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HomeMy WebLinkAboutCP-21-CR-1334-2003 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : BRIAN THOMAS TRIMBLE : CP-21-CR-1334-2003 IN RE: PETITION FOR POST-CONVICTION RELIEF OPINION AND ORDER OF COURT Bayley, J., February 4, 2009:-- May 6, 2004 On , Brian T. Trimble entered a plea of guilty to criminal homicide, murder in the first degree. He was sentenced on May 6, 2004, to undergo imprisonment in a state correctional institution for life. No post-sentence motion or August 26, 2005 direct appeal was filed from this judgment of sentence. On , Trimble filed a petition for post-conviction relief. Counsel was appointed and authorized additional time to file an amended petition. An amended petition was filed, and a July 26, 2006December 11, 2006 hearing conducted on . On , an order was entered dismissing the post-conviction petition. In an opinion filed in support of that order, we determined that the petition was time barred; therefore, this court had no jurisdiction to consider the merits. November 28, 2008 On , the Superior Court of Pennsylvania vacated the order of December 11, 2006, and remanded for proceedings consistent with a memorandum opinion. While the case was on appeal, the Superior Court allowed petitioner to amend the record, which petitioner did, to show that he had withdrawn $1.06 for postage on April 4, 2005, which he maintained was used to send a petition for post-conviction relief to the Clerk of Court for Cumberland County in early April. As set forth in our prior CP-21-CR-1334-2003 opinion in support of the order of December 11, 2006, no petition for post-conviction 1 relief was filed in this court until August 26, 2005. Petitioner had previously written to the Clerk of Court on July 12, 2005, inquiring about the petition he maintained he sent in early April. The Clerk wrote to petitioner on July 18, 2005, that it had not received such a petition. In reversing the order of December 11, 2006, the Superior Court remanded the case for reconsideration of the “petition for PCRA relief in light of the additional evidence made a part of the record.” Upon remand, and noting that the post-conviction petition was filed on August 26, 2005, we ordered that petitioner further supplement the record by providing a printout of his prison monetary account entries to include August, 2005. Upon receipt of this record, an order was entered on February 3, 2009, that further amended the record with this document marked as Amended Exhibit Number 1. That document shows that petitioner withdrew $1.98 for postage for the week of August 15, 2005. The record now shows that petitioner withdrew money for postage shortly before his post-conviction petition was filed on August 26, 2005, as well as shortly before he maintains he mailed a post-conviction petition to the Clerk of Court in early April, 2005. __________ 1 The Post-Conviction Relief Act at 42 Pa.C.S. Section 9545(b) provides that a petition for post-conviction relief shall be filed within one year of the date the judgment becomes final unless the petition alleges and petitioner proves certain factors set forth in that Section. Those factors were not present in this case. Since petitioner was sentenced on May 6, 2004, and he did not file a post-sentence motion in this court or a direct appeal from the judgment of sentence to the Superior Court of Pennsylvania, that sentence became final on June 5, 2004, thirty days from the date of sentencing. See -2- CP-21-CR-1334-2003 In addition to the three exceptions to the time requirement for filing a post-conviction petition set forth in 42 Pa.C.S. Section 9545(b), there is the “prisoner mailbox rule” set Commonwealth v. Little, forth in 716 A.2d 1287 (Pa. Super. 1998). Such petitions are deemed to have been filed on the date on which the prisoner delivers them to prison Commonwealth v. authorities for mailing or places them in a prison mailbox. In Jones, 700 A.2d 423 (1997), the Supreme Court of Pennsylvania stated: Next, we turn to the type of evidence a pro se prisoner may present to prove that he mailed the appeal within the deadline. As provided in Rule 1514, a Postal Form 3817, Certificate of Mailing, constitutes proof of the date of mailing. In Smith, we said that the “Cash Slip” that the prison authorities gave Smith noting both the deduction from his account for the mailing to the prothonotary and the date of the mailing, would also be sufficient evidence. We further stated in Smith that an affidavit attesting to the date of deposit with the prison officials likewise could be considered. This Court has also accepted evidence of internal operating procedures regarding mail delivery in both the prison and the Commonwealth Court, and the delivery route of the mail, to decide the last possible date on which the appellant could have mailed an appeal based on the date that the prothonotary received it. Proof is not limited to the above examples and we are inclined to accept any reasonably verifiable evidence of the date that the prisoner deposits the appeal with the prison authorities. (Citation omitted.) In light of all of the evidence which now includes the additional evidence made part of the record we find that petitioner delivered a post-conviction petition to prison authorities for mailing in early April, 2005, well before the period of limitations expired. Accordingly, this court has jurisdiction to hear the merits of the current petition for relief. ORDER OF COURT Commonwealth v. Rojas , 874 A.2d 638 (Pa. Super. 2005). -3- CP-21-CR-1334-2003 AND NOW, this day of February, 2009, this court already having taken evidence on the merits of petitioner’s amended petition for post-conviction relief, IT IS ORDERED that his counsel shall file a brief in chambers in support of the relief sought not later than forty-five (45) days from this date. The Commonwealth shall file a response brief in chambers not later than seventy-five (75) days from this date. Oral argument will be scheduled following receipt of the briefs. By the Court, Edgar B. Bayley, J. Michelle Sibert, Esquire For the Commonwealth Gregory B. Abeln, Esquire For Petitioner :sal -4- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : BRIAN THOMAS TRIMBLE : CP-21-CR-1334-2003 IN RE: PETITION FOR POST-CONVICTION RELIEF ORDER OF COURT AND NOW, this day of February, 2009, this court already having taken evidence on the merits of petitioner’s amended petition for post-conviction relief, IT IS ORDERED that his counsel shall file a brief in chambers in support of the relief sought not later than forty-five (45) days from this date. The Commonwealth shall file a response brief in chambers not later than seventy-five (75) days from this date. Oral argument will be scheduled following receipt of the briefs. By the Court, Edgar B. Bayley, J. Michelle Sibert, Esquire For the Commonwealth Gregory B. Abeln, Esquire For Petitioner :sal