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HomeMy WebLinkAboutCP-21-CR-1437-1994 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : : CHRISTOPHER R. HESS : CP-21-CR-1437-1994 IN RE: P.C.R.A. PETITION BEFORE HESS, P.J. MEMORANDUM Currently before us is Defendant’s fourth petition for relief under the Post Conviction Relief Act. 42 Pa.C.S.A. § 9541 et seq; (Motion for Post Conviction Collateral Relief, filed Apr. 16, 2012 (hereinafter “PCRA Petition”). For the reasons that follow, this Court intends to dismiss the within petition as there are no genuine issues of material fact, and, additionally, Defendant’s petition is untimely. The most recent Superior Court opinion in Defendant’s lengthy appellate history, which affirmed the dismissal of Defendant’s third PCRA petition, succinctly stated the facts and procedural history of this case as follows: On September 8, 1995, a jury convicted appellant of rape, involuntary deviate sexual intercourse, and related offenses. The convictions arose from a sexual assault in Mt. Holly Springs on July 9, 1994. On October 10, 1995, the trial court imposed an aggregate term of 8 to 20 years’ imprisonment. Counsel filed a notice of appeal, but appellant withdrew the appeal on June 14, 1996. Appellant filed his first PCRA petition pro se on April 9, 1996. Counsel was appointed and filed an amended petition. A hearing on the petition was held on October 25, 1996. On March 3, 1997, the PCRA court entered an order denying appellant’s PCRA petition on its merits. On October 31, 1997, this court affirmed the PCRA court’s order. Commonwealth v. Hess, 704 A.2d 1117 (Pa.Super. 1997) (unpublished memorandum). Appellant filed a second PCRA petition pro se on June 13, 2001. Counsel was again appointed, but did not file an appended petition because counsel believed the pro se filings were sufficient. Hearings were held on November 21, 2001 and February 27, 2002, at which counsel put forward appellant’s single theory of relief, to the effect that documents indicating that appellant had prior rape convictions had improperly been sent out with the jury. On March 4, 2002, the PCRA court entered an order denying the petition on the merits. On appeal, this court affirmed, but did so on the basis that the second PCRA petition was untimely filed. Commonwealth v. Hess, 821 A.2d 133 (Pa.Super. 2003) (unpublished memorandum), appeal denied, 573 Pa. 715, 828 A.2d 349 (2003). Thereafter, on December 17, 2007, appellant filed the instant PCRA petition pro se, wherein he asserted an after-discovered fact exception to the PCRA time bar. On January 31, 2008, appellant filed a pro se motion to recuse. Counsel was again appointed; however, counsel ultimately filed a no-merit letter and petition to withdraw from representation pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). Counsel was permitted to withdraw on August 12, 2008. On August 22, 2008, the motion to recuse was denied. As noted, the petition was dismissed on April 16, 2009, and appellant takes this timely pro se appeal. Commonwealth v. Hess, 717 MDA 2009. The Superior Court thereafter upheld the PCRA court’s dismissal of Defendant’s third PCRA petition without a hearing on the basis of untimeliness. Id. On April 16, 2012, Defendant filed the instant pro se Motion for Post Conviction Collateral Relief. The petition presents itself as what is best described as a disjointed recitation of the multiple ways in which one may be eligible for post-conviction collateral relief. Defendant asserts that he is eligible for relief because of the following: (I) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. (II) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. (IV) The improper obstruction by government officials of the petitioner’s right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court. 