Opinion
886 MDA 2021 887 MDA 2021
04-19-2022
COMMONWEALTH OF PENNSYLVANIA v. WILLIAM JOHN TIERNO Appellant COMMONWEALTH OF PENNSYLVANIA v. WILLIAM JOHN TIERNO Appellant
Joseph D. Seletyn, Esq.
NON-PRECEDENTIAL DECISION
Appeal from the PCRA Order Entered June 2, 2021 In the Court of Common Pleas of Schuylkill County Criminal Division at No(s): CP-54-CR-0000866-2009, CP-54-CR-0001290-2009
Joseph D. Seletyn, Esq.
BEFORE: PANELLA, P.J., STABILE, J., and DUBOW, J.
MEMORANDUM
PANELLA, P.J.
William John Tierno appeals pro se from the order dismissing his fourth petition for relief filed pursuant to the Post Conviction Relief Act ("PCRA"). See 42 Pa.C.S.A. §§ 9541-9545. We affirm.
On August 30, 2010, Tierno entered guilty pleas at two dockets: (1) No. 866-2009 to one count each of robbery, criminal conspiracy, theft by unlawful taking, and receiving stolen property; and (2) No. 1290-2009 to one count each of robbery, criminal conspiracy, theft by unlawful taking, and terroristic threats. That same day, the trial court sentenced Tierno to an aggregate sentence of 12 to 24 years' imprisonment. On December 29, 2011, this Court dismissed Tierno's direct appeal due to his failure to file an appellate brief. See Commonwealth v. Tierno, 1299 MDA 2011 (Pa. Super. filed Dec. 29, 2011) (per curiam). Tierno did not seek review by the Pennsylvania Supreme Court.
Tierno filed two previous PCRA petitions in February 2012 and February 2015. The PCRA court denied these petitions, and this Court affirmed. See Commonwealth v. Tierno, 974 MDA 2015 (Pa. Super. filed Aug. 23, 2016) (unpublished memorandum); Commonwealth v. Tierno, 1462 MDA 2012 (Pa. Super. filed May 24, 2013) (unpublished memorandum). In December 2019, Tierno filed his third PCRA petition, invoking the newly discovered fact exception and arguing that he discovered evidence that his prior conviction did not constitute a second strike because he never served a sentence for that conviction. The PCRA court denied this petition, finding that Tierno did not properly invoke the timeliness exception and that this issue had been previously litigated. Tierno appealed to this Court. Notably, Tierno sought three extensions to file his brief. This Court granted these extensions and ordered Tierno to file his brief by December 2, 2020. This Court also indicated that there would be no more extensions granted.
In his first PCRA petition, Tierno argued that his trial counsel was ineffective for advising him to plead guilty because he was facing prison time as a third-strike offender and the total sentence could have been 10 to 20 years' imprisonment, despite the fact Tierno had not served a sentence on the second strike. This Court rejected the claim, holding that a defendant need not be sentenced to a mandatory term on the second-strike before being sentenced as a third-strike offender. Rather, the prevailing case law simply required that a defendant be convicted of the necessary underlying crimes of violence.
We note that in May 2017, Tierno also filed a petition for writ of habeas corpus. The trial court denied the petition, and this Court affirmed the denial. See Commonwealth v. Tierno, 953 MDA 2017 (Pa. Super. filed June 15, 2018) (unpublished memorandum).
Nevertheless, on December 1, 2020, Tierno sought another extension to file his brief. This Court denied the request, noting that it had previously stated that no more extensions would be granted. Subsequently, this Court dismissed Tierno's appeal for failure to file a brief. See Commonwealth v. Tierno, 676 MDA 2020 (Pa. Super. filed Jan. 4, 2021) (per curiam).
On February 25, 2021, Tierno filed his fourth PCRA petition, arguing that his appellate rights for this third PCRA petition should be reinstated. Tierno specifically invoked the governmental interference exception and argued that the government's shutdown of the courts and his inability to access legal materials due to the Covid-19 pandemic denied him the right to file an appellate brief in the appeal at 676 MDA 2020. Tierno also invoked the newly discovered fact exception, asserting that he was unaware that the Superior Court dismissed his appeal at 676 MDA 2020. Additionally, Tierno argued that the PCRA court should reinstate his right to appeal the denial of his third PCRA petition to the Pennsylvania Supreme Court nunc pro tunc. The PCRA court filed a Pa.R.Crim. 907 notice, and, thereafter, dismissed the petition without a hearing. Tierno filed a timely notice of appeal.
On appeal, Tierno contends that the PCRA court erred in dismissing his petition as untimely filed without a hearing because he properly invoked the governmental interference and newly discovered facts exceptions. See Brief for Appellant at 2-3.
