Opinion
J-S67006-17 No. 321 EDA 2017
11-01-2017
COMMONWEALTH OF PENNSYLVANIA v. CARLTON ROY SMITH Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order December 15, 2016
In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0002706-2011 BEFORE: GANTMAN, P.J., MUSMANNO, J., and STEVENS, P.J.E. MEMORANDUM BY STEVENS, P.J.E.:
Former Justice specially assigned to the Superior Court.
Appellant, Carlton Roy Smith, appeals, pro se, from the order entered in the Court of Common Pleas of Bucks County denying his first petition filed under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541-9546. We affirm.
We glean the underlying facts and procedural history in this matter from both this Court's September 24, 2012, memorandum decision affirming Appellant's judgment of sentence and our independent review of the certified record.
On April 4, 2011, the police received information about a suspicious package at a Federal Express facility. Police inspected the package, which contained 15.25 pounds of marijuana. Police conducted surveillance and an undercover delivery to the address listed on the package. Appellant, who did not live at that address, picked up the package and was immediately arrested. After waiving his Miranda [fn] rights and giving a statement to police, he
was charged with criminal conspiracy, criminal use of a communication facility, possession with intent to deliver, and use of drug paraphernalia. [fn]Commonwealth v. Smith , No. 550 EDA 2012, unpublished memorandum at 1-2 (Pa.Super. filed September 24, 2012).
[fn] Miranda v. Arizona , 384 U.S. 436 (1966).
[fn] 18 Pa.C.S.A. § 903(a), 18 Pa.C.S.A. § 7512(a), 35 P.S. § 780-113(a)(30), and 35 P.S. § 781-113(a)(32), respectively. Appellant was also charged with intentional possession of a controlled substance by a person not registered, 35 P.S. § 780-113(a)(16), but that charge was nolle prossed.
Appellant filed a motion to suppress the statement he gave to police, which the court denied following a hearing on July 18, 2011. The following day, a jury convicted Appellant of the above-mentioned charges. On November 3, 2011, the court sentenced Appellant to not less than four nor more than eight years' imprisonment on the possession with intent to deliver count, and a concurrent term of not less than one year nor more than three years' imprisonment on the criminal conspiracy count. Appellant filed post-sentence motions on November 14, 2011. A post-sentence motion hearing was held on January 23, 2012, and the court denied Appellant's motions on January 27, 2012.
Appellant filed a timely appeal to this Court. On September 24, 2012, this Court affirmed judgment of sentence. On February 4, 2015, the Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal.
On February 8, 2016, Appellant filed a pro se PCRA petition, his first. The PCRA court appointed counsel and directed him to file an amended PCRA petition by November 1, 2016. On November 1, 2016, PCRA counsel filed a Turner / Finley "no merit" letter and an application to withdraw. By order of November 4, 2016, Appellant was given twenty days to respond to counsel's "no merit" letter, but he filed no response. On December 15, 2016, the PCRA court dismissed Appellant's PCRA petition.
Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley , 550 A.2d 213 (Pa.Super. 1988) (en banc).
On January 13, 2017, Appellant filed a pro se Notice of Appeal with this Court. The PCRA court directed Appellant to provide it with a copy of the Notice of Appeal and a Concise Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. § 1925(b) no later than twenty-one days from the date of the Rule 1925(b) order, meaning that Appellant had until February 10, 2017, to file his Rule 1925(b) statement. On May 10, 2017, Appellant filed his Pa.R.A.P. 1925(b) statement, eighty-nine days after the court-imposed deadline had passed. On May 18, 2017, the PCRA court issued its Pa.R.A.P. 1925(a) opinion dismissing each of Appellant's nine issues on the merits.
In Appellant's Rule 1925(b) statement he raised nine issues of pretrial and trial error for our review. These issues state as follows:
1. DID THE COMMONWEALTH, LAW ENFORCEMENT, TRIAL COURT ABUSE THERE [SIC] DISCRETION WHEN OBTAINING EVIDENCE WITH OUT [SIC] A WARRANT?