2 (V) 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. (PCRA Petition, filed Apr. 16, 2012). Also within his petition, Defendant presents the following as the factual basis upon which he asserts his right to relief: Trial counsel was ineffective, to the point I had no counsel at or during trial. PCRA I counsel Mark Thomas was ineffective in obtaining the evidence that would have proved trial counsel was so ineffective it left defendant with no trial counsel. PCRA II counsel was ineffective for failing to use new evidence to prove both trial counsel and PCRA I counsel were both ineffective. The 86 pages T.N. testimony withheld from PCRA counsel by trial judge are the facts known to the defendant. (PCRA Petition, filed Apr. 16, 2012). Additionally, Defendant asserts that the following was made known to him by means other than his own personal knowledge: “Withheld 86 pages T.N., newly discovered evidence, PA & U.S. Constitution, newly discovered U.S. Supreme Court decision decided March 20, 2012 Martinez v. Rayn, Dir. Arizona Doc, No. 10-1001.” (PCRA Petition, filed Apr. 16, 2012). The petition continues on in a manner substantially similar to the above-quoted language. The standard of review for an order denying post-conviction relief is limited to “whether the record supports the PCRA court’s determination, and whether that decision is free of legal error.” Commonwealth v. Taylor, 2007 PA Super 282, ¶ 9, 933 A.2d 1035, 1040; see also Commonwealth v. Hackett, 598 Pa. 350, 358 n.10, 956 A.2d 978, 983 n.10 (2008). “The PCRA court’s findings will not be disturbed unless there is no support for the finding in the certified record.” Commonwealth v. Spencer, 2006 PA Super 13, ¶ 5, 892 A.2d 840, 841. Additionally, “[t]here 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 3 necessary.” Commonwealth v. Jones, 2008 PA Super 16, ¶ 6, 942 A.2d 903, 906. Moreover a PCRA court may decline to hold a hearing on the petition if the PCRA court determines that the petitioner’s claim is patently frivolous and is without a trace of support in either the record or from other evidence. Pa.R.Crim.P. 907; Commonwealth v. Jordan, 2001 PA Super 111, ¶ 12, 772 A.2d 1011, 1014. A PCRA petition must be filed within one year of the date that the judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). For purposes of a PCRA, 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). The timing requirements of the PCRA statute are mandatory and jurisdictional in nature, and a court may not ignore them in order to reach the merits of the petition. Commonwealth v. Taylor, 933 A.2d 1035 (2007), appeal denied, 597 Pa. 715, 951 A.2d 1163 (2008). In the Superior Court’s opinion affirming the denial of Defendant’s third PCRA petition, the court found the following of the applicable judgment of sentence: “Appellant’s judgment of sentence became final on April 9, 1996, when he discontinued his direct appeal. Commonwealth v. Conway, 706 A.2d 1243 (Pa.Super. 1997). Therefore, appellant had until April 9, 1997 to file a PCRA petition, but did not file the present petition until December 17, 2007. Thus, it is manifestly untimely.” Commonwealth v. Hess, 717 MDA 2009. As the instant petition was not filed until April 16, 2012, Defendant’s instant petition is likewise unquestionably in violation of the PCRA statute’s time-bar. Section 9545(b) also provides three exceptions that permit review of an untimely PCRA petition: (1) a petitioner’s inability to raise a claim as a result of interference by government officials; (2) the discovery of a previously unknown fact that would have supported a claim and 4 which could not have been ascertained by the exercise of due diligence; and (3) a newly recognized constitutional right which has been held to apply retroactively. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). To invoke an exception, the petitioner must plead it and satisfy the burden of proof. Commonwealth v. Beasley, 559 Pa. 604, 608, 741 A.2d 1258, 1261-62 (1999). That burden includes “an acknowledgement by the petitioner that the PCRA petition under review is untimely but that one or more of the exceptions apply.” Id. at 609; 741 A.2d at 1261. Additionally, however, a petition invoking one or more of these exceptions must be filed within 60 days of the date the claim could have been presented. 42 Pa.C.S. § 9545(b)(2); Id. at 618; 741 A.2d at 1260-61. Turning first to the merits of Defendant’s petition, we are satisfied that no genuine issues of material fact exist, and, thus, a hearing on the matter is not necessary. The petition presents an assortment of allegations, yet says very little. Defendant alleges that his trial counsel was ineffective, his PCRA I counsel was ineffective for failing to prove his trial counsel was ineffective, and his PCRA II counsel was ineffective for failing to “use new evidence” to prove both trial counsel and PCRA I counsel were both ineffective. These bald allegations are not expanded upon, nor are they explained in any manner whatsoever. Defendant makes no mention of what “new evidence” has arisen which would support any of the assertions contained in the within petition. Defendant references “86 pages T.N. testimony withheld from PCRA counsel by trial judge are the facts known to the defendant,” but we are simply unable to appreciate the significance of this statement. As a result, we are satisfied from review of the petition and the record in this case that there are no genuine issues concerning any material fact and that Defendant is not entitled to post-conviction collateral relief. Additionally, we find that no further purpose would be served by any further proceedings. 