Com. v. Manus, G. ( 2016 )

J-S46023-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GLENN H. MANUS
Appellant No. 2879 EDA 2015
Appeal from the PCRA Order September 11, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0000520-2008
CP-23-CR-0000521-2008
CP-23-CR-0002534-2008
BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED AUGUST 15, 2016
Glenn H. Manus appeals, pro se, from the order entered September
11, 2015, in the Court of Common Pleas of Delaware County, dismissing as
untimely his second petition filed pursuant to the Pennsylvania Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546. Manus seeks relief
from the judgment of sentence to serve an aggregate term 18½ to 39 years’
imprisonment plus 30 years of probation, imposed on April 3, 2009,
following his jury conviction of aggravated indecent assault, involuntary
deviate sexual intercourse, indecent assault, indecent assault on person less
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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than thirteen, and corruption of minors.1 On appeal, Manus raises three
issues: (1) Whether petitioner meets one of the timeliness exceptions
pursuant to 42 Pa.C.S. § 9545(b)(1)(i-iii), (2) Whether petitioner was
convicted by the Commonwealth in violation of his Fifth, Sixth and
Fourteenth Amendments rights, based upon the Commonwealth’s failure to
have within the court record a proper designation of authority, authorizing
the assistant district attorney to represent the Commonwealth, and whether
prior PCRA and trial counsel were ineffective for failing to object or notify the
court of the Commonwealth’s failure, and (3) Whether the Commonwealth of
Pennsylvania had subject matter jurisdiction to prosecute petitioner, and
whether petitioner should be subject to scrutiny and adhere to rules of
appellate procedure and/or other rules of court. See Manus’s Brief at vii.
Based on the following, we affirm.
The charges against Manus arose in 2007, when multiple minors
reported that Manus had sexually molested them. As stated above, Manus
was convicted in a jury trial of the above-mentioned charges, and sentenced
on April 3, 2009. On August 2, 2010, this Court affirmed the judgment of
sentence on direct appeal, and on February 2, 2011, the Pennsylvania
Supreme Court denied allowance of appeal. Commonwealth v. Manus, 11
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1
See 18 Pa.C.S. §§ 3125(b), 3123(a)(6), 3126(a)(1), 3126(a)(7), and
6301(a)(1).
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A.3d 1007 (Pa. Super. 2010) (unpublished memorandum), appeal denied,
14 A.3d 825 (Pa. 2011).
On August 24, 2011, Manus filed a pro se PCRA petition. Counsel was
appointed, submitted a no-merit letter and, on July 30, 2012, the PCRA
court dismissed Manus’s petition. On April 11, 2013, the Superior Court
affirmed the decision of the PCRA Court, and Manus’s petition for allowance
of appeal was denied by the Pennsylvania Supreme Court on October 16,
2013. Commonwealth v. Manus, 75 A.3d 550 (Pa. Super. 2013)
(unpublished memorandum), appeal denied, 77 A.3d 1259 (Pa. 2013).
On March 11, 2015, Manus filed this pro se PCRA petition — his
second, asserting PCRA counsel was ineffective for failing to raise trial
counsel’s ineffectiveness in (1) failing to preserve and file post-verdict
motions based on the fact that the arresting officers provided inaccurate
information in their affidavit of probable cause, (2) failing to investigate
whether the Commonwealth “initiated a Written Designation … that
authorized [the] Deputy District Attorney … to act on behalf of the
Commonwealth,” (3) permitting the Deputy District Attorney to act on behalf
of the Commonwealth; and (4) failing to notify the court and the District
Attorney of the arresting officers’ deliberate and willful deceit. See Motion
for Post Conviction Collateral Relief, 3/11/2015, at 3.
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On March 17, 2015, the PCRA court appointed counsel to represent
Manus for his second PCRA petition and, on July 30, 2015, appointed counsel
filed a Turner/Finley2 no-merit letter and application to withdraw.
Counsel’s no-merit letter explained, inter alia, that “[a]s the instant PCRA
petition was filed on March 11, 2015, the current PCRA [petition] is facially
untimely,” and that Manus “does not provide any meaningful information
that would suggest that any of the instant claims constitute after-discovered
evidence, that would allow him to plead that or any other exception under
Sec. 9545(b)(1).” No-Merit Letter, 7/30/2015, at 6. In addition, appointed
counsel opined in the no-merit letter that the issues Manus sought to raise
had been waived or were previously litigated. Id. at 7.
