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Home My WebLink AboutCP-21-CR-0991-1998 (2) COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v.: : NICHOLAS A. PRACHT : CP-21-CR-0991-1998 IN RE: DEFENDANT’S MOTION FOR POST CONVICTION COLLATERAL RELIEF BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., July 11, 2005. This criminal case stems from Defendant’s conviction on four counts of 1 involuntary deviate sexual intercourse and four counts of corruption of minors. Defendant’s judgment of sentence was affirmed by the Pennsylvania Superior 2 Court in 2001. Defendant has recently filed a Motion for Post Conviction 3 Collateral Relief. This request of Defendant for relief under the Post Conviction Relief Act is his fifth. Defendant’s first request for post conviction relief was filed during the 4 pendency of his direct appeal and was dismissed for that reason. Defendant’s second request for post conviction relief, which raised a number of issues, was the 5 subject of a hearing and was denied by this court. Defendant’s third request for post conviction relief, which was accompanied by a number of hand-written 6 documents, was not the subject of a hearing and was denied by this court. Defendant’s fourth request for post conviction relief was not the subject of a 1 Verdict and Order of Court, Oct. 28, 1998. 2 Order of Superior Court, 106 MDA 1999, May 8, 2001. 3 Defendant’s Motion for Post Conviction Collateral Relief, filed July 5, 2005. 4 Order of Court, Dec. 13, 1999. 5 Order of Court, Dec. 31, 2003. 6 Order of Court, Dec. 9, 2004; Order of Court, Jan. 10, 2005. 7 hearing and was denied by this court. Defendant has now filed a fifth request for 8 post conviction relief. Defendant is currently incarcerated at the Graterford State 9 Correctional Institution in Montgomery County, Pennsylvania. For the reasons stated in this opinion, notice will be given of the court’s intention to dismiss Defendant’s latest request for post conviction relief, in accordance with Pennsylvania Rule of Criminal Procedure 907(1). STATEMENT OF FACTS On October 28, 1998, Defendant was found guilty by a jury of four counts of involuntary deviate sexual intercourse and four counts of corruption of 10 minors, and on December 8, 1998, he was sentenced by the Honorable George E. 11 Hoffer to a term of imprisonment of six to fifteen years. Defendant then filed a 12 direct appeal of his sentence to the Superior Court on January 7, 1999. The 13 Superior Court affirmed Defendant’s judgment of sentence on May 8, 2001. During the pendency of the direct appeal, Defendant filed his first request 1415 for post conviction relief, which was dismissed as premature. Defendant’s 16 second request for post conviction relief was filed on March 25, 2002. A hearing 17 was held on this petition on July 23, 2003, and the petition was denied on 18 December 31, 2003. The denial of this petition was accompanied by a 43-page 7 Order of Court, Mar. 30, 2005; Order of Court, June 30, 2005. 8 Defendant’s Motion for Post Conviction Collateral Relief, filed July 5, 2005. 9 Defendant’s Motion for Post Conviction Collateral Relief, filed July 5, 2005. 10 Verdict and Order of Court, Oct. 28, 1998. 11 In re: Sentence Colloquy, Dec. 8, 1998. 12 Defendant’s Notice of Appeal, filed Jan. 7, 1999. 13 Order of Superior Court, 106 MDA 1999, May 8, 2001. 14 Defendant’s Post Conviction Relief Act Motion, filed Aug. 25, 1999. 15 Order of Court, Dec. 13, 1999. 16 Defendant’s Motion for Post Conviction Collateral Relief, filed Mar. 25, 2002. 17 Order of Court, July 23, 2003. 18 Order of Court, Dec. 31, 2003. 2 19 opinion which set forth a detailed history of the case. A copy of the opinion on Defendant’s second request for post conviction relief is attached to this opinion as an appendix. Defendant’s third request for post conviction relief was filed on September 2, 2004, and was accompanied by a number of other related petitions, motions, 20 and applications. On December 10, 2004, this court, pursuant to Pennsylvania Rule of Criminal Procedure 907(1), gave notice of its intent to deny Defendant’s 2122 third petition, and on January 10, 2005, denied Defendant’s petition. On January 14, 2005, this court denied Defendant’s petition for reconsideration of his 23 third post conviction relief petition. No appeal was filed from this denial. Defendant’s fourth request for post conviction relief was filed on February 24 16, 2005. On March 30, 2005, this court, pursuant to Pennsylvania Rule of Criminal Procedure 907(1), gave notice of its intent to deny Defendant’s fourth 2526 petition, and on June 30, 2005, denied Defendant’s petition. Defendant’s current request for post conviction relief—his fifth—was filed 27 on July 5, 2005. As with Defendant’s prior filings, the contents of his fifth petition are of questionable import, duplicative of earlier filings, incomprehensible, or illegible. 