Opinion
1728 MDA 2022 J-S35028-23
01-17-2024
COMMONWEALTH OF PENNSYLVANIA v. ERNEST JAMES HOOPENGARNER Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered November 14, 2022 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-MD-0000666-1983
Benjamin D. Kohler, Esq.
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and COLINS, J. [*]
MEMORANDUM
McLAUGHLIN, J.
Ernest James Hoopengarner appeals pro se from the order dismissing his fifth Post Conviction Relief Act ("PCRA") petition as untimely. See 42 Pa.C.S.A. §§ 9541-9546. Hoopengarner argues his trial counsel and subsequent counsel were ineffective. Hoopengarner has also filed an Application for Relief, contesting the court's ability to rely on its Pa.R.Crim.P. 907(a) Notice ("Rule 907(a) Notice") for its Pa.R.A.P. 1925(a) opinion ("Rule 1925(a) Opinion"), and the Commonwealth's ability to rely on the PCRA court's Rule 907(a) Notice in lieu of a brief. We affirm the order of the PCRA court and deny Hoopengarner's Application for Relief.
Hoopengarner pleaded guilty to murder. The court determined, following a hearing, that Hoopengarner had committed murder of the first degree. It sentenced Hoopengarner to life imprisonment in 1983. Hoopengarner did not file any post-sentence motions or a direct appeal.
The PCRA court recounted the underlying facts as follows.
On November 27, 1982, Naomi Huyard, an Old Order Amish woman, was found beaten and stabbed to death at the family residence of 18-year-old Jimmy Lee Herr in Earl Township, Lancaster County. After Herr was arrested and charged with the murder, he implicated Hoopengarner in the crime. Following an extensive investigation, an arrest warrant was issued for Hoopengarner, who was eventually apprehended in Florida in March of 1983. Hoopengarner confessed to the murder, stating that after the victim found Herr stealing meat from the victim's freezer kept in the Herr garage, Hoopengarner and Herr dragged the victim into the basement of the home, where Herr attempted to sexually assault the victim. After the attempt failed, Hoopengarner stabbed the victim 16 times, causing her death.Pa.R.Crim.P. 907(a) Opinion, Oct. 14, 2022, at 2.
Since his sentencing, Hoopengarner has filed four petitions seeking collateral relief. He has also filed petitions seeking DNA testing, requests for records and transcripts, and multiple petitions in federal court. The appeals in this case have come before this Court four times.
See Commonwealth v. Hoopengarner, 504 A.2d 362 (Pa.Super. 1985) (Table); Commonwealth v. Hoopengarner, 541 A.2d 1151 (Pa.Super. 1988) (Table); Commonwealth v. Hoopengarner, 695 A.2d 437 (Pa.Super. 1997) (Table); Commonwealth v. Hoopengarner, 894 A.2d 818 (Pa.Super. 2005) (Table).
Hoopengarner filed the instant petition, his fifth petition, on September 27, 2022. The PCRA court issued a Rule 907(a) Opinion explaining that it found the petition to be untimely and intended to dismiss it without a hearing. The court considered Hoopengarner's arguments that his petition was timely under all three exceptions to the PCRA's time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). It recounted that Hoopengarner claimed his petition was timely under the "governmental interference" exception because the court had allegedly directed Hoopengarner's trial counsel to manipulate and intimidate him into withdrawing his first petition for collateral relief, in which he was seeking a direct appeal. The court denied this claim on the basis that it was factually unsubstantiated and had been previously litigated.
The court also rejected Hoopengarner's claim his petition was timely under the "newly discovered facts" exception. Hoopengarner asserted he recently discovered that the transcript of his preliminary hearing was not available and had determined his prior counsel had been ineffective for proceeding without it. The court denied this claim on the basis that an allegation of PCRA counsel's ineffectiveness cannot be invoked as a newly discovered fact for the purposes of PCRA timeliness, and because "[t]here are no missing . . . transcripts, as has been argued by Hoopengarner for years." Rule 907(a) Op. at 11-12.
Finally, the court assessed Hoopengarner's claim that his petition was timely under the "newly recognized constitutional right" exception.Hoopengarner argued that Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), allows him to raise claims of prior counsel ineffectiveness at the first available opportunity. The court denied this claim, finding Bradley inapplicable to the instant case, and finding that Bradley does not purport to create an exception to the PCRA time-bar.
