Com. v. Tillman, J. ( 2016 )

J-S26019-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEFFREY J. TILLMAN
Appellant No. 2179 EDA 2015
Appeal from the PCRA Order entered July 9, 2015
In the Court of Common Pleas of Lehigh County
Criminal Division at No: CP-39-CR-0002478-2005
BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED JUNE 20, 2016
Appellant, Jeffrey J. Tillman, appeals pro se from the July 9, 2015
order entered in the Court of Common Pleas of Lehigh County, denying as
untimely his second petition for collateral relief filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Following
review, we affirm the order of the PCRA court and deny as moot Appellant’s
application for post-submission communication.1
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
On or about February 11, 2016, Appellant filed an application for post-
submission communication, asking this Court to recognize that decisions
issued by the United States Supreme Court in Hurst v. Florida, 136 S.Ct.
616 (2016), and Montgomery v. Louisiana, 135 S.Ct. 1546 (2016),
“expressly reversed, modified, [and] overruled” decisions cited by the
Commonwealth in its brief relating to the PCRA’s timeliness requirements,
(Footnote Continued Next Page)
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In accordance with a negotiated plea agreement, Appellant entered a
nolo contendere plea on November 13, 2007 to one count of burglary and
one count of indecent assault by forcible compulsion. On January 7, 2008,
he was sentenced to a term of no less than two years nor more than ten
years in a state correctional facility for his burglary conviction, followed by a
period of two years of probation for his indecent assault conviction. On
direct appeal, this Court vacated as illegal the probation component of
Appellant’s sentence but otherwise affirmed the judgment of sentence.
Commonwealth v. Tillman, 981 A.2d 324 (Pa. Super. 2009) (unpublished
memorandum).
On May 4, 2010, Appellant filed his first PCRA petition raising a claim
related to entry of his DNA into the CODIS database 2 as well as claims of
ineffective assistance of counsel for failing to file a motion to suppress blood
seized from Appellant based on a CODIS match and for unlawfully inducing
_______________________
(Footnote Continued)
including, inter alia, Commonwealth v. Yarris, 731 A.2d 581 (Pa. 1999)
and Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999). Application for
Post-Submission Communication, 2/11/16, at 2. We note Appellant does not
cite any authority for his assertion.
2
“The national data bank known as the Combined DNA Index System
(CODIS)[] is a federal undertaking that supports criminal justice databases
maintained by various law enforcement agencies throughout the United
States of America.” Commonwealth v. Conway, 14 A.3d 101, 113 n.15
(Pa. Super. 2011).
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Appellant to enter the nolo contendere plea. Following a hearing on October
29, 2010, Appellant—through his counsel—withdrew his PCRA petition.
On April 3, 2015, Appellant filed, pro se, a second PCRA petition.3 On
April 15, 2015, the PCRA court issued an order including a notice pursuant to
Pa.R.Crim.P. 907(1) of its intent to dismiss the petition without a hearing.
The PCRA court explained, “Dismissal is required because the claims raised
in the present PCRA Petition are untimely or have been previously litigated
or waived or have no merit.” PCRA Court Order, 4/15/15, at 3 (citing 42
Pa.C.S.A. §§ 9543(a)(3), 9544(b) and 9545(b)). The PCRA court recognized
that Appellant’s petition was his second and acknowledged Appellant’s
contention that it was saved from the PCRA’s time bar because it was filed
within 60 days of determining that his “new claim” resulted either from
governmental interference (42 Pa.C.S.A. § 9545(b)(1)(i)) or that the facts
upon which his claim was based were unknown to him and could not have
been ascertained through due diligence (42 Pa.C.S.A. § 9545(b)(1)(ii)). Id.
The PCRA court rejected both bases claimed by Appellant as exceptions to
the time bar. Id. at 3-6.
On May 5, 2015, Appellant filed a response to the Rule 907(1) notice
to dismiss. The PCRA court granted leave to amend and Appellant
____________________________________________
3
The PCRA court indicates Appellant’s petition was filed on April 9, 2015.
