Com. v. Buterbaugh, G. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GERALD TRAVIS BUTERBAUGH :
:
Appellant : No. 245 MDA 2021
Appeal from the PCRA Order Entered January 22, 2021
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0001229-2010
BEFORE: OLSON, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED: DECEMBER 30, 2021
Appellant, Gerald Travis Buterbaugh, appeals pro se from the order
entered on January 22, 2021, dismissing his third petition filed pursuant to
the Post Conviction Relief Act1 (PCRA) as untimely. We affirm.
The PCRA court briefly summarized the facts and procedural history of
this case as follows:
Following a four-day jury trial [in] 2011, [Appellant] was convicted
of [third-degree murder.] He was thereafter sentenced [] to 15
to 40 years’ incarceration [after the sentencing court applied a
sentencing enhancement for use of a] deadly weapon[. Appellant]
timely appealed. On November 5, 2012, [this] Court vacated
[Appellant’s] judgment of sentence finding that the trial court
erred in applying a deadly weapon enhancement to [his] sentence,
since Commonwealth v. Burns, 568 A.2d 974 (Pa. Super. 1990)
established that motor vehicles were not to be considered
weapons for the purpose of the enhancement; accordingly, [this]
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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Court remanded for re-sentencing. Prior to re-sentencing, the
Commonwealth filed an application for reconsideration en banc.
[This] Court granted en banc review to determine whether an
automobile constitutes a deadly weapon for purposes of
[sentencing] enhancement. On May 13, 2014, [an en banc panel
of this] Court affirmed [Appellant’s] original sentence[, concluding
that a motor vehicle constitutes a deadly weapon for purposes of
the deadly weapon used enhancement found at 204 Pa. Code §
303.10(a)(2)(i)-(iii).2 The Pennsylvania Supreme Court denied
further review.]
[Appellant] filed his first pro se PCRA petition on February 8, 2016
[and counsel was appointed]. By opinion and order [] filed June
22, 2017, [the PCRA court] dismissed [Appellant’s] petition. [This
Court] affirmed [the decision] on October 10, 2018 [and our
Supreme Court denied further review.]
While [Appellant’s] appeal was still pending, [Appellant] filed a
second pro se [PCRA petition. The PCRA court] entered an order
[] dated August 17, 2018, notifying [Appellant] that [it] intended
to dismiss his PCRA petition without a hearing, as [Appellant’s]
prior petition was still pending before [this] Court. [The PCRA
court] entered a final [order] dismiss[ing Appellant’s second
PCRA] petition on September 17, 2018.
On September 30, 2020, [Appellant] filed [the current] pro se
[PCRA petition. The PCRA court] entered an order on October 2,
2020, advising [Appellant] he was not entitled to the appointment
of counsel as a matter of right, as it was not his first PCRA
petition[.] On October 21, 2020, the Commonwealth [responded
to Appellant’s PCRA petition as directed by the PCRA court.]
On November 23, 2020, [the PCRA court] notif[ied Appellant of
its] intent to dismiss his petition as untimely and advised him of
his right to file a response within twenty days. [After receiving an
extension from the PCRA court, o]n January 21, 2021, [Appellant
responded.] On January 22, 2021, [the PCRA court] entered a
final [order] dismiss[ing Appellant’s PCRA petition as untimely].
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2See Commonwealth v. Buterbaugh, 91 A.3d 1247 (Pa. Super. 2014) (en
banc), appeal denied, 104 A.3d 1 (Pa. 2014).
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PCRA Court Opinion, 3/23/2021, at 1-4 (superfluous capitalization and original
footnotes omitted). This timely appeal resulted.3
Appellant raises the following issues pro se for our review:
I. Whether the [] PCRA court abused its discretion when [it]
dismissed [Appellant’s] PCRA petition as untimely and
without a hearing [when he raised] timeliness exceptions
[to the PCRA]?
Appellant’s Pro Se Brief, at 4 (superfluous capitalization omitted).
Our standard of review of an order dismissing a PCRA petition is limited
to examining whether the PCRA court's rulings are supported by the evidence
of record and free of legal error. Commonwealth v. Brandon, 51 A.3d 231,
233 (Pa. Super. 2012). The PCRA requires that any PCRA petition be filed
within one year of the date that the petitioner's judgment of sentence becomes
final. See 42 Pa.C.S.A. § 9545(b)(1). “This one-year limitation is
jurisdictional and, therefore, courts are prohibited from considering an
untimely PCRA petition.” Commonwealth v. Lopez, 249 A.3d 993, 999 (Pa.
