). Therefore, because the sentences imposed for
rape and IDSI in this case exceeded the prescribed mandatory minimum
sentence, Alleyne is not at issue. See id.
3 In the meantime, the Commonwealth filed an answer asserting that
Appellant’s petition should be dismissed as untimely.
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to file a timely petition for allowance of appeal. Therefore, the Commonwealth
asserted that the one-year PCRA time bar expired on April 19, 2016.
The PCRA court convened a hearing on December 2, 2016, at which both
Appellant and Appellant’s trial counsel (trial counsel) testified. The court
thereafter entered an order dismissing Appellant’s petition on May 17, 2017.
In the opinion accompanying its order, the court agreed with the
Commonwealth’s position that Appellant’s petition was not timely filed.
Nevertheless, the court addressed Appellant’s claims and found them to be
meritless.
Appellant timely appealed and complied with the PCRA court’s order to
submit a Pa.R.A.P. 1925(b) statement. The court adopted its May 17, 2017
order as dispositive of the issues raised in Appellant’s Rule 1925(b) statement.
Appellant presents the following questions on appeal:
1. Did the trial court err and abuse its discretion by not finding
that any failure by [Appellant] to file a timely PCRA [petition]
was the result of the ineffectiveness of counsel and, as such,
that his PCRA [petition] was timely filed for court review?
2. Did the trial court err and abuse its discretion by not finding,
following PCRA hearing, that trial counsel was ineffective and
that such ineffec[tiveness] was constitutionally infirm such that
[Appellant] is entitled to a new trial?
Appellant’s Brief at 5.
Appellant first contends that the PCRA court erred in concluding that his
PCRA petition was not timely filed. Specifically, Appellant argues that the
court erred in concluding that his conviction became final on April 19, 2015.
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Appellant emphasizes that the Pennsylvania Supreme Court granted him leave
to file a petition for allowance of appeal nunc pro tunc on December 28, 2015,
and denied allowance of appeal on June 1, 2016. He concludes that the
Pennsylvania Supreme Court thus “extend[ed] the life of the case until the
conclusion of such review.” Appellant’s Brief at 12.
Appellant’s contention raises a pure question of law. Our standard of
review is de novo, and our scope of review is plenary.
The PCRA states, in relevant part:
(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
date the judgment becomes final . . .
***
(3) For purposes of this subchapter, 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. § 9545(b)(1), (3).
In Commonwealth v. Hutchins, 760 A.2d 50 (Pa. Super. 2000), the
petitioner was convicted, and this Court denied his direct appeal on September
25, 1996. Id. at 51-52. The petitioner did not petition the Pennsylvania
Supreme Court for allowance of appeal within thirty days of this Court’s
decision, but filed a petition for allowance of appeal nunc pro tunc on January
16, 1997. Id. at 52. The Pennsylvania Supreme Court denied the petition on
March 25, 1997. Id. The petitioner subsequently filed his first PCRA petition
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on March 20, 1998, within one year of the Supreme Court’s denial of his
petition for allowance of appeal nunc pro tunc. Id. The PCRA court denied
the petition as raising issues previously addressed during the petitioner’s
direct appeal. Id.
This Court affirmed the PCRA court’s ruling on a different basis:
[The petitioner]’s judgment of sentence was affirmed by our Court
on September 25, 1996. [The petitioner] therefore had 30 days
after our Court affirmed his judgment of sentence to seek further
review by our Supreme Court. See Pa.R.A.P. 1113(a) (“. . . a
petition for allowance of appeal shall be filed with the Prothonotary
of the Supreme Court within 30 days of the entry of the order of
the Superior Court sought to be reviewed . . . ”). [The petitioner]
did not file his petition seeking allowance of appeal within this 30–
day period. Thus, under the express terms of Section 9545(b)(3),
[the petitioner]’s judgment of sentence became final after the
expiration of the 30-day period in which Appellant was allowed to
seek further review, which was on October 25, 1996.
We recognize that [the petitioner] later filed an untimely petition
for allowance of appeal with our Supreme Court, which was
denied. This later filing and subsequent denial, however, does not
operate to circumvent the clear and unambiguous language
contained in Section 9545(b)(3) by altering the date on which [the
petitioner]’s conviction became final. The fact remains that [the
petitioner] did not timely seek review of our Court’s decision with
our Supreme Court within the 30 day time period allowed for
seeking such review, thus his conviction must be deemed final as
of the expiration of that time period. Were we to hold otherwise,
then we would be disregarding the plain meaning of Section
9545(b)(3) and acting in contravention to the express intent of
the legislature.