2. DID LAW ENFORCEMENT ABUSE THERE [SIC] DISCRETION IN THE SEARCH OF APPELLANT'S VEHICLE?
3. DID THE COMMONWEATLH ABUSE THERE [SIC] DISCRETION WHEN ISSUEING A WARRANT FOR APPELLANT WHEN ILLEGAL ACTIVITY WAS CONDUCTED, BY THE DEA TASK FORCE?Appellant's Pa.R.A.P. 1925(b) Statement, filed 5/10/17. Appellant subsequently filed his appellate brief in which, for the first time, he presented all nine issues within the framework of an ineffective assistance of trial counsel claim. See Appellant's brief, at 4.
4. DID FEDEX MANAGEMENT OF THE FEDEX SORTING FACILTY [SIC] CONTAMINATE THE EVIDENCE IN APPELLANT'S CASE WHEN MANAGEMENT ADMINISTRATIVELY OPENED FEDEX EXPRESS SAVER PARCEL?
5. DID LAW ENFORCEMENT, COMMONWEALTH ERROR [SIC] IN CONDUCTING AN ILLEGAL CONTROLLED BUY?
6. DID DEA TASK FORCE ERROR [SIC] IN THE WEIGHT OF THE EVIDENCE THAT WAS INTRODUCED AS EVIDENCE FOR THE PERPOSE [SIC] OF A CONVICTION?
7. DID THE COMMONWEALTH ERROR [SIC] IN NOT GRANTING A MOTION FOR SUPPRESSION OF EVIDENCE AT TRIAL?
8. DID THE LAW ENFORCEMENT ERROR [SIC] IN THE INTERROGATION OF APPELLANT WITHOUT COUNSEL AND APPELLANT STATES HIS MIRANDA WARNING, WHICH IS A VIOLATON OF APPELLANT'S FIFTH, SIXTH, AND FOURTHEENTH [SIC] AMENDMENTS TO THE UNITED STATES CONSTITUTION AS WELL AS PENNSYLVANIA CONSTITUTION?
9. DID THE COMMONWEALTH ERROR IN NOT GIVING APPELLANT A NEW TRIAL FOR THE FOLLOWING STATEMENT STATED IN THIS DOCUMENT?
When examining a post-conviction court's grant or denial of relief, we are limited to determining whether the court's findings were supported by the record and whether the court's order is otherwise free of legal error. Commonwealth v. Quaranibal , 763 A.2d 941, 942 (Pa.Super. 2000). We will not disturb findings that are supported in the record. Id. The PCRA provides no absolute right to a hearing, and the post-conviction court may elect to dismiss a petition after thoroughly reviewing the claims presented and determining that they are utterly without support in the record. Id.
Moreover, to be eligible for post-conviction relief, a petitioner must plead and prove by a preponderance of the evidence that his conviction or sentence resulted from one or more of the enumerated errors or defects in 42 Pa.C.S.A. section 9543(a)(2) and that the issues he raises have not been previously litigated. Commonwealth v. Carpenter , 725 A.2d 154, 160 (Pa. 1999). An issue has been "previously litigated" if the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue, or if the issue has been raised and decided in a proceeding collaterally attacking the conviction or sentence. Carpenter , 725 A.2d at 160; 42 Pa.C.S.A. § 9544(a)(2), (3). If a claim has not been previously litigated, the petitioner must then prove that the issue was not waived. Carpenter , 725 A.2d at 160. An issue will be deemed waived under the PCRA "if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal, or in a prior state post-conviction proceeding." 42 Pa.C.S.A. § 9544(b).
Initially, we cannot ignore that all of Appellant's issues are waived because his pro se Rule 1925(b) statement was filed 89 days late. Specifically, on January 20, 2017, the PCRA court issued its Pa.R.A.P. 1925(b) order directing Appellant to file a concise statement of errors complained of on appeal no later than twenty-one days from the date of the court's order. Appellant's concise statement was, thus, due on Friday, February 10, 2017.
