Com. v. Carter, T. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TODD ELLIS CARTER JR. :
:
Appellant : No. 800 WDA 2022
Appeal FROM the PCRA Order Entered June 23, 2022
In the Court of Common Pleas of Clarion County Criminal Division at
No(s): CP-16-CR-0000383-2016
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED: APRIL 11, 2023
Appellant, Todd Ellis Carter Jr., appeals pro se from the post-conviction
court’s June 23, 2022 order denying, as untimely, his second petition filed
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After
careful review, we affirm.
The facts of Appellant’s underlying convictions are not germane to his
present appeal. In regard to the procedural history of his case, on December
19, 2017, a jury convicted Appellant of two counts of delivery of a controlled
substance, one count of possession of a controlled substance with intent to
deliver, and two counts of criminal use of a communication facility. On
February 7, 2018, the court sentenced Appellant to an aggregate term of 9 to
18 years’ incarceration. The court also imposed “special conditions” of
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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Appellant’s sentence, including that he not have contact with any of the
witnesses in the case, and he complete a drug and alcohol evaluation and
treatment, if necessary. Appellant filed a direct appeal, and this Court
affirmed his judgment of sentence on October 28, 2019. See
Commonwealth v. Carter, 222 A.3d 878 (Pa. Super. 2019) (unpublished
memorandum). Appellant did not file a petition for allowance of appeal with
our Supreme Court.
Thereafter, Appellant filed a timely, pro se PCRA petition on August 13,
2020. The court appointed counsel, who filed an amended petition on
Appellant’s behalf raising claims of ineffective assistance of trial counsel. A
hearing was conducted, after which the court denied Appellant’s petition on
March 5, 2021. He timely appealed and, on February 18, 2022, this Court
issued a memorandum decision vacating the “special conditions” imposed by
the trial court as part of Appellant’s sentence, and affirming the PCRA court’s
order denying his post-conviction petition in all other respects. See
Commonwealth v. Carter, 455 WDA 2021, unpublished memorandum at *6
(Pa. Super. filed Feb. 18, 2022). Appellant did not file a petition for allowance
of appeal with our Supreme Court.
On April 4, 2022, Appellant filed the pro se PCRA petition underlying his
present appeal. On May 17, 2022, the court issued a Pa.R.Crim.P. 907 notice
of its intent to dismiss the petition without a hearing on the basis that it was
untimely. Appellant filed a pro se response, but on June 23, 2022, the court
issued an order dismissing his petition. Appellant filed a timely notice of
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appeal, and he complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. The court filed a Rule
1925(a) opinion on July 22, 2022. Herein, Appellant states four issues for our
review:
1.) Did the [PCRA] court err in denying Appellant’s second PCRA
petition as untimely presented … when Appellant’s PCRA
[petition] was actually still within the one[-]year deadline
required by 42 Pa.C.S.§ 9545(b)(1)?
2.) Was initial PCRA counsel … ineffective for failing to raise trial
counsel’s refusal to present the Batson [v. Kentucky, 476
U.S. 79 (1986),] claim during pre-trial [motions] and during
direct review after Appellant raised a motion for change of
venue[,] presenting the Batson claim to the court?
3.) Was initial PCRA counsel ineffective for not raising the
challenge to the legality of sentence arguing merger under
[the] single criminal act doctrine[,] as well as failing to raise
ineffectiveness of trial counsel for failure to do the same?
4.) Did the lower court err in its [Rule] 1925(a) opinion relating
to the fact that the Batson claim is waived, the additional
narcotics were found in Appellant’s vehicle, and the charges
should not have merged when these statements are belied
by the record?
Appellant’s Brief 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
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. See Commonwealth v. Bennett, 930 A.2d 1264, 1267
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(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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, section 9545(b)(2) requires that
any petition attempting to invoke one of these exceptions “be filed within one
year of the date the claim could have been presented.” 42 Pa.C.S. §
9545(b)(2).
Here, Appellant’s judgment of sentence became final on November 27,
2019, at the expiration of the time for him to file a petition for allowance of
appeal with our Supreme Court on direct appeal. See 42 Pa.C.S. § 9545(b)(3)
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(stating that the judgment of sentence becomes final at the conclusion of
direct review or the expiration of the time for seeking the review); Pa.R.A.P.
1113(a) (directing that “a petition for allowance of appeal shall be filed with
the Prothonotary of the Supreme Court within 30 days of the entry of the order
of the Superior Court sought to be reviewed”). Thus, under the plain language
of section 9545(b)(1), Appellant had until November 27, 2020, to file a timely
petition.
Appellant disagrees. He contends that the time during which his first
PCRA petition was being litigated must be excluded from the calculation of the
one-year time-period under section 9545(b)(1). In other words, Appellant
asserts that his filing of his first, timely PCRA petition on August 13, 2020,
“stopp[ed] the judicial clock” through February 18, 2022, when this Court
issued our decision in Appellant’s appeal from the denial of that first PCRA
petition. Appellant’s Brief at 10. According to Appellant, “the time period
between Aug[ust] 13, 2022[,] and Feb[ruary] 18, 2022[,] would be judicially
tolled.” Id. He concludes that, omitting this “tolled” time from the one-year
period allowed by section 9545(b)(1) shows that his present petition was filed
within one year of his judgment of sentence becoming final.