5 Turning to the matter of timeliness, Defendant’s petition is patently untimely on its face. Defendant’s judgment of sentence became final on April 9, 1996, when he discontinued his direct appeal, and the instant PCRA petition was filed more than 16 years after that date. Defendant makes reference to Martinez v. Ryan, 132 S.Ct. 1309 (2012), a recent United States Supreme Court wholly inapposite to the facts presented in the within petition. Martinez addressed the precise question of whether ineffective assistance in an initial-review collateral proceeding on a claim of ineffective assistance at trial may provide cause for a procedural default in a federal habeas proceeding. Id. at 1315. The Supreme Court determined that, in order to protect prisoners with a potentially legitimate claim of ineffective assistance of trial counsel, it was necessary to create an exception to the Coleman case, which had previously held that an attorney’s ignorance or inadvertence in a post-conviction proceeding does not qualify as cause to excuse a procedural default. Id.; Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546 (1991). Thus, Martinez addressed procedural requirements for federal habeas proceedings and did not create a newly recognized and retroactive constitutional right, the only potential time-bar exception that we are able to glean from Defendant’s petition. As a result, Defendant has not pled an exception to the PCRA time-bar; moreover, Defendant has not alleged that any such an exception arose within 60 days from the date of the filing. For these reasons, Defendant’s petition is untimely and will be dismissed absent the filing of an amended petition which comports with the above-detailed requirements pertaining to the proper filing of a PCRA petition. ORDER th AND NOW, this 8 day of May, 2012, after independent review of the record in this case, and for the reasons stated in the accompanying memorandum, this Court finds that there are 6 no genuine issues of material fact and that Defendant is not entitled to Post-Conviction Collateral Relief. Moreover, the within petition is untimely, and Defendant has not pled and proved an exception to the PCRA time-bar, as required by 42 Pa.C.S.A. § 9545. IT IS HEREBY ORDERED AND DIRECTED that notice is given to all parties that this Court intends to dismiss the within petition twenty (20) days after service of this order upon Defendant. IT IS FURTHER ORDERED AND DIRECTED that Defendant may respond to the proposed dismissal within twenty (20) days of the date of this Order. The Clerk of Courts shall make service of this Order upon Defendant by certified mail, return receipt requested. BY THE COURT, Kevin A. Hess, P.J. Matthew Smith, Esquire Chief Deputy District Attorney Christopher R. Hess, #EE-3517 SCI Rockview Box A Bellefonte, PA 16823 7 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : : CHRISTOPHER R. HESS : CP-21-CR-1437-1994 IN RE: P.C.R.A. PETITION BEFORE HESS, P.J. ORDER th AND NOW, this 8 day of May, 2012, after independent review of the record in this case, and for the reasons stated in the accompanying memorandum, this Court finds that there are no genuine issues of material fact and that Defendant is not entitled to Post-Conviction Collateral Relief. Moreover, the within petition is untimely, and Defendant has not pled and proved an exception to the PCRA time-bar, as required by 42 Pa.C.S.A. § 9545. IT IS HEREBY ORDERED AND DIRECTED that notice is given to all parties that this Court intends to dismiss the within petition twenty (20) days after service of this order upon Defendant. IT IS FURTHER ORDERED AND DIRECTED that Defendant may respond to the proposed dismissal within twenty (20) days of the date of this Order. The Clerk of Courts shall make service of this Order upon Defendant by certified mail, return receipt requested. BY THE COURT, Kevin A. Hess, P.J.