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Commonwealth v. Harvey

SUPERIOR COURT OF PENNSYLVANIA
May 12, 2015
J-S24044-15 (Pa. Super. Ct. May. 12, 2015)

Opinion

J-S24044-15 No. 3490 EDA 2014

05-12-2015

COMMONWEALTH OF PENNSYLVANIA, Appellee v. DEANE R. HARVEY, Appellant


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order entered on December 3, 2014 in the Court of Common Pleas of Monroe County, Criminal Division, No(s): CP-45-CR-0001632-2001; CP-45-CR-0001634-2001; CP-45-CR-0001635-2001 BEFORE: GANTMAN, P.J., ALLEN and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:

Deane R. Harvey ("Harvey"), pro se, appeals from the Order denying his second Petition for relief filed pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.

In January 2002, the Commonwealth filed five criminal informations against Harvey for arson and related offenses. Ultimately, Harvey pled guilty but mentally ill to charges brought by the Commonwealth at three criminal docket numbers. On December 12, 2002, the trial court sentenced Harvey to an aggregate prison term of 15-40 years. On October 7, 2003, this Court affirmed Harvey's judgment of sentence. Commonwealth v . Harvey , 839 A.2d 1154 (Pa. Super. 2003) (unpublished memorandum). The Pennsylvania Supreme Court denied allowance of appeal. Commonwealth v. Harvey , 852 A.2d 311 (Pa. 2004).

Harvey filed his first PCRA Petition on June 1, 2005. On January 18, 2006, pursuant to an agreement between the Commonwealth and Harvey's counsel, the trial court granted the Petition in part, and reduced Harvey's minimum sentence. The PCRA court denied relief on the remaining claims raised by Harvey.

Harvey filed the PCRA Petition underlying his instant appeal on October 27, 2014. After Notice pursuant to Pa.R.Crim.P. 907, the PCRA court dismissed Harvey's Petition, without a hearing, as untimely filed. Upon the dismissal of Harvey's PCRA Petition, Harvey filed a pro se Notice of Appeal and a Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.

Harvey presents the following several questions for review:

[1.] Whether a defendant in a state criminal case who is prohibited by state law from raising on "direct appeal" any claims of ineffective assistance of counsel, but who has a state law right to raise such a claim in first post[-]conviction proceedings, has a federal constitutional right to effective assistance of first post[-]conviction counsel[,] specifically with respect to his ineffective assistance of trial counsel claims[?]



[2.] Was the post-conviction court's decision constitutionally deficient?



[I. Harvey's] federal ineffective assistance of trial counsel claims is [sic] not subject to procedural default, for two related reasons that turn on his Due Process/Equal Protection
right to effective assistance of first post[-] conviction counsel with regard to that claim:



A. The procedural default ground on which the state trial court denied [Harvey's] federal claims was not "adequate."



B. There is Cause and Prejudice to excuse a procedural default of [Harvey's] ineffective assistance of trial counsel claims[.]



II. The [PCRA] court and state court of appeals misapplied the U.S. Supreme Court's decision in holding that [Harvey] did not have a right to effective assistance of counsel in first-tier review of his ineffective assistance of trial claims[.]



III. [Harvey] did not procedurally default his ineffective assistance of trial counsel claims or his right to effective assistance of first post[-]conviction counsel with respect to that claim, by failing to raise and litigate it himself in the first post[-]conviction proceedings[.]
Brief for Appellant at 4-5 9 (some capitalization omitted).

In his "Statement of Questions Raised," Harvey presents several bald allegations of abuse of discretion by the trial judge, prosecutorial misconduct, ineffective assistance of all prior counsel, breach of his plea agreement, an illegal sentence and trial court errors in determining his competency. Brief for Appellant at 4 (unnumbered).
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Before addressing the claims presented by Harvey, we first must address whether Harvey's PCRA Petition was untimely filed. See PCRA Court Opinion, 10/23/14, at 4 (determining that Harvey's Petition was not timely filed). A PCRA petition must be filed within one year of the date the petitioner's judgment of sentence became final. 42 Pa.C.S.A. § 9545(b)(3). "The PCRA's time restrictions are jurisdictional in nature. Commonwealth v. Seskey , 86 A.3d 237, 241 (Pa. Super. 2014). "Thus, [i]f a PCRA petition is untimely, neither this Court nor the trial court has jurisdiction over the petition. Without jurisdiction, we simply do not have the legal authority to address the substantive claims." Id . (citations omitted).

The three exceptions to the one-year filing requirement are for newly discovered facts, interference by a government official, and a newly-recognized constitutional right. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any petition asserting one of these exceptions must also establish that the exception was raised within sixty days of the date the claim could have been first presented. 42 Pa.C.S.A. § 9545(b)(2). "As such, when a PCRA petition is not filed within one year of the expiration of direct review, or not eligible for one of the three limited exceptions, or entitled to one of the exceptions, but not filed within 60 days of the date that the claim could have been first brought, the trial court has no power to address the substantive merits of a petitioner's PCRA claims." Commonwealth v. Gamboa-Taylor , 753 A.2d 780, 783 (Pa. 2000).

Here, the PCRA court previously denied most of Harvey's claims, but granted relief on Harvey's challenge to his minimum sentence. Therefore, the PCRA court amended Harvey's sentence on January 18, 2006. Thus, Harvey's judgment of sentence became final, at the very latest, on Friday, February 17, 2006, after the period for filing an appeal expired. Because Harvey filed the instant petition on October 27, 2014, it is facially untimely.

In his appellate brief, Harvey generally asserts that he is eligible for relief under 42 Pa.C.S.A. § 9545(b)(1)(i-iii). Brief for Appellant at 6 (unnumbered). However, Harvey does not assert any evidence or legal authority supporting his bald assertions.

In its Order dismissing Harvey's PCRA Petition, the PCRA court stated the following:

On the last page of [Harvey's] lengthy Objection/Response to Notice of Intent to Dismiss, [Harvey] asserts that 42 Pa.C.S.A. § 9545(b)(ii) (facts unknown and undiscoverable) provides him with an exception to the timeliness requirement. However, [Harvey] does not state what facts were unknown and undiscoverable to him that would necessitate an exception to the timeliness requirement.



To the extent [Harvey] asserts the § 9545(b)(i) (interference of government officials) exception to timeliness, "government officials" within this subjection does not include defense counsel, appointed or retained, § 9545(b)(4), and [Harvey's] Petition and Objection/Response only concern the effectiveness of defense counsel during various proceedings.
PCRA Court Order, 12/3/14, at 1-2 (numbering of paragraphs and footnote omitted, emphasis in original). We agree with the reasoning of the PCRA court.

Further, our review discloses that Harvey has failed to plead or prove any exception to the PCRA's timeliness requirement. Thus, we cannot address the merits of Harvey's Petition, as we lack jurisdiction. See Seskey , supra . Accordingly, we affirm the Order of the PCRA court.

Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/12/2015


Summaries of

Commonwealth v. Harvey

SUPERIOR COURT OF PENNSYLVANIA
May 12, 2015
J-S24044-15 (Pa. Super. Ct. May. 12, 2015)
Case details for

Commonwealth v. Harvey

Case Details

Full title:COMMONWEALTH OF PENNSYLVANIA, Appellee v. DEANE R. HARVEY, Appellant

Court:SUPERIOR COURT OF PENNSYLVANIA

Date published: May 12, 2015

Citations

J-S24044-15 (Pa. Super. Ct. May. 12, 2015)