Com. v. McCollister, E. ( 2023 )

J-S40033-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ERIC C. MCCOLLISTER :
:
Appellant : No. 1447 EDA 2022
Appeal from the PCRA Order Entered May 2, 2022
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0002043-2007
BEFORE: PANELLA, P.J., STABILE, J., and KING, J.
JUDGMENT ORDER BY KING, J.: FILED FEBRUARY 22, 2023
Appellant, Eric C. McCollister, appeals pro se from the order entered in
the Montgomery County Court of Common Pleas, denying as untimely his
serial 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. In
2008, a jury convicted Appellant of burglary, criminal trespass, robbery,
aggravated assault, and simple assault. The court sentenced Appellant on
December 29, 2008, to an aggregate 40 years’ to life imprisonment. The
sentence included a 25-year mandatory minimum under 42 Pa.C.S.A. §
9714(a)(2) (providing mandatory minimum of 25 years’ imprisonment where
defendant had, at time of commission of current offense, previously been
convicted of two or more crimes of violence). This Court affirmed the sentence
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on August 30, 2010; Appellant did not seek further direct review. See
Commonwealth v. McCollister, 11 A.3d 1042 (Pa.Super. 2010).
Appellant filed the current serial PCRA petition pro se on January 26,
2022. On April 7, 2022, the court issued appropriate notice per Pa.R.Crim.P.
907; Appellant did not respond. The court denied PCRA relief on May 2, 2022.
On May 24, 2022, Appellant timely appealed. That day, the court ordered
Appellant to file a Pa.R.A.P. 1925(b) statement, and Appellant complied.
The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA
petition, including a second or subsequent petition, shall be filed within one
year of the date the underlying judgment of sentence becomes final. 42
Pa.C.S.A. § 9545(b)(1). A judgment of sentence is 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 statutory
exceptions to the PCRA time-bar allow very limited circumstances to excuse
the late filing of a petition. 42 Pa.C.S.A. § 9545(b)(1).
Instantly, Appellant’s judgment of sentence became final on September
29, 2010, upon expiration of the time for Appellant to file a petition for
allowance of appeal with our Supreme Court. See Pa.R.A.P. 1113. Thus,
Appellant’s current PCRA petition filed on January 26, 2022, is patently
untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant now attempts to invoke
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the “newly-discovered facts” exception,1 at Section 9545(b)(1)(ii) (providing
time-bar exception where facts upon which claim is predicated were unknown
to petitioner and could not have been ascertained sooner by exercise of due
diligence). Specifically, as the PCRA court observed:
[Appellant] argued that he “repeatedly asked the sentencing
and direct appeals panel … to review the sentence and the
application of the [Section] 9714(a)(2) statute as it applied
to his case” but that “the error [of the sentence] was
overlooked and the courts in the case at bar ruled that the
application of the statute and sentence was legal.” PCRA
Pet., 6, Jan. 26, 2022. He alleges that he “believed the
actual sentence was legal because [the] Superior Court said
so during direct appeal proceedings” and that he would not
have discovered his sentence was “illegal” if [he] was not
transferred and did not meet [fellow inmate] Fred Ray.” Id.
at 7. Once “discovered” in December 2021 by fellow inmate
Mr. Ray who was reviewing Appellant’s case, Appellant
asked for a copy of his “status sheet” and was informed
“only the court could correct the error.” Id. at 4.
As Appellant noted, the sentence imposed was the subject
of each of his PCRA petitions and the appeals that ensued
thereafter. The sentence itself was not a new fact unknown
to Appellant, despite its new evaluation by another inmate.
See [Commonwealth v. Marshall, 596 Pa. 587, 947 A.2d
714 (2008)] (newly discovered notes of former prosecutor
found to be another source, rather than a new fact,
regarding Appellant’s claim of a racially discriminatory policy
within the district attorney’s officer)….2
2 We further note that Appellant’s claims are based on
the application of the “three strikes rule” codified at
____________________________________________
1 Although Appellant also checked the box on his PCRA petition for the
“governmental interference” exception at Section 9545(b)(1)(i), he made no
argument concerning that exception in his petition. To the extent Appellant
attempts to assert prior counsel’s ineffectiveness as satisfying the exception,
for purposes of the PCRA, the definition of “government officials” does not
include defense counsel. See 42 Pa.C.S.A. § 9545(b)(4).
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42 Pa.C.S. § 9714, a claim he has made previously
and continuously over the more than thirteen years
since he has been sentenced.
Appellant failed to demonstrate that there were any new
facts to invoke the timeliness exception pursuant to 42
Pa.C.S.A. § 9545(b)(1)[(ii)]. …
(PCRA Court Opinion, filed 6/30/22, at 9-10) (emphasis in original).
We agree with the court’s analysis. Put simply, Appellant has known
about his sentence and could have discovered any illegality regarding
application of the mandatory minimum since 2008, when the sentence was
imposed. Thus, Appellant’s current PCRA petition is untimely, and we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2023
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