2021) (citations omitted). In this case, an en banc panel of this Court affirmed
Appellant’s judgment of sentence in May 2014. Thus, his judgment of
sentence became final in 2015, following our Supreme Court’s denial of further
review and upon the expiration of the time to file an appeal with the United
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3 Appellant filed a pro se notice of appeal on February 19, 2021. The PCRA
court directed Appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely. On March
23, 2021, the PCRA court entered an opinion pursuant to Pa.R.A.P. 1925(a)
which largely relied upon its earlier decision issued on November 23, 2020.
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States Supreme Court. Accordingly, Appellant’s current PCRA petition filed in
September 2020 is patently untimely.4
“To establish the PCRA court's jurisdiction, [Appellant] must therefore
plead and prove the applicability of [one of three] exception[s] to the PCRA's
time bar.” Lopez, 249 A.3d at 999, citing 42 Pa.C.S.A. § 9545(b)(1)(i)–(iii)
(governmental interference, newly-discovered evidence, and/or
newly-recognized constitutional right). Here, Appellant claims that his PCRA
petition was subject to the newly recognized constitutional right and newly-
discovered evidence exceptions to the PCRA pursuant to 42 Pa.C.S.A. §
9545(b)(1)(ii) and (iii), respectively. Appellant’s Pro Se Brief, at 9. More
specifically, in support of both timeliness exceptions to the PCRA, as well as
his general right to relief, Appellant relies upon our Supreme Court’s decision
in Commonwealth v. Smith, 186 A.3d 397 (Pa. 2018). Appellant’s Pro Se
Brief, at 9-11.
Our Supreme Court summarized the facts in Smith as follows:
On the evening in question, [Smith] drove to several bars and
consumed alcohol. At the last of these establishments, he spoke
with three individuals and expressed an interest in obtaining
drugs. The four men left the bar and got into [Smith’s] car, with
[Smith] driving. While en route to purchase drugs, [Smith]
approached an area where pedestrians were intermittently
crossing the street in a lighted crosswalk equipped with flashing
warning lights. [Smith] did not slow down as his vehicle
approached. He struck a pedestrian in the crosswalk, causing
severe injuries, and then fled the scene without getting out of his
car to check on the victim. At the time of the incident, [Smith]
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4 Appellant “concedes that his PCRA [p]etition is facially untimely.” See
Appellant’s Pro Se Brief, at 9.
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was intoxicated and distracted by his passengers. There [was] no
suggestion [Smith] meant to strike the victim or even that he saw
him until immediately before the collision. Thus, it [was]
undisputed that [Smith’s] conduct in injuring the victim was
criminally reckless but not knowing or intentional.
[Smith] was charged with numerous offenses, including
aggravated assault, see 18 Pa.C.S.A. § 2702(a)(1), and driving
under the influence. See 75 Pa.C.S.A. § 3802(a)(1). He entered
open guilty pleas to those two charges, and the Commonwealth
nolle prossed [] others.
Prior to sentencing, the Commonwealth argued that, under
Commonwealth v. Buterbaugh, 91 A.3d 1247 (Pa. Super.
2014) (en banc) (holding that an automobile can constitute a
deadly weapon for purposes of the deadly-weapon-used
sentencing enhancement), the court should apply the
deadly-weapon-used enhancement (the “DWUE”) because it is
implicated whenever a vehicle is involved in the underlying
offense. [Smith] opposed the Commonwealth's position,
contending that Buterbaugh had held that application of the
DWUE is circumstance-dependent. More particularly, [Smith]
maintained that under Buterbaugh, the DWUE only applies when
the driver specifically intends to use the vehicle to injure or
threaten the victim, which is what had occurred in that matter.
The common pleas court agreed with [Smith’s] reading of
Buterbaugh and concluded that the DWUE was not presently
implicated because [Smith] only intended to use his vehicle as a
means of transportation—and not as a weapon—at the time of the
incident. Accordingly, the court sentenced [Smith] within the
standard range for aggravated assault without the DWUE, albeit
at the “top end” of that range.
[This] Court affirmed on the same grounds, namely, that there
was no indication Appellee sought to use his car as a deadly
weapon. See Commonwealth v. Smith, 151 A.3d 1100, 1107
(Pa. Super. 2016). [Our Supreme Court] granted further review
to address whether the common pleas court should have applied
the DWUE under the facts of [Smith]. See Commonwealth v.
Smith, 169 A.3d 1067 (2017) (per curiam).
