Com. v. Dottle, L. ( 2016 )

J-S29006-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LOUIS DOTTLE,
Appellant No. 642 WDA 2015
Appeal from the PCRA Order Entered March 16, 2015
In the Court of Common Pleas of Lawrence County
Criminal Division at No(s): CP-37-CR-0000230-1990
BEFORE: BENDER, P.J.E., PANELLA, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 1, 2016
Appellant, Louis Dottle, appeals pro se from the post-conviction court’s
March 16, 2015 order denying, as untimely, his petition filed under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
The PCRA court summarized the procedural history of Appellant’s case,
as follows:
On February 7, 1991[,] [Appellant] was convicted of first-
degree murder in the shooting death of his wife. On April 10,
1991, [Appellant] was sentenced by the [c]ourt to life
imprisonment. [He] filed a post-sentence motion, which was
denied on July 29, 1992[,] and, after appeal, [Appellant’s
judgment of sentence was] affirmed by the Superior Court on
July 8, 1993. [Commonwealth v. Dottle, 633 A.2d 1221 (Pa.
Super. 1993) (unpublished memorandum). Appellant did not
petition for allowance of appeal with our Supreme Court.]
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S29006-16
[Appellant’s] first PCRA petition was timely filed on May
14, 1994. The [c]ourt denied that petition on May 23, 1996.
[Appellant] filed a timely appeal of the [c]ourt’s decision to the
Superior Court, and the Superior Court affirmed that decision on
December 11, 1996. [Commonwealth v. Dottle, 697 A.2d 274(Pa. Super. 1996) (unpublished memorandum).] [Appellant]
filed a petition for review before the Supreme Court of
Pennsylvania, [which] was denied by Order dated April 29, 1997.
[Commonwealth v. Dottle, 693 A.2d 586 (Pa. 1997).] On
December 16, 1997, [Appellant] filed a second pro se PCRA
petition. That petition was initially dismissed but was re-instated
by Order dated March 3, 1999, and Attorney Thomas W. Leslie
was assigned by the [c]ourt as counsel for [Appellant]. Attorney
Leslie filed a Second Amended PCRA petition for [Appellant] on
August 27, 1999. An Opinion and Order were filed on December
13, 1999[,] which denied [Appellant’s] Second Amended PCRA
petition. [Appellant] appealed the [c]ourt’s decision to the
Superior Court of Pennsylvania. The Superior Court affirmed
that decision and concluded that the PCRA [c]ourt’s decision was
supported by evidence of record and free of legal error.
[Commonwealth v. Dottle, 769 A.2d 1202 (Pa. Super. 2000)
(unpublished memorandum).] Upon the denial of relief by the
Superior Court, [Appellant] sought allowance of appeal by the
Supreme Court of Pennsylvania and that was denied on June 19,
2001. [Commonwealth v. Dottle, 781 A.2d 139 (Pa. 2001).]
…
On May 22, 2012[,] [Appellant] filed the instant[,] [t]hird
pro se PCRA petition based on the United States Supreme
Court’s recent decisions in Missouri v. Frye, 132 S.Ct. 1399(2012); Lafler v. Cooper, 132 S.Ct. 1376 (2012); and,
Martinez v. Ryan, 132 S.Ct. 1309 (2012). [Appellant] raises
claims that he was not advised of a plea bargain offer until after
he had been found guilty of the charges[,] and that trial counsel
failed to call known and available witnesses to testify as to the
violent character of the victim. [Appellant] filed a Motion for
Appointment of Counsel and Attorney Joseph Kearney was
assigned by the [c]ourt as [c]ounsel for [Appellant]. On August
3, 2012[,] the Commonwealth filed a Motion to Dismiss
[Appellant’s] petition as being untimely and without merit.
Appointed counsel requested several continuances to review the
extensive record, to consult with [Appellant], and to allow for
guidance from the Pennsylvania appellate courts on the issues of
the retroactivity of the cases that [Appellant] relied upon in his
-2-
J-S29006-16
petition. On May 7, 2014[,] Attorney Kearney filed a Motion to
[W]ithdraw consistent with the requirements of
Commonwealth v. Turner, [544 A.2d 927] ([Pa.] 1988)[,] and
Commonwealth v. Finley, … 550 A.2d 213 ([Pa. Super.]
