Com. v. Wheeler, R. ( 2018 )

J-A05022-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RONALD WHEELER :
:
Appellant : No. 1357 EDA 2017
Appeal from the PCRA Order March 30, 2017
In the Court of Common Pleas of Bucks County Criminal Division at No(s):
CP-09-CR-0004849-1982
BEFORE: DUBOW, J., MURRAY, J., and STEVENS*, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED MARCH 09, 2018
Ronald Wheeler (Appellant) appeals pro se from the order dismissing
as untimely his eighth petition for post-conviction relief filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541–46. We affirm.
In affirming the denial of Appellant’s sixth PCRA petition, this Court
summarized:
On April 28, 1983, Appellant was convicted of first-degree
murder and sentenced to death. Upon review, our Supreme
Court ultimately vacated the death sentence and remanded for
the imposition of a sentence of life imprisonment. On July 6,
1988, the trial court imposed a life sentence for the first-degree
murder conviction. He did not appeal. Thus, his judgment of
sentence became final on August 5, 1988.
Commonwealth v. Wheeler, No. 2824 EDA 2009 (Pa. Super. filed August
10, 2010) (unpublished memorandum at 2).
____________________________________
*Former Justice specially assigned to the Superior Court.
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On October 15, 2015, Appellant filed his eighth PCRA petition pro se in
which Appellant challenged the competency of a witness, Jerome Gibson,
asserting that he was not aware of Mr. Gibson’s diminished mental capacity
at the time of trial.1 On February 2, 2016, the PCRA court issued a notice of
intent to dismiss the petition as untimely pursuant to Pennsylvania Rule of
Criminal Procedure 907. On March 30, 2017, the PCRA court dismissed the
petition without a hearing. This appeal followed.
Appellant presents five issues for our review:
1. MAY THIS COURT DETERMINE UNDER RULES OF STATUTORY
CONSTRUCTION WHETHER INTERPRETATION OF PCRA TIME
LIMITS AS JURISDICTIONAL IS CONTRARY TO PLAIN
LANGUAGE OF PCRA WHEN PETERKIN ET AL., DID NOT
AND, IF SO, IS THAT INTERPRETATION CONTRARY TO PLAIN
LANGUAGE OF PCRA AND LEGISLATIVE INTENT?
2. DID APPLICATION OF PRESUMPTION OF ACCESS TO PUBLIC
RECORD TO FIND UNTIMELY OTHERWISE TIMELY 2007 PCRA
PETITION FILED BY PRO SE PRISONER, AMOUNT TO
GOVERNMENT INTERFERENCE UNDER §9545(b)(1)(i) AND
ALLOW FOR FILING OF 2015 PETITION WITHIN SIXTY DAYS
OF BURTON ELIMINATING PRESUMPTION OF PRO SE
PRISONERS?
3. WERE CLAIMS RAISED IN 2015 PCRA PETITION PREVIOUSLY
LITIGATED WHERE COURT ON APPEAL OF 2007 PCRA
PETITION DID NOT REACH MERITS OF CLAIMS?
____________________________________________
1 The PCRA Court has summarized the procedural posture attendant to each
of Appellant’s post-conviction filings, beginning with Appellant’s first petition
filed on August 2, 1988 under the Post Conviction Hearing Act (PCHA),
through the underlying PCRA petition filed on October 15, 2015. See PCRA
Court Opinion, 6/12/17, at 2-3.
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4. DOES BURTON’S EXCEPTION TO PUBLIC RECORD RULE FOR
PRO SE PRISONERS REPRESENT AN INTERVENING CHANGE
IN CONTROLLING LAW OR A SUBSTANTIAL CHANGE IN
DISPUTED FACTS THAT ALLOWS COURT ON SECOND APPEAL
TO REVISIT TIMELINESS OF 2007 PCRA PETITION FILED BY
PRO SE PRISONER, FOUND UNTIMELY ON FIRST APPEAL BY
APPLICATION OF PRESUMPTION OF ACCESS TO PUBLIC
RECORD?
5. WAS 2007 PCRA PETITION TIMELY WHERE FILED BY PRO SE
PRISONER WITHOUT ACCESS TO PUBLIC RECORD WITHIN
SIXTY DAYS OF DATE FACTUAL PREDICATE FOR PETITION
BECAME KNOWN TO PRISONER
Appellant’s Brief at 4.
