Com. v. Flowers, A. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
AMIN EMMANUEL FLOWERS, :
:
Appellant : No. 184 MDA 2015
Appeal from the PCRA Order January 2, 2015,
Court of Common Pleas, Lebanon County,
Criminal Division at No. CP-38-CR-0000193-2012
BEFORE: DONOHUE, OTT and MUSMANNO, JJ.
MEMORANDUM BY DONOHUE, J.: FILED AUGUST 17, 2015
Appellant, Amin Emmanuel Flowers (“Flowers”), appeals from the
order entered on January 2, 2015 by the Court of Common Pleas, Lebanon
County, denying his petition for relief pursuant to the Post-Conviction Relief
Act (“PCRA”).1 For the reasons set forth herein, we affirm.
The PCRA court provided the following summary of the factual and
procedural history:
On November 14, 2011, Trooper Luke Straniere
[(“Trooper Straniere”)] of the Pennsylvania State
Police was conducting traffic patrol on the
Pennsylvania Turnpike. While driving within Lebanon
County, Trooper Straniere encountered a vehicle
traveling unusually slow in the right lane of travel.
The driver had headphones in both ears in violation
of Section 3314(a) of the Vehicle Code. As a result,
Trooper Straniere conducted a traffic stop.
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42 Pa.C.S.A. §§ 9541-46.
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Trooper Straniere identified [] Flowers [] as the
driver of this vehicle. He learned during the
encounter that the vehicle he stopped was owned by
Christopher Flowers. No explanation was provided
with respect to why [Flowers] was operating the
vehicle owned by someone else.
Trooper Straniere was familiar with Christopher
Flowers from a previous encounter. He stated that
Christopher Flowers has an extensive history of drug
trafficking. During a prior encounter on the
Turnpike, Trooper Straniere stated that Christopher
Flowers possessed a bag containing $12,000 in cash
that he could not adequately explain.
Trooper Straniere issued a written warning to
[Flowers] for the headphone use. He then stated
that [Flowers] was free to go. After Trooper
Straniere terminated the initial traffic stop, he
initiated conversation with [Flowers]. He asked for
[Flowers’] permission to search the vehicle.
[Flowers] responded: “Do you have to search the
vehicle?” [Flowers] then asked: “What would
happen if I do not allow the search?” Trooper
Straniere responded that he would call a canine to
sniff the vehicle.[] As a result, [Flowers] signed a
Consent to Search form. During the search that
ensued, Trooper Straniere located marijuana and
cocaine. As a result, [Flowers] was charged with two
counts of Possession With Intent To Deliver A
Controlled Substance[, 35 P.S. § 780-113(a)(30),]
and one count of Possession Of Drug Paraphernalia[,
35 P.S. § 780-113(a)(32)].
[Flowers] waived arraignment and the case was
set to proceed to trial on July 9, 2012. [Flowers]
was provided with discovery, which included the
police report, Miranda waiver and consent form, and
other documents on March 20, 2012.[] On May 3,
[Flowers] filed a Motion to Suppress. An omnibus
pre-trial hearing was conducted on August 1, 2012
at which Trooper Straniere testified and was
subjected to extensive cross-examination. On
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August 24, 2012, the Commonwealth filed a Motion
to Dismiss, claiming that [Flowers] did not establish
a reasonable expectation of privacy in the vehicle
that was searched. [The trial court] dismissed the
Suppression Motion on September 19th. [Flowers]
filed a Motion to Reconsider, which [was] also
denied.
After waiving his jury trial and then withdrawing
that waiver, [Flowers] ultimately entered an open
guilty plea one half hour before trial was set to
commence. He was sentenced on July 24, 2013 to a
minimum of four years’ imprisonment. On June 13,
2014, [Flowers] filed a PCRA Petition based entirely
on Alleyne v. United States, 133 S. Ct. 2151 (U.S.
