HomeMy WebLinkAboutCP-21-CR-0003233-2008
COMMONWEALTH
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
v.
:
:
:
JOHN F. LOFTUS, III
: CP-21-CR-3233-2008
IN RE: P.C.R.A. PETITION
BEFORE HESS, P.J.
OPINION and ORDER
Currently before us is Defendant’s first petition for relief under the Post-Conviction
Relief Act. 42 Pa.C.S.A. § 9541 et seq. (Motion for Post Conviction Collateral Relief, filed
Aug. 4, 2011 (hereinafter “PCRA Petition, ¶__”). On December 1, 2009, Defendant pled guilty
to charges of Criminal Homicide - Murder in the Third Degree and Forgery. (Order of Court, In
Re: Guilty Plea & Sentencing, Dec. 1, 2009). On the charge of Murder in the Third Degree,
Defendant was sentenced to a period of imprisonment in a state correctional institution of not
less than twenty nor more than forty years; on the charge of Forgery, Defendant was sentenced to
a period of imprisonment in a state correctional institution of not less than five nor more than ten
years. (Order of Court, In Re: Guilty Plea & Sentencing, Dec. 1, 2009). Defendant’s sentences
were set to run consecutively, to constitute an aggregate sentence of not less than twenty-five nor
more than fifty years. (Order of Court, In Re: Guilty Plea & Sentencing, Dec. 1, 2009).
Subsequent to the December 1, 2009 acceptance and recording of his pleas and sentence,
Defendant did not seek appellate review. Thus, his sentence became final on December 31,
2009, thirty days after the imposition of sentence. 42 Pa.C.S. § 9545(b)(3); Pa.R.Crim.P.
720(A). On August 4, 2011, Defendant filed the instant pro se Motion for Post-Conviction
Collateral Relief regarding his conviction. (See PCRA Petition). On August 10, 2011, Allen C.
Welch, Esq., was appointed as counsel to represent Defendant, but did not file an amended
PCRA petition. (Order of Court, Aug. 10, 2011). Defendant’s petition alleges a variety bases
for which he asserts he is eligible for relief, including 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.
(III) A plea of guilty unlawfully induced where the circumstances make it likely
that the inducement caused the petitioner to plead guilty and the petitioner is
innocent.
(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.
(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, ¶ 4).
Also within his petition, Defendant presents the following as the factual basis upon which
he asserts his right to relief:
I was advised by my attorney to plead guilty to a criminal homicide charge, (M-
3). When in fact I didn’t commit this charge. A woman that I was with did, and
the police never found her, nor have they continued to look for her. It was all
dumped in my lap, because they had me, and they could blame when they knew
the evidence didn’t point to me.
(PCRA Petition, ¶ 5(A)).
Additionally, Defendant asserts that the following was made known to him by means
other than his own personal knowledge: “No, I just found out, I was under psychiatric care +
[sic] on medication all through these proceedings, including during the 1 YR. time-bar period.
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(Comm. VS Cruz) – 852 A.2d PG. 287 [sic].” (PCRA Petition, ¶ 5(B)). The petition continues
on in a manner substantially similar to the above-quoted language.
On May 18, 2012, a hearing was held on the instant petition, whereupon Defendant
testified on his own behalf but did not present any other witnesses. (Notes of Testimony, In Re:
Post-Conviction Relief Act Petition, 5, May 18, 2012 (hereinafter “PCRA N.T. __”)). The
Commonwealth presented the testimony of Taylor P. Andrews, Esq., Defendant’s plea counsel.
(PCRA N.T. 15). Although Defendant’s petition appears to allege, inter alia, ineffective
assistance on the part of his plea counsel, the testimony elicited from Defendant at the hearing
indicated that at the heart of his petition was a simply a dissatisfaction with the length of his
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sentence. (See PCRA N.T.13).
Subsequent to the hearing, Defendant’s PCRA counsel filed a Motion to Withdraw as
Counsel asserting that the instant petition was both untimely and without merit. (Motion to
Withdraw as Counsel, filed May 23, 2012). Additionally, PCRA counsel provided the court with
a Turner-Finley “no-merit” letter which further underscored counsel’s belief that Defendant’s
petition should be dismissed for reasons of untimeliness and lack of merit. Counsel was of the
opinion that central to Defendant’s petition was simply a desire to have his sentenced reduced.
Pursuant to 42 Pa.C.S.A. § 9545(b)(1), a PCRA petition must be filed within one year of
the date that the judgment of sentence becomes final. For purposes of a PCRA, a judgment
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On cross-examination, Defendant testified to the following:
Q: So your main complaint, if I am reading this correctly, is the length of your sentence?
