Opinion
J-S11017-14 No. 70 EDA 2013
03-14-2014
COMMONWEALTH OF PENNSYLVANIA Appellee v. STERLING L. CHAVIS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence of November 22, 1982
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-1006983-1981
BEFORE: BENDER, P.J.E., WECHT, J., and STRASSBURGER, J. MEMORANDUM BY WECHT, J.:
Retired Senior Judge assigned to the Superior Court.
Sterling Chavis files a direct appeal from his November 22, 1982 judgment of sentence. In a December 4, 2012 order, the Post-Conviction Relief Act ("PCRA") court reinstated his direct appellate rights. After review, we are compelled to quash his appeal.
Chavis purported to appeal from the December 4, 2012 order reinstating his direct appeal rights. However, his appeal actually lies from his judgment of sentence. We have amended the appeal paragraph to reflect that.
The trial court summarized the procedural and factual history as follows:
[Chavis] was tried by a jury on December 14, 1981. He was adjudged guilty of Robbery, Aggravated Assault, Simple Assault, Theft by Unlawful Taking or Disposition, Carrying a Firearm on aTrial Court Opinion, 10/26/1984, at 1-3 (footnotes omitted).
Public Street, Impersonating a Public Servant, Recklessly Endangering Another Person, Possession of an Instrument of a Crime Generally, Criminal Conspiracy, Theft by Receiving Stolen Property, and Terroristic Threats.
Post-verdict motions were timely filed and argued on November 22, 1982. Judgment was arrested as to the conviction of Possession of an Instrument of a Crime Generally. Post-verdict motions were denied as to the remaining offenses. [Chavis] was sentenced to not less than three and one-half (3 ½) nor more than twenty (20) years in prison for Robbery, not less than two (2) nor more than four (4) years in prison for Carrying a Firearm on a Public Street, not less and one (1) nor more than two (2) years in prison for Impersonating a Public Servant and not less than three and one-half (3 ½) nor more than ten (10) years in prison for Criminal Conspiracy. These sentences to run concurrently. [sic] All other charges were deemed to have merged for sentencing purposes.
On June 18, 1981 between 12:15 a.m. and 1:00 a.m., the Complainant, Elvin Torres, was in the second floor apartment of his mother's residence located at 730 Rising Sun Avenue, Philadelphia. In response to the doorbell, he went down to the first floor where he observed three men standing outside ([Chavis], Barry Adams, and Leonard Fullard). The Complainant observed that the men were holding guns. After being shown a police badge and informed that the men were police officers, Elvin Torres opened the door. He was immediately pushed inside, handcuffed by Fullard, and forced at gun point to the second floor apartment where one of the assailants demanded, "where's the money."
At this time [Pedro] Torres approached the apartment doorway and was immediately seized by the neck by Co-Defendant Fullard, who commanded him to remain still or they would, "blow his head off." The assailants forcibly removed two chains, two wrist watches, two rings, and $9.00 from the person of [Pedro] Torres and his bedroom.
As the perpetrators fled the premises they were observed by Luis Vega who immediately summoned the police. Upon arrival at the scene of the incident, Police Officers Thomas Fredericks and Joseph Oleyn were provided with descriptions of the three assailants. Within five (5) minutes thereafter the assailants were arrested several blocks from the scene of the crime.
Under the Crimes Code in effect at the time Chavis was charged, the respective sections are 18 Pa.C.S.A. §§ 3701, 2702, 2701, 3921, 6108, 4912, 2705, 907(a), 903, 3925, 2706.
Chavis filed a notice of appeal in November 1982. On February 19, 1985, this Court dismissed that appeal because Chavis' attorney failed to file a brief. On November 29, 1993, Chavis filed a motion for post-conviction collateral relief, seeking reinstatement of his direct appellate rights. On September 7, 1994, the court reinstated Chavis' direct appellate rights, giving Chavis thirty days to file an appeal with this Court. Chavis filed his appeal on October 3, 1994. On August 30, 1995, this Court again dismissed Chavis' appeal because counsel failed to file a brief.