Hoopengarner responded, arguing that an evidentiary hearing would "provide a fair opportunity to develop the facts supporting his claims within his pending [petition.]" Mot. for Evidentiary Hearing, 11/7/22, at 2. The court thereafter dismissed the petition, and Hoopengarner appealed.
Hoopengarner filed an untimely "Petitioner's Objections to Notice of Intent to Dismiss PCRA Petition," which the court received after it dismissed the petition. This filing did not address the timeliness of the petition.
The PCRA court filed an order stating that in lieu of authoring a Rule 1925(a) opinion explaining its decision, it directs this Court to the reasoning stated in its Rule 907(a) Opinion. The Commonwealth did not file a brief. Instead, it filed a letter stating it will rely upon the court's Rule 1925(a) Opinion.
After filing his brief, Hoopengarner filed in this Court "Appellant[']s objection[s] to both the Lancaster County District Attorney and PCRA Court relying on an independ[e]nt opinion pursuant to Pa.R.A.P[.] Rule 1925[a] that does not exist." Application for Relief, 9/19/23. Hoopengarner argues that the court never authored a Rule 1925(a) opinion and that allowing it to rely on its Rule 907(a) Opinion denies him judicial review and violates his right to due process. He also argues the Commonwealth should not be permitted to rely on the Rule 1925(a) Opinion, as it "is not part of the [a]ppeal [p]rocess." Id. at 2.
Rule 1925(a) requires the trial court to either file "a brief opinion of the reasons for the order" under appeal or "specify in writing the place in the record where such reasons may be found." Pa.R.A.P. 1925(a). In directing this Court to the reasons listed in its Rule 907(a) Opinion, the PCRA court complied with the rule. For its part, the Commonwealth, as the appellee, was not required to file a brief. See Pa.R.A.P. 2188. We consequently deny Hoopengarner's application and turn to the merits of the appeal.
Hoopengarner raises the following issues:
I. Whether the P.C.R.A. court erred and abused [its] discretion in dismissing [Hoopengarner]'s Post-Conviction Relief Act Petition without an evidentiary hearing?
II. Whether appellate counsel were ineffective for failing to investigate [Hoopengarner]'s case denying him the right to any meaningful appeal and judicial review?Hoopengarner's Br. at 20.
Hoopengarner argues that he was denied his right to counsel when he confessed and that he was not given any Miranda warnings. He asserts three police officers abused and threatened him for two hours, until he gave a "coerced confession to a crime he had no involvement in." Id. at 34.
See Miranda v. Arizona, 384 U.S. 436 (1966).
Hoopengarner also alleges the court failed to retain the transcript of his preliminary hearing, and claims this constitutes a breakdown of the judicial process, a miscarriage of justice, and a violation of due process. He argues that without the preliminary hearing transcript, he is unable to challenge the court's jurisdiction and finding of probable cause or have any meaningful appeal. He relatedly argues his trial counsel was ineffective for failing to secure a transcript.
Hoopengarner next argues his trial counsel was ineffective in relation to his guilty plea. He asserts the plea was defective, as he did not understand the charges against him.
Hoopengarner further argues that the Commonwealth withheld Brady material and that there was no factual basis for his plea. Hoopengarner relies on the prosecutor's statement during Hoopengarner's degree-of-guilt hearing that the physical facts of the case did not align with Hoopengarner's confession. Hoopengarner argues that had this information been brought forth before he pleaded guilty, he could have proven his confession was coerced and false. He argues the court and counsel had a duty to inform him of his right to withdraw his plea following the prosecutor's admission that the plea lacked a factual basis and that the Commonwealth could not corroborate his coerced confession. He also claims counsel should have objected to the proceeding after the prosecutor made the statement.
See Brady v. Maryland, 373 U.S. 83 (1963)
Next, Hoopengarner alleges ineffective assistance of counsel and governmental interference in relation to his direct appeal and withdrawal of his first petition for collateral relief. He asserts his trial counsel failed to file a direct appeal, and that the court improperly directed counsel to advise Hoopengarner to withdraw his first petition, in which he was seeking a direct appeal.
