Com. v. Bickert, J. ( 2019 )

J-S19012-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUSTIN BICKERT :
:
Appellant : No. 2957 EDA 2018
Appeal from the PCRA Order Entered September 7, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003702-2015
BEFORE: LAZARUS, J., KUNSELMAN, J., and STRASSBURGER*, J.
MEMORANDUM BY LAZARUS, J.: FILED APRIL 24, 2019
Justin Bickert appeals from the order, entered in the Court of Common
Pleas of Philadelphia County, denying his petition filed pursuant to the Post-
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon careful
review, we affirm.
The PCRA court set forth the underlying facts of this matter as follows:
On October 25, 2014, at approximately 12:11 a.m., in the area of
Fourth Street and Indiana Avenue, in Philadelphia, the decedent
Alexander Ruiz, got into a heated argument with Tyrone “Ty”
Moore over money owed to Ruiz. The verbal confrontation was
followed by a physical fight between the men. Shortly thereafter,
Justin Bickert pulled a .9 millimeter handgun from his waistband
and started shooting in the direction of the fight. Bickert shot Ruiz
in his back. Police and emergency personnel arrived at the scene
and transported the victim to Temple University Hospital where
he was pronounced dead at 12:27 a.m. Thereafter, an autopsy
was performed by Dr. Edwin Lieberman at the Medical Examiner’s
Office and he determined, to a reasonable degree of medical
certainty, that the cause of death was a gunshot wound and the
manner of death was homicide. The gunshot wound Ruiz
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* Retired Senior Judge assigned to the Superior Court.
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sustained to his back pierced his lungs and heart and caused his
death. Fired cartridge casings were recovered from the scene of
the crime. Officer Walker, [a] firearms examiner, identified
cartridge casings and determined to a reasonable degree of
scientific certainty that they were consistent with the kind of
bullets from a .9 millimeter handgun.
PCRA Court Opinion, 11/7/18, at 2.
On October 31, 2016, Bickert entered a negotiated guilty plea to
voluntary manslaughter and three firearms violations for which he was
sentenced to twelve to twenty-four years’ incarceration. See N.T. Guilty Plea,
10/31/16, at 56. Bickert did not file a post-sentence motion or a direct appeal.
On December 21, 2017, Bickert filed a pro se PCRA petition. The PCRA court
appointed counsel, who filed an amended petition on May 17, 2018. On July
20, 2018, the PCRA court issued a notice of the court’s intention to dismiss
the petition pursuant to Pa.R.Crim.P. 907. The PCRA court formally dismissed
Bickert’s petition as untimely on September 7, 2018.
On October 7, 2018, Bickert filed this appeal. Both the PCRA court and
Bickert complied with Rule 1925. On appeal, Bickert presents the following
question for our review:
Did the PCRA [c]ourt err when it denied a hearing to [Bickert],
who was seeking to withdraw his guilty plea and where ineffective
assistance of counsel was the direct and proximate cause of
[Bickert’s] decision to enter his guilty plea, which was not entered
in a knowing, intelligent and voluntary fashion?
Brief of Appellant, at 3 (unnecessary capitalization omitted).
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
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by the evidence of record and it is free of legal error. Commonwealth v.
Smallwood, 155 A.3d 1054, 1059 (Pa. Super. 2017). “Our scope of review
is limited to the findings of the PCRA court and the evidence of record, viewed
in the light most favorable to the prevailing party.” Commonwealth v.
Clancy, 192 A.3d 44, 63 (Pa. 2018) (citation omitted).
We begin by addressing the timeliness of Bickert’s petition because the
PCRA time limitations implicate our jurisdiction and may not be altered or
disregarded to address the merits of a petition. Commonwealth v. Bennett,
930 A.2d 1264, 1267 (Pa. 2007). The question of whether a petition is timely
raises a question of law, and where a petitioner raises questions of law, our
standard of review is de novo and our scope of review is plenary.
Commonwealth v. Callahan, 101 A.3d 118, 121 (Pa. Super. 2014).
