J-S71033-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VERNON E. MCGINNIS, JR.
Appellant No. 782 WDA 2015
Appeal from the PCRA Order April 15, 2015
In the Court of Common Pleas of Armstrong County
Criminal Division at No(s): CP-03-CR-0000547-1996
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED JANUARY 29, 2016
Vernon E. McGinnis, Jr., appeals, pro se, from the order entered on
April 15, 2015, in the Armstrong County Court of Common Pleas, which
dismissed his eighth petition for post-conviction collateral relief as
untimely.1 McGinnis seeks relief from the judgment of sentence of life
imprisonment imposed on April 9, 1997, after pleading guilty to the charge
of first-degree murder for the fatal shooting of Edward Galvanek. 2 After a
thorough review of the record, the parties’ briefs, and applicable law, we
affirm on the basis of the PCRA court’s opinion.
____________________________________________
1
See Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.
2
18 Pa.C.S. § 2502(a).
J-S71033-15
The PCRA court aptly summarized the facts and procedural history in
its Pa.R.A.P. 1925(a) opinion, and we adopt its recitation. See PCRA Court
Opinion, 6/25/2015, at 1.3 McGinnis argues the PCRA court erred in finding
his petition was untimely filed and that no timeliness exceptions under 42
Pa.C.S. § 9545(b)(1) apply. See McGinnis’ Brief at 4. Specifically, he states
that on January 9, 2015, his mother was cleaning out her deceased father’s
estate and discovered correspondence between McGinnis’ plea counsel and
his grandfather, which his mother then sent to McGinnis. Id. at 8. He
alleges counsel gave misleading information to his grandfather, who was not
counsel’s client, and McGinnis did not give counsel consent to consult with
his relative. Id.4 McGinnis contends this letter constitutes newly discovered
evidence, and that it was unknown to him and could not have been
ascertained by the exercise of due diligence. Id.
The PCRA court has provided a well-reasoned discussion of its
disposition. See PCRA Court Opinion, 6/25/2015, at 2-4 (finding: (1)
McGinnis failed to plead to any facts in his petition indicating that the letter
____________________________________________
3
See also Trial Court Opinion, 5/7/2001, at 1-2; Commonwealth v.
McGinnis, 4 A.3d 208 [2034 WDA 2009] (Pa. Super. 2010) (unpublished
memorandum).
4
In his brief, McGinnis attaches a copy of the March 11, 1997, letter from
his plea counsel to his grandfather. Counsel informs the grandfather that it
was in McGinnis’ best interest to accept a guilty plea and that he would be
afforded release after ten years, “with good behavior which is no comparison
to life or death, upon conviction at trial.” See McGinnis’ Brief at Appendix C,
March 11, 1997 Letter from Dennis Paul Zawacki, Esquire, to Clifford Miller.
-2-
J-S71033-15
on which he now relies could not have been discovered earlier with the
exercise of due diligence; and (2) the contents of the letter do not actually
contain any new “facts” on which McGinnis could base his petition because
McGinnis would have been aware of the various promises or representations
both at the time he entered his guilty plea and at sentencing, and therefore,
he could not have been unlawfully induced by promises of a release after ten
years by either plea counsel or his grandfather).5
We agree and adopt the sound reasoning of the PCRA court as
dispositive of the issue raised in this appeal. Accordingly, because McGinnis’
petition is untimely and does not satisfy any exception to the PCRA
timeliness requirement, we are without jurisdiction to review his claims.
Therefore, the PCRA court did not err in dismissing his petition as untimely.
Order affirmed.
____________________________________________
5
The court also relies on its March 19, 2015, memorandum, which set forth
its reasons for dismissing the petition pursuant to Pa.R.Crim.P. 907. See
Memorandum, 3/19/2015, at 2-5 (explaining that McGinnis did not indicate
in his petition how these additional facts tended to show either that he was
given ineffective assistance of counsel or that his guilty plea was unlawfully
induced, and that these claims were not substantially supported by the facts
in the petition).
-3-
J-S71033-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/29/2016
-4-
Circulated 12/30/2015 02:25 PM
IN THE COURT OF COMMON PLEAS OF ARMSTRONG COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA
v. No. CP-03-CR-0000547-1996
VERNON E. MCGINNIS, JR.
1925(a) OPINION
NICKLEACH, S.J.
Defendant Vernon E. McGinnis, Jr. ("Defendantu)
appeals the Court's order dismissing his eighth ~ost Conviction
Relief Act ("PCRAu) petition, which was entered on April 15,
2015.
This case has a protracted history. Relevant to the
instant appeal, the Court directs the Superior Court's attention
to the Memoranda it filed in this case on December 18, 2003,
September 6, 2007, July 21, 2008, May 29, 2009, and May 27,
2010, all affirming this Court's prior dismissals of Defendant's
serial PCRA petitions. Relevant background facts are also set
forth in this Court's opinion entered May 7, 2001.
In the instant appeal, Defendant asserts the following
errors in his Concise Statement:
(1) The Court erred in denying Defendant's PCRA petition as
having been untimely filed and not within any of the exceptions
set forth in 42 Pa. Cons. Stat. Ann. § 9545(b) (1);
Commonwealth v. McGinnis
·No. CP-03-CR-0000547-1996
(2) The Court erred in denying Defendant's PCRA petition as
having been untimely filed without a hearing.1
We continue to find that our ruling was adequat~ly
supported by the record and that Defendant's petition was
untimely on its face and that no purpose would have been served
by further proceedings. Thus, pursuant to Pa. R. Crim. P.
907(1), we remain convinced that a hearing was unnecessary. The
Court thoroughly set forth the reasons for dismissing the
petition in its Memorandum entered on Marcy 19, 2015. The Court
also recommends affirmance for the following additional reasons.
First, Defendant failed to plead any facts in his
petition indicating that the letter on which he now relies could
not have been discovered earlier with the exercise of due
diligence. See 42 Pa. Cons. Stat. Ann. § 9545(b) (1) (ii);
Commonwealth v . Edmiston, 65 A.3d 339, 345-46 {Pa. 2013). The
letter was discovered by Defendant's mother as she was sorting
through Defendant's grandfather's personal items. There are no
facts pled in Defendant's petition that would establish that the
letter could not have been discovered earlier by Defendant by
simply asking his grandfather for any correspondence from
Attorney Zawacki. The letter was not in the possession of the
I
Although Defendant's concise statement appears to raise a third issue for
appeal, namely, that the Court erred in denying Defendant's substantive
claims that he received ineffective assistance of counsel and entered an
unlawfully-induced plea, the Court did not, indeed could not, reach the
merits of these substantive issues because we concluded that the petition was
untimely.
2
Commonwealth v. McGinnis
·No. CP-03-CR-0000547-1996
Commonwealth, law enforcement, or the Court. Nor is there any
indication that it was in any way concealed from Defendant or
his family. Because Defendant presumably could have discovered
the letter and its contents years before his mother discovered
it in early 2015, we find that Defendant has failed to establish
in his petition that he exercised due diligence.
Secondly, we also note the Pennsylvania Supreme
Court's precedent with regard to what constitute new "facts" on
which a PCRA petitioner may rely to establish the timeliness
exception found at section 9545 (b) (1) (ii). Petitioners must
allege and prove "previously unknown 'facts,' not merely a
newly-discovered or newly willing source for previously known
facts." Edmiston, 65 A.3d at 352 (internal quotations and
citation omitted). "(T]o constitute facts which were unknown to
a petitioner and could not have been ascertained by the exercise
of due diligence, the information must not be of public record
and must not be facts that were previously known but are now
presented through a newly discovered source." Id.
Defendant contends that the newly-discovered letter,
written approximately one month before Defendant entered his
guilty plea, contains evidence that the plea was unlawfully
induced because his prior attorney, Mr. Zawacki, told
Defendant's grandfather that Defendant would be afforded release
after 10 years. Without considering the veracity of this
3
Commonwealth v. McGinnis
No. CP-03-CR-0000547-1996
statement, if, in fact, Defendant's plea had been unlawfully-
induced by promises of such release by either Mr. Zawacki or
Defendant's grandfather, or both, Defendant would have been
aware of those promises or representation both at the time he
entered his guilty plea and at sentencing. The letter is only a
newly-discovered source of evidence for the fact of those
promises or representations that surfaced almost 18 years after
Defendant entered his guilty plea. Accordingly, because we find
that the contents of the letter do not actually contain any new
"facts" on which Defendant could base his petition, we conclude
that they cannot be used to establish the timeliness exception
found at section 9545(b)(l)(ii).2
III. CONCLUSION
For all of the above reasons, and for the reasons
stated in the Court's March 17, 2015 Memorandum, we recommend
affirmance on all issues raised in Defendant's concise
statement.
BY THE COURT,
Dated: June ,;.;- , 2015
.c>
2
In the Guilty Plea Questionnaire executed by Defendant on March 25, 1997,
Defendant acknowledged his understanding that he was pleading guilty to first
degree murder, that the law required him to go to jail for life, and that no
one promised him anything or forced him to enter his guilty plea. See Guilty
Plea Questionnaire, gs. 9,10,13,15; Certification of Defense Counsel, no. 8.
Defendant's sentencing order also clearly indicates that his sentence is for
a term of incarceration for the duration of his natural life. See Sentencing
Order, April 9, 1997.
,J
Com. v. Mcginnis, V.
Combined Opinion