2013), in which he claimed that his “right to a jury
trial” was violated. [The PCRA Court] denied his
petition on September 15, 2014, because he had
voluntarily waived trial when he entered his guilty
plea. That opinion indicated that [Flowers] had
thirty days to file an appeal to the Pennsylvania
Superior Court.
On October 1, 2014, [Flowers] filed a
Supplemental Petition for Post-Conviction Relief,
alleging issues beyond the scope of his original
complaint. Specifically, [Flowers] alleged
ineffectiveness of counsel based upon the fact that
his former counsel waived a preliminary hearing and
failed to “adequately” argue a suppression issue.
[The] Supplemental Petition was forwarded to the
District Attorney’s Office but not directly to [the
PCRA] [c]ourt. As a result, [the PCRA court was] not
immediately aware of the Supplemental Petition and
did not therefore undertake any prompt action
pertaining to it.
On December 26, 2014, [Flowers] filed a pro se
document entitled “Motion Objecting To Decision Of
The Courts…[.]” This motion contained largely
boilerplate information that was not case-specific.
However, the pro se document did include an
allegation that [Flowers’] initial counsel erred by
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convincing him to waive his preliminary hearing. It
also contained allegations that his former counsel
“failed to properly challenge meritorious issues at the
discovery hearing…[.]”[] …
On January 2, 2015, [the PCRA court] entered a
Court Order to address [Flowers’] “Motion Objecting
To Decision Of The Courts…[.]” In [the] Court Order,
[the PCRA court] reiterated the fact that [the court]
had denied [Flowers’] initial PCRA on September 15,
2014. [The PCRA court] noted that [Flowers] did not
file an Appeal from [the] September 15, 2014 Court
Order. [The PCRA court’s] January 2, 2015 Order
also noted [Flowers’] Supplemental Petition for
Post[-]Conviction Relief that was filed on October 1,
2014. [The PCRA court] addressed both of the
issues raised by [Flowers] in his Supplemental
Petition. With respect to [Flowers’] argument
regarding waiver of the preliminary hearing, [the
PCRA court] cited case law that has established that
once a defendant’s case is resolved by a finding of
guilt before the Court of Common Pleas, issues
pertaining to the preliminary hearing are deemed
moot because they are deemed to be subsumed by
what occurred before the Court of Common Pleas.
With respect to [Flowers’] allegations of error with
respect to counsel’s performance at the pre-trial
hearing, [the PCRA court] deemed those allegations
“imprecise and vague” and [] denied them on that
basis. [The PCRA court] therefore reiterated that all
of [Flowers’] proffered claims for relief under the
Post[-]Conviction Relief Act were denied without the
need to conduct a factual hearing.
Trial Court Opinion, 3/12/15, at 1-5. (footnotes omitted).
On January 27, 2015, Flowers timely filed an appeal. On appeal,
Flowers raises the following issues for our review:
1. Whether plea counsel was ineffective for waiving
[Flowers’] preliminary hearing even though [Flowers]
wanted a hearing?
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2. Whether plea counsel was ineffective for failing to
adequately argue at [Flowers’] suppression hearing,
thus causing [Flowers] to lose his motion?
Flowers’ Brief at 4.
Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court's findings of fact, and whether the PCRA
court's determination 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), appeal denied, 42 A.3d 1059 (Pa.
2012)). A PCRA petitioner must establish the claim by a preponderance of
the evidence. Commonwealth v. Gibson, 925 A.2d 167, 169 (Pa. 2007).
Before reaching the merits of a petitioner’s claim, section 9545 of the
PCRA requires that “[a]ny petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the date the
judgment becomes final.” 42 Pa.C.S.A. § 9545(b)(1). A judgment 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).
This Court has held that the timeliness requirement of the PCRA is
“mandatory and jurisdictional in nature.” Commonwealth v. McKeever,
947 A.2d 782, 784-85 (Pa. Super. 2008) (citing Commonwealth v. Davis,
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916 A.2d 1206, 1208 (Pa. Super. 2007)). Therefore, “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.” Id.