Chavis also alleged in his 1993 motion that he had filed a petition for post-conviction relief in 1986 that had never been addressed. We find no such petition in the certified record. However, the record appears to be less than complete.
Chavis' case then lay dormant for almost fifteen years. On January 21, 2010, Chavis filed a Motion for Post-Conviction Relief pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-46. On September 21, 2011, Chavis filed a pro se amended PCRA petition. On May 4, 2012, Chavis filed a pro se Motion to Modify and/or to Correct Illegal Sentence.
A possible explanation for this dormancy may be found in an unreported Commonwealth Court memorandum opinion, Chavis v. Pa. Bd. of Probation & Parole, 2012 WL 8678119 (Pa. Cmwlth. October 9, 2012). In that memorandum, the Commonwealth Court stated that Chavis was paroled and transferred to New Jersey to serve a sentence in that state on February 9, 1995. Following completion of his New Jersey sentence, on June 22, 2009, Chavis was transferred back to Pennsylvania because a detainer was lodged against him based upon a parole violation. Id. at *1. The issue on appeal before the Commonwealth Court was the parole office's calculation of Chavis' maximum parole date of July 25, 2023. The Commonwealth Court affirmed that calculation. Id. at *2.
On October 22, 2012, the PCRA court issued a notice of its intent to dismiss Chavis' PCRA petition pursuant to Pa.R.Crim.P. 907. Despite that notice and the lack of response from Chavis, the PCRA court granted Chavis' petition on December 4, 2012 and reinstated his direct appellate rights. On December 14, 2012, Chavis filed a notice of appeal. The PCRA court's docket indicates that counsel entered an appearance on March 19, 2013, although no supporting documentation is present in the certified record. The PCRA court did not order a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) and Chavis did not file such a statement. Further, the PCRA court did not issue an opinion pursuant to Pa.R.A.P. 1925(a).
Chavis presents two issues for our review:
A. Were the sentences imposed for [Chavis'] felony convictions unreasonable?Chavis' Brief at 3.
B. Were the sentences imposed for [Chavis'] misdemeanor convictions legal sentences?
It is clear from the brief that Chavis' counsel misapprehends the record. Counsel asserts that Chavis was sentenced to seven three-to-twenty years sentences and one three-to-ten years sentence and that there is no indication whether the sentences were to run consecutively or concurrently. Chavis' Brief at 6. For unknown reasons, a new docket was created when Chavis filed his 2010 PCRA petition. That docket reflects the sentences counsel cites. However, a review of the original docket or the original sentencing orders shows that Chavis was sentenced to four concurrent sentences of varying length, with the longest being three and one-half to twenty years. This proves counsel's assertions to be incorrect.
Prior to reaching the merits of Chavis' appeal, we must address whether the PCRA court had jurisdiction to enter its order. The Commonwealth argues that the PCRA court was without jurisdiction to reinstate Chavis' direct appeal rights because Chavis' PCRA petition was untimely and Chavis did not plead and prove an exception to the jurisdictional time bar. Because the PCRA court was without jurisdiction, the Commonwealth asserts that the court had no authority to reinstate Chavis' rights. Commonwealth's Brief at 6-13. Although Chavis' judgment of sentence was entered prior to the enactment of the current PCRA, his petition was filed after that date and, thus, is controlled by the current statute. See Commonwealth v. Laird, 726 A.2d 346, 351 (Pa. 1999) (holding PCRA in effect at time of filing controls).
To be timely filed, a PCRA petition must be filed within one year of the date the judgment of sentence became final unless the petition pleads and proves one of the PCRA's enumerated exceptions:
(b) Time for filing petition.--42 Pa.C.S.A. § 9545.
(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;(2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.
(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.
(3) For purposes of this subchapter, a judgment 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.
