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Home My WebLink AboutCP-21-CR-0001660-2008 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : : : CP-21-CR-1660-2008 : : CHARGES: (1) UNLAWFUL DELIVERY OR : MANUFACTURE OR : POSSESSION WITH INTENT : TO DELIVER A v. : CONTROLLED SUBSTANCE : (2) UNLAWFUL POSSESSION OF : A CONTROLLED : SUBSTANCE : (3) UNLAWFUL POSSESSION OF : DRUG PARAPHERNALIA : RALPH CHARLES MINIUM : OTN: K946032-3 : AFFIANT: DET. ADAM SHOPE IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925(a) EBERT, J., January 24, 2012 - On May 18, 2009, a jury convicted Defendant, Ralph Charles Minium, of the above charges. On August 25, 2009, Defendant was sentenced to seven (7) to fifteen (15) years imprisonment. On September 24, 2009, Defendant’s sentence became final. Defendant did not file post-sentence motions within thirty (30) days of his conviction. On September 25, 2009, Defendant filed a notice of appeal. On July 22, 2010, the Superior Court quashed Defendant’s 1 direct appeal because it was untimely. On September 29, 2010, the Clerk of Court’s records reflect that Defendant filed a pro se Motion for Post Conviction Collateral Relief. This PCRA filing would have been untimely. On October 4, 2010, Defendant was granted thirty (30) days to file an amended Post Conviction Relief Act (“PCRA”) petition. On November 3, 2010, 1 Commonwealth v. Minium, No. 1676 MDA 2009, slip op. at 3 (Pa. Super. filed July 22, 2009). Defendant filed an amended PCRA petition with the assistance of counsel. On December 21, 2 2010, Defendant’s PCRA was dismissed upon motion of the Defendant to withdraw his petition. This withdrawal occurred at the conclusion of a PCRA hearing held on December 21, 2010. At that hearing, the Defendant had placed into evidence a SCI-Fayette postage slip. (Defendant’s Exhibit No. 1). The Defendant maintained that the date on the postage slip on line four was 9-24-10. Defendant testified that he had placed the PCRA Petition in the mail on September 24, 2010, which would have been within the one year filing deadline. The Defendant was attempting to utilize “Pennsylvania’s prison mailbox rule” to establish that he had filed the PCRA Petition on time. Commonwealth v. Plummer, 798 A.2d 777 (Pa.Super. 2002). This testimony of course contradicted the very fact that the PCRA Petition itself, signed by the Defendant, bore the date of September 27, 2010. Upon close examination it appeared that the 4 on the Defendant’s exhibit had actually been written over a 7 that appears underneath. In short, it appeared that the Defendant was 3 attempting to present a forged document to the Court. After the possibility of this forgery was raised with the Court, a recess was taken. After a short recess, the matter was recalled and the Defendant’s Counsel, with the Defendant’s consent, moved to withdraw his PCRA action pursuant to an agreement with the Commonwealth that the Commonwealth would not pursue any further investigation regarding any new charges relating to tampering with evidence, perjury or 4 forgery. On August 25, 2011, Defendant filed a second Motion for Post Conviction Collateral Relief. On September 27, 2011, an order gave notice to all parties that this Court’s intention was to dismiss the petition twenty (20) days after service because Defendant had voluntarily 2 Order of Court, filed Dec. 21, 2010. 3 PCRA Transcript of Proceedings, Dec. 21, 2010, p. 5, 6, 20-24. 4 PCRA Transcript of Proceedings, Dec. 21, 2010, p. 23. 2 withdrew his original pro se Motion for Post Conviction Collateral Relief and Defendant’s current Motion for Post Conviction Collateral Relief “Nunc Pro Tunc” (“Motion”) was 56 untimely. Defendant was given twenty (20) days to respond to the proposed dismissal. On October 13, 2011, Defendant’s Motion for Post Conviction Collateral Relief “Nunc Pro Tunc” 7 was dismissed. On December 9, 2011, this Court entered two orders, first vacating the October 13, 2011, order because Defendant may not have been advised of his right to appeal, and second 8 dismissing Defendant’s Motion for Post Conviction Collateral Relief “Nunc Pro Tunc”. On January 12, 2012, Defendant submitted his Statement of Matters Complained of on Appeal 9 pursuant to Pa.R.A.P. 1925(b) and Court Order. This Court now responds to the denial of Defendant’s Motion with an opinion pursuant to Pa.R.A.P. 1925(a). Discussion In the case sub judice, this Court finds the Supreme Court’s decision in Commonwealth v. Hall to be dispositive. 771 A.2d 1232 (Pa. 2001) [hereinafter “Hall II”]. Similar to the present case, in Hall II, Defendant Luke Kane Hall was convicted and failed to submit a direct appeal or a timely PCRA petition, and subsequently asked the trial court to restore his waived appeal rights nunc pro tunc because of the alleged ineffectiveness of counsel in fulfilling his request to appeal. Id. at 1233. The Trial Court granted, and the Superior Court affirmed Defendant Hall’s restoration of his direct appeal rights nunc pro tunc as a “vehicle for relief from a failure to appeal a claim outside the framework of the PCRA.” Id. at 1234. However, the Supreme Court reversed and vacated the Superior Court and Trial Court’s order granting leave to appeal nunc 5 Order of Court, filed Sept. 27, 2011. 6 Order of Court, filed Sept. 27, 2011. 7 Order of Court, filed Oct. 13, 2011. 8 Order of Court, filed Dec. 9, 2011. Two separate orders were issued on Dec. 9, 2011. 9 Defendant’s Statement of Matters Complained of On Appeal, filed Jan. 12, 2012. 3 pro tunc, stating that “the trial court had no authority to invite, entertain, and then grant a request for the very same relief deemed outside the authority of the PCRA.” Id. at 1237. In deciding Hall II, the Supreme Court reasoned, inter alia, in denying Defendant’s nunc pro tunc appeal that “[t]he PCRA was available to appellee and it is the exclusive vehicle for claims, such as the nunc pro tunc appeal claim he raised, that are cognizable under the PCRA.” Id. at 1233. The Court further stated, “[w]here, as here, a defendant’s post-conviction claims are cognizable under the PCRA, the common law and statutory remedies now subsumed by the PCRA are not separately available to the defendant.” Id. at 1235. The Court then rejected a previous line of Superior Court cases where dicta explicitly provided another avenue of relief outside the framework of the PCRA. See id. at 1234 (discussing Commonwealth v. Petroski, 695 A.2d 844 (Pa. Super. 1997); Commonwealth v. Lantzy, 712 A.2d 288 (Pa. Super. 1998); Commonwealth v. Hall, 713 A.2d 650 (Pa. Super. 1998)). The plain language of the statute [42 Pa.C.S.A. § 9542] demonstrates quite clearly could that the General Assembly intended that claims that be brought under the must PCRA be brought under that Act. No other statutory or common law remedy “for the same purpose” is intended to be available; instead, such remedies are explicitly “encompassed” within the PCRA. Id. at 1235. Finally, the Court stated that since Defendant Hall’s claim of trial counsel’s alleged ineffectiveness was cognizable under the PCRA, “the trial court had no residual common law or statutory authority to entertain the claim except under the strictures of the PCRA.” Id. 1236. In the case sub judice, Defendant Minium’s Post Conviction Collateral Relief nunc pro tunc has been rightfully denied. Defendant Minium’s claim that trial counsel’s alleged ineffectiveness resulted in his untimely direct appeal was a cognizable claim under the PCRA. Defendant Minium exercised his PCRA rights when he filed an untimely pro se PCRA petition, 4 which was later amended with the assistance of counsel. But, it must be noted that it was the Defendant who ended this PCRA claim when he moved to withdraw the Petition on December 21, 2010, after serious and potentially criminal allegations arose at the PCRA hearing regarding the veracity of the Defendant’s testimony and his proffered Defendant’s Exhibit No. 1. Now, a year later and well beyond the one year limitation for filing a new PCRA petition, Defendant Minium again asks this Court to grant him nunc pro tunc restoration of his waived direct appeal rights. However, in accordance with Hall II, where a PCRA appeal route is available, a grant of restoration of Defendant Minium’s direct appeal rights would fall within the same authority of the PCRA and not be eligible for nunc pro tunc consideration. Additionally, Defendant Minium has not pled and proven an exception to the one year time limitation and this Court does not find any exception applicable. See 42 Pa.C.S.A. § 9545(b)(i-iii). Additionally, it is noted in the comments to Pa.R.Crim.P., Rule 907, that “second or subsequent petitions will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred. See, Commonwealth v. Szuchon, 633 A.2d 1098, 1099 (Pa. 1993).” In this case there has been no miscarriage of justice. The Defendant’s first PCRA Petition ended with the Defendant’s own voluntary withdrawal of his petition when it became apparent that evidence and testimony he was attempting to foist upon the Court may have been the basis for new criminal charges involving perjury, forgery or tampering with evidence. Miscarriage of justice? We think not. 5 Conclusion Therefore, for the reasons previously mentioned, this Court may not entertain Defendant Minium’s request for Post Conviction Collateral Relief nunc pro tunc and Defendant Minium’s motion is rightfully denied. By the Court, M. L. Ebert, Jr., J. District Attorney’s Office Ralph Minium, JF-6220, Pro Se Defendant SCI-Fayette P. O. Box 9999 Labelle, PA 15450 Jacob M. Jividen, Esquire Court Appointed to Assist in Superior Court Appeal 6