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Commonwealth v. Allison

SUPERIOR COURT OF PENNSYLVANIA
Aug 9, 2018
No. 1849 WDA 2017 (Pa. Super. Ct. Aug. 9, 2018)

Opinion

J-S25042-18 No. 1849 WDA 2017

08-09-2018

COMMONWEALTH OF PENNSYLVANIA v. HOWARD SCOTT ALLISON Appellant


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order November 28, 2017
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0001007-2007 BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J. MEMORANDUM BY OTT, J.:

Howard Scott Allison appeals, pro se, from the order entered November 28, 2017, in the Blair County Court of Common Pleas, dismissing as untimely his second petition for collateral relief filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. Allison seeks relief from the judgment of sentence of an aggregate term of 12½ to 25 years' imprisonment, imposed on November 6, 2008, following his jury conviction of rape, statutory sexual assault and corruption of minors, for the sexual abuse of his minor niece in December of 1998. We affirm.

See 18 Pa.C.S. §§ 3121(a)(6), 3122.1, and 6301(a)(1), respectively.

The facts underlying Allison's conviction are well-known to the parties and we need not reiterate them herein. In summary, Allison was charged with sexually abusing his six-year old niece eight years after the alleged incident. At trial, the court admitted evidence, introduced by the Commonwealth, that Allison had molested his two sisters sometime before the incident involving his niece. Allison presented an alibi defense to the present charges. As noted above, a jury found Allison guilty of rape and related charges. On November 6, 2008, Allison was sentenced to a term of 10 to 20 years' imprisonment for rape, and a consecutive term of two and one-half to five years' imprisonment for corruption of minors. On June 15, 2010, a panel of this Court affirmed his judgment of sentence on direct appeal. See Commonwealth v. Allison , 4 A.3d 689 (Pa. Super. 2010) (unpublished memorandum).

Allison filed a timely pro se PCRA petition on February 25, 2011. Counsel was appointed, and filed an amended petition on May 23, 2011. The PCRA court denied relief, and the order was subsequently affirmed on appeal. See Commonwealth v. Allison , 60 A.3d 561 (Pa. Super. 2012) (unpublished memorandum), appeal denied, 63 A.3d 1242 (Pa. 2013).

On October 23, 2017, Allison filed the present pro se PCRA petition. The court issued notice on November 6, 2017, of its intent to dismiss the petition without first conducting an evidentiary hearing pursuant to Pa.R.Crim.P. 907. On November 20, 2017, Allison filed a pro se objection to the court's Rule 907 notice. Thereafter, on November 30, 2017, the PCRA court entered an order dismissing Allison's petition as untimely filed. This appeal followed.

On December 15, 2017, the PCRA court ordered Allison to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Allison complied with the court's directive and filed a concise statement on January 2, 2018.

On appeal, Allison contends the PCRA court erred in dismissing his petition as untimely filed because the trial court lacked subject matter jurisdiction to prosecute him when: (1) the crime with which he has charged was repealed before his prosecution; (2) he was denied the right to counsel during a critical stage of the proceedings; and (3) the court improperly denied him court-appointed counsel to petition for allowance of appeal to the Pennsylvania Supreme Court after his judgment of sentence was affirmed on direct appeal. See Allison's Brief at 15, 18, 23. In addition, Allison insists he is factually innocent, and his conviction represents a miscarriage of justice. See id. at 25.

"In reviewing the denial of PCRA relief, we examine whether the PCRA court's determination is supported by the record and free of legal error." Commonwealth v. Mitchell , 141 A.3d 1277, 1283-1284 (Pa. 2016) (internal punctuation and citation omitted). Further, a PCRA court may dismiss a petition "without an evidentiary hearing if there are no genuine issues of material fact and the petitioner is not entitled to relief." Id. at 1284 (citations omitted).

Here, the PCRA court determined Allison's petition was untimely filed. We agree. Further, upon our review of the record, the parties' briefs, and the relevant statutory and case law, we find the PCRA court thoroughly addressed and adequately disposed of Allison's claims in its opinion and order entered on November 28, 2017. See Trial Court Opinion and Order, 11/28/2017, 1-4 (finding (1) Allison's judgment of sentence was final on July 15, 2010, 30 days after this Court affirmed and Allison failed to file a petition for allowance of appeal in the Pennsylvania Supreme Court; (2) under the PCRA, Allison had one year, or until July 15, 2011, to file a timely petition; (3) his petition filed on October 23, 2017, was facially untimely; (4) Allison failed to plead or prove any of the time for filing exceptions in the PCRA; and (5) Allison's reliance on the federal Antiterrorism and Effective Death Penalty Act ("AEDPA"), is misplaced because "the PCRA is not controlled by the timeliness requirements under the AEDPA"). Therefore, we rest on the court's well-reasoned basis.

See id. at § 9545(b)(1)(i)-(iii).

Trial Court Opinion and Order, 1128/2017, at 3.

We note that in his reply brief, Allison asserts that his claims involve questions of subject matter jurisdiction, which "can never be waived." See Allison's Reply Brief at unnumbered 1. In support of this contention, he refers to the statement of jurisdiction in his original brief. See id. However, the cases he cites therein are civil decisions, and irrelevant to an interpretation of the PCRA. See Allison's Brief at 1. More importantly, one of the enumerated bases for relief under the PCRA is "[a] proceeding in a tribunal without jurisdiction." 42 Pa.C.S. § 9543(a)(2)(viii). This Court has previously found a claim the trial court lacked subject matter jurisdiction "does not overcome the PCRA's one year jurisdictional time-bar as it does not fall within one of the statutory exceptions." Commonwealth v. Dickerson , 900 A.2d 407, 412 (Pa. Super. 2006), appeal denied, 911 A.2d 933 (Pa. 2006). Accordingly, Allison's argument is without merit.

Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/9/2018

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Summaries of

Commonwealth v. Allison

SUPERIOR COURT OF PENNSYLVANIA
Aug 9, 2018
No. 1849 WDA 2017 (Pa. Super. Ct. Aug. 9, 2018)
Case details for

Commonwealth v. Allison

Case Details

Full title:COMMONWEALTH OF PENNSYLVANIA v. HOWARD SCOTT ALLISON Appellant

Court:SUPERIOR COURT OF PENNSYLVANIA

Date published: Aug 9, 2018

Citations

No. 1849 WDA 2017 (Pa. Super. Ct. Aug. 9, 2018)