Com. v. Geyer, R. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ROBERT GEYER,
Appellant No. 1149 WDA 2015
Appeal from the PCRA Order Entered July 14, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013412-2010
BEFORE: BENDER, P.J.E., OTT, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 27, 2016
Appellant, Robert Geyer, appeals from the order denying, as untimely,
his petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§
9541-9546. Appellant argues that his petition meets the timeliness
exception to the PCRA’s jurisdictional time-bar set forth in Section
9545(b)(1)(iii) (retroactive application of new holdings). Alternatively, he
contends that the timeliness requirements of the PCRA violate his due
process and equal protection rights. After careful review, we affirm.
On November 18, 2009, Appellant pled guilty to sexual assault, and
was sentenced to 364–728 days’ incarceration and a consecutive term of 5
years’ probation. Appellant violated his probation and, as a result, on
February 4, 2014, he was resentenced to 3-6 years’ incarceration with a
consecutive term of 2 years’ probation. Appellant’s appeal from that
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sentence was affirmed on May 22, 2015. See Commonwealth v. Geyer,
122 A.3d 456 (Pa. Super. 2015) (unpublished memorandum).
The instant appeal stems from Appellant’s conviction for a matter
related to his 2009 conviction. On March 2, 2011, Appellant pled guilty to
18 Pa.C.S. § 4915(a)(1) (“Failure to comply with registration of sexual
offenders requirements”), and was sentenced thereunder to 3-6 months’
incarceration and a consecutive term of 3 years’ probation. That specific
offense became law as part of a single legislative act, Act 152 of 2004.
Section 4915(a)(1) was part of a series of statutes (“Megan’s Law III”)
amending Pennsylvania’s prior sex offender registration and reporting
requirements (“Megan’s Law II”), which made up just one portion of Act 152
(a sprawling piece of legislation that contained numerous provisions wholly
unrelated to the regulation and supervision of sex offenders). On December
16, 2013, our Supreme Court struck down Act 152 as having violated the
Pennsylvania Constitution’s single subject rule. Commonwealth v.
Neiman, 84 A.3d 603 (Pa. 2013). Importantly, the Neiman Court also held
that the portions of Act 152 known as Megan’s Law III were not severable.
Id. at 613-16. Thus, functionally speaking, the Neiman Court effectively
struck down Megan’s Law III and, consequently, the specific statutory basis
for Appellant’s 2011 conviction.
On February 4, 2014, Appellant was found to have violated the terms
of the probation imposed for his 2011 failure-to-register offense.
Consequently, Appellant was resentenced to 2-6 years’ imprisonment, set to
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run consecutive to the term he was serving for the underlying sexual assault
offense. Appellant did not file post-sentence motions or a timely direct
appeal.
On April 28, 2014, Appellant filed a pro se PCRA petition, raising
claims concerning both his sexual assault and failure-to-register offenses.
Counsel was appointed and filed an amended PCRA petition on Appellant’s
behalf, in which Appellant abandoned the claims pertaining to his sexual
assault conviction. By order dated July 14, 2015, the PCRA court dismissed
the petition without a hearing. Appellant filed a timely appeal from that
order, as well as a timely, court-ordered Pa.R.A.P. 1925(b) statement. The
PCRA court issued its Rule 1925(a) opinion on November 13, 2015.
Appellant now presents the following questions for our review:
[1.] Does the timeliness exception in § 9545(b)(1)(iii) of the
PCRA, pertaining to retroactive application of new holdings,
apply to the holding in … Neiman …, invalidating the enactment
of Megan’s Law III?
[2.] Does the denial of a remedy for a conviction by a court
lacking subject matter jurisdiction violate federal and state due
process guarantees and the Remedies Clause of the
Pennsylvania Constitution?
[3.] Does limiting eligibility for relief to defendants whose
convictions became final in the year preceding Neiman violate
federal and state equal protection guarantees?
[4.] Does making an express holding of retroactivity a
prerequisite to invocation of § 9545(b)(1)(iii) violate federal and
state due process guarantees and/or the Remedies Clause?
Appellant’s Brief at 2.
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This Court's standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the
timeliness of Appellant's petition, because the PCRA time limitations
implicate our jurisdiction and may not be altered or disregarded in order to
address the merits of a petition. Commonwealth v. Bennett, 930 A.2d
1264, 1267 (Pa. 2007). Under the PCRA, any petition for post-conviction
relief, including a second or subsequent one, must be filed within one year of
the date the judgment of sentence becomes final, unless one of the following
exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition
alleges and the petitioner proves that:
(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.
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42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke 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).
