Opinion
J-S50027-16 No. 2184 MDA 2015
09-16-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. ROBERT HAVILAND Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order entered November 19, 2015
In the Court of Common Pleas of Schuylkill County
Criminal Division at Nos: CP-54-CR-0000218-2011, CP-54-CR-0000421-2011 BEFORE: MUNDY, STABILE, and FITZGERALD, JJ. MEMORANDUM BY STABILE, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Robert Haviland, appeals from the order the Court of Common Pleas of Schuylkill County entered on November 19, 2015, denying his request for collateral relief under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9451-46. Upon review, we affirm.
The PCRA court summarized the relevant background of this matter in its October 20, 2015 opinion, which we incorporate here by reference. PCRA Court Opinion, 10/20/15, at 1-3. Briefly, on February 2, 2012, Appellant pled guilty to delivery of a controlled substance, possession with intent to deliver a controlled substance, possession of drug paraphernalia and driving under the influence of a controlled substance. See Commonwealth v. Haviland , No. 937 MDA 2012, unpublished memorandum at 2 (Pa. Super. filed November 30, 2012). On March 26, 2012, the trial court sentenced Appellant to an aggregate term of four years and three months to eleven and one-half years in prison. Id.
Appellant filed a direct appeal to this Court, challenging the voluntariness of his guilty pleas. We affirmed Appellant's judgment of sentence on November 30, 2012. Id. at 1, 10. On January 14, 2013, Appellant filed his first PCRA petition, alleging plea counsel's ineffective assistance and the voluntariness of his guilty pleas. The PCRA court denied relief. We affirmed on February 4, 2014. See Commonwealth v. Haviland , No. 690 MDA 2013, unpublished memorandum at 1, 8 (Pa. Super. filed February 4, 2014). On June 12, 2014, the Supreme Court denied Appellant's petition for allowance of appeal. See Commonwealth v. Haviland , 94 A.3d 1008 (Pa. 2014). Appellant filed the instant petition on September 18, 2015, alleging his prior counsel (plea and first PCRA) were both ineffective. The PCRA court denied relief because the petition was untimely, in addition to finding the claims waived or previously litigated. See PCRA Court Opinion, 10/20/15, at 5. This appeal followed.
Appellant alleges prior counsel were ineffective for failing to challenge the legality of his sentence. Appellant's Brief at 1. Appellant alleges that he is entitled to relief based on Commonwealth v. Musau , 69 A.3d 754 (Pa. Super. 2013), appeal denied, 117 A.3d 296 (Pa. 2005).
In Musau we interpreted 75 Pa.C.S.A. § 3803 as providing a six-month maximum sentence for a second DUI offense involving refusal to submit to chemical testing.
"[A]n appellate court reviews the PCRA court's findings of fact to determine whether they are supported by the record, and reviews its conclusions of law to determine whether they are free from legal error." Commonwealth v. Spotz , 84 A.3d 294, 311 (Pa. 2014).
A PCRA petition, including a second or a subsequent petition, must be filed within one year of the judgment becoming final. See 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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." 42 Pa.C.S.A. § 9545(b)(3). There are some exceptions to this general rule. It is Appellant's duty, however, to allege and prove the applicability of the exceptions, and that the petition was filed within 60 days of the date the claim could have been presented. See 42 Pa.C.S.A § 9545(b)(2). Failure to do so precludes further review of the petition. See , e.g., Commonwealth v. Beasley , 741 A.2d 1258, 1261 (Pa. 1999).
Here, as also noted by the PCRA court, there is no question that Appellant's PCRA petition is facially untimely. See PCRA Court Opinion at 4. Thus, Appellant had to allege and prove he met one of the exceptions to the time bar. Appellant did not do so. Indeed, despite citing authorities to support the merits of his claim, nowhere did Appellant explain on what basis his PCRA petition could be entertained. Appellant seems to believe that a challenge to the legality of sentence is not waivable and it is not subject to the PCRA's jurisdictional time limitations. Appellant is mistaken. It is well-established that "[a]lthough legality of sentence is always subject to review within the PCRA, claims must still first satisfy the PCRA's time limits or one of the exceptions thereto. Thus, Appellant's contention is easily dismissed." Commonwealth v Fay , 737 A.2d 214, 223 (Pa. 1999) (citation omitted). Regarding the authority Appellant relies upon, we note that Musau , to the extent it is applicable, was decided on June 28, 2013, whereas the instant PCRA petition was filed on September 18, 2015, which is well beyond the 60-day window provided under 42 Pa.C.S.A. § 9545(b)(2). Appellant provides no explanation why he meets the jurisdictional requirements despite the patent untimeliness of his petition. As such, we conclude the instant PCRA petition is untimely and Appellant failed to establish the applicability of any of the exceptions to the PCRA's time bar. We direct that a copy of the PCRA court's October 20, 2015 opinion be attached to any future filings in this case.
As noted, we affirmed the judgment of sentence on November 30, 2012. Appellant's judgment became final on December 30, 2012, at the expiration of the 30-day window to file a petition for allowance of appeal with the Supreme Court. Appellant had one year from December 30, 2012, that is December 30, 2013, to file a timely PCRA petition. Since Appellant filed the instant petition on September 18, 2015, the PCRA petition is facially untimely.
To the extent Appellant's claims can be construed as claims of ineffective assistance of counsel, assuming we could review the merits of the challenge, we note that Appellant failed to plead and prove that prior counsel rendered ineffective assistance of counsel. See 42 Pa.C.S.A. § 9543(a)(2)(ii). "To prevail on an [ineffectiveness] claim, a PCRA petitioner must plead and prove by a preponderance of the evidence that (1) the underlying legal claim has arguable merit; (2) counsel had no reasonable basis for acting or failing to act; and (3) the petitioner suffered resulting prejudice." Commonwealth v. Reyes-Rodriguez , 111 A.3d 775, 780 (Pa. Super. 2015) (en banc). "A petitioner must prove all three factors of the '[ Commonwealth v. Pierce , 527 A.2d 973 (Pa. 1987)] test,' or the claim fails." Id. Having failed to plead and prove ineffective assistance of counsel his claim fails also in its merits. The PCRA court also noted the issues raised in the instant petition were both waived and/or previously litigated. In light of our disposition, we need not address this conclusion by the PCRA court.
Order affirmed.
Judge Mundy did not participate in the consideration or decision of this case. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/16/2016
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