Com. v. Weaver, M. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
MARK ALAN WEAVER
Appellant No. 810 MDA 2016
Appeal from the PCRA Order May 4, 2016
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0000075-2009
BEFORE: SHOGAN, J., RANSOM, J., and MUSMANNO, J.
MEMORANDUM BY RANSOM, J.: FILED JUNE 27, 2017
Appellant, Mark Alan Weaver, appeals from the order entered May 4,
2016, denying as untimely his serial petition for collateral relief filed under
the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
In November 2009, a jury convicted Appellant of three counts of
aggravated indecent assault and indecent assault, two counts each of
involuntary deviate sexual intercourse and criminal attempt to commit rape,
and one count each of criminal attempt to commit sexual assault, sexual
assault, indecent exposure, and simple assault.1
In February 2010, the court imposed an aggregate sentence of nine to
forty years of incarceration. Appellant filed a post-sentence motion, which
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1
See 18 Pa.C.S. §§ 3125(a), 3126(a), 3123(a), 901, 3121(a), 3124.1,
3127(a), 2701(a)(1), respectively.
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was denied. His judgment of sentence was affirmed on direct appeal. See
Commonwealth v. Weaver, 29 A.3d 829 (Pa. Super. 2011) (unpublished
memorandum). Appellant did not appeal this decision.
In April 2012, Appellant timely filed a first PCRA petition, counsel was
appointed, and an evidentiary hearing held. Ultimately, the PCRA court
denied the petition. This Court affirmed the dismissal on appeal. See
Commonwealth v. Weaver, 82 A.3d 464 (Pa. Super. 2013), appeal
denied, 81 A.3d 77 (Pa. 2013).
In December 2013, Appellant untimely filed a second PCRA petition.
His petition was denied without a hearing, and he did not appeal.
In April 2016, Appellant untimely filed a third PCRA petition. After
sending notice that Appellant’s petition would be dismissed without a hearing
pursuant to Pa.R.Crim.P. 907, the court dismissed Appellant’s petition as
untimely filed.
Appellant timely appealed and filed a court-ordered statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The PCRA
court issued a responsive opinion.
On appeal, Appellant raises two issues for our review, which we have
restated for clarity.
1. Did the trial court err in failing to conduct an evidentiary
hearing regarding the ineffectiveness of all prior counsel?
2. Did the trial court err in finding that Appellant’s petition was
time barred and whether Appellant is entitled to nunc pro tunc
review of his issues?
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See Appellant’s Brief at 4.
This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. See Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007).
In this case, the PCRA court dismissed Appellant’s petition without a
hearing. See PCRA Court Order, 5/4/16, at 1. There is no absolute right to
an evidentiary hearing. See Commonwealth v. Springer, 961 A.2d 1262,
1264 (Pa. Super. 2008). On appeal, we examine the issues raised in light of
the record “to determine whether the PCRA court erred in concluding that
there were no genuine issues of material fact and denying relief without an
evidentiary hearing.” Springer, 961 A.2d at 1264.
We begin by addressing the timeliness of Appellant’s petition, as the
PCRA time limitations implicate our jurisdiction and may not be altered or
disregarded in order to address the merits of his claims. See
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the
PCRA, any petition for relief, including second and subsequent petitions,
must be filed within one year of the date on which the judgment of sentence
becomes final. Id. There are three exceptions:
(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;
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(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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke these
exceptions “shall be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v.
Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).
Appellant’s petition is untimely.2 Accordingly, in order to reach the
merits of his issues, he must plead and prove one of the exceptions to the
time bar. See Bennett, 930 A.2d at 1267. Appellant does not plead any of
the three time bar exceptions. Instead, he raises various evidentiary and
sentencing issues, and he avers that he has made a prima facie showing of a
miscarriage of justice, per Commonwealth v. Lawson, 549 A.2d 107, 112
(Pa. 1988) (holding that a second or subsequent petition for post-conviction
relief will not be entertained unless a strong prima facie showing is offered
to demonstrate a miscarriage of justice may have occurred).
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2
Appellant’s petition is patently untimely. Appellant’s judgment of sentence
became final on May 11, 2011, at the expiration of his thirty days to petition
for allowance of appeal to the Pennsylvania Supreme Court. See 42 Pa.C.S.
§ 9545(b)(3) (a judgment of sentence becomes final at the conclusion of
direct review or the expiration of the time for seeking the review).
Accordingly, he had until May 2012 to timely file a PCRA petition.
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Appellant’s argument does not merit relief. Lawson predates the
1995 amendment to the PCRA that added the jurisdictional time bar, and
Appellant does not acknowledge that, since that time, our courts have
consistently viewed the PCRA’s time limits as mandatory and jurisdictional.
See Bennett, 930 A.2d at 1267; see also Commonwealth v. Lawson, 90
A.3d 1, 4 (Pa. Super. 2014) (“The timeliness of a PCRA petition is a
jurisdictional threshold and may not be disregarded in order to reach the
merits of the claims raised in a PCRA petition that is untimely.”).
Appellant also misinterprets our Supreme Court’s decision in
Commonwealth v. Grant, 813 A.3d 726 (Pa. 2002), arguing, incorrectly,
that because all prior counsel were ineffective and he is innocent, the
jurisdictional time bar does not apply to his case. Id. at 738 (noting that,
as a general rule, a petitioner should wait to raise claims of ineffectiveness
until collateral review, and an ineffectiveness claim will be waived only after
a petitioner has had the opportunity to raise the issue on collateral review
and did not do so).
Accordingly, because Appellant’s petition is untimely and he does not
plead an exception to the time bar, the PCRA court did not err in dismissing
his petition. See 42 Pa.C.S. § 9545(b); Bennett, 930 A.2d at 1267; Ragan,
923 A.2d at 1170.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/2017
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