Com. v. Piskanin, M. ( 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
MICHAEL PISKANIN, JR., :
:
Appellant : No. 2501 EDA 2015
Appeal from the Order July 10, 2015
in the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0002072-2004
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 24, 2016
Michael Piskanin, Jr. (Appellant) appeals from the July 10, 20151 order
which dismissed his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
On March 18, 2004, Appellant was charged with numerous
offenses in connection with a criminal enterprise involving his
creation of counterfeit driver’s licenses and payroll checks. A
jury convicted him of sixty-nine counts of identity theft and one
count each of theft by deception and receiving stolen property.
On July 8, 2005, Appellant received an aggregate sentence of
seven to fourteen years [of] imprisonment, and we affirmed the
judgment of sentence. Commonwealth v. Piskanin, 986 A.2d
1262 (Pa. Super. 2009) (unpublished memorandum). Appellant
1
Although the order is dated July 9, 2015, the docket reflects that it was not
served on Appellant until July 10, 2015. Accordingly, for appeal purposes,
the order was “entered” on the latter date. Commonwealth v. Carter, 122
A.3d 388, 391 (Pa. Super. 2015) (“[T]he date the appeal period begins to
run, ‘shall be the day the clerk of the court ... mails or delivers copies of the
order to the parties.’” (quoting Pa.R.A.P. 108(a)(1))). We have amended
the appeal paragraph accordingly.
*Retired Senior Judge assigned to the Superior Court.
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thereafter filed an unsuccessful PCRA petition, and, on appeal,
we affirmed. Commonwealth v. Piskanin, 37 A.3d 1233 (Pa.
Super. 2011) (unpublished memorandum), appeal denied, 61
A.3d 191 (Pa. 2013). On March 12, 2013, Appellant filed a
second motion for PCRA relief based upon newly-discovered
evidence, and he claimed that certain members of this Court had
accepted bribes to deprive him of due process. That petition was
denied on April 2, 2013, and we affirmed that denial on
December 24, 2013. Commonwealth v. Piskanin, [93 A.3d
518] (Pa. Super. 2013)[, appeal denied, 97 A.3d 744 (Pa.
2014)].
Commonwealth v. Piskanin, 105 A.3d 40 (Pa. Super. 2014) (unpublished
memorandum at 1-2). “The PCRA court also subsequently dismissed
[Appellant’s] third and fourth pro se PCRA Petitions, finding that they were
facially untimely and that [Appellant] had failed to prove any exception to
the PCRA’s jurisdictional time limitation.” Commonwealth v. Piskanin,
113 A.3d 354 (Pa. Super. 2014) (unpublished memorandum at 2). In
November 2013, Appellant filed a motion to reinstate his first PCRA petition,
which was dismissed as his untimely-filed, fifth PCRA petition; that dismissal
was affirmed by this Court. Id.On July 6, 2015, Appellant filed the “Petition for habeas corpus and
post conviction relief act relief” that is the subject of the instant appeal. 2
Therein, he claimed that he is entitled to relief in the form of resentencing
because his sentence is illegal under a variety of theories, including the
2
We are unable to discern from the limited certified record and docket
before us (presumably limited because the rest of the documents are
attached to one or more other pending appeals filed by Appellant) whether
there have been intervening PCRA petitions filed between his fifth petition
and the instant one.
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United States Supreme Court’s decision in Alleyne v. United States, 133
S.Ct. 2151, 186 L.Ed.2d 314 (2013) (holding that a fact which triggers the
imposition of a mandatory minimum sentence is an element of the crime and
must, therefore, be determined beyond a reasonable doubt by a jury). PCRA
Petition, 7/6/2015, at ¶¶ 7, 14. The PCRA court dismissed Appellant’s
petition by order of July 10, 2015.3 Appellant filed a motion for
reconsideration which was denied. This timely-filed appeal followed.4
3
The PCRA court’s order indicated that it dismissed the petition for lack of
jurisdiction because an appeal from one of Appellant’s prior PCRA petitions
was still pending. Order, 7/9/2015. Between the fact that we have only a
partial record before us, and the sheer number of petitions and appeals
Appellant has filed, we are unable to determine which petitions were pending
at what times. However, “[t]his Court may affirm a PCRA court’s decision on
any grounds if the record supports it.” Commonwealth v. Ford, 44 A.3d
1190, 1194 (Pa. Super. 2012).
