Com. v. McGowan, C. ( 2023 )

J-S44028-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER PATRICK MCGOWAN :
:
Appellant : No. 784 MDA 2022
Appeal from the PCRA Order Entered May 2, 2022
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0001505-2016
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED: APRIL 6, 2023
Christopher Patrick McGowan appeals from the order denying his Post
Conviction Relief Act (“PCRA”) petition as untimely. See 42 Pa.C.S.A. §§ 9541-
9546. We affirm.
A jury convicted McGowan of conspiracy to commit theft by deception.
The court sentenced him to 30 to 60 months’ incarceration. We affirmed the
judgment of sentence, and our Supreme Court denied allowance of appeal in
September 2020. See Commonwealth v. McGowan, No. 896 MDA 2019,
2020 WL 524847 (Pa.Super. filed Jan. 31, 2020) (unpublished memorandum),
appeal denied, 239 A.3d 8 (Pa. filed Sept. 15, 2020).1
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1McGowan’s PCRA petition asserted that the Supreme Court denied allowance
of appeal on September 15, 2021. The dockets show that is incorrect. The
Supreme Court denied allowance of appeal on September 15, 2020.
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On December 22, 2021, McGowan filed the instant counseled PCRA
petition raising claims of ineffective assistance of counsel. He asserted that
his PCRA petition was timely because “a final ‘Memorandum and Order’ of the
Trial Court was filed on October 21st, 2021.” Petition, filed 12/22/21, at 4.
The PCRA court issued Rule 907 notice of its intent to dismiss the
petition without a hearing. See Pa.R.Crim.P. 907(1). In the notice, the court
explained that McGowan’s petition was patently untimely. The court also
reasoned that no time-bar exception applied to overcome the timeliness
requirement. It noted that McGowan did “not allege anything regarding any of
the timeliness exceptions nor make any attempt to prove one of them” but
instead alleged that his petition was timely filed. Order of Court, filed 4/1/22,
at 2 (unpaginated).
Regarding the final “Memorandum and Order” to which McGowan
referred, the court stated that it had reviewed it and determined that it was
an order of the Commonwealth Court in “an entirely different case[.]” Id. at
2 n.1. It bore the caption, “Jeffrey Miles v. Clerk of Courts for the Court of
Common Pleas in Franklin County and Inmate Accounts Department at the
State Correction Institution in Forest, Pennsylvania[.]”2 The court stated that
“[a] simple inquiry into the filing would have made it readily apparent that it
bears no relation to [McGowan’s] case” and that “the docket sheet entry
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2 See 90 M.D. 2018 (Pa.Cmwlth. filed Oct. 19, 2020).
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attached to the Petition plainly indicates it was filed by the Commonwealth
Court[.]” Id.McGowan did not respond to the Rule 907 notice. The court dismissed
his petition, and he appealed. On appeal, he challenges the dismissal for
untimeliness and raises three other claims that go to the merits of his PCRA
petition.
In his first issue, McGowan maintains that the PCRA court erred in
dismissing his PCRA petition as untimely. He argues that the date the
judgment of sentence became final is “disturbed given clerical errors by the
Lower Court, namely the misdating of higher court orders.” McGowan’s Br. at
11. He states that denial of allowance of appeal is listed in the electronic filing
system, with a date of October 8, 2022. However, he concedes that “we now
know it to be September 15th, 2020.” Id. He also notes that the lower court
listed an entry on the docket titled “Memorandum and Order,” although he
concedes that the entry was “erroneous.” Id. He maintains that because
nothing in the docket entry “signal[ed]” that it was unrelated to McGowan’s
case, and he could not access the filing electronically, “it was reasonable to
rely on the Lower Court’s administration and believe that they had entered
the final judgment of the Higher Courts on October 8th, 2021 or October 22nd,
2021.” Id.When reviewing the denial of relief under the PCRA, our review is limited
to determining “whether the PCRA court’s ruling supported by the record and
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free of legal error.” Commonwealth v. Presley, 193 A.3d 436, 442
(Pa.Super. 2018) (citation omitted).
Under the PCRA, a petition for relief must “be filed within one year of
the date the judgment becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1). A
judgment of sentence becomes 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.” Id. at § 9545(b)(3). A petition filed more than one year after the
one-year deadline may only be entertained where the petition pleads and
proves at least one of the time-bar exceptions:
(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.
Id. at § 9545(b)(1)(i)-(iii). A petition raising one of the exceptions “shall be
filed within one year of the date the claim could have been presented.” Id. at
§ 9545(b)(2). Because the PCRA’s time limit is jurisdictional in nature, a court
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may not address the merits of an untimely PCRA petition. See
Commonwealth v. Smith, 194 A.3d 126, 132 (Pa.Super. 2018).
Here, McGowan’s judgment of sentence became final on December 14,
2020, when his time to file a writ of certiorari with the United States Supreme
Court expired. See U.S. Sup. Ct. R. 13(1) (a petition for writ of certiorari must
be filed with 90 days from the order denying discretionary review). The one-
year deadline therefore expired on December 14, 2021. McGowan filed the
instant petition on December 22, 2021; it is facially untimely. McGowan
therefore had to plead and prove at least one time-bar exception. McGowan
did not plead any of the exceptions in his PCRA petition. As he failed to do so,
the court committed no error in dismissing his petition as untimely.
On appeal, McGowan for the first time lays claim to the governmental
interference exception. However, he waived this exception by not pleading it
below. See Pa.R.A.P. 302(a). Moreover, his claim is based on the
“Memorandum and Order.” This erroneous filing and notation in no way
interfered with McGowan’s ability to assert his PCRA claims. It therefore is not
a basis on which to assert the governmental interference exception. See 42
Pa.C.S.A. § 9545(b)(1)(i).
To the extent McGowan claims docket entries that he admits were
erroneous changed the date his judgment became final, he is incorrect. Under
the PCRA, the date of finality does not turn on a party’s reasonable belief
about when the judgment became final. It turns on the actual date on which
direct review has concluded, or on which the time to seek such review ended.
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See 42 Pa.C.S.A. § 9545(b)(1), (b)(3). As we affirm the dismissal for
untimeliness, we do not address McGowan’s remaining claims, which go to the
merits of his petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2023
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