Appellant cites no legal authority to support his argument, and we agree
with the Commonwealth that his “premise is incorrect.” Commonwealth’s
Brief at 6. As the Commonwealth astutely explains:
The plain language of the PCRA provides that a judgment of
sentence becomes final at the conclusion of direct review or when
the time for seeking direct review expires. See 42 Pa.C.S.[]
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§[]9545(b)(3). In fixing the date upon which a judgment of
sentence becomes final, the PCRA does not refer to the conclusion
of collateral review or the time for appealing a collateral review
determination. Thus, the plain language of the PCRA statute
shows that a judgment of sentence becomes final immediately
upon expiration of the time for seeking direct review, even if other
collateral proceedings are still ongoing. Commonwealth v.
Callahan, 101 A.3d 118, 122 (Pa. Super. 2014). The period for
filing a PCRA petition is not subject to the doctrine of equitable
tolling; instead, the time for filing a PCRA petition can be extended
only if the PCRA permits it to be extended, i.e., by operation of
one of the statutorily enumerated exceptions. Commonwealth
v. Ali, 86 A.3d 173, 177 (Pa. 2014). Our Supreme Court has
consistently rejected various theories devised to avoid the effects
of the PCRA’s one-year time limitation. Commonwealth v.
Robinson, 837 A.2d 1157[, 1157-58] (Pa. 2003) [(]citing
Commonwealth v. Baroni, 827 A.2d 419, 420 (Pa. 2003);
Commonwealth v. Rienzi, 827 A.2d 369, 371 (Pa. 2003);
Commonwealth v. Eller, 807 A.2d 838, 845-[]46 (Pa. 2002);
Commonwealth v. Hall, 771 A.2d 1232, 1234 (Pa. 2001);
Commonwealth v. Murray, 753 A.2d 201, 202 (Pa. 2000);
Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999)[)]. Of
these cases, Rienzi is perhaps the most analogous to the instant
matter. Rienzi’s judgment of sentence became final upon the
expiration of the thirty-day period to seek appellate review, which
was January 15, 1998. Therefore, unless he could demonstrate
that one of the exceptions outlined in 42 Pa.C.S. § 9545(b)(1)
applied, Rienzi had until January 15, 1999, to file all PCRA
petitions for post-conviction relief. Rienzi filed his first PCRA
petition within this one-year period, on July 2, 1998, and, on
December 28, 1998, that petition was withdrawn without
prejudice. Approximately eleven months after withdrawing his
initial petition, well past the one-year time limit mandated by the
PCRA, he filed a second petition. In its analysis, the Pennsylvania
Supreme Court held that, notwithstanding the time that his
subsequently withdrawn first PCRA petition had been pending,
Rienzi still had only until January 15, 1999, to file a timely PCRA
petition, which he failed to do. Rienzi, 827 A.2d at 371. The time
that his first petition had been pending prior to its withdrawal had
no effect on Rienzi’s deadline. This analysis contradicts
[Appellant]’s hypothesis that the PCRA’s deadlines are subject to
“judicial tolling.”
Id. at 6-8 (footnote omitted).
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We agree with the Commonwealth. Neither the plain language of the
PCRA statute, nor any case law interpreting it, supports Appellant’s claim that
the time period during which his first PCRA petition was being litigated must
be excluded from the one-year calculation under section 9545(b)(1).
Accordingly, his argument that his present petition was timely filed is
meritless, and for this Court to have jurisdiction to review the merits of his
underlying post-conviction claims, he must plead and prove the applicability
of one of the timeliness exceptions of section 9545(b)(1)(i)-(iii).
Appellant fails to meet this burden. The only timeliness exception he
mentions is the ‘new, retroactive right’ exception of section 9545(b)(1)(iii).
See Appellant’s Brief at 8. Appellant seemingly contends that our Supreme
Court’s decision in Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021),
meets this exception, and affords us jurisdiction to review the merits of his
allegations of ineffectiveness pertaining to the attorney appointed to represent
him during the litigation of his first PCRA petition. According to Appellant, that
attorney should have argued that his trial counsel was ineffective for failing to
raise a Batson claim. He also avers that his PCRA counsel was ineffective for
not challenging the legality of Appellant’s sentence on the grounds that some
of his convictions should have merged for sentencing purposes.
Appellant’s reliance on Bradley does not meet the exception of section
9545(b)(1)(iii). In that case, our Supreme Court held that a PCRA “petitioner
[may] raise claims of PCRA counsel’s ineffectiveness at the first opportunity
when represented by new counsel, even if on appeal….” Bradley, 261 A.3d
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at 401. Nowhere in Bradley did the Court state that its holding constitutes a
new constitutional right that applies retroactively. Accordingly, Bradley
cannot satisfy the timeliness exception of section 9545(b)(1)(iii), and we lack
jurisdiction to review the merits of Appellant’s ineffectiveness claims.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/2023
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