All PCRA petitions must be filed within one year of the date upon which
the judgment of sentence became final, unless one of the statutory exceptions
set forth in 42 Pa.C.S.A. §§ 9545(b)(1)(i)-(iii) applies. The petitioner bears
the burden of pleading and proving an applicable statutory exception. If the
petition is untimely and the petitioner has not pled and proven an exception,
the petition must be dismissed without a hearing because Pennsylvania courts
are without jurisdiction to consider the merits of the petition.
Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013). In relevant
part, 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) provides:
(b) Time for filing petition.—
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(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 as
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.A. §§ 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.A. § 9545(b)(2).
Bickert’s PCRA petition is facially untimely because it was filed more
than one year after his judgment became final. A judgment is deemed 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.” Commonwealth v.
Monaco, 996 A.2d 1076, 1079 (Pa. Super. 2010). Here, Bickert did not seek
review on direct appeal. Therefore, his judgment of sentence became final on
November 30, 2016, thirty days after the trial court sentenced him. See
Pa.R.A.P. 903(a); 42 Pa.C.S.A. § 9545(b)(3). To be timely, Bickert had to
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file his petition on or before November 30, 2017. Bickert did not file his
petition until December 21, 2017, and, therefore, it is facially untimely. Unless
Bickert has pled and proved one of the three timeliness exceptions under
section 9545(b)(1), no court has jurisdiction to address the merits of his
claims. See Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super.
2007).
The statute is clear that where, as here, the petition is patently untimely,
it is the petitioner’s burden to plead in the petition and prove that one of the
exceptions applies. See 42 Pa.C.S.A. § 9545(b)(1); see also
Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008). That
burden “necessarily entails an acknowledgment by the petitioner that the
PCRA petition under review is untimely, but that one or more of the exceptions
apply.” Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999). In
his brief before this Court, Bickert does not acknowledge the untimeliness of
his petition or offer how one or more of the exceptions apply.
Here, the PCRA court noted that Bickert filed his PCRA petition “one year
and twenty-one days after his judgment of sentence became final,” and was
required to “plead and prove one of the time bar exceptions to invoke the
court’s jurisdiction, which he has failed to do.” PCRA Court Opinion, 11/7/18,
at 5. Bickert’s failure to properly invoke an exception to the timeliness
requirement necessitated the PCRA court’s dismissal of his petition. Our
review of the evidence of record supports the PCRA court’s determination.
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The nearest Bickert reaches in raising an exception to his untimeliness
is set forth in a letter brief submitted with his amended petition to the PCRA
court wherein he asserts the petition is not “late as it appears that [Bickert]
had attempted to take other actions in order to seek relief.” Letter Brief of
Appellant, 5/17/18, at 2 (unpaginated). This is not a recognized statutory
exception for untimeliness under the PCRA. Bickert fails to provide any cogent
argument or cite to supporting authority in his brief that could establish this
qualifies as an exception to the PCRA’s timeliness requirements. See
Commonwealth v. Perez, 93 A.3d 829, 838 (Pa. 2014) (finding claims failing
to provide developed argument or cite supporting authorities and record are
waived). Without developing any meaningful argument regarding which
exception, if any, applies to his petition, Bickert has consequently failed to
demonstrate that the PCRA court erred by denying his petition as untimely.
See Smallwood, 155 A.3d at 1059.
We conclude, therefore, that the PCRA court properly found Bickert filed
a patently untimely PCRA petition and failed to plead and prove the
applicability of any exception to the PCRA’s jurisdictional time limits.
Callahan, supra. Accordingly, the PCRA court correctly dismissed Bickert’s
petition.1
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1To the extent Bickert claims the PCRA court erred in dismissing his petition
without a hearing, this claim is without merit. See Commonwealth v.
Morrison, 878 A.2d 102 (Pa. Super. 2005) (holding petitioners are not
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/19
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entitled to hearing as matter of right; court can decline to hold hearing if
there is no genuine issue concerning any material fact and petitioner is not
entitled to relief as matter of law).
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