1988), citing that [Appellant’s] instant PCRA [petition] is
untimely and lacks merit. The [c]ourt granted Attorney
Kearney[’s] … Motion to Withdraw, and advised [Appellant] that
he could proceed on his own or secure counsel himself.
[Appellant] petitioned for assignment of counsel and that request
was denied…. On June 4, 2014, [Appellant], pro se, filed this
Third Amended PCRA petition and a Supplement to the Amended
Petition.
PCRA Court Opinion (PCO), 3/16/15, at 1-4.
On September 5, 2014, the PCRA court conducted a hearing, at which
Appellant represented himself and presented argument, but no witnesses.
On March 16, 2015, the court issued an order denying Appellant’s petition.
On April 20, 2015, Appellant filed a pro se notice of appeal with this Court.
While facially untimely, the date Appellant specified on his pro se notice of
appeal was April 15, 2015, which was 30 days from the entry of the March
16, 2015 order denying his petition. Appellant also stated on the notice that
April 15th was the date “he handed to prison officials[,] to place in the United
States mail, a true and correct copy of the foregoing Notice of Appeal….”
Notice of Appeal, 4/20/15. In an abundance of caution, we will deem
Appellant’s pro se notice of appeal as timely-filed under the prisoner mailbox
rule. See Commonwealth v. Cooper, 710 A.2d 76, 78 (Pa. Super. 1998)
(stating that the prisoner mailbox rule provides “that, for prisoners
proceeding pro se[,] a notice is deemed filed as of the date it is deposited in
the prison mail system[,]” and holding that this rule is not limited to
-3-
J-S29006-16
instances where a prisoner is challenging his or her own sentence or
conviction, but is applicable to all appeals filed by prisoners proceeding pro
se).
On appeal, Appellant raises three issues for our review:
I. Whether Appellant was denied effective representation during
a “critical stage” in his criminal proceedings in relation to plea[]
negotiations in violation of the Sixth Amendment of the United
States Constitution?
II. Whether the PCRA court violated Appellant’s due process
rights when the court granted counsel’s “no merit” letter that
relied on law that was inapplicable to Appellant’s timely filed
successive post-conviction relief petition?
III. Whether the decision in Missouri v. Frye … provides, in
essence[,] a new theory or method of obtaining relief for
Appellant on collateral review and, thus, satisfies an exception to
the timing requirements of the PCRA?
Appellant’s Brief at 7 (unnecessary capitalization omitted).
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. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the
timeliness of Appellant’s petition, because the PCRA time limitations
implicate our jurisdiction and may not be altered or disregarded in order to
address the merits of a petition. Commonwealth v. Bennett, 930 A.2d
1264, 1267 (Pa. 2007). Under the PCRA, any petition for post-conviction
relief, including a second or subsequent one, must be filed within one year of
-4-
J-S29006-16
the date the judgment of sentence becomes final, unless one of the following
exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition
alleges and the petitioner proves that:
(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;
(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 one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Appellant’s judgment of sentence became final in 1993, making
his current petition, filed in May of 2012, patently untimely. Thus, Appellant
must prove that he meets one of the exceptions to the timeliness
requirements set forth in 42 Pa.C.S. § 9545(b).
All three of Appellant’s issues center on a claim that his trial counsel
acted ineffectively by not conveying to him a plea offer presented by the
-5-
J-S29006-16
Commonwealth. Only in Appellant’s third issue does he attempt to plead
and prove the applicability of any of the above-stated exceptions to this
underlying ineffectiveness claim; accordingly, we will address that issue first.
Appellant avers that he satisfies the timeliness exceptions of section
9545(b)(1)(i) and (iii) based on the United States Supreme Court’s decisions
in Frye, as well as Lafler and Martinez. For ease of disposition, we will
address his reliance on Martinez first. In that case, the Supreme Court held
that, “[w]here, under state law, claims of ineffective assistance of trial
counsel must be raised in an initial-review collateral proceeding, a
procedural default will not bar a federal habeas court from hearing a
substantial claim of ineffective assistance at trial if, in the initial-review
collateral proceeding, there was no counsel or counsel in that proceeding
was ineffective.” Martinez, 132 S.Ct. at 1320. The Martinez Court made
clear that its holding was not a “constitutional ruling….” Id. at 1319.
Additionally, this Court has declared that “[w]hile Martinez represents a
significant development in federal habeas corpus law, it is of no moment
with respect to the way Pennsylvania courts apply the plain language of the
time bar set forth in section 9545(b)(1) of the PCRA.” Commonwealth v.