Hutchins, 760 A.2d at 54 (some citations omitted and emphasis added).
Hutchins is distinguishable from the instant case. Here, the
Pennsylvania Supreme Court granted Appellant leave to proceed nunc pro
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tunc and denied his petition for allowance of appeal on June 1, 2016. Once
the Pennsylvania Supreme Court granted nunc pro tunc relief, Appellant’s right
to direct review was revived. See Commonwealth v. Karanicolas, 836 A.2d
940, 944-45 (Pa. Super. 2003) (concluding that reinstatement of direct appeal
rights nunc pro tunc rendered judgment of sentence non-final for the purposes
of Section 9545); see also Black’s Law Dictionary at 1174 (9th ed. 2009)
(defining nunc pro tunc as “[Latin ‘now for then’] [h]aving retroactive legal
effect through a court’s inherent power”).
Furthermore, when the Pennsylvania Supreme Court denied Appellant’s
petition for allowance of appeal on its merits on June 1, 2016, Appellant had
ninety days to seek further relief in the United States Supreme Court. See
S.Ct.R. 13. Because Appellant did not file a petition for a writ of certiorari, his
conviction became final for the purposes of the PCRA on August 30, 2016, and
the one-year time period to file a facially timely petition would have expired
after August 30, 2017. Therefore, Appellant’s pro se PCRA petition, which was
docketed on August 11, 2016, was timely filed.
Appellant next contends that the PCRA court erred in denying relief on
the issues raised in his petition. Because the PCRA court conducted an
evidentiary hearing and ruled that Appellant’s issues lacked merit, we proceed
to consider the merits of Appellant’s arguments.
The standards governing our review are well settled:
In addressing the grant or denial of post-conviction relief,
[appellate courts] consider whether the PCRA court’s conclusions
are supported by record evidence and are free of legal error. [T]o
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prevail on . . . ineffectiveness allegations, [an a]ppellant must
demonstrate that the underlying claim is of arguable merit; that
no reasonable strategic basis existed for counsel’s act or omission;
and that counsel’s error resulted in prejudice, or, in other words,
that there is a reasonable probability that the outcome would have
been different. In addition, [an a]ppellant is required to establish
that his claims have not been previously litigated or waived.
Commonwealth v. Gibson, 951 A.2d 1110, 1120 (Pa. 2008) (citations
omitted).
Appellant first argues that trial counsel was ineffective for failing to
consult and seeking his input before trial. Appellant’s Brief at 15. No relief is
due.
Instantly, trial counsel testified that she consulted with Appellant.4 N.T.,
12/2/16, at 34-35, 37. As noted by the PCRA court, trial counsel also testified
that Appellant became uncooperative with her shortly before trial. See PCRA
Ct. Op., 5/17/17, at 8; N.T., 12/2/16, at 38-39. Thus, Appellant’s argument
that trial counsel failed to consult with him is belied by the record, and the
PCRA court properly denied this claim for lack of arguable merit.
Appellant, in his second argument, asserts that trial counsel failed “to
seek the attendance at trial of the numerous witnesses, both character and
fact-based suggested” by Appellant. Appellant’s Brief at 15.
It is well settled that
Counsel has a general duty to undertake reasonable investigations
or make reasonable decisions that render particular investigations
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4We note that trial counsel testified that Appellant conceded some improper
contact with Victim, but denied committing felony offenses. N.T., 12/2/16, at
34.
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unnecessary. Counsel’s unreasonable failure to prepare for trial is
“an abdication of the minimum performance required of defense
counsel.” The duty to investigate, of course, may include a duty
to interview certain potential witnesses; and a prejudicial failure
to fulfill this duty, unless pursuant to a reasonable strategic
decision, may lead to a finding of ineffective assistance.
Commonwealth v. Johnson, 966 A.2d 523, 535-36 (Pa. 2009) (citation
omitted).
Additionally, when raising a claim of ineffectiveness for failure to call a
potential witness, a petitioner must establish that:
(1) the witness existed; (2) the witness was available to testify
for the defense; (3) counsel knew of, or should have known of,
the existence of the witness; (4) the witness was willing to testify
for the defense; and (5) the absence of the testimony of the
witness was so prejudicial as to have denied the defendant a fair
trial.
Commonwealth v. Matias, 63 A.3d 807, 810-11 (Pa. Super. 2013) (en
banc) (citation omitted).