A: Well, yes. I think it is a lot, and for my age and everything, what really happened.
Q: It is not that Mr. Andrews was ineffective, you think he was all right, correct?
A: Well, basically, yeah.
Q: You just don’t like the length of your sentence?
A: Well, I would like it if I could get it reduced, yes, somewhat.
(PCRA N.T. 13).
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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, 2007 PA Super 282, ¶ 5, 933 A.2d 1035,
appeal denied, 597 Pa. 715, 951 A.2d 1163 (2008).
Section 9545(b) 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
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. Id. at 618; 741 A.2d at 1260-61, 42
Pa.C.S. § 9545(b)(2).
In order to be eligible for post conviction relief, a petitioner must plead and prove that the
conviction complained of resulted from a violation of the Constitution, ineffective assistance of
counsel, an unlawfully induced guilty plea, improper obstruction by government officials of the
petitioner’s right of appeal, unavailable exculpatory evidence, an illegal sentence, or a lack of
jurisdiction. 42 Pa.C.S.A. § 9543(a)(2)(i)-(viii). Additionally, a petitioner must establish that
the claims of error raised in his PCRA petition have not been previously litigated or waived, and
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that “the failure to litigate the issue prior to or during trial, during unitary review or on direct
appeal could not have been the result of any rational, strategic or tactical decision by counsel.”
42 Pa.C.S. § 9543(a)(3) and (4); Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011).
In general, in order to be eligible for post-conviction relief based upon inadequate
representation, “the petitioner must plead and prove by a preponderance of the evidence . . .
[i]neffective 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.” 42 Pa.C.S. § 9543(a)(2)(ii). There are three elements a petitioner must
prove in order to prevail on a claim of ineffective assistance of counsel. Chmiel, 30 A.3d at
1127; Commonwealth v. Blount, 538 Pa. 156, 647 A.2d 199 (1994); Commonwealth v. Pierce,
515 Pa. 153, 527 A.2d 973 (1987); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2025
(1984). First, the petitioner must prove that the “underlying claim is of arguable merit.” Blount,
538 Pa. at 163, 647 A.2d at 203. Second, it must be proved that counsel’s action or inaction was
not grounded on any “reasonable basis designed to effectuate [the client’s] interest.” Id. Third,
the petitioner must prove that “counsel’s ineffectiveness prejudiced him.” Id. Moreover, it is
well-established that “[a]llegations of ineffectiveness in connection with the entry of a guilty
plea will serve as a basis for relief only if the ineffectiveness caused the defendant to enter an
involuntary or unknowing plea. Where the defendant enters his plea on the advice of counsel, the
voluntariness of the plea depends on whether counsel's advice was within the range of
competence demanded of attorneys in criminal cases.” Commonwealth v. Wah, 2012 PA Super
54, 42 A.3d 335 (quoting Commonwealth v. Allen, 2003 PA Super 367, ¶ 7, 833 A.2d 800, 802).
Initially, we must determine whether Defendant timely filed his petition, as Pennsylvania
law makes clear that no court has jurisdiction to hear an untimely PCRA petition. Taylor, 2007
PA Super 282, ¶ 5, 933 A.2d at 1038. Defendant’s judgment of sentence became final on
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December 31, 2009, thirty days after the imposition of sentence, as he did not seek appellate
review of his conviction. 42 Pa.C.S. § 9545(b)(3); Pa.R.Crim.P. 720(A). Thus, Defendant had
until December 31, 2010 to timely file his PCRA petition. As Defendant’s petition was not filed
until August 4, 2011, it is patently untimely on its face and, absent an applicable exception to the
PCRA time-bar, must be denied.
In his petition, Defendant makes reference to Commonwealth v. Cruz, 578 Pa. 325, 852
A.2d 287 (2004), a recent Pennsylvania Supreme Court decision which held that mental
incompetence at the relevant times, if proven, may satisfy the requirements of § 9545(b)(1)(ii),
the after-discovered evidence exception to the PCRA time-bar, in which case the claims
defaulted by operation of that incompetence may be entertained. Cruz, 578 Pa. at 327, 852 A.2d
at 288. When questioned at the hearing regarding the timeliness of the petition, Defendant
testified that he “just wasn’t, you know, thinking correctly. I was on medication before that.
And I was not on medication. And I basically didn’t know about what was going on.” (PCRA
N.T. 5). Defendant testified that he had been restricted from general population while prison
doctors worked to regulate his medication, and that it was not until April of 2010 that he was
transferred to general population where he had access to, among other things, the prison’s law
library. (PCRA N.T. 6-7).