For purposes of this Memorandum, we shall use the date Appellant claims he
filed the petition, invoking the prisoner mailbox rule.
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subsequently filed an amended second PCRA petition on May 22, 2015,
reiterating the arguments set forth in his April 3, 2015 filing. In particular,
Appellant claimed (1) the trial court erred by imposing an illegal sentence
based on perjured statements in the Pre-Sentence Investigation Report
(“PSI”); (2) the trial court erred by imposing a sentence that constituted a
miscarriage of justice by both the trial court and the individual who prepared
the PSI; and (3) that plea counsel, direct appeal counsel, and initial PCRA
counsel were ineffective for failing to challenge the special conditions that
were made a part of his sentence and cannot stand in light of Alleyne v.
United States, 133 S.Ct. 2151 (2013). Appellant’s Second Amended PCRA
Petition, 5/18/15, at 7-9.4
The PCRA court issued an order on July 9, 2015, dismissing Appellant’s
amended petition and stating:
[N]othing in the Amended PCRA Petition or in [Appellant’s]
Response has caused the [c]ourt to change its belief “. . . that
there are no genuine issues concerning any material fact and the
[Appellant] is not entitled to post-conviction relief, and no other
purpose would be served by any further proceedings.”
Pa.R.Crim.P. 907. Again, for the reasons laid out in this [c]ourt’s
April 15, 2015 Order and Notice of Intent, dismissal is required
because the claims raised in the present Second PCRA Petition
are untimely or have been previously litigated or waived or have
no merit.
____________________________________________
4
Pages 7 through 9 of Appellant’s petition include attachments and comprise
ten pages of his petition.
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PCRA Court Order, 7/9/15, at 4 (incorporating by reference the PCRA court’s
April 15, 2015 Order).
Appellant filed a timely appeal from the July 9, 2015 order. In this
appeal, he presents ten issues for this Court’s consideration.
We begin by setting forth our standard of review.
Our standard of review of an order denying PCRA relief is
whether the record supports the PCRA court’s determination and
whether the PCRA court’s decision is free of legal error.
Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa. Super.
2011) (citing Commonwealth v. Berry, 877 A.2d 479, 482 (Pa.
Super. 2005)). The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified record.
Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.
Super. 2001)).
Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014).
Before considering any issues presented by Appellant, we must first
address whether Appellant satisfied the PCRA’s timeliness requirements. As
this Court reiterated in Lawson,
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.
Commonwealth v. Murray, 562 Pa. 1, 753 A.2d 201, 203
(2000). Effective January 16, 1996, the PCRA was amended to
require a petitioner to file any PCRA petition within one year of
the date the judgment of sentence becomes final. 42 Pa.C.S.A.
§ 9545(b)(1). A judgment of sentence “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). . . .
However, an untimely petition may be received when the
petition alleges, and the petitioner proves, that any of the three
limited exceptions to the time for filing the petition, set forth at
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42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are met. A petition
invoking one of these exceptions must be filed within sixty days
of the date the claim could first have been presented. 42
Pa.C.S.A. § 9545(b)(2). In order to be entitled to the exceptions
to the PCRA’s one-year filing deadline, “the petitioner must plead
and prove specific facts that demonstrate his claim was raised
within the sixty-day time frame” under section 9545(b)(2).
Carr, 768 A.2d at 1167.
Id. at 4-5.
Our review of the record reflects that Appellant’s judgment of sentence
became final on July 3, 2009, thirty days after this Court affirmed his
judgment of sentence and the time for filing a petition of allowance of appeal
to our Supreme Court expired. Therefore, to be timely, Appellant’s PCRA
petition had to be filed on or before July 3, 2010. The instant petition, filed
on April 3, 2015, is patently untimely and we may not consider its merits, if
any, unless Appellant has satisfied one of the PCRA’s three timeliness
exceptions.5 If a petitioner asserts one of the timeliness exceptions, he
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5
The exceptions to the timeliness requirement are:
(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
(Footnote Continued Next Page)
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nevertheless must file his petition within sixty days of the date the exception
could be asserted. 42 Pa.C.S.A. § 9545(b)(2).