Here, trial counsel testified that she contacted Appellant’s intended
character witnesses. N.T., 12/2/16, at 33. According to trial counsel,
Appellant’s intended witnesses were “cousins who were children around the
same age as the alleged victim.” Id. The proposed witnesses were all out of
state and “indicated in letters that they did not wish to testify.” Id. At the
PCRA hearing, Appellant did not call or even identify any witnesses that were
available and willing to testify on his behalf. Therefore, Appellant’s
generalized assertions based on trial counsel’s failure to investigate or call
witnesses merit no relief. See Johnson, 966 A.2d at 535-36; Matias, 63
A.3d 807, 810-11.
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In his third argument, Appellant asserts that trial counsel was ineffective
for failing to cross-examine Victim based on her family history of abuse.
Appellant baldly asserts that there was an “allegation of molestation by a
family member.” Appellant’s Brief at 16. Appellant emphasizes that trial
counsel testified that she believed she cross-examined Victim regarding the
allegation of abuse by another party, but that the trial record did not support
counsel’s belief. Id. at 16-17. With respect to prejudice, Appellant states:
Had counsel chosen to call the witnesses suggested by
[Appellant], utilized the evidence of other sexual abuse within the
alleged victim’s family, pursued the proper pretrial motions and
their necessary appeals and caused appropriate and thorough
pretrial planning to occur through investigation and planning, the
result of the trial and subsequent appeal would very likely have
been different. As a result, [Appellant] is entitled to a new trial.
Id. at 17.
A review of the record reveals that Appellant provided no support for his
assertions that Victim was abused by others. For example, Appellant’s
assertion that Victim was molested by her father appears to be based on his
claim that Victim saw Appellant in the shower and told him, “My daddy’s is
bigger than yours.” N.T., 12/2/16, at 11. Appellant also asserted at the PCRA
hearing that Victim’s uncle abused Victim’s mother. Id. at 10. Aside from
the speculative nature of Appellant’s assertions, Appellant has not shown how
these allegations, even if true, would have been admissible or would have
changed the outcome at trial. Therefore, we conclude that Appellant failed to
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carry his burden of establishing any right to relief. See Gibson, 951 A.2d at
1120.
In his fourth argument, Appellant contends that trial counsel was
ineffective for failing to file pre-trial motions. Appellant’s Brief at 16. We
conclude that Appellant’s boilerplate assertions impede our review to the
extent that meaningful appellate review is not possible.
The Pennsylvania Rules of Appellate Procedure require that an argument
include “discussion and citation of authority as are deemed pertinent.”
Pa.R.A.P. 2119(a). The Pennsylvania Supreme Court has stated:
where an appellate brief fails to provide any discussion of a claim
with citation to relevant authority or fails to develop the issue in
any other meaningful fashion capable of review, that claim is
waived. It is not the obligation of this Court, even in a capital
case, to formulate Appellant's arguments for him.
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009).
Instantly, Appellant suggests that trial counsel was ineffective for failing
to file a pre-trial motion challenging Victim’s allegations based on taint.
Appellant’s Brief at 15. However, aside from his general assertions that Victim
could have been molested by others, he advances no factual or legal argument
that Victim, who was in her twenties when she first reported the abuse and
then testified at trial, should have been deemed incompetent to testify. Cf.
Commonwealth v. Davis, 939 A.2d 905, 906-08 (Pa. Super. 2007)
(discussing pre-trial taint hearings to determine competence of minor victim).
Therefore, Appellant’s argument that trial counsel was ineffective for failing to
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file pre-trial motions is waived.5 See Pa.R.A.P. 2119(a); Johnson, 985 A.2d
at 924.
Lastly, Appellant claims that trial counsel was ineffective for failing to
file a petition for allowance of appeal during his direct appeal. We agree with
the PCRA court that this claim is moot. As discussed above, the Pennsylvania
Supreme Court granted Appellant leave to file a petition for allowance of
appeal nunc pro tunc and subsequently denied allowance of appeal.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/25/18
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5 We note that Appellant suggested to the PCRA court that trial counsel was
also ineffective for failing to file a pre-trial motion to quash the charges based
on the statute of limitations. However, in his brief, Appellant does not refer
to the statute of limitations, discuss the pertinent changes in the law, or
respond to the Commonwealth’s assertions that the statute of limitations were
tolled while Appellant was living outside of the Commonwealth. Therefore,
this issue is also waived. See Pa.R.A.P. 2119(a); Johnson, 985 A.2d at 924.
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