Even if Defendant’s segregation from the general prison population was the result of a
mental incompetence, one which for a time rendered him temporarily incompetent to file a
PCRA petition, Defendant has failed to prove a valid exception to the PCRA time-bar and, as a
result, his petition must be denied. The extrapolation of the after-discovered evidence exception
to the PCRA time-bar enunciated in Cruz acts not as a stay to the running of the one-year period
for filing a petition, but rather simply as an exception, like all other exceptions found in Section
9545(b), to the one-year time PCRA time bar which must be asserted within 60 days of the date
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the claim could have been presented. In other words, the one-year period within which
Defendant was entitled to file his PCRA petition, which ended on December 31, 2010, was not
stayed by reason of Defendant’s alleged mental incompetence, but rather Defendant would have
had the opportunity to assert the after-discovered exception to the PCRA time-bar had his mental
incompetence precluded him from timely filing a petition subsequent to the running of the one-
year period of limitations. Even accepting as true Defendant’s contention that his entry into
general population marked the first time that he was stabilized and cognizant so as to have
possessed the mental ability to file a PCRA petition, Defendant entered general population in
April of 2010; thus, Defendant had 9 months remaining on his original one year allowance to
timely file his petition. No exception to the PCRA time-bar would have been needed had
Defendant acted with the requisite promptitude in filing his petition. Defendant has made no
assertion that his mental incompetence lasted throughout the one-year period to timely file a
petition, and he not asserted, much less proved, any other exception to the statute’s jurisdictional
time-bar. As a result, Defendant’s petition, filed August 4, 2011, is untimely and will be denied.
Even if Defendant’s PCRA petition had been timely filed, we are satisfied that
Defendant’s petition would have been denied on the merits. At the hearing, PCRA counsel
elicited the following from Defendant regarding the alleged ineffective assistance on the part of
his plea counsel:
Q: And what was your complaint with Mr. Andrews?
A: Well, I felt that maybe, you know, they should have pursued this other woman,
this perpetrator, you know, that was found as an accomplice that I pled to. I
thought it was a lot of time too.
Q: Did you have any other complaints with Mr. Andrews’ representations?
A: No. I think he was all right.
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Q: You indicate that you felt that you were ill-advised by your attorney. Can you
state for us what it was that you thought was. . .
A: Well, I would say maybe just, you know, the sentence, like I said, I thought it
was a little bit too much. Maybe I wasn’t thinking right at the time. I don’t
know.
(PCRA N.T. 9-10). Thus, Defendant testified not that he was dissatisfied with his plea counsel
or that he was ill-advised to plead guilty but rather that he was simply unhappy with the length of
his sentence. A subsequent displeasure with one’s agreed-to sentence is not a cognizable basis
for post-conviction collateral relief.
For the foregoing reasons, the following order will be entered:
ORDER
AND NOW, this day of June, 2012, upon consideration of Defendant’s Petition for
Relief under the Post-Conviction Relief Act, and following a hearing held May 18, 2012,
Defendant’s petition is DENIED.
The defendant is herewith advised of his right to file an appeal to the Superior Court
within thirty (30) days. The Court having permitted court-appointed counsel to withdraw his
appearance, the defendant may retain private counsel or proceed pro se in any further
proceedings in this matter.
BY THE COURT,
Kevin A. Hess, P.J.
Matthew Smith, Esquire
Chief Deputy District Attorney
Allen Welch, Esquire
Court-appointed for Defendant
John F Loftus, III, JJ3487
8
SCI-Coal
#1 Kelley Drive
Coal Township, PA 17866
9
COMMONWEALTH
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
v.
:
:
:
JOHN F. LOFTUS, III
: CP-21-CR-3233-2008
IN RE: P.C.R.A. PETITION
BEFORE HESS, P.J.
ORDER
AND NOW, this day of June, 2012, upon consideration of Defendant’s Petition for
Relief under the Post-Conviction Relief Act, and following a hearing held May 18, 2012,
Defendant’s petition is DENIED.
The defendant is herewith advised of his right to file an appeal to the Superior Court
within thirty (30) days. The Court having permitted court-appointed counsel to withdraw his
appearance, the defendant may retain private counsel or proceed pro se in any further
proceedings in this matter.
BY THE COURT,
Kevin A. Hess, P.J.
Matthew Smith, Esquire
Chief Deputy District Attorney
Allen Welch, Esquire
Court-appointed for Defendant
John F Loftus, III, JJ3487
SCI-Coal
#1 Kelley Drive
Coal Township, PA 17866