Commonwealth v. Smith, 186 A.3d 397, 399–400 (Pa. 2018) (record
citations and footnotes omitted).
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The Smith Court “ultimately conclude[d] that criminally reckless use of
such a vehicle for its ordinary purpose of transportation does not trigger an
enhanced sentence notwithstanding that such recklessness results in serious
bodily injury.”5 Id. at 403. However, our Supreme Court specifically
differentiated the facts in Smith from the facts in Appellant’s case,
recognizing:
Plainly, motor vehicles are ordinarily used for transportation.
However, they can become weapons when repurposed to threaten
or injure others. Thus, in Buterbaugh [Appellant] was involved
in an altercation which started in a tavern and continued outside.
In an angry state of mind, he got into his pickup truck, revved the
engine, and accelerated toward the victim, striking and killing him.
The [Buterbaugh C]ourt explained that his
vehicle was originally used for its intended purpose: to
transport two friends and himself to a bar. However, the
character of the vehicle changed to a deadly weapon the
instant Appellant backed his vehicle out of the bar's parking
lot, accelerated forward at its maximum rate of acceleration,
and struck the victim with sufficient force to cause death.
Buterbaugh, 91 A.3d at 1269. In short, [Appellant] consciously
repurposed his vehicle as a weapon and used it as such. In this
respect, [Appellant’s] action in injuring his victim, being
intentional, was qualitatively different from, and more culpable
than, [Smith’s] reckless conduct. Cf. People v. Stewart, 55
P.3d 107, 117–18 (Colo. 2002) (differentiating between (a)
recklessly driving “a vehicle as a vehicle” resulting in serious
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5 Appellant relies primarily on this isolated quotation from Smith to support
his request for relief. See Appellant’s Pro Se Brief, at 9 and 11. He claims
that the Smith decision was “the first time that the Pennsylvania Supreme
Court had ruled on the issue of a motor vehicle being classified as a weapon
in regards to the [Pennsylvania] Deadly Weapon Enhancement statute and
according to its holding, [Smith] should overrule the previous en banc
decision” in this matter. Id. at 9. As we will discuss, however, the Smith
Court did not overrule this Court’s decision in Appellant’s case and, instead,
factually distinguished the two criminal episodes.
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bodily injury, and (b) using a car as a deadly weapon such as in a
“road rage” incident, and concluding that the legislature could
rationally prescribe a harsher punishment for the latter type of
conduct).
[In Smith, t]he Commonwealth stresse[d] that [in Buterbaugh,
Appellant] was not found to have had a specific intent to kill, as
he was convicted of third-degree murder rather than first-degree
murder. Regardless, upon seeing the victim, [Appellant]
intentionally accelerated his vehicle toward
him. See Buterbaugh, 91 A.3d at 1252. Thus, [Appellant’s] lack
of a specific intent to kill [was] not directly relevant to the issue
in [the Smith] appeal. Cf. Commonwealth v. Chumley, 394
A.2d 497, 501–502 (Pa. 1978) (approving a description of legal
malice, for third-degree murder purposes, which incorporated a
“specific intent to inflict great bodily injury”). Further, the
circumstances of Buterbaugh illustrate that [] the DWUE [] be
applied in the context of a general-intent crime.
Id. at 404–405.
Based upon all of the foregoing, it is clear that our Supreme Court in
Smith did not recognize a new constitutional right applicable to Appellant.
The Smith Court did not expressly overrule our en banc decision on direct
appeal in this matter. In fact, the Smith Court specifically recognized that
the deadly weapon sentence enhancement was properly applied to Appellant.
Thus, Appellant’s reliance on the newly-recognized constitutional right
exception under Section 9545(b)(1)(iii) of the PCRA fails. We further reject
Appellant’s claim that the Smith decision also constitutes newly-discovered
evidence under the PCRA, since “judicial decisions do not constitute new
‘facts’ for purposes of the newly-discovered evidence exception set forth
in Section 9545(b)(1)(ii).” Commonwealth v. Kretchmar, 189 A.3d 459,
467 (Pa. Super. 2018) (citation omitted). “New legal decisions can only
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overcome the PCRA's timeliness requirements in the context of Section
9545(b)(1)(iii)[(newly recognized constitutional right)]. Id.In sum, Appellant’s most recent PCRA petition was clearly untimely, and
he failed to plead and prove an exception to the PCRA court’s one-year
jurisdictional time-bar. As such, the PCRA court lacked jurisdiction to address
Appellant’s PCRA petition and properly dismissed it. We discern no error.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2021
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