Hoopengarner alleges trial counsel and all subsequent counsel have been ineffective in failing to present the forgoing claims. He contends their failure to fully investigate and develop these issues constitutes abandonment and constructive denial of counsel. He also argues that holding him responsible for failing to raise these claims earlier, when it was prior counsel who omitted them, is a violation of due process.
Finally, Hoopengarner argues his petition is timely under both the newly discovered facts exception and the newly recognized constitutional right exception. However, he does not explain how these exceptions apply to his case.
"Our standard of review is well settled." Commonwealth v. Anderson, 234 A.3d 735, 737 (Pa.Super. 2020). "When reviewing the denial of a PCRA petition, we must determine whether the PCRA court's order is supported by the record and free of legal error." Id. (citation omitted).
Here, the court dismissed the petition as untimely. "Our law is clear that the PCRA's time restrictions are jurisdictional in nature[.]" Id. Neither the trial court nor this Court have jurisdiction to address any claims presented in an untimely petition. Id.
To be timely, a petition must be filed within one year of the date the judgment of sentence became final, "unless [the petitioner] pleads and proves one of the three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1)." Id. (citation omitted). The three exceptions are:
(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.A. § 9545(b)(1)(i)-(iii). If an exception applies, a petition must "be filed within one year of the date the claim could have been presented." Id. at § 9545(b)(2).
Hoopengarner's judgment of sentence became final 30 days after his 1983 sentencing proceeding. See id. § 9545(b)(3) (stating judgment of sentence becomes final after direct review or time for seeking direct review); Pa.R.A.P. 903(a) (notice of appeal to Superior Court must be filed within 30 days from order under appeal). As Hoopengarner did not file his instant petition within the following year, it is untimely unless Hoopengarner has established one of the three statutory exceptions.
As stated above, Hoopengarner argues his petition was timely under the second and third exceptions. However, he has not explained how these exceptions apply to his case, and we fail to see how they are applicable here. To the extent that any of his claims might constitute newly discovered facts, Hoopengarner has not asserted when he discovered them, that he exercised due diligence in discovering them, or that he filed his petition within the following year. Nor has Hoopengarner argued that any new legal decision applies retroactively to his case, such that the third exception would be applicable.
Moreover, our review of the record discloses that Hoopengarner failed to plead and prove a timeliness exception in the PCRA court. In his petition, Hoopengarner alleged that the first exception applied because there had been governmental interference with his ability to file a direct appeal. However, even assuming this claim was not previously litigated, Hoopengarner did not explain why he could not have presented it earlier or allege that he filed his petition within a year after the alleged governmental interference had ended.
Regarding the second exception, Hoopengarner alleged in his petition that there is no transcript of his preliminary hearing. He attached, as an exhibit, a letter from the Director of Court Reporters explaining that preliminary hearings are not automatically transcribed and that any transcripts from a 1983 hearing would have since been destroyed, and advising Hoopengarner to ask his trial counsel whether he had independently hired a court reporter to transcribe the preliminary hearing. The letter is dated October 21, 2021 - less than a year before Hoopengarner filed the instant petition. However, Hoopengarner's petition failed to explain why he could not have discovered earlier that his preliminary hearing had not been transcribed. Therefore, even assuming the absence of the transcript could provide the basis for an ineffectiveness claim, Hoopengarner has not established that he discovered this fact through the exercise of due diligence and that he filed his petition within the first year this claim could have been presented.
Finally, in his petition, Hoopengarner invoked the third exception by arguing that Bradley announced a constitutional right applicable to his case. Bradley held "a PCRA petitioner may, after a PCRA court denies relief, and after obtaining new counsel or acting pro se, raise claims of PCRA counsel's ineffectiveness at the first opportunity to do so, even if on appeal." 261 A.3d at 401. As the PCRA court correctly determined, Bradley did not recognize a constitutional right or hold it to be retroactive. Even if Bradley did so, its holding is inapplicable here, as Hoopengarner has not explained why this is the first opportunity he has had to raise his claims of ineffectiveness.
Order affirmed. Application for Relief denied.
Judgment Entered.
[*] Retired Senior Judge assigned to the Superior Court.