4
Appellant’s notice of appeal from the July 10, 2015 order was required to
be filed on or before Monday, August 10, 2015. As it was not entered on the
docket until August 18, 2015, this Court issued a rule to show cause why the
appeal should not be quashed. Appellant filed a response stating, along with
his standard accusations of a vast conspiracy against him, that he placed the
notice in the mailbox on the Friday prior to the expiration of the appeal
period, but that “[d]ue to prison policy, that mail would not be picked up for
processing by the prison mailroom [] sooner than Monday, August 10,
2015.” Response to Show Cause Order, 9/3/2015, at ¶ 7. Upon these
allegations, the rule was discharged and referred to the merits panel. Given
the foregoing, along with the fact that the envelope attached to the notice of
appeal in the record is consistent with Appellant’s allegations in that it
reflects a postage date of August 11, 2015, we conclude that the appeal was
timely filed under the prisoner mailbox rule. Commonwealth v. Crawford,
17 A.3d 1279, 1281 (Pa. Super. 2011) (“Under the prisoner mailbox rule, we
deem a pro se document filed on the date it is placed in the hands of prison
authorities for mailing.”).
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On appeal, Appellant presents two questions regarding the merits of
his petition. Appellant’s Brief at 4. However, we first consider whether we
have jurisdiction to address his substantive claims.
Appellant filed his petition invoking both the PCRA and habeas corpus
law. “[T]he PCRA is intended to be the sole means of achieving post-
conviction relief.” Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa. Super.
2013). “Unless the PCRA could not provide for a potential remedy, the PCRA
statute subsumes the writ of habeas corpus.” Id. at 465-66. Because
Appellant’s illegal-sentence claims are cognizable under the PCRA, habeas
corpus is not a viable vehicle for pursuing them. See Commonwealth v.
Beck, 848 A.2d 987, 989 (Pa. Super. 2004) (“Issues concerning the legality
of sentence are cognizable under the PCRA.”). Accordingly, we examine this
appeal under the rules applicable to a PCRA petition.
Under the PCRA, the timeliness of a post-conviction petition is
jurisdictional. See, e.g., Commonwealth v. Lewis, 63 A.3d 1274, 1280-
81 (Pa. Super. 2013). “[I]f a PCRA petition is untimely, neither this Court
nor the [PCRA] court has jurisdiction over the petition. Without jurisdiction,
we simply do not have the legal authority to address the substantive
claims.” Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006).
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
of sentence is final unless the petition alleges, and the petitioner proves,
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that an exception to the time for filing the petition is met, and that the claim
was raised within 60 days of the date on which it became available. 42
Pa.C.S. § 9545(b) and (c). There are no timeliness exceptions other than
those provided in the PCRA itself. Commonwealth v. Robinson, 837 A.2d
1157, 1161 (Pa. 2003) (“[T]he PCRA confers no authority upon this Court to
fashion ad hoc equitable exceptions to the PCRA time-bar in addition to
those exceptions expressly delineated in the Act.”).
It is clear that Appellant’s petition is facially untimely: his judgment of
sentence became final more than one year before he filed the instant
petition.5 However, his petition includes the following.
To the extent that this petition might be challenged as untimely,
it is alleged that this petition is timely whereas the Pennsylvania
Supreme Court has just decided, on or about June 15, 2015, the
case of Commonwealth v. [Hopkins, 117 A.3d 247 (Pa.
2015)]. See: 42 [Pa.C.S.] § 9545(b)(1). Furthermore, this
Court has jurisdiction and inherent authority to correct manifest
errors on the record. See: Commonwealth v. Klein, [] 781
A.2d 1133 [(Pa. 2001)] (inherent power of courts to correct
patent and obvious errors), and Commonwealth v. Whitfield,
5
In some memoranda, this Court has stated that Appellant’s judgment of
sentence became final in 2006. See, e.g., Commonwealth v. Piskanin,
37 A.3d 1233 (Pa. Super. 2011) (unpublished memorandum at 1-2)
(“Although Piskanin filed a direct appeal of his judgment of sentence, this
Court dismissed the appeal on May 30, 2006, because he failed to file a
brief. Piskanin did not file a petition for allowance of appeal to the
Pennsylvania Supreme Court. Accordingly, his judgment of sentence
became final on June 29, 2006.”). However, in others this Court indicated
that his sentence became final after this Court affirmed his judgment of
sentence in 2009. See, e.g., Commonwealth v. Piskanin, 105 A.3d 40(Pa. Super. 2014) (unpublished memorandum at 1) (stating that this Court
affirmed Appellant’s judgment of sentence in 2009). Either way, the instant
petition is facially untimely.