Here, Appellant does not claim that his petition is timely under the
terms of the statute. Indeed, Appellant was initially sentenced on March 2,
2011, and because he did not file post-sentence motions or a direct appeal,
his sentence became final on April 2, 2011. See Pa.R.A.P. 903(a) (stating
“the notice of appeal … shall be filed within 30 days after the entry of the
order from which the appeal is taken”). Thus, pursuant to Section
9545(b)(1), Appellant had until April 2, 2012, to file a timely PCRA petition.
Thus, his 2014 petition is untimely and, in order to overcome the
jurisdictional time-bar of the PCRA, Appellant must avail himself of one of
the aforementioned timeliness exceptions.
In his first issue, Appellant asserts that his claim for relief under the
Neiman decision satisfies Section 9545(b)(1)(iii) (hereinafter, “the
retroactivity exception”).
Subsection (iii) of Section 9545 has two requirements. First, it
provides that the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or this
court after the time provided in this section. Second, it provides
that the right “has been held” by “that court” to apply
retroactively. Thus, a petitioner must prove that there is a
“new” constitutional right and that the right “has been held” by
that court to apply retroactively. The language “has been held”
is in the past tense. These words mean that the action has
already occurred, i.e., “that court” has already held the new
constitutional right to be retroactive to cases on collateral
review. By employing the past tense in writing this provision,
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the legislature clearly intended that the right was already
recognized at the time the petition was filed.
Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002).
While Appellant does argue that Neiman should be held to apply
retroactively, Appellant’s Brief at 12-15, Appellant acknowledges that “the
question of the extent of retroactivity of Neiman … has not yet been
explicitly answered.” Id. at 12. This admission, confirmed by our own
research, is fatal to Appellant’s first claim. Our Supreme Court has not held
that Neiman applies retroactively; thus, Appellant cannot satisfy the “has
been held” language of Section 9545(b)(1)(iii).
Appellant’s remaining claims challenge the PCRA’s timeliness
requirements as violative of the Due Process Clauses of both the state and
federal constitutions, as well as the Remedies Clause of the state
constitution. Appellant only cites to a single case in the course of making his
due process argument, contrasting his situation with the litigant in
Commonwealth v. Turner, 80 A.3d 754 (Pa. 2013). Specifically, Appellant
contends that “[i]f the claim in this case is untimely under the PCRA, the
PCRA is fundamentally inadequate to vindicate Petitioner’s liberty interest.”
Appellant’s Brief at 18.
The Fourteenth Amendment provides in part: “nor shall
any State deprive any person of life, liberty, or property, without
due process of law,” and protects “the individual against
arbitrary action of government[.]” Kentucky Dept. of Corr. v.
Thompson, 490 U.S. 454, 459–60 … (1989) (internal citations
omitted). Similarly, Article I, Section 9 of the Pennsylvania
Constitution guarantees a criminal defendant the right to due
process of law. These two due process provisions are largely
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coextensive. Commonwealth v. Moto, 611 Pa. 95, 23 A.3d
989, 1001 (2011). The constitutional right to due process
guarantees more than fair process, covering a substantive
sphere as well, “barring certain government actions regardless of
the fairness of the procedures used to implement them.”
County of Sacramento v. Lewis, 523 U.S. 833, 840 … (1998)
(citing Daniels v. Williams, 474 U.S. 327 … (1986)). “Due
process” is not susceptible to precise definition; rather, the
phrase expresses the requirement of “fundamental fairness,” a
requisite “whose meaning can be as opaque as its importance is
lofty.” Lassiter v. Dep't of Soc. Serv. of Durham County,
452 U.S. 18, 24–25 … (1981).
In terms of procedural due process, government is
prohibited from depriving individuals of life, liberty, or property,
unless it provides the process that is due. While not capable of
an exact definition, the basic elements of procedural due process
are adequate notice, the opportunity to be heard, and the
chance to defend oneself before a fair and impartial tribunal
having jurisdiction over the case. [Commonwealth v. ]Wright,
961 A.2d [119,] [] 132 [(Pa. 2008)]; Commonwealth v.
Thompson, … 281 A.2d 856, 858 ([Pa.] 1971). Thus, courts
examine procedural due process questions in two steps: the first
asks whether there is a life, liberty, or property interest that the
state has interfered with; and the second examines whether the
procedures attendant to that deprivation were constitutionally
sufficient. Thompson, 490 U.S. at 460 ….