Here, Chavis' sentence was entered on November 22, 1982. He filed a timely notice of appeal and, on February 19, 1985, his appeal was dismissed. The record does not reflect that Chavis sought review of this dismissal with the Pennsylvania Supreme Court. Therefore, his judgment of sentence became final on or about March 21, 1986, one year from when the time expired for him to seek such review. Therefore, his instant petition facially was untimely.
Although Chavis was entitled to a grace period in which to file because his conviction pre-dated the PCRA amendments, see Commonwealth v. Hall, 771 A.2d 1232, 1234 (Pa. 2001), that grace period only extended to first PCRA petitions. Commonwealth v. Fenati, 748 A.2d 205, 206 (Pa. 2000).
A review of Chavis' PCRA petition demonstrates that Chavis did not prove any of the exceptions to the jurisdictional time bar. He checked off the boxes for newly discovered evidence and obstruction by government officials. PCRA Petition, 1/21/2010, at 2. However, he made no assertions regarding what the newly discovered facts are or how government officials interfered with his case. Chavis' amended PCRA petition likewise fails to plead and prove an exception. See Amended PCRA Petition, 9/21/2011. Chavis' petition is untimely.
While a dismissal of an appeal due to counsel's failure to file a brief may be regarded as a newly discovered fact, the petition alleging such must be filed within sixty days of discovery of the dismissal. Commonwealth v. Geer, 936 A.2d 1075, 1077-78 (Pa. Super. 2007). Here, Chavis neither alleges the dismissal of his appeal as a newly discovered fact nor does Chavis allege that he has filed his PCRA petition within sixty days of discovery. Additionally, such a claim would strain credulity as approximately fifteen years passed between our dismissal of Chavis' appeal and the filing of his petition.
Even though the petition was untimely, the PCRA court granted relief. Thus, this appeal technically is a direct appeal from Chavis' judgment of sentence. The Commonwealth did not appeal from the grant of relief. However, our precedent nonetheless compels us to quash this appeal. In Commonwealth v. Geer, 936 A.2d 1075 (Pa. Super. 2007), we confronted a situation very similar to the present case. In Geer, the appellant filed a timely first PCRA petition. The petition was denied and the appellant filed an appeal. However, this Court dismissed the appeal because the appellant's counsel failed to file a brief. Almost one year after the appeal was dismissed, the appellant filed a second PCRA petition seeking to re-file his appeal from his first PCRA petition. The PCRA court granted the appellant leave to file a notice of appeal nunc pro tunc from the denial of his first PCRA petition. The appellant then filed his notice of appeal from the denial of his first PCRA petition. Id. at 1076.
Before reaching the merits of the appellant's issues, this Court sua sponte first addressed whether the second PCRA petition was filed timely and whether the PCRA court had jurisdiction to grant relief. We concluded that the petition facially was untimely. However, the appellant attempted to plead and prove an exception to the jurisdictional time bar under the newly discovered evidence exception based upon the fact that counsel did not file a brief. Id. at 1077. Ultimately, we rejected the appellant's argument as he did not plead and prove that the second PCRA petition was filed within sixty days of the discovery of the dismissal. Id. at 1078. Finding the second petition to be untimely, we concluded that the PCRA court did not have jurisdiction to grant the appellant's request to file a nunc pro tunc appeal from the denial of the first PCRA petition. Even though no appeal was filed separately by the Commonwealth challenging the reinstatement, we quashed the appellant's appeal based upon the PCRA court's lack of jurisdiction. Id. at 1079.
The instant case presents a nearly identical situation. Chavis' PCRA petition facially was untimely, and he did not plead or prove an exception to the time bar. Because his petition was untimely, the PCRA court did not have jurisdiction to enter its December 4, 2012 order granting direct appellate rights nunc pro tunc. Therefore, based upon Geer, we are compelled to quash his appeal.
Appeal quashed. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary