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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KEITH ALLEN EBERT,
Appellant No. 2361 EDA 2016
Appeal from the PCRA Order of June 22, 2016
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0004816-2012
BEFORE: OLSON, STABILE AND MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED APRIL 12, 2017
Appellant, Keith Allen Ebert, appeals pro se from the order entered on
June 22, 2016, dismissing as untimely his second petition filed pursuant to
the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A §§ 9541-9546. We
affirm.
We briefly summarize the facts and procedural history of this case as
follows. On June 5, 2013, a jury convicted Appellant of two counts of driving
under the influence (DUI). Thereafter, the trial court found Appellant guilty
of careless driving and disorderly conduct. On July 5, 2013, the trial court
sentenced Appellant to an aggregate term of one year and 45 days to five
years and 45 days of imprisonment. We affirmed Appellant’s judgment of
sentence on October 24, 2014. See Commonwealth v. Ebert, 108 A.3d
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122 (Pa. Super. 2014) (unpublished memorandum). Appellant did not
appeal that determination.
On December 3, 2014, Appellant filed a pro se PCRA petition. The
PCRA court appointed counsel who eventually filed a “no-merit” letter and
motion to withdraw comporting with Commonwealth v. Turner, 544 A.2d
927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc). The PCRA court granted PCRA counsel’s motion to
withdraw as counsel. On July 1, 2015, the PCRA court denied Appellant’s
first PCRA petition without an evidentiary hearing. We affirmed the denial of
relief on May 6, 2016. See Commonwealth v. Ebert, 151 A.3d 1138 (Pa.
Super. 2016). Again, Appellant did not appeal our determination.
On May 17, 2016, Appellant filed the current pro se PCRA petition. On
May 25, 2016, the PCRA court issued notice of its intent to dismiss the
petition without a hearing pursuant to Pa.R.Crim.P. 907. Appellant
responded. On June 22, 2016, the PCRA court filed an order dismissing
Appellant’s PCRA petition as untimely, not subject to an exception. This
timely pro se appeal resulted.1
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1
Appellant filed a pro se notice of appeal on July 18, 2016. On July 21,
2016, the PCRA court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely on July 29, 2016. On September 14, 2016, the PCRA court issued an
opinion pursuant to Pa.R.A.P. 1925(a), relying largely upon its rationale in
its May 25, 2016 Rule 907 notice and June 22, 2016 order denying relief.
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On appeal, Appellant presents the following issues pro se for our
review:
1. Did the PCRA court err when it denied and dismissed
[Appellant’s] petition as untimely filed and [thereby
depriving the court of] jurisdiction to hear the petition?
2. Did trial counsel’s failure in not requesting the discovery
of all chemical tests and related data under Vehicle Code
1547(g), and in not investigating for sources of errors[,
constitute] ineffective assistance of counsel?
3. Did the trial court and/or the prosecution violate the
Brady[2] rule for failing to disclose to [Appellant] all
evidence under its control or possession under
Pa.R.Crim.P. 573(B)(1)(a)?
4. [Was trial counsel ineffective for failing to challenge
Appellant’s blood alcohol content (BAC) at the time of
arrest?]
5. Did the sentencing court abuse its discretion in deviating
from the sentencing guidelines in that the judge[’]s
reason was [based upon the] recommendation from the
District Attorney, which was unreasonable?
Appellant’s Brief at 8 (complete capitalization omitted).
Our standard of review is clear:
In reviewing the denial of PCRA relief, we examine whether
the PCRA court's determination is supported by the record
and free of legal error. The scope of review is limited to the
findings of the PCRA court and the evidence of record,
viewed in the light most favorable to the prevailing party at
the trial level. It is well-settled that a PCRA court's
credibility determinations are binding upon an appellate
court so long as they are supported by the record. However,
____________________________________________
2
Brady v. Maryland, 373 U.S. 83 (1963).
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this Court reviews the PCRA court's legal conclusions de
novo.
We also note that a PCRA petitioner is not automatically
entitled to an evidentiary hearing. We review the PCRA
court's decision dismissing a petition without a hearing for
an abuse of discretion. The right to an evidentiary hearing
on a post-conviction petition is not absolute. It is within the
PCRA court's discretion to decline to hold a hearing if the
petitioner's claim is patently frivolous and has no support
either in the record or other evidence.
* * *
Before we may address the merits of Appellant's arguments,
we must first consider the timeliness of Appellant's PCRA
petition because it implicates the jurisdiction of this Court
and the PCRA court. Pennsylvania law makes clear that
when a PCRA petition is untimely, neither this Court nor the
trial court has jurisdiction over the petition. The period for
filing a PCRA petition is not subject to the doctrine of
equitable tolling; instead, the time for filing a PCRA petition
can be extended only if the PCRA permits it to be extended.
This is to accord finality to the collateral review process.
However, an untimely petition may be received when the
petition alleges, and the petitioner proves, that any of the
three limited exceptions to the time for filing the petition,
set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are
met.
The PCRA provides, in relevant part, as follows.
§ 9545. Jurisdiction and proceedings
* * *
(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, unless the
petition alleges and the petitioner proves that:
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(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.
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the date the
claim could have been presented.
42 Pa.C.S.A. § 9545(b).
Commonwealth v. Miller, 102 A.3d 988, 992–993 (Pa. Super. 2014)
(original quotations, brackets, and most citations omitted).
A PCRA petition is timely if it is “filed within one year of the date the
judgment [of sentence] becomes final.” 42 Pa.C.S.A. § 9545(b)(1). “[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.A. § 9545(b)(3). Here, we affirmed Appellant’s judgment
of sentence on October 24, 2014. Thereafter, Appellant had 30 days to file a
petition for allowance of appeal to our Supreme Court, but did not. See
Pa.R.A.P. 1113(a). Thus, Appellant’s judgment of sentence became final on
November 24, 2014. As such, Appellant’s current PCRA petition, filed on
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May 17, 2016, was clearly outside of the PCRA’s one-year jurisdictional
timing requirement.
In his second and fourth issues presented on appeal, Appellant claims
that trial counsel provided ineffective assistance of counsel. Ineffective
assistance of counsel is not one of the three exceptions to the PCRA’s
one-year time bar as set forth above. Moreover, our Supreme Court has
consistently held that “a claim for ineffective assistance of counsel does not
save an otherwise untimely [PCRA] petition for review on the merits.”
Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785 (Pa. 2000). We
may not reach the merits of these claims.
In his fifth issue presented, Appellant claims the trial court abused its
discretion in sentencing Appellant “without considering any extenuating or
mitigating circumstances.” Appellant’s Brief at 13. However, “[r]equests for
relief with respect to the discretionary aspects of sentence are not
cognizable in PCRA proceedings.” Commonwealth v. Wrecks, 934 A.2d
1287, 1289 (Pa. Super. 2007). Accordingly, Appellant’s fifth issue is not
cognizable under the PCRA and should have been raised on direct appeal.
Again, even if Appellant couched his claim in terms of ineffective assistance
of counsel, which he does not, such a claim cannot save an otherwise
untimely PCRA petition for review. See Gamboa-Taylor, 753 A.2d at 785.
In his fourth issue presented, Appellant claims the Commonwealth
violated the rule annunciated in Brady, by failing to disclose material and
exculpatory evidence in its possession. Appellant’s Brief at 10, 12. He
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suggests that tests showed his blood alcohol concentration (BAC) upon
arrest was “0.13%, which changed on his post-arrest BAC test showing
0.16%.” Id. at 10. Thus, Appellant ostensibly argues that the
Commonwealth had additional BAC information available that it withheld
from him.
In addressing the viability of a Brady claim under the PCRA’s
governmental interference and unknown facts exceptions, under 42
Pa.C.S.A. §§ 9545(b)(1)(i) and 9545(b)(1)(ii) respectively, our Supreme
Court has previously determined:
Although a Brady violation may fall within the
governmental interference exception [to the PCRA’s
one-year time bar], the petitioner must plead and prove the
failure to previously raise the claim was the result of
interference by government officials, and the information
could not have been obtained earlier with the exercise of
due diligence. Section 9545(b)(1)(ii)'s exception requires
the facts upon which the Brady claim is predicated were not
previously known to the petitioner and could not have been
ascertained through due diligence. [Section]
9454(b)(1)(ii)'s exception does not contain the same
requirements as a Brady claim, noting [our Supreme Court]
made clear the exception set forth in subsection (b)(1)(ii)
does not require any merits analysis of the underlying
claim. Rather, the exception merely requires that the facts
upon which such a claim is predicated must not have been
known to appellant, nor could they have been ascertained
by due diligence.
Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008) (internal
citations and quotations omitted). Any PCRA petition invoking an exception
to the PCRA’s one-year jurisdictional timing requirement “shall be filed within
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60 days of the date the claim could have been presented.” 42 Pa.C.S.A.
§ 9545(b)(2).
Here, Appellant has not specified the information that the
Commonwealth allegedly withheld from him. Moreover, Appellant concedes
that he learned the results of BAC testing on or around March 30, 2012.
See Appellant’s Brief at 10. As discussed above, these shortfalls are fatal to
Appellant’s efforts to invoke claimed exceptions to the PCRA’s jurisdictional
time-bar. As such, the PCRA court properly determined it lacked jurisdiction
to hear Appellant’s current claims.
Finally, Appellant contends that he was entitled to an evidentiary
hearing on his PCRA petition. “There is no absolute right to an evidentiary
hearing on a PCRA petition, and if the PCRA court can determine from the
record that no genuine issues of material fact exist, then a hearing is not
necessary.” Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa.
Super. 2008) (citations omitted). “A reviewing court must examine the
issues raised in the PCRA petition in light of the record in order to determine
whether the PCRA court erred in concluding that there were no genuine
issues of material fact and in denying relief without an evidentiary hearing.”
Id. Having determined there were no genuine issues of material fact, there
was no basis for an evidentiary hearing. Hence, Appellant’s first issue as
presented lacks merit, as well.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/2017
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Com. v. Ebert, K.
Combined Opinion