Opinion
J-S68033-12 No. 604 EDA 2012
02-08-2013
COMMONWEALTH OF PENNSYLVANIA Appellee v. LAWRENCE WELLS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order of January 19, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0414651-1979
BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J. MEMORANDUM BY WECHT, J.:
Lawrence Wells ("Appellant"), pro se, appeals the trial court's order. That order treated Appellant's "Application for Extraordinary Writ Habeas Corpus Petition" as a petition for collateral relief filed under the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541, et seq. The trial court ruled that it lacked jurisdiction to grant the relief requested due to the petition's untimeliness. We affirm.
The trial court summarized the procedural history of this case as follows:
On November 14, 1980, following a bench trial . . ., [Appellant] was found guilty of Murder in the first degree, Possession of Instrument of Crime, generally, and Aggravated Assault as a second[-]degree felony. Post-verdict motions were filed and denied. On October 19, 1981, [Appellant] was sentenced to life imprisonment on the Murder conviction; a consecutive term of not less than two and one-half (2½) nor more than five (5) years for Possession of an Instrument of Crime; and not lessTrial Court Opinion ("T.C.O."), 1/19/2012, at 1-2.
than five (5) nor more than ten (10) years for the Aggravated Assault to be served consecutively to the Murder sentence and concurrently to the sentence for Possession of an Instrument of Crime.
On June 22, 1984, the Superior Court affirmed the judgment of sentence. Then, on January 12, 1987, the Supreme Court of Pennsylvania denied [Appellant's] Petition for Allowance of Appeal.[]
On October 6, 1989, [Appellant] filed a pro se petition, pursuant to the [Post Conviction Hearing Act, predecessor to the PCRA]. On April 3, 1992, the PCRA court denied the petition. The Superior Court affirmed that dismissal on March 16, 1993, stating that the petition was "patently frivolous."
[Appellant] filed a pro se petition, seeking habeas corpus relief, on September 3, 1999. After review and evaluation, the appointed counsel filed a Finley letter[] on July 20, 2000. On February 6, 2003, the PCRA court dismissed the petition. [Appellant] appealed, and, on December 9, 2003, the Superior Court affirmed the dismissal. On June 29, 2004, the Supreme Court denied [Appellant's] Petition for Allowance of Appeal.[]
[Appellant] filed a second PCRA petition, which the PCRA court denied on January 12, 2005. On August 1, 2005, the Superior Court dismissed the petition for Failure to Comply with Pa.R.A.P. 3517 [(requiring the filing of a docketing statement with the Superior Court)].
On October 15, 2009, [Appellant] filed a second Petition for a Writ of Habeas Corpus. On October 7, 2010, [Appellant] filed a
Motion for Bail Pending Habeas Corpus Petition. Then, on November 1, 2010, [Appellant] filed a "Motion for 'Emergency' Habeas Corpus Bail." Notice of this Court's intention to dismiss the petition, pursuant to Pennsylvania Rule of Criminal Procedure 907, was sent on July 1, 2011. Petitioner filed a response to the 907 notice on July 12, 2011.
See Commonwealth v. Wells , 478 A.2d 123 (Pa. Super. 1984) (unpublished), allowance of appeal denied, 522 A.2d 558 (Pa. 1987).
See Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc) (prescribing the procedure by which court-appointed counsel asserts that there is no meritorious basis upon which to seek collateral relief and seeks to withdraw from his or her representation).
See Commonwealth v. Wells , 844 A.2d 1290 (Pa. Super. 2003) (unpublished), allowance of appeal denied, 853 A.2d 361 (Pa. 2004).
On October 15, 2009, Appellant filed his "Application for Extraordinary Writ Habeas Corpus Petition," the trial court's dismissal of which is the subject of this appeal. In his "Application," Appellant asserted that the trial court improperly delayed sentencing Appellant on his convictions in violation of his Sixth Amendment right to a speedy trial and his Fourteenth Amendment due process right to a timely direct appeal. In support of his claims, Appellant cited Pa.R.Crim.P. 704 and 1405(a), neither of which was in effect at any time relevant to this case, as well as this Court's decision in Commonwealth v. Thomas , 674 A.2d 1119 (Pa. Super. 1996).