This Court's standard of review regarding a PCRA court's dismissal of a PCRA petition is whether the PCRA court's decision is supported by the evidence of record and is free of legal error. See Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011). Further, there is no absolute right to a PCRA hearing, and we review dismissal "to determine whether the PCRA court erred in concluding that there were no genuine issues of material fact and in denying relief without an evidentiary hearing." Commonwealth v. Burton, 121 A.3d 1063, 1067 (Pa. Super. 2015) (en banc) (citation omitted).
Under the PCRA, any PCRA petition "shall be filed within one year of the date the judgment [of sentence] becomes final." 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence becomes final "at the conclusion of direct review, including discretionary review in … the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review." Id. § 9545(b)(3). The PCRA's timeliness requirements are jurisdictional in nature, and a court may not address the merits of the issues raised if the PCRA petition was not timely filed. See Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
Here, Tierno's judgment of sentence became final on January 30, 2012, 30 days after this Court dismissed Tierno's appeal and the time to file a petition for allowance of appeal expired. See Commonwealth v. Alcorn, 703 A.2d 1054, 1056 (Pa. Super. 1997) (noting that a judgment of sentence became final after this Court dismissed the appellant's direct appeal for failure to file a brief, and the appellant failed to seek further review by the Supreme Court). Accordingly, Tierno had until January 30, 2013, to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). Hence, Tierno's fourth PCRA petition, filed on February 25, 2021, was untimely under the PCRA.
As the thirtieth day of the appeal period, January 28, 2012, fell on a Saturday, Tierno's judgment of sentence became final on Monday, January 30, 2012. See 1 Pa.C.S.A. § 1908 (stating that if the last day of an appeal period falls on a Saturday or Sunday, such day(s) shall be omitted from the computation).
However, Pennsylvania courts may consider an untimely PCRA petition where the petitioner can explicitly plead and prove one of three exceptions:
(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;
(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.Id.
Here, Tierno pleaded the governmental interference exception, arguing that he was prevented from filing a timely brief in his prior appeal due to the Covid-19 pandemic. Specifically, Tierno highlights that the pandemic caused the courts to shut down, prevented him access to legal materials, and caused quarantines in prison. Additionally, Tierno notes that he had Covid-19.
Initially, we observe that due to the Covid-19 pandemic, the Pennsylvania Supreme Court entered a series of administrative orders during this time extending court filing deadlines. In particular, our Supreme Court filed an emergency order which specified that "legal papers or pleadings ... which are required to be filed between March 19, 2020, and May 8, 2020, generally SHALL BE DEEMED to have been filed timely if they are filed by close of business on May 11, 2020." In re General Statewide Judicial Emergency, 230 A.3d 1015, 1017 (Pa. 2020) (per curiam) (emphasis in original).
In this case, Tierno's appellate brief for the appeal at 676 MDA 2020 was due before December 2, 2020; accordingly, the Supreme Court's emergency orders due to Covid-19 have no bearing on Tierno's failure to file a timely appellate brief. See Commonwealth v. Woolstrum, ___A.3d___, 2022 PA Super 34, 2022 WL 570880 at *3 (Pa. Super. filed Feb. 25, 2022) (holding that the appellant's late filing was not the direct result of the emergency judicial orders due to Covid-19, noting that the appellant filed his PCRA petition on June 16, 2020, which was untimely without exception). Additionally, Tierno does not establish that any purported quarantines in prison or the fact he had Covid affected his ability to file a timely brief. Notably, the underlying claim Tierno sought to appeal at 676 MDA 2020 had been previously litigated and rejected, and he offers no argument to the contrary. Therefore, Tierno failed to properly plead and prove the governmental interference timeliness exception, as he did not establish that the pandemic interfered with his ability to file a timely appellate brief.
Tierno further invokes the newly discovered facts exception, arguing that he did not receive notice that this Court would not grant additional extensions to file an appellate brief prior to dismissing his appeal at 676 MDA 2020. Such a claim does not properly invoke the exception, as Tierno has not established that these facts were unknown to him. See Commonwealth v. Brensinger, 218 A.3d 440, 448 (Pa. Super. 2019) (noting that under the newly discovered fact exception the petitioner "must establish that: 1) the facts upon which the claim was predicated were unknown and 2) could not have been ascertained by the exercise of due diligence"). Here, this Court specifically stated that it would grant no more extensions to file the brief, and that the brief was due on December 2, 2020. Indeed, not only does Tierno fail to dispute this Court's order in this regard, but he also acknowledged in his fourth extension request that the brief was due on December 2, 2020.
Finally, Tierno fails to invoke a timeliness exception relating to his argument that the PCRA court should have reinstated his right to appeal the denial of his third PCRA petition to the Pennsylvania Supreme Court nunc pro tunc; hence, we may not further consider the claim. Accordingly, because there are no issues of material fact, the PCRA properly dismissed Tierno's fourth PCRA petition without a hearing. See Burton, 121 A.3d at 1067.
Order affirmed.
Judgment Entered.