Opinion
J-S64038-17 No. 346 MDA 2017
11-13-2017
COMMONWEALTH OF PENNSYLVANIA v. DAVID E. BARTLING Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order February 3, 2017
In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0005288-2006, CP-67-CR-0005291-2006 BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD, J. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, David E. Bartling, appeals pro se from the order entered in the York County Court of Common Pleas dismissing his first Post Conviction Relief Act ("PCRA") petition as untimely. Appellant contends that his petition was timely filed due to a newly discovered constitutional right and asserts that his PCRA counsel was ineffective. We affirm.
42 Pa.C.S. §§ 9541-9546. --------
We adopt the facts and procedural history set forth by the PCRA court's opinion. See PCRA Ct. Op., 5/9/17, at 1-4. Appellant raises the following issues for review:
1. Whether the Court erred in denying [Appellant's] PCRA petition alleging trial counsel ineffectiveness, illegal sentences, plea not knowing, voluntary, or intelligent, and plea unlawfully induced, as untimely without due consideration of a claim of discovery of new evidence as an exception to the one year filing period.[?]Appellant's Brief at 6.
II. Whether PCRA counsel was ineffective, thus rendering the PCRA petition involuntarily uncounseled[?]
Appellant acknowledges that his PCRA petition is facially untimely but argues that an unpublished memorandum issued by this Court, Commonwealth v. Singleton , 486 EDA 2014 (Pa. Super. filed Aug. 19, 2015) (unpublished memorandum), set forth a newly discovered constitutional right relevant to his case. He specifically contends that Singleton invalidated his sentence because this Court stated that the imposition of a mandatory minimum sentence, as in effect at the time of Appellant's sentencing, would result in potential constitutional violations. Appellant also asserts that this PCRA counsel was ineffective for failing to adequately prepare for his PCRA hearing. No relief is due.
"Our standard of review of a PCRA court's dismissal of a PCRA petition is limited to examining whether the PCRA court's determination is supported by the evidence of record and free of legal error." Commonwealth v. Wilson , 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).
Significantly here, we note that "[a]n unpublished memorandum decision shall not be relied upon or cited by a Court or a party in any other action or proceeding . . ." 210 Pa.Code. § 65.37(A). Further, "[o]ur Courts have expressly rejected the notion that judicial decisions can be considered newly-discovered facts which would invoke the protections afforded by [42 Pa.C.S.] 9545(b)(1)(ii)." Commonwealth v. Cintora , 69 A.3d 759, 763 (Pa. Super. 2013). Regarding Appellant's claim of ineffective assistance of PCRA counsel, we recognize that "[c]laims of PCRA counsel ineffectiveness cannot be raised for the first time after a notice of appeal has been taken from the underlying PCRA matter." Commonwealth v. Ford , 44 A.3d 1190, 1201 (Pa. Super. 2012)
After careful consideration of Appellant's brief, the record, and the thorough decision of the Honorable Michael E. Bortner, we affirm on the basis of the PCRA court's opinion. See PCRA Ct. Op., at 4-12; (holding that (1) the PCRA court lacked jurisdiction to review the merits of Appellant's PCRA petition where Appellant's petition is facially untimely by over six years and Appellant's citation to Singleton , an unpublished memorandum, did not establish an exception to the timeliness requirement of the PCRA and (2) Appellant was precluded from raising a claim of PCRA counsel's ineffective assistance for the first time on appeal and, even if the issue had been properly preserved, Appellant failed to prove that counsel was ineffective). Accordingly, we affirm the PCRA court's dismissal of Appellant's petition.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/13/2017
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