Com. v. Veon, M. ( 2015 )

J-A10038-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL VEON
Appellant No. 1128 MDA 2014
Appeal from the PCRA Order June 10, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0004656-2008
BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 10, 2015
Appellant, Michael Veon, appeals from the order entered in the
Dauphin County Court of Common Pleas, denying his first petition brought
pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
The relevant facts and procedural history of this appeal are as follows.
While serving as a member of the Pennsylvania legislature, Appellant used
public resources to further his own political campaigns. Appellant diverted
taxpayer monies to pay “bonuses” to campaign and legislative staffers for
campaign work. Additionally, Appellant’s staffers performed the campaign
work during the legislative working day, further consuming public resources.
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1
42 Pa.C.S.A. §§ 9541-9546.
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Following trial, a jury convicted Appellant of multiple counts of
restricted activities―conflict of interest, theft of services, theft by deception,
and criminal conspiracy. On June 18, 2010, the court sentenced Appellant
to an aggregate term of five (5) years nine (9) months to fourteen (14)
years’ imprisonment. Appellant filed post-sentence motions on Friday, July
2, 2010, which the court denied on October 26, 2010.
Appellant filed a notice of appeal on November 24, 2010. On April 26,
2011, this Court issued a rule to show cause, directing Appellant to explain
why this Court should not quash his appeal as untimely filed. Appellant filed
a response on May 12, 2011. On May 18, 2011, this Court discharged the
show cause order without taking further action. This Court also referred the
timeliness issue to the merits panel assigned to Appellant’s case. This Court
noted, “The merits panel may revisit the timeliness issue. Therefore,
Appellant should be prepared to address the issue….” (Order, filed 5/18/11,
at 1). On December 13, 2012, a panel of this Court (with one dissent)
quashed the appeal as untimely filed. See Commonwealth v. Veon, 64
A.3d 19 (Pa.Super. 2012) (unpublished memorandum).
Appellant filed a counseled PCRA petition on April 26, 2013, arguing
prior counsel were ineffective for failing “to file timely post-[sentence]
motions and a timely notice of appeal after being specifically requested by
[Appellant] to appeal his conviction to the Pennsylvania Superior Court.”
(PCRA Petition, filed 4/26/13, at 4). On August 26, 2013, Appellant filed an
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amended PCRA petition, in which he continued to assert his claim of prior
counsels’ ineffectiveness. The amended petition also included a list of
witnesses who would testify on Appellant’s behalf, as well as summaries of
the proposed witnesses’ testimony.
On October 2, 2013, the Commonwealth filed a motion to dismiss
Appellant’s PCRA petition as untimely filed. Also on October 2, 2013, the
Commonwealth filed a response to Appellant’s amended PCRA petition,
asserting:
[Appellant] was sentenced on June 18, 2010. His
conviction became final on July 18, 2010, when the 30-day
deadline for a timely appeal to the Superior Court passed.
He therefore had until July 18, 2011…to file for relief under
the PCRA. He, however, did not file his initial petition until
April 2[6], 2013.
(Response to Amended PCRA Petition, filed 10/2/13, at 4). The court
conducted argument on December 4, 2013. On June 10, 2014, the court
granted the Commonwealth’s motion to dismiss and denied PCRA relief.
Appellant timely filed a notice of appeal on July 9, 2014. On July 16,
2014, the court ordered Appellant to file a concise statement of errors
complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant timely
filed a Rule 1925(b) statement on August 6, 2014.
As a preliminary matter, we must determine whether Appellant timely
filed his current PCRA petition. Commonwealth v. Harris, 972 A.2d 1196(Pa.Super. 2009), appeal denied, 603 Pa. 684, 982 A.2d 1227 (2009).