Before we review the merits of Appellant’s issues, we must determine
whether his PCRA petition was timely. The timeliness of a post-conviction
petition is jurisdictional. Commonwealth v. Albrecht, 994 A.2d 1091,
1093 (Pa. 2010) (citation omitted). If a petition is untimely, neither an
appellate court nor the PCRA court has jurisdiction over the petition. Id.
“Without jurisdiction, we simply do not have the legal authority to address
the substantive claims” raised in an untimely petition. Id.
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
becomes final unless the petition alleges, and the petitioner proves, the
applicability of one of the statutory exceptions to the time for filing the
petition. Commonwealth v. Gamboa–Taylor, 753 A.2d 780, 783 (Pa.
2000); 42 Pa.C.S.A. § 9545(b)(1). Under these exceptions, the petitioner
must plead and prove that: “(1) there has been interference by government
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officials in the presentation of the claim; or (2) there exists after-discovered
facts or evidence; or (3) a new constitutional right has been recognized.”
Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007) (citations
omitted). A PCRA petition invoking one of these statutory exceptions must
“be filed within sixty days of the date the claim first could have been
presented.” Gamboa–Taylor, 753 A.2d at 783. See also 42 Pa.C.S.A. §
9545(b)(2).
It is undisputed that the instant PCRA petition, filed by Appellant in
2015 – decades after his judgment of sentence became final in 1988 – is
untimely unless he has satisfied his burden of pleading and proving that one
of the enumerated exceptions applies. See Commonwealth v. Beasley,
741 A.2d 1258, 1261 (Pa. 1999). As noted by both the PCRA court and the
Commonwealth, Appellant alleges that he only recently became aware of Mr.
Gibson’s diminished mental capacity when it became a matter of public
record after Mr. Gibson was charged with murder. PCRA Court Opinion,
6/12/17, at 7; Commonwealth Brief at 13-16, 32. Additionally, Appellant
argues that his petition falls within the government interference exception to
the PCRA time-bar. Id.
In arguing that his PCRA petition is timely, Appellant states:
[The i]nstant petition alleged this Court’s application of
public record rule on appeal to find the 2007 petition untimely,
amounted to government interference under § 9545(b)(1)(i),
and that instant petition was filed Oct. 15, 2015, within 60 days
of Aug. 25, 2015 decision in Burton recognizing application of
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rule to petitions filed by pro se prisoners was contrary to plain
language of § 9545(b)(1)(ii).
Appellant’s Brief at 16.
Appellant relies on Commonwealth v. Burton, 158 A.3d 618, 629
(Pa. 2017) in support of his assertion that his PCRA petition is not time-
barred. In Burton our Supreme Court held that although, in general,
matters of public record cannot be deemed “unknown” for purposes the
newly-discovered facts exception to PCRA time limits, that public record
presumption does not apply to pro se incarcerated PCRA petitioners. Id. at
638.
Here, the PCRA Court summarized:
[Appellant] is apparently arguing that he only recently
became aware of Mr. Gibson’s mental retardation as a result of
Gibson’s subsequent murder trials, and that pursuant to Burton
he is presumed as a pro se petitioner not to have had access to
such public knowledge[.] [However,] the issue of Gibson’s
mental retardation had already been addressed and rejected by
the Superior Court, which observed that [Appellant] was in fact
aware of Gibson’s mental capacity but failed to address it at trial.
In addition, [Appellant] has failed to introduce any evidence at
all to substantiate his claim that “government officials” interfered
with the presentation or acquisition of evidence of Gibson’s
mental capacities.
[Appellant] has failed to prove the elements necessary for
relief in accordance with 42 Pa.C.S.A. § 9545, and has failed to
prove the existence of any of the statutory exceptions to the
filing time bar pursuant to 42 Pa.C.S.A. § 9545(b). Therefore, in
addition to lacking any merit, [Appellant’s] eighth PCRA petition
must be considered untimely[.]
PCRA Court Opinion, 6/12/17, at 7-8.
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Upon review of Appellant’s claim and the record before us, we find that
the PCRA Court thoroughly addressed Appellant's arguments in its Opinion
denying the PCRA Petition, with citation to relevant statutory and case law,
as well as thoughtful analysis and reasoning. Both here and in the
companion appeal filed by Appellant at 1422 EDA 2017, the trial court’s
comprehensive opinions properly disposed of Appellant’s issues, and the
certified record supports the court’s findings. We therefore adopt the trial
court’s opinion as our own for purposes of this appeal and affirm the denial
of relief. See PCRA Court Opinion, dated June 12, 2017. The parties shall
attach a copy of the June 12, 2017 opinion in the event of further
proceedings in this matter.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/18
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