In his amended petition, Appellant asserts his petition is saved from
the PCRA’s time bar because the facts upon which his claim is predicated
were unknown to him and could not have been ascertained by the exercise
of due diligence. Appellant’s Amended PCRA Petition, 5/18/15, at 5. In
essence, Appellant argues that the author of his PSI committed perjury. He
argues he was not aware of the perjurious statements until he received a
letter from psychologist Bennett Prieto, Ph.D., dated February 3, 2015,
“finally confirming almost 8 years of request[s] for information concerning
the pre-sentence investigation.” Appellant’s Brief, 10/19/15, at 9. He
explains he “raised issues based on that letter as it revealed fraud upon the
court, perjury and a break down in court operations as well as a delay in
raising a claim based on governmental interference.” Id.
Appellant’s assertions that he was unaware of the allegedly perjurious
statements in the PSI until February 3, 2015 are belied by his own exhibits
to the amended PCRA petition. For instance, on January 20, 2012, Dr.
Prieto wrote to Appellant, saying:
_______________________
(Footnote Continued)
this section and has been held by that court to apply
retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii).
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In your last letter to me you asked if I had received your
case file (as I remember, without having the letter in front of me
at this moment). I do NOT believe that I received any such data
from you. I have your handwritten letters and your request for
what you hope I will say. As you can see from what I have
written here, I will not be able to attest to everything you
requested but will be as helpful as I can. If [the author of the
PSI] closed her pre-sentence evaluation early without including
the FACT that I had made efforts to contact her, my statement, I
expect, will contradict any such claim she made that she
received nothing from me.
Appellant’s Amended PCRA Petition, 5/18/15, at Exhibit C2.
Further, by letter to Appellant dated March 5, 2012, Dr. Prieto wrote:
You seem to believe that [the author of the PSI] “never
got back” to me. She did, to tell me that you had already been
sentenced 2-10 and would be able to appeal after 2 years.
Id. at Exhibit C3.
From the sentencing hearing transcript, it is clear Appellant had an
opportunity to review the PSI. N.T. Sentencing, 1/7/08, at 4-5. To the
extent the author of the PSI made statements about input, or lack thereof,
from Dr. Prieto, Appellant was aware of those representations in 2008. To
the extent Dr. Prieto challenged those representations, Appellant was aware
of those challenges at least by early 2012, more than three years before he
filed his second PCRA petition. Receipt of another letter from Dr. Prieto in
February 2015 does not trigger a new 60-day period.
We do not consider whether statements from Dr. Prieto or any
supposed perjurious remarks in the PSI could provide any basis for PCRA
relief because Appellant did not raise the issue in accordance with the
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PCRA’s timeliness requirements. Further, to the extent Appellant asserts
ineffective assistance of plea, direct appeal and PCRA counsel for failing to
challenge conditions of his sentence, Appellant clearly knew of those
conditions in 2008 and was aware counsel did not challenge them in any
proceedings, the latest of which involved Appellant’s 2010 PCRA petition. It
is not clear how or on what basis Appellant believes the United States
Supreme Court’s 2013 Alleyne decision saves his petition from the PCRA’s
time bar. Even if there were some legal basis on which he could invoke
Alleyne, that decision was issued in 2013. Appellant’s second PCRA petition
was filed in 2015, well beyond sixty days after Alleyne was decided.
Appellant has not proven an exception to the PCRA’s timeliness
requirement. Therefore, this Court lacks jurisdiction to consider the merits,
if any, of his untimely petition.
Based on our review, we find the record supports the PCRA court’s
dismissal of Appellant’s second PCRA petition and we further find that its
decision is free of legal error. Therefore, we affirm the PCRA court’s July 9,
2015 order. Further, in light of our ruling, Appellant’s application for post-
submission communication is rendered moot. Therefore, the application is
denied.
Order affirmed. Application for post-submission communication
denied.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/20/2016
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