Saunders, 60 A.3d 162, 165 (Pa. Super. 2013). Accordingly, Appellant has
not convinced us that Martinez satisfies any timeliness exception to trigger
our jurisdiction to review his underlying plea-negotiation ineffectiveness
claim.
-6-
J-S29006-16
Likewise, neither Frye nor Lafler meet an exception to the PCRA’s
time-bar.
In Frye, the United State Supreme Court merely clarified that
[the] right [to effective representation] “extends to the
negotiation and consideration of plea offers that lapse or are
rejected.” Frye, 132 S.Ct. at 1404 (emphasis added). In other
words, the Frye Court held “that, as a general rule, defense
counsel has the duty to communicate formal offers from the
prosecution to accept a plea on terms and conditions that may
be favorable to the accused.” Id. at 1408. In determining
whether counsel has satisfied this obligation, the two-part test
set forth in Strickland [v. Washington, 466 U.S. 668 (1984),]
applies. See id. at 1409. In Lafler, the Court explained that to
meet the prejudice prong of the Strickland test where the
alleged ineffectiveness of counsel involves the defendant's
rejection of a plea offer, the defendant must show,
that but for the ineffective advice of counsel there is a
reasonable probability that the plea offer would have been
presented to the court (i.e., that the defendant would have
accepted the plea and the prosecution would not have
withdrawn it in light of intervening circumstances), that
the court would have accepted its terms, and that the
conviction or sentence, or both, under the offer's terms
would have been less severe than under the judgment and
sentence that in fact were imposed.
Lafler, 132 S.Ct. at 1385.
Commonwealth v. Feliciano, 69 A.3d 1270, 1276-77 (Pa. Super. 2013)
(footnote omitted). In Feliciano, this Court held that the appellant’s
“reliance on Frye and Lafler in an attempt to satisfy the timeliness
exception of section 9545(b)(1)(iii) is unavailing.” Id. at 1277. We
reasoned that neither case “created a new constitutional right[,]” but
instead, “simply applied the Sixth Amendment right to counsel, and the
Strickland test for demonstrating counsel’s ineffectiveness, to the particular
-7-
J-S29006-16
circumstances at hand, i.e.[,] where counsel’s conduct resulted in a plea
offer lapsing or being rejected to the defendant’s detriment.” Id. Under our
holding in Feliciano, Appellant’s reliance on Frye and Lafler to satisfy the
timeliness exception of section 9545(b)(1)(iii) clearly fails.
We also reject Appellant’s argument that Frye and Lafler demonstrate
that the circumstances of his case satisfy the exception of section
9545(b)(1)(i). Essentially, Appellant argues that the PCRA court, and this
Court, have previously rejected his claim that defense counsel acted
ineffectively by not conveying a plea offer to him, and did so on the basis
that there is no Sixth Amendment right to effective representation at that
stage of the proceedings. According to Appellant, if Frye and Lafler do not
create a new constitutional right, then they necessarily reveal that Appellant
has always had a right to effective counsel during the plea negotiation stage
of the proceedings. Consequently, the PCRA court’s and this Court’s prior
decisions were incorrect at the time they were issued, and served to impede
Appellant’s ability to raise this claim of ineffectiveness, thus constituting
governmental interference under section 9545(b)(1)(i).
While we appreciate the ingenuity of Appellant’s pro se argument, he
misstates the record. Appellant first presented his claim that defense
counsel ineffectively handled an ostensible plea offer in his initial PCRA
petition filed in 1994. At that point, Appellant was represented by David J.
DeFazio, Esq., who raised several claims in Appellant’s petition, including the
at-issue ineffectiveness claim. However, Attorney DeFazio essentially
-8-
J-S29006-16
abandoned that claim, and several others, in favor of pursuing a single
argument that trial counsel acted ineffectively by failing to call character
witnesses on Appellant’s behalf. See PCRA Court Opinion, 12/13/99, at 1-3.
Ultimately, then, the PCRA court did not rule on the merits of the claim of
ineffectiveness regarding counsel’s handling of plea negotiations because
Attorney DeFazio had abandoned it.