Pennsylvania law makes clear no court has jurisdiction to hear an untimely
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PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837 A.2d 1157(2003). The most recent amendments to the PCRA, effective January 16,
1996, provide that a PCRA petition, including a second or subsequent
petition, shall be filed within one year of the date the underlying judgment
becomes final. 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Bretz, 830
A.2d 1273 (Pa.Super. 2003). 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.” 42 Pa.C.S.A. § 9545(b)(3). “[I]n
circumstances in which no timely direct appeal is filed relative to a judgment
of sentence, and direct review is therefore unavailable, the one-year period
allowed for the filing of a post-conviction petition commences upon the
actual expiration of the time period allowed for seeking direct review, as
specified in the PCRA.” Commonwealth v. Brown, 596 Pa. 354, 361, 943
A.2d 264, 268 (2008).
The three statutory exceptions to the timeliness provisions in the PCRA
allow for very limited circumstances under which the late filing of a petition
will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, the
petition must allege and the petitioner must prove:
(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;
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(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.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). “As such, when a PCRA petition is not
filed within one year of the expiration of direct review, or not eligible for one
of the three limited exceptions, or entitled to one of the exceptions, but not
filed within 60 days of the date that the claim could have been first brought,
the trial court has no power to address the substantive merits of a
petitioner’s PCRA claims.” Commonwealth v. Gamboa-Taylor, 562 Pa.
70, 77, 753 A.2d 780, 783 (2000).
Instantly, the court sentenced Appellant on June 18, 2010. Because
Appellant’s post-sentence motions were due on or before Monday, June 28,
2010, but untimely filed on Friday, July 2, 2010, his judgment of sentence
became final on Monday, July 19, 2010, upon expiration of the 30-day
period to file a direct appeal from the judgment of sentence. See 42
Pa.C.S.A. § 9545(b)(3). Appellant filed the current PCRA petition on April
26, 2013, almost three years after his judgment of sentence became final.
Thus, Appellant’s current prayer for relief is patently untimely. See Brown,
supra (explaining one-year period for filing PCRA petition commenced upon
expiration of time allowed for filing direct appeal, rather than upon
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disposition of untimely filed notice of appeal). See also Commonwealth v.
Hutchins, 760 A.2d 50 (Pa.Super. 2000) (stating one-year period for filing
PCRA petition commenced after expiration of time allowed for seeking
further review by Pennsylvania Supreme Court on direct appeal, even
though defendant later filed untimely petition for allowance of appeal, which
Supreme Court denied). Moreover, Appellant failed to plead or prove one or
more of the statutory exceptions to the PCRA timeliness requirements.2
Therefore, Appellant’s petition remains time-barred. Accordingly, we affirm.
Order affirmed.
Judge Jenkins did not participate in the consideration or decision of
this case.
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2
In his brief, Appellant attempts to invoke an exception to the time
restrictions of the PCRA, arguing the facts upon which his claim is based
were unknown to him and could not have been ascertained by the exercise
of due diligence. See 42 Pa.C.S.A. § 9545(b)(1)(ii). Appellant also argues
that application of the PCRA time restrictions is unconstitutional as applied to
a petitioner alleging the denial of his constitutional right to a direct appeal
due to the abandonment of counsel. Nevertheless, Appellant failed to raise
these arguments before the PCRA court. See Commonwealth v. Ousley,
21 A.3d 1238 (Pa.Super. 2011), appeal denied, 612 Pa. 698, 30 A.3d 487(2011) (reiterating issues not raised in PCRA petition cannot be considered
on appeal); Commonwealth v. Wallace, 533 A.2d 1051 (Pa.Super. 1987)
(explaining constitutional issues are waived if not raised and preserved at all
levels of adjudication). Moreover, Appellant failed to advance these specific
arguments in his Rule 1925(b) statement. See Commonwealth v.
Castillo, 585 Pa. 395, 888 A.2d 775 (2005) (stating general rule that any
issue not included in Rule 1925(b) statement is waived for purposes of
appellate review). Therefore, Appellant failed to preserve these arguments
advanced in his brief.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/10/2015
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