In compliance with authority mandating how the court shall notify parties of a Rule 1925(b) order, see Commonwealth v. Hooks , 921 A.2d 1199 (Pa.Super. 2007), the trial court filed its Rule 1925(b) order with the prothonotary, and the prothonotary docketed the order, recorded the date it was made, gave written notice of the entry of the order to each party of record, and recorded on the docket the giving of such notice. --------
Appellant did not file his Rule 1925(b) statement until Wednesday, May 10, 2017, 89 days after it was due. Appellant provided no documentation to demonstrate when he mailed that statement, so as to prove that it was timely under the "prisoner mailbox rule[,]" see Commonwealth v. Crawford , 17 A.3d 1279, 1281 (Pa.Super. 2011) ("Under the prisoner mailbox rule, we deem a pro se document filed on the date it is placed in the hands of prison authorities for mailing."), nor does the record reflect that he requested and was granted an extension of time in which to file his Rule 1925(b) statement. Nevertheless, the trial court elected to author a responsive Rule 1925(a) opinion.
This Court has held that where the trial court addresses issues raised in an untimely Rule 1925(b) statement, we may elect to address the issues on their merits rather than remand for the filing of a statement nunc pro tunc. See Commonwealth v. Brown , 145 A.3d 184, 186 (Pa.Super. 2016); Commonwealth v. Burton , 973 A.2d 428, 433 (Pa.Super. 2009) (en banc) (holding this Court may decide appeal on merits if belated concise statement did not prevent trial court from preparing opinion addressing issues raised). Such precedent, however, applies only where counseled defendants suffered per se ineffective assistance of appellate counsel for failing to file a timely Rule 1925(b) statement.
In contrast, "[i]t is a longstanding principle that a pro se litigant cannot be ineffective on his or her own behalf.... Thus, our rationale for considering an untimely Rule 1925(b) statement disappears where it is filed by a pro se litigant." Commonwealth v. Boniella , 158 A.3d 162, 164 (Pa.Super. 2017) (holding pro se appellant waives his or her issues by filing untimely Rule 1925(b) statement, even if the court addresses issues in its opinion). Consequently, even though the trial court elected to address the issues raised in Appellant's untimely Rule 1925(b) statement, we must deem the issues waived for our review.
Even if Appellant's Pa.R.A.P. 1925(b) statement were not untimely, the claims he raised therein would be ineligible for relief under the PCRA, as they allege pretrial or trial errors that either could have been raised on direct appeal but were not (issues 1-7, and 9) or were previously litigated to no avail on direct appeal before this Court (issue 8). See 42 Pa.C.S.A. § 9544, supra (a defendant is not entitled to PCRA relief on claims that have been previously litigated or waived). Appellant could have avoided Section 9544's bar to PCRA eligibility had he asserted these claims of error within a collateral claim of ineffective assistance of counsel for failure to raise and preserve them for direct review, see Commonwealth v. Collins , 888 A.2d 564, 571 (Pa. 2005) (holding a collateral claim of ineffectiveness raises distinct issue from the underlying claim of error it addresses; underlying claim is but component part of ineffectiveness claim), but he did not do so in his Pa.R.A.P. 1925(b) statement.
Instead, only in Appellant's brief does he, for the first time, preface his nine questions presented within an overarching claim of ineffective assistance of counsel. Because Appellant failed to raise any of his ineffective assistance of counsel claims in his Pa.R.A.P. 1925(b) statement, the claims are waived. Commonwealth v. Smith , 146 A.3d 257, 262 (Pa.Super. 2016) (holding issue not included in Rule 1925(b) statement is waived).
Finally, had Appellant preserved his claims for review on the merits, we would still reject them. To that end, and after careful consideration of the record and the parties' briefs, we adopt as our own the thorough and well-reasoned analysis of the PCRA court. See Trial Court Opinion, filed May 18, 2017.
Order is AFFIRMED. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/1/2017
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