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HomeMy WebLinkAboutCP-21-CR-0426-1999 COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. GARY DEAN BARRICK CP-21-CR-0426-1999 IN RE: PETITION FOR POST-CONVICTION RELIEF OPINION AND ORDER OF COURT Bayley, J., January 5, 2006:-- On October 29, 1999, a jury found Gary Barrick guilty of criminal homicide, murder in the first degree,1 carrying a firearm without a license, 2 and illegal possession of a firearm.3 On November 23, 1999, Barrick was sentenced as follows: (1) for murder in the first degree, to undergo imprisonment in a state correctional institution for life,4 (2) for carrying a firearm without a license, to undergo imprisonment in a state correctional institution of not less than two years or more than five years consecutive to the life sentence, and (3) for illegal possession of a firearm, to pay the costs of prosecution. Barrick filed a direct appeal from the judgment of sentence, which was affirmed by the Superior Court of Pennsylvania on August 23, 2000. On January 9, 1 18 Pa.C.S. S 2501 (a), 2502(a). 218 Pa.C.S. S 6105. 3 18 Pa.C.S. S 6106. 4 The jury was unable to reach a unanimous verdict as to imposing either a sentence of death or life imprisonment. Therefore, the court was mandated to impose a sentence of life imprisonment. 42 Pa.C.S. S 9711 (c)(1 )(v). CP-21-CR-0426-1999 2001, the Supreme Court of Pennsylvania denied a request for an allowance to appeal. The facts at trial in the light most favorable to the Commonwealth were that in the early morning hours of February 3, 1999, Barrick, a 34-year-old bisexual male, left a party in the company of his 18-year-old girlfriend, Veronica Vera, with whom he had been loudly and profanely arguing. He drove Vera to a remote campground where he killed her with a single gunshot through the roof of her mouth. He disposed of her body in a creek. He killed Vera because he suspected that she had engaged in sexual relations with someone else, and that she was the cause of his estrangement from John Morrow, a teenage male who was the target of his ardor. On February 10, 1999, defendant told a Pennsylvania State Police Officer that he took Vera to a deserted campground next to a creek, but that she fell and hit her head on a rock. Later in the interview, he stated that Vera "took a bullet" accidentally while trying to stop him from committing suicide. He finally admitted to killing Vera by putting a gun barrel in her mouth and pulling the trigger. Barrick told the officer where Vera's body could be found. Within hours, spent shell casings and skull fragments were recovered at that location. Her body was recovered twelve days later, approximately 1.5 miles downstream. On April 27, 2005, Barrick filed the within petition for post-conviction collateral relief. Counsel was appointed and granted additional time to file an amended petition if warranted. The Commonwealth filed a motion to dismiss the petition for lack of -2- CP-21-CR-0426-1999 jurisdiction. A hearing on that motion was conducted on November 23, 2005. The issue is whether the petition is time-barred under 42 Pa.C.S. Section 9545(b), which provides: (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: (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. (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. (4) For purposes of this subchapter, "government officials" shall not include defense counsel, whether appointed or retained. (Emphasis added. ) Barrick's petition for post-conviction relief does not allege any indifference by government officials resulting in his failure to raise any claim. It does allege ineffectiveness of his trial counsel. It contains an allegation of the "unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced." He identified such -3- CP-21-CR-0426-1999 evidence as the mental health records of Veronica Vera. At the hearing it was established that on January 27,2000, Barrick and his parents, with whom he was living at the time he killed Vera, were sued civilly by the victim's estate. On February 28, 2001, Barrick, through the attorney representing him in that civil case, sought production of Vera's mental health records. Those records were produced on April 23, 2005. Barrick filed the petition for post-conviction relief four days later. He testified at the hearing that he had told his trial counsel that Vera had psychological and mental health problems, and was possibly suicidal. He asked counsel to secure proof of such information, but counsel did not. The records that were obtained in his civil proceeding confirm that the victim did have mental health issues. DISCUSSION The last day of the one year period for Barrick to file a petition for post- conviction relief under Section 9545(b)(1) of the Judicial Code passed ninety days after the Supreme Court of Pennsylvania denied his allowance to appeal from the order affirming the judgment of sentence of the Superior Court of Pennsylvania, from which he did not seek a writ of certiorari in the United States Supreme Court. See Commonwealth v. Davis, 816 A.2d 1129 (Pa. Super. 2003). That date was April 10, 2002. The petition for post-conviction relief was not filed until April 27, 2005. The time requirements in Section 9545(b) of the Judicial Code are jurisdictional. Commonwealth v. Pursell, 749 A.2d 911 (Pa. 2000). There is no jurisdiction to grant a petitioner relief unless he pleads and proves that one of the exceptions to the time- -4- CP-21-CR-0426-1999 bar in Section 9545(b)(1 )(i)-(iii) applies. Id. Barrick argues that his petition is timely under Section 9545(b)(1 )(ii), in that he has alleged and proven that the facts upon which his claim is predicated were unknown to him until April 23,2005, and could not have been ascertained by the exercise of due diligence. Barrick, however, knew before trial that Veronica Vera had psychological and mental health problems, and was possibly suicidal. He alleges that he told this to his trial counsel and asked counsel to secure proof of such information, but counsel did not. While Barrick did not know exactly what Vera's mental health records contained, those records, if relevant, could have been subpoenaed for production at trial. Thus, the records could have been ascertained with the exercise of due diligence. Even if trial counsel was ineffective in not securing Vera's mental health records, an issue that is not presently before us, such ineffectiveness does not save an otherwise untimely post-conviction petition for review on the merits. See Commonwealth v. Pursell, supra. As set forth in Pursell: Turning to the Section 9545(b)(1 )(ii) exception, we find that Appellant has failed to meet the requirements of this provision. We have previously described this exception, which permits an untimely claim where "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," as an exception for after-discovered evidence. See Commonwealth v. Yarris, 557 Pa. 12,731 A.2d 581,588 (1999). Our review of Appellant's present claims demonstrate that they relate to alleged errors discernable from the trial court record or to trial counsel's failure to present defenses or mitigation evidence that were purportedly available at the time of Appellant's trial. . . . Therefore, the 42 Pa.C.S. S 9545(b)(1 )(ii) exception does not apply where the petitioner merely alleges that more competent counsel would have presented other claims -5- CP-21-CR-0426-1999 based on a better evaluation of the facts available to him or her at the time of trial, and we reject Appellant's contention that the "facts" which form the bases of these claims were not knowable until he was advised of their existence by present counsel. The within petition for post-conviction relief, which was not filed within one year of the date the judgment of sentence became final, is not saved by Section 9545(b)(1 )(ii) of the Judicial Code. Therefore, the following order is entered.5 ORDER OF COURT AND NOW, this day of January, 2006, the within petition for post- conviction relief, IS DISMISSED FOR LACK OF JURISDICTION. By the Court, Edgar B. Bayley, J. Jaime Keating, Esquire For the Commonwealth Gregory Abeln, Esquire For Gary D. Barrick :sal 5 Barrick sets forth other averments in his post-conviction petition for which he seeks relief. None of those averments fall within the exceptions in Section 9545(b) of the Judicial Code, whereby they are not time-barred. -6- COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. GARY DEAN BARRICK CP-21-CR-0426-1999 IN RE: PETITION FOR POST-CONVICTION RELIEF ORDER OF COURT AND NOW, this day of January, 2006, the within petition for post- conviction relief, IS DISMISSED FOR LACK OF JURISDICTION. By the Court, Edgar B. Bayley, J. Jaime Keating, Esquire For the Commonwealth Gregory Abeln, Esquire For Gary D. Barrick :sal