Although the timeliness requirement is mandatory and jurisdictional,
“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 set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is met.”
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). The
three 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 this section and has been
held by that court to apply retroactively.
Id. at n.1 (citing 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii)). The petition invoking
an exception “shall be filed within 60 days of the date the claim could have
been presented.” Commonwealth v. Perrin, 947 A.2d 1284, 1285 (Pa.
Super. 2008) (citing 42 Pa.C.S.A. § 9545(b)(2)).
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In this case, the trial court sentenced Flowers on July 24, 2013.
Flowers did not file a direct appeal, and thus, his judgment of sentence
became final thirty days later, on August 24, 2013. See Pa.R.A.P. 903(a).
Flowers, however, did not file the instant PCRA petition until October 1,
2014. Because Flowers did not file the instant petition within one year of the
date the judgment became final, we conclude that Flowers’ petition is facially
untimely.
In its opinion, the PCRA court initially questioned the characterization
of Flowers’ petition, as the petition was titled, “Supplemental Petition for
Post[-]Conviction Relief.” PCRA Court Opinion, 3/12/15, at 5-6. The PCRA
court noted that “there was technically nothing pending before [the PCRA]
[c]ourt to ‘supplement.’” Id. at 6. The PCRA court nevertheless concluded
that Flowers’ petition was either fatally deficient for not complying with Rule
902 of the Rules of Criminal Procedure, governing the filing of such motions,
or Flowers’ petition was an untimely attempt to appeal the denial of his
initial PCRA petition. Id.
Our review of the record reveals that Flowers’ “Supplemental Petition
for Post[-]Conviction Relief” was an attempt to amend his first PCRA
petition. On September 29, 2014, Flowers sent a letter to his attorney
stating, “I would like to ask you to please file a motion to the Judge,
petitioning the Judge to allow me to motify [sic] my PCRA Petition. I only
ask this because after reviewing the Judges [sic] decision, I am aware of my
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error, in properly raising my issues and defending them.” Flowers’
Correspondence, 9/29/14. Counsel for Flowers subsequently filed the
“Supplemental Petition for Post[-]Conviction Relief” on October 1, 2014.
This Court has held that “[i]n the absence of a final ruling on a timely-
filed first PCRA petition, another petition for post-conviction relief can be
considered an amended first timely petition.” Commonwealth v.
Swartzfager, 59 A.3d 616, 619 (Pa. Super. 2012) (citing Commonwealth
v. Williams, 828 A.2d 981 (Pa. 2003)). In this case, however, Flowers filed
the Supplemental Petition fifteen days after the PCRA court denied his first
petition for post-conviction relief, and thus, cannot properly be considered
an amendment to his first timely petition. See id.
Moreover, “[o]ur Supreme Court has consistently rejected ‘various
theories devised to avoid the effects of the [PCRA’s] one-year time
limitation[.]’” Commonwealth v. Callahan, 101 A.3d 118, 123 (Pa. Super.
2014) (quoting Commonwealth v. Robinson, 837 A.2d 1157, 1157 (Pa.
2003)). Our Supreme Court has expressly rejected the theory that an
untimely petition may be treated as an “extension” of a first timely petition,
and has held that “the ‘extension’ theory is not one of the three exceptions
to the time-bar requirements in the PCRA[.]” Commonwealth v. Johnson,
841 A.2d 136, 140 (Pa. Super. 2003) (citing Robinson, 837 A.2d at 1161-
62).
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Thus, in order to overcome the untimeliness of his petition, Flowers
must have established that one of the three exceptions to the timeliness
requirement applied in order for this Court to reach the merits of his claim.
Flowers, however, did not invoke any of the three exceptions. As a result,
we are without jurisdiction to address the merits of his claim and his petition
must be dismissed. The PCRA court did not err in denying his petition for
relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2015
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