In the collateral review context, the United States
Supreme Court has held that although “states have no
constitutional obligation to provide a means for collaterally
attacking convictions,” Commonwealth v. Haag, … 809 A.2d
271, 283 ([Pa.] 2002) (citing [Pennsylvania v.] Finley, 481
U.S. [551,] [] 557 [1987], …), if they do, “then such procedures
must comport with the fundamental fairness mandated by the
Due Process Clause.” Id.; Finley, 481 U.S. at 557, …. In this
regard, states have “substantial discretion to develop and
implement programs to aid prisoners seeking to secure
postconviction review.” Finley, 481 U.S. at 559 …. When a
state choses to offer help to those seeking relief from convictions
and custody, due process does not “dictat[e] the exact form
such assistance must assume.” [Dist. Attorney's Office For
the Third Judicial Dist. v.] Osborne, 557 U.S. [52,] [] 69
[2009] … (citing Finley, 481 U.S. at 559 …). Moreover, states
need not provide post-conviction petitioners with “the full
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panoply of procedural protections that the Constitution requires
be given to defendants who are in a fundamentally different
position-at trial and on first appeal as of right.” Finley, 481 U.S.
at 552 …. Indeed, the United States Supreme Court has stated
that post-conviction petitioners “have only a limited interest in
post-conviction relief.” Osborne, 557 U.S. at 69 …. To deny
due process, the complained-of aspect of the state post-
conviction procedures must be “fundamentally inadequate to
vindicate” the defendant's liberty interest, and must offend
“some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental” or
transgress “any recognized principle of fundamental fairness in
operation.” Osborne, 557 U.S. at 69 … (internal citations
omitted).
Turner, 80 A.3d at 763–64.
In Turner, our Supreme Court rejected a challenge to the
constitutionality, on due process grounds, of the PCRA’s “currently serving a
sentence” requirement, 42 Pa.C.S. § 9543(a)(1)(i) (requiring a petitioner,
“to be eligible for relief” under the PCRA, to be “currently serving a sentence
of imprisonment, probation or parole for the crime”). After failing to file a
direct appeal, Turner filed a timely PCRA petition raising claims alleging the
ineffective assistance of counsel (IAC). During the course of litigating the
petition in the PCRA court, Turner completed her two-year probationary
sentence. The Commonwealth filed a motion to dismiss based on Section
9543(a)(1)(i), and Turner’s reply claimed that application of that provision
would deprive her of due process (regarding her right to raise an IAC claim
under the 6th Amendment). The PCRA court rejected the Commonwealth’s
motion to dismiss, ruling that Section 9543(a)(1)(i) violated Turner’s due
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process rights. The Commonwealth directly appealed that decision to our
Supreme Court.
Applying the two part test from Thompson, the Turner Court held
that due process had not been violated because the first prong had not been
met. The Turner Court “agree[d] with the Commonwealth that due process
does not require the legislature to continue to provide collateral review when
the offender is no longer serving a sentence.” Turner, 80 A.3d at 765.
More specifically, the Turner Court held:
Because individuals who are not serving a state sentence
have no liberty interest in and therefore no due process right to
collateral review of that sentence, the statutory limitation of
collateral review to individuals serving a sentence of
imprisonment, probation, or parole is consistent with the due
process prerequisite of a protected liberty interest. 42 Pa.C.S. §
9543(a)(1)(i). Of course, the legislature was free to extend a
statutory right of collateral review to individuals like Petitioner
who had completed their sentence and, had they done so, they
would be constitutionally obligated to ensure that those rights
were impacted only in accord with due process. See Evitts v.
Lucey, 469 U.S. 387, 401 … (1985) (“when a State opts to act
in a field where its action has significant discretionary elements,
it must nonetheless act in accord with the dictates of the
Constitution—and, in particular, in accord with the Due Process
Clause”); Haag, 809 A.2d at 282–83 (providing that although a
PCRA petitioner does not have a Sixth Amendment constitutional
right to counsel during collateral review, the Commonwealth, by
way of procedural rule, provided for the appointment of counsel
during a first petition for post-conviction relief, thereby creating
a rule-based right to the effective assistance of counsel).
However, the legislature did not do so. Rather, the General
Assembly, through the PCRA, excluded from collateral review
those individuals who were no longer subject to a state
sentence, thereby limiting the statutory right of collateral review
to those whose liberty was constrained.
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Turner, 80 A.3d at 766. Thus, the Turner Court essentially held that,
because there is no constitutional right to collateral review (for those with or
without liberty interests at stake), the legislature was free to limit whatever
collateral review was granted by statute without violating due process.
Instantly, Appellant argues that his case is distinguishable from
Turner because he is still serving a sentence and, therefore, he still has a
liberty interest at stake. However, while Appellant’s case does deviate from
Turner in that way, his argument overlooks the broader holding in Turner,
which is that the legislature was free to set the criteria for eligibility under
the PCRA, because collateral review is not itself a constitutional right, but a
statutory one. In this regard, Appellant fails to develop any argument as to
why the legislature can demand a liberty interest as a gateway to eligibility
under the PCRA, but cannot do the same with the timeliness requirements.
Furthermore, as mentioned in Turner, our Supreme Court has already
determined that, “in the context of the jurisdictional timeliness restrictions
on the right to bring a PCRA petition, see 42 Pa.C.S. § 9545(b), the
constitutional nature of a collateral claim does not overcome the legislature's
restrictions on collateral review.” Turner, 80 A.3d at 767. In this regard,
Appellant is virtually making that very claim: that the nature of the
underlying collateral issue (his right not to be convicted under a voided
statute) should overcome the timeliness requirements. To the extent that
Appellant is superimposing a constitutional claim (due process) on top of the
underlying collateral issue in order to circumvent (or render invalid) the
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PCRA’s timeliness restrictions, our Supreme Court has rejected a similar
argument with regard to superimposed IAC claims. See Commonwealth v.
Lark, 746 A.2d 585 (Pa. 2000) (holding that the Court could not reach the
petitioner’s Batson1-based claim in a untimely PCRA petition, even if prior
counsel provided IAC by waiving the claim on direct appeal and during
timely collateral review).
In sum, we conclude that Appellant has simply failed to adequately
develop a cogent argument that the PCRA’s timeliness requirement violates
his due process rights. Appellant’s argument critically fails to address
precedent establishing a lack of a right to collateral review beyond what the
PCRA statute’s eligibility criteria actually provides and, therefore, his claim
must fail.
Next, Appellant claims that the PCRA’s timeliness requirements violate
the Remedies Clause of the Pennsylvania Constitution, which provides as
follows: “Neither the Commonwealth nor any political subdivision thereof
shall deny to any person the enjoyment of any civil right, nor discriminate
against any person in the exercise of any civil right.” PA. CONST. art. I, § 26.
Appellant’s two-page argument cites this constitutional provision, then a
quote from a case expressing the general principle that a state constitution
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1
Batson v. Kentucky, 476 U.S. 79 (1986). In Batson, the Supreme Court
of the United States held that the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution forbids a prosecutor from
challenging potential jurors solely on account of their race.
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may provide greater constitutional protection than that required by the
federal constitution.2 Those boilerplate citations are followed by exactly two
sentences of argument, lacking any accompanying citations, and baldly
pronouncing that disparities in the retroactive application of new decisions
are constitutionally unacceptable “with respect to rulings that go to subject
matter jurisdiction.” Appellant’s Brief at 20.
This Court had held that the failure to develop a meaningful analysis in
support of a claim is grounds for waiver of that claim. See Commonwealth
v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014) (citing Pa.R.A.P.
2119(a), Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009), and
Commonwealth v. McLaurin, 45 A.3d 1131, 1139 (Pa. Super. 2012)).
The boilerplate authorities cited by Appellant utterly fail to support his
conclusion, which is stated without any meaningful analysis. Accordingly, we
find this aspect of Appellant’s challenge to the constitutionality of the PCRA’s
timeliness requirements waived.
In Appellant’s final claim, he argues that too few of those individuals
subjected to the now-invalid provisions of Megan’s Law III can benefit from
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2
Appellant quotes from Fischer v. Department of Public Welfare, 502
A.2d 114, 121 (Pa. 1985), a case involving an equal protection challenge to
laws restricting state expenditures on abortions. Apart from the recitation of
the most general principles of constitutional law, the decision and analysis in
Fisher has virtually no relationship to the matter at hand - the
constitutionality of the PCRA’s timeliness requirements. Indeed, Appellant
does not even attempt to draw an analogy to the facts or specific legal
issues discussed in that case.
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the Neiman decision, as “[t]he period during which such a defendant could
file a PCRA petition without relying on § 9545(b)(1)(iii) has now expired.”
Appellant’s Brief at 21 (emphasis in original). Appellant goes on to argue
“that it is still possible that a presently pending PCRA proceeding in such a
case will reach the Supreme Court,” but claims that “it is also possible that
this will not happen.” Id. (emphasis in original). Thus, Appellant essentially
asserts that that the requirements of Section 9545(b)(1)(iii) can never be
met, because the Supreme Court will never, or will likely never, have the
opportunity to decide whether Neiman should operate retroactivity.