On August 10, 2015, Manus filed objections to counsel’s application to
withdraw. On August 12, 2015, the PCRA court granted counsel’s request to
withdraw and provided Manus with notice, pursuant to Pa.R.Crim.P. 907, of
its intent to dismiss the petition. The PCRA court subsequently dismissed
the petition on September 14, 2015, and this appeal timely followed. 3
Our standard of review for an order denying PCRA relief is well-
established:
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2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3
The PCRA court did not order Manus to file a Pa.R.A.P. 1925(b) statement.
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This Court’s standard of review regarding a PCRA court’s order is
whether the determination of the PCRA court is supported by the
evidence of record and is free of legal error. Great deference is
granted to the findings of the PCRA court, and these findings will
not be disturbed unless they have no support in the
certified record.
Commonwealth v. Turpin, 87 A.3d 384 (Pa. Super. 2013) (citation
omitted).
At the outset, we address the issue of timeliness since “the PCRA’s
timeliness requirements are jurisdictional in nature and must be strictly
construed; courts may not address the merits of the issues raised in a
petition if it is not timely filed.” Commonwealth v. Walters, 135 A.3d
589, 591 (Pa. Super. 2016) (citation omitted).
Generally, any PCRA petition “including a second or subsequent
petition, shall be filed within one year of the date the judgment becomes
final[.]” 42 Pa.C.S. § 9545(b)(1). A 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. § 9545(b)(3).
Here, on August 2, 2010, this Court affirmed the judgment of
sentence, and on February 2, 2011, the Pennsylvania Supreme Court denied
allowance of appeal. Commonwealth v. Manus, 11 A.3d 1007 (Pa. Super.
2010) (unpublished memorandum), appeal denied, 14 A.3d 825 (Pa. 2011).
Therefore, under the PCRA, Manus’s judgment of sentence became final on
May 3, 2011, after the 90-day period within which to file a petition seeking
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certiorari with the United States Supreme Court expired. See 42 Pa.C.S. §
9545(b)(3). See also U.S.Sup.Ct.R. 13. Accordingly, Manus had until May
3, 2012, to file a timely PCRA petition. See 42 Pa.C.S. § 9545(b)(1), supra.
Consequently, the present petition, filed March 11, 2015, is patently
untimely.
Nevertheless, we may consider an untimely PCRA petition if the
petitioner pleads and proves one of the PCRA’s 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;
(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). Furthermore, any petition involving 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).
In his brief, Manus complains the PCRA court’s Rule 907 notice failed
to address specific reasons for the intent to dismiss, and “therefore not
affording the Petitioner opportunity to object in the proper manner to include
one of the timeliness exceptions under 42 Pa.C.S. [§§] 9545(b)(1)(i-iii).”
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Manus’s Brief at 8. This argument, however, is unavailing. When a
Turner/Finley letter has been filed and served on the defendant, the PCRA
court can dismiss a PCRA petition without a hearing and without notice of its
intent to do so where the court waits 20 days following the service of the
letter. See Commonwealth v. Bond, 630 A.2d 1281 (Pa. Super. 1993);
see also Commonwealth v. Hopfer, 965 A.2d 270, 271, 275 (Pa. Super.
2009). Here, Manus was informed by the no-merit letter that the PCRA
petition was untimely. Even if, arguendo, we were to regard the Rule 907
notice as a necessary pre-requisite, this Court has held that the failure to
provide Rule 907 notice is not reversible error where a PCRA petition is
otherwise untimely. Commonwealth v. Pursell, 749 A.2d 911, 917 n.7
(Pa. 2000); Commonwealth v. Davis, 916 A.2d 1206, 1208 (Pa. Super.
2007). In this case, the PCRA court’s failure to mention timeliness as a basis
for its intent to dismiss would have no effect since, as more fully discussed
below, Manus’s petition is untimely in all respects.
Manus maintains that he meets the timeliness exception set forth at
42 Pa.C.S. § 9545(b)(1)(ii). He asserts “[s]tarting in July of 2013, [Manus],
in the exercise of due diligence, pursued whether the Deputy District
Attorney … had specific designation of authority to represent the
Commonwealth in criminal cases.” Manus’s Brief at 9. Manus states “all
Right-to-Know requests failed [his] efforts and [he] was never able to fully
ascertain the true and correct facts,” his letters to various government
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officials resulted in information that was “not in response to his implicit
requests,” and “he was stonewalled by the Delaware County government
and/or judicial system, by either no response … or information that [he]
never requested.” Id. Manus claims his friends went in person to the
Delaware County Office of Judicial Support on February 3, 2015, to ascertain
the facts of a proper designation of the Deputy District Attorney. According
to Manus, “[o]n February 25, 2015, [Manus] learned that the proper
designation of authority for [the Deputy District Attorney] still could not be
ascertained,” and “[h]e then filed his second PCRA petition on March 11,
2015.” Id. at 10.
While Manus specifically relies on the unknown fact exception, Section
9545(b)(1)(ii), his argument also implicitly suggests the governmental
interference exception, Section 9545(b)(1)(i), applies. With both
exceptions, Manus must satisfy the requirement that he filed his claims
within 60 days of the date the claim could have been presented. 42 Pa.C.S.
§ 9545(b)(2). In this regard, our Supreme Court has held that Section
9545(b)(2)’s 60-day rule requires a petitioner to plead and prove that the
information on which his claims are based could not have been obtained
earlier despite the exercise of due diligence. Commonwealth v. Edmiston,
65 A.3d 339, 346 (Pa. 2013), cert. denied, Edmiston v. Pennsylvania, 134
S. Ct. 639 (2013).
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Our review confirms the PCRA judge’s determination that Manus has
failed to show due diligence as required by Section 9545(b)(2). That is,
Manus failed to plead and prove why he could not have discovered and
raised the alleged issue regarding the Deputy District Attorney through the
exercise of due diligence at the time of trial, during his direct appeal, or in
his first PCRA petition. As the Honorable James F. Nilon, Jr., cogently
opined:
To pass any of [the PCRA] exceptions, [Manus] must seek relief
within 60 days of the date the claim could have been presented.
42 Pa.C.S. § 9545(b)(2). [Manus] filed his present Petition on
March 11, 2015, so in order for any issue to be timely, he had to
demonstrate that he could not have raised that issue until
January 10, 2015, or later. Most of the issues in [Manus’s]
petition accuse all prior counsel of ineffectiveness, but he never
explained why he did not know or should not have known about
their ineffectiveness until January 10, 2015.
The first issue in his Petition claims that the police officers
willfully provided inaccurate information in the Affidavit of
Probable Cause, and secondly that the Deputy District Attorney
who tried the case was not authorized to act on behalf of the
Commonwealth, but he never explained why he did not know or
should not have known about these defects until January 10,
2015.
****
Because [the PCRA] “timeliness requirements are mandatory and
jurisdictional in nature, no court may properly disregard or alter
them in order to reach the merits of the claims raised in a PCRA
petition that is filed in an untimely manner.” Commonwealth v.
Murray, 753 A.2d 201, 203 (Pa. 2000). Here, [Manus] cannot
prove an exception to the PCRA time-bar. Information related to
the affidavit of probable cause inaccuracies, or the D.A.
designation issues have been available for years, including when
[Manus’s] first PCRA petition was being prepared. As these facts
were easily discoverable and in the public record for longer than
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60 days before this petition was filed, the petition is time barred,
and the court lacks jurisdiction to address the merits.
[Manus failed to provide any basis recognized by law that would
excuse the untimely filing of this Petition. This Court does not
have jurisdiction to entertain any of the claims that [Manus]
raised. [Manus] has filed an untimely PCRA [petition], and this
Court properly denied his request for relief without a hearing.
PCRA Court Opinion, 11/19/2015, at 8–9. We agree with the sound
assessment of Judge Nilon that, because Manus has not demonstrated due
diligence in filing his claim within 60 days of when it could first be presented,
he cannot satisfy any statutory exception that would overcome the PCRA
time-bar. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2016
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