19 Commonwealth v. Pracht, No. CP-21-CR-0991-1998 (Cumberland County, Dec. 31, 2003). 20 Defendant’s Motion for Post Conviction Collateral Relief et al., filed Sept. 2, 2004. 21 Order of Court, Dec. 9, 2004. 22 Order of Court, Jan. 10, 2005. 23 Order of Court, Jan. 14, 2005. 24 Defendant’s Motion for Post Conviction Collateral Relief, filed Feb. 16, 2005. 25 Order of Court, Mar. 30, 2005. 26 Order of Court, June 30, 2005. 27 Defendant’s Motion for Post Conviction Collateral Relief, filed July 5, 2005. 3 DISCUSSION Several principles of law are pertinent to a disposition of Defendant’s latest request for post conviction relief. Each of these principles tends to militate against a favorable disposition of Defendant’s claims sub judice. First, under Section 9545(b) of the Judicial Code, requests for post conviction relief: shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that: (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. Act of May 13, 1982, P.L. 417, § 2, as amended, 42 Pa. C.S. § 9545(b)(1). In this context, “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.” Id. § 9545(b)(3). The statutory time constraints for filing a petition under the Post Conviction Relief Act implicate the jurisdiction of the court. Place, The Post Conviction Relief Act § 6.01, at 108 (rev. ed. 2004); see Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214 (1999). Second, under Section 9578(a) of the Judicial Code: 4 No further review shall be available [following disposition of a prior petition for post conviction relief] unless a petition is filed … alleging that: (1) 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 of the United States or laws of the United States or the Constitution of Pennsylvania or laws of this Commonwealth; (2) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained in the exercise of due diligence; or (3) 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. Act of November 17, 1995, P.L. 1118, § 2, 42 Pa. C.S. § 9578(a). “Any petition invoking [one or more of the foregoing exceptions] shall be filed within 60 days of the date the claim could have been presented.” Id. § 9578(b). Third, under Section 9543 of the Judicial Code, a request for post conviction relief is not available where “the allegation of error [relied upon by the petitioner] has … been previously litigated or waived.” Act of May 13, 1982, P.L. 417, § 2, as amended, 42 Pa. C.S. § 9543(a)(3). An issue is deemed previously litigated if “the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue” or “it has been raised and decided in a proceeding collaterally attacking the conviction or sentence.” Id. § 9544(a). An issue is deemed waived if “the petitioner could have raised it but failed to do so before trial, at trial, … on appeal or in a prior state postconviction proceeding.” Id. § 9544(b). “[R]epetitive applications for post conviction relief ignore ‘the waiver provisions [of the Act] … and render the “finally litigated” concept illusory.’” Place, The Post Conviction Relief Act § 5.01, at 98 (rev. ed. 2004). 5 Finally, as a general proposition, Pennsylvania courts are not required to entertain submissions which are incoherent, incomprehensible or unintelligible. See, e.g., Commonwealth v. Albert, 522 Pa. 331, 561 A.2d 736 (1989); Commonwealth ex rel. Swann v. Shovlin, 423 Pa. 26, 223 A.2d 1 (1966). In the present case, Defendant’s most recent petition for post conviction relief is repetitious of earlier requests for such relief. The Defendant raises issues that are not intelligibly expressed or irrelevant in some instances, are preempted by prior petition, are untimely, and have been finally litigated or waived. For these reasons, the following order will be entered: ORDER OF COURT th AND NOW, this 11 day of July, 2005, upon consideration of Defendant’s Motion for Post Conviction Collateral Relief, notice is hereby given pursuant to Pennsylvania Rule of Criminal Procedure 907(1) of the court’s intention to dismiss Defendant’s petition for the reasons stated in the accompanying opinion. BY THE COURT, _s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Office of the District Attorney Nicholas A. Pracht, DV-0813 SCI-Graterford P.O. Box 246, Route 29 Collegeville, PA 19428 Defendant, Pro Se [Certified and Regular Mail] 6