Appellant’s argument, in addition to lacking any foundation in cited
case law, fails on its face. First, the Neiman Court itself could have held
that the decision applies retroactively, but it did not do so. It is not at all
clear to this Court that this was a mere oversight by the Neiman Court
rather than an intentional omission, and Appellant provides no argument to
that effect in any event.3 Thus, it is not correct to suggest that the Supreme
____________________________________________
3
It is possible that the Neiman Court believed the decision’s non-
retroactivity to be patently obvious; or, as the Commonwealth argues,
irrelevant with respect to Appellant’s specific claims, because Appellant’s
conviction under Megan’s Law III was identical to the failure-to-report
provisions of the prior version of Megan’s Law which Megan’s Law III
replaced, and which must therefore have remained in effect when Megan’s
Law III was voided. Thus, under that view, at no time did Appellant’s
conduct cease being a crime. If Appellant’s conduct was always a crime,
and, specifically, always the same crime (differing only in the place it
appeared in the statute), the question of Neiman’s retroactivity would be
purely academic, as Appellant would not be entitled to relief if he has
(Footnote Continued Next Page)
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Court would never have the opportunity to address Neiman’s retroactivity;
at best, Appellant questions the Supreme Court’s ability to revisit the issue.
Second, Appellant essentially admits that there is at least the
possibility that the issue of Neiman’s retroactivity can still be decided by our
Supreme Court. Accordingly, the notion that it is unlikely to be reached at
all is purely speculative. Third, restrictions on collateral review in
Pennsylvania exclude Appellant from raising his Neiman claim on collateral
review. Notably, Appellant did not attempt to raise this claim on direct
appeal from his current sentence of incarceration, imposed on February 4,
2014, nearly two months after Neiman was issued. While other procedural
hurdles or restrictions may have confronted him in that venue, the PCRA’s
timeliness requirements are not among them. Thus, it is misleading for
Appellant to claim that he will never have the opportunity to raise his claim
because of the PCRA’s timeliness requirement and its narrow exceptions. He
had an opportunity to raise his claims on direct review. Therefore, he
cannot claim that the PCRA’s criteria for timeliness were the only basis for
his inability to challenge his conviction.
Finally, Appellant presents virtually no arguments to overcome the
state’s well-established interest in the finality of its criminal judgments. As
our Supreme Court has declared:
_______________________
(Footnote Continued)
effectively suffered no harm by being convicted under one statute rather
than the other.
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There is absolutely no doubt that there is an enduring societal
interest in the finality of criminal proceedings. Indeed, “[o]ne of
the law's very objects is the finality of its judgments.”
McCleskey v. Zant, 499 U.S. 467, 491, 111 S.Ct. 1454, 113
L.Ed.2d 517 (1991). “Finality is essential to both the retributive
and the deterrent functions of criminal law for neither innocence
nor just punishment can be vindicated until the final judgment is
known.” … Haag, … 809 A.2d … [at] 287 (Castille, J.,
concurring) (quoting Calderon v. Thompson, 523 U.S. 538,
555, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998)) (internal
quotation marks omitted); see also Teague v. Lane, 489 U.S.
288, 309, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality
opinion) (“Without finality, the criminal law is deprived of much
of its deterrent effect.”). That societal interest in finality
encompasses a concern for the victims of crime and their
families. See Haag, 809 A.2d at 287 (Castille, J., concurring)
(quoting Calderon, 523 U.S. at 556, 118 S.Ct. 1489) (“[I]t is
only with real finality that the victims of crime can move forward
knowing the moral judgment of the State will be carried out.”).
This compelling interest in finality that is shared both by society
and the state absolutely requires, to put it simply, that “[a]t
some point litigation must come to an end,” Commonwealth v.
Peterkin, 554 Pa. 547, 722 A.2d 638, 643 (1998).
Commonwealth v. Sam, 952 A.2d 565, 576–77 (Pa. 2008).
Appellant’s liberty interest is, of course, of immense importance.
However, Appellant’s failure to address the balance between that interest
and Commonwealth’s interest in finality speaks to the weakness of his claim.
Our Supreme Court and the Supreme Court of the United States have
routinely found that liberty interests must, over time, yield to the collective
interest in finality, and that finality is essential to the successful operation of
our criminal justice system. Although Appellant does not specifically
endeavor to draw the line where that balance of interests shifts, the natural
consequence of his arguments suggest that no such line exists, for he
argues as if his liberty interest is paramount. We cannot disregard the
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Commonwealth’s well-established interest in finality in such a manner, even
if we were so inclined. For each these reasons, we find Appellant’s final
claim lacking in merit.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/27/2016
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