Com. v. Kiehlmeier, D. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DONALD H. KIEHLMEIER
Appellant No. 1567 WDA 2015
Appeal from the PCRA Order September 17, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0003208-2012;
CP-25-CR-0003217-2012
BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 15, 2016
Appellant, Donald H. Kiehlmeier, appeals pro se from the order
entered in the Erie County Court of Common Pleas, which denied his first
petition filed under the Post-Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
The relevant facts and procedural history of this case are as follows.
On September 11, 2012, while he was on state parole, Appellant was
involved in two collisions, both of which Appellant initiated by ramming his
vehicle into two different occupied cars. One of the cars was a police
vehicle. While attempting to flee, police stopped Appellant, who first refused
to obey police orders to get out of his car and then fought and kicked one
officer while he was trying to arrest Appellant. These events occurred after
___________________________
*Former Justice specially assigned to the Superior Court.
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Appellant had consumed enough alcohol to render him incapable of safe
driving. Appellant refused to submit to breath or blood testing. On
December 20, 2012, Appellant pled guilty at Docket No. 3208-2012 to one
count each of aggravated assault, resisting arrest, and possession of a small
amount of marijuana and at Docket No. 3217-2012 to one count of DUI
(related to the events at the companion docket number). Appellant was
sentenced on February 13, 2013, to an aggregate term of sixty-one (61) to
one hundred fifty (150) months’ incarceration, with credit for time served.
Appellant filed no post-sentence motion or direct appeal. Thus, the
judgment of sentence became final for purposes of the PCRA on March 15,
2013.
On September 14, 2014, Appellant pro se filed what he called a motion
to modify and reduce his sentence nunc pro tunc. The court properly
treated Appellant’s motion as a PCRA petition but did not appoint counsel to
represent Appellant. Instead, the court issued notice of its intent to dismiss
the petition without a hearing, per Pa.R.Crim.P. 907, as untimely. Appellant
failed to respond to the Rule 907 notice, and the court dismissed the petition
on October 10, 2014. Four days later, Appellant filed an “amended PCRA
petition” on October 14, 2014, which the court also dismissed on October
22, 2014. On Monday, November 10, 2014, Appellant timely filed an appeal.
By judgment entered on June 15, 2015, this Court vacated the order
dismissing Appellant’s petition and remanded the case for the appointment
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of counsel to represent Appellant on his first PCRA petition.
The PCRA court appointed counsel on June 23, 2015. Counsel filed a
motion to withdraw and a “no-merit” letter on August 18, 2015, 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 concluded Appellant had no colorable claims for PCRA relief. The
court again issued Rule 907 notice and granted counsel’s motion to withdraw
on August 24, 2015. Appellant filed a pro se response to the court’s Rule
907 notice, docketed September 10, 2015, in which he claimed he had a
plea agreement for 6 to 9 months’ incarceration that plea counsel failed to
present or pursue. Appellant also claimed he had obtained a toxicology
report on a urine sample, taken the day after the incident, which stated
Appellant had no alcohol in his system at the time the sample was taken.
Appellant asked the court to order counsel to file a motion to modify his
sentence and a motion to withdraw his plea. (See Motion in Objection, filed
9/10/15, at 1-3.) On September 17, 2015, the court denied Appellant’s
PCRA petition. Appellant timely filed a pro se notice of appeal on October 2,
2015 (prisoner mailbox rule) which was docketed on October 5, 2015. The
court did not order Appellant to file a concise statement of errors complained
of on appeal, and Appellant filed none.
Appellant raises the following issues on appeal:
WHETHER A FUNDAMENTAL ERROR AND MISCARRIAGE OF
JUSTICE HAS CAUSED AN INNOCENT MAN TO PLEAD
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GUILTY TO A CRIME WITHOUT EVIDENCE OR NOT
THEREOF?
WHETHER [THE] COURT MUST ALLOW [APPELLANT TO]
WITHDRAW [HIS] GUILTY PLEA BECAUSE OF COUNSEL’S
FAILURE TO CONSULT WITH HIS CLIENT?
(Appellant’s Brief at vii).
As a preliminary matter, we must determine whether Appellant timely
filed his current PCRA petition. Commonwealth v. Harris, 972 A.2d 1196(Pa.Super. 2009), appeal denied, 603 Pa. 684, 982 A.2d 1227 (2009).
Pennsylvania law makes clear no court has jurisdiction to hear an untimely
PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837 A.2d 1157(2003). A PCRA petition, including a second or subsequent petition, must be
filed within one year of the date the underlying judgment becomes final. 42
Pa.C.S.A. § 9545(b)(1); Commonwealth v. Bretz, 830 A.2d 1273(Pa.Super. 2003). A judgment is deemed 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 three statutory exceptions to the timeliness provision in the PCRA
allow for very limited circumstances under which the late filing of a petition
will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a
petition must allege and the petitioner must prove:
(i) the failure to raise a 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
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Commonwealth or the Constitution or laws of the United
States;
(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.A. § 9545(b)(1)(i)-(iii). “As such, when a PCRA petition is not
filed within one year of the expiration of direct review, or not eligible for one
of the three limited exceptions, or entitled to one of the exceptions, but not
filed within 60 days of the date that the claim could have been first brought,
the trial court has no power to address the substantive merits of a
petitioner’s PCRA claims.” Commonwealth v. Gamboa-Taylor, 562 Pa.
70, 77, 753 A.2d 780, 783 (2000).
Instantly, the court sentenced Appellant on February 13, 2013.
Appellant did not file for further review, although he says he wanted to file
post-sentence motions and an appeal. Thus, Appellant’s judgment of
sentence became final on March 15, 2013. See 42 Pa.C.S.A. § 9545(b)(3).
Appellant filed his first PCRA petition on September 12, 2014, more than one
year after his judgment of sentence became final. See 42 Pa.C.S.A. §
9545(b)(1); Bretz, supra. Accordingly, Appellant’s petition was patently
untimely. Moreover, throughout the PCRA proceedings, Appellant raised
claims related to counsel’s stewardship during the plea process and to the
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length of his sentence. Even with the assistance of PCRA counsel, however,
Appellant was unable to plead and prove any cognizable exception to the
PCRA timeliness requirements. See 42 Pa.C.S.A. § 9545(b)(1).
Accordingly, Appellant’s petition remains time-barred; and the PCRA court
properly dismissed it. See Robinson, supra.Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/15/2016
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