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24 EAP 2004 [aff’d sub nom Commonwealth v. Holmes, 933
A.2d 57 (Pa. 2007)]. See also: Commonwealth v. Szuchon,
633 A.2d 1098, 1100 (Pa. 1993) (miscarriage of justice).
Petition, 7/6/2015, at 1 (unnumbered) (unnecessary capitalization omitted;
some punctuation and citation formats added).
In citing the Hopkins decision, Appellant appears to be invoking the
following statutory timeliness exception: “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)(iii). However, in Hopkins, our Supreme Court merely
applied Alleyne to hold that the mandatory minimum sentence found at 18
Pa.C.S. § 6317 (relating to drug activity in a school zone) was
unconstitutional. The Hopkins Court did not recognize a new constitutional
right, let alone hold that any such right applied retroactively. Furthermore,
our Supreme Court has held that Alleyne itself does not apply retroactively
to cases on collateral review. Commonwealth v. Washington, -- A.3d --,
2016 WL 3909088 (Pa. July 19, 2016). Thus, the Hopkins decision does
not assist Appellant in establishing a timelines exception to the PCRA’s
limitations. 6
6
On July 21, 2016, Appellant filed what this Court has deemed an
application for relief, asking this Court to take judicial notice of our Supreme
Court’s decision in Commonwealth v. Wolfe, 68 MAP 2015, 2016 WL
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The remaining cases cited by Appellant are equally unavailing. The
Klein and Whitfield cases have nothing to do with the PCRA, but address
whether the filing of a notice of appeal divests a trial court of the power to
correct patent errors. See Klein, 781 A.2d at 1133 (“The issue presented in
this case is whether the Superior Court properly quashed Appellant’s appeal
from the June 23, 1999 sentencing order on the basis that a later order of
the trial court ‘implicitly vacated’ the June 23rd order.”); Holmes, 933 A.2d
at 58 (“We granted review in these two cases to consider the interaction
between a statute limiting the period of time during which a trial court may
modify or rescind an order [(18 Pa.C.S. § 5505)] and the long-standing,
inherent power of courts to correct patent errors in orders.”). These cases
offer Appellant no relief.
The Szuchon case, while a PCRA case, does not provide an equitable
timeliness exception for a miscarriage of justice; rather it suggests that a
PCRA petitioner must satisfy an additional pleading requirement in order for
a court to consider a the merits of a serial PCRA petition. Szuchon, 633
3388530 (Pa. June 20, 2016). We grant the application to the extent that it
asks us to consider the applicability of the Wolfe decision on this appeal.
In Wolfe, the Court affirmed this Court’s sua sponte determination that 42
Pa.C.S. § 9718, which provides mandatory minimum sentences for various
crimes against children, is unconstitutional under Alleyne. See Wolfe,
2016 WL 3388530 at * 10 (“[W]e reaffirm Hopkins and find that Section
9718 is irremediably unconstitutional on its face, non-severable, and void.”).
Because Wolfe is useless to Appellant for the same reasons as Hopkins,
our taking notice of Wolfe merits no relief to Appellant.
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A.2d at 1099 (“[O]ur cases require that a second or subsequent petition for
post-conviction relief will not be entertained unless a strong prima facie
showing is offered to demonstrate that a miscarriage of justice may have
occurred.” (citation and internal quotation marks omitted)). Thus, the
Szuchon decision is of no help to Appellant.
Appellant’s PCRA petition was filed more than one year after his
judgment of sentence became final and he has failed to establish the
applicability of any PCRA timeliness exception. Accordingly, we hold that the
PCRA court properly dismissed Appellant’s petition for lack of jurisdiction.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/24/2016
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