Then, in Appellant’s second PCRA petition filed in 1997, he asserted
that Attorney DeFazio had acted ineffectively by not pursuing the plea-
negotiation ineffectiveness claim pertaining to trial counsel. The PCRA court
ruled that this ineffectiveness claim was not cognizable under the PCRA as
amended in 1995. See Commonwealth v. Dottle, No. 122 WDA 2000,
unpublished memorandum at 6-7 (Pa. Super. filed Dec. 5, 2000). On
appeal, this Court agreed with the PCRA court’s determination, relying on
Commonwealth v. Korb, 617 A.2d 715 (Pa. Super. 1992), which “held that
a claim that trial counsel was ineffective for failing to communicate a plea
offer to his client was cognizable under section 9543(a)(2)(v) of the PCRA,
which was deleted pursuant to the 1995 amendments.” Dottle, No. 122
WDA 2000, unpublished memorandum at 7 (citing also Commonwealth v.
Boyd, 688 A.2d 1172, 1175 (Pa. 1997) (applying Korb in a pre-1995
amendment case)). We concluded in Dottle that “[s]ince the amendments
to the PCRA deleted section 9543(a)(2)(v), … Appellant’s underlying claim of
-9-
J-S29006-16
trial counsel ineffectiveness is no longer cognizable under the PCRA.” Id.(emphasis added).1
In sum, the PCRA court and this Court previously rejected Appellant’s
plea-negotiation ineffectiveness claim based on the non-cognizability of that
claim, not on the basis that Appellant had no Sixth Amendment right to
counsel during the plea negotiation stage of the proceedings. 2 Accordingly,
____________________________________________
1
Just six months after this Court’s decision in Dottle, our Supreme Court
overruled Boyd and Korb, and expanded the scope of ineffective assistance
of counsel claims reviewable under the PCRA. See Com. ex rel. Dadario v.
Goldberg, 773 A.2d 126, 128, 130 (Pa. 2001) (holding that “[s]ection
9543(a)(2)(ii) … encompass[es] all constitutionally-cognizable claims of
ineffective assistance of counsel, i.e., all claims that the petitioner was
deprived of his or her Sixth Amendment and Article I, Section 9 rights to
counsel[,]” including “claims of ineffective assistance of counsel arising from
the plea-bargaining process”). However, Appellant did not file a PCRA
petition seeking relief under the decision in Goldberg.
2
We also note that in Dottle, we offered the following alternative analysis of
Appellant’s plea-negotiation ineffectiveness claim:
Moreover, even if the underlying claim regarding the
failure to communicate a plea bargain [was] cognizable under
the PCRA, the evidence supports a finding that Attorney DeFazio
was not ineffective in the first PCRA for failing to pursue the
question of trial counsel’s ineffectiveness. As Attorney DeFazio
testified that the testimony given by trial counsel and Appellant
was contradictory as to this issue, it is not clear that the issue
had arguable merit or that Attorney DeFazio could have had no
reasonable strategy in failing to pursue this issue. Moreover, it
is not at all clear that, but for Attorney DeFazio’s decision not to
pursue the issue, the outcome of the first PCRA proceeding
would have been different.
Dottle, No. 122 WDA 2000, unpublished memorandum at 8-9. Our
alternative analysis in Dottle further clarifies that we were not rejecting the
merits of Appellant’s ineffectiveness claim on the basis that he had no right
to effective representation during the plea negotiation process.
- 10 -
J-S29006-16
the holdings of Frye and Lafler do not reveal that the PCRA court and/or
this Court interfered with Appellant’s ability to raise “a claim that had merit
the entire time during the proceedings.” Appellant’s Brief at 21. Thus,
Appellant has failed to prove the applicability of the exception in section
9545(b)(1)(i).
In Appellant’s remaining two issues, he argues the merits of his
underlying plea-negotiation ineffectiveness claim, and also maintains that
Attorney Kearney, who was appointed to represent him in the disposition of
the instant petition, improperly sought to withdraw when he should have
presented a “layered” ineffectiveness claim regarding Appellant’s trial
counsel and his initial PCRA counsel, Attorney DeFazio. Appellant does not
argue, let alone prove, that these claims satisfy a timeliness exception, and
“[i]t is well settled that allegations of ineffective assistance of counsel will
not overcome the jurisdictional timeliness requirements of the PCRA.” See
Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005) (citations
omitted). Accordingly, Appellant’s remaining two issues also do not meet
any of the above-stated exceptions.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: June 1, 2016
- 11 -