Appellant's brief, which contains two distinct sections entitled "Argument," see Brief for Appellant at 9-13, 20-28, raises various other issues, some or all of which have been litigated in prior proceedings, and none of which were raised before the trial court in the petition presently at issue. Accordingly, all issues other than those pertaining to the delay in sentencing and the trial court's treatment of Appellant's petition as one under the PCRA rather than one seeking habeas corpus relief are waived. See Commonwealth v. Paddy , 15 A.3d 431, 446 (Pa. 2011); Pa.R.A.P. 302(a).
In a brief analysis, the trial court ruled that Appellant's "Application" should be treated as a petition under the PCRA. T.C.O. at 3 (citing Commonwealth v. Peterkin , 722 A.2d 638, 641 (Pa. 1988)); see also 42 Pa.C.S. § 9542 ("The action established in this subchapter shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose . . . including habeas corpus and coram nobis." (emphasis added)). The trial court had ample reason to do so, because such reclassification of petitions seeking some form of collateral relief is the rule under Pennsylvania precedent rather than the exception. See Commonwealth v. Kubis , 808 A.2d 196, 199 (Pa. Super. 2002) ("We have repeatedly held that the PCRA provides the sole means for obtaining collateral review and that any petition filed after the judgment of sentence becomes final will be treated as a PCRA petition."); accord Commonwealth v. Johnson , 803 A.2d 1291, 1293 (Pa. Super. 2002). However, the rule is not entirely without exception. See, e.g., Commonwealth v. Judge , 916 A.2d 511 (Pa. 2007) (finding that a petition for habeas corpus was the appropriate method to address the petitioner's prayer for relief based upon Canada's alleged violation of international law in deporting petitioner to Pennsylvania to face a capital sentence); cf. 42 Pa.C.S. § 6503(b)("Where a person is restrained by virtue of sentence after conviction for a criminal offense, the writ of habeas corpus shall not be available if a remedy may be had by post-conviction hearing proceedings authorized by law.").
Reviewing Appellant's instant petition as one filed under the PCRA, the trial court found Appellant's petition untimely under 42 Pa.C.S. § 9545, and not amenable of any of the exceptions to the one-year time limit delineated in subsection 9545(b)(1). Consequently, the trial court found that it lacked jurisdiction to consider Appellant's petition, and dismissed it upon that basis. T.C.O. at 3-4; see, e.g., Commonwealth v. Wilson , 824 A.2d 331, 336 (Pa. Super. 2003) ("Appellant's failure to timely file his PCRA petition, and his failure to invoke any of the exceptions to the timeliness requirements of the PCRA, results in an untimely PCRA petition under any analysis.").
In the instant appeal, Appellant offers little more than boilerplate and bald assertions of harm arising from his speedy trial and due process claims based upon an approximately eleven-month delay between entry of his guilty verdict and imposition of his judgment of sentence. Brief for Appellant at 11-13. Principally, Appellant presses the point that the trial court erred in construing his petition as one filed under the PCRA. Id. at 20-28. He argues that, because he does not assert actual innocence, his arguments are not cognizable under the PCRA, 42 Pa.C.S. § 9542 ("This subchapter provides for an action by which persons convicted of crimes they did not commit and persons serving illegal sentences may obtain collateral relief." (emphasis added)), and hence must be reviewable as a prayer for relief under his state right to habeas corpus. Id. at 21-22.
Based upon case law we address below, we agree that Appellant at least raises a colorable argument that his due process challenge to the eleven-month delay between his guilty verdict and the entry of his sentence is appropriately subject to consideration as a prayer for habeas corpus relief rather than relief under the PCRA. The tension arises from the seldom- applicable principle that, where the PCRA provides no avenue for relief on a potentially meritorious habeas corpus claim, the claim must be reviewed as a habeas corpus petition falling outside the ambit of the PCRA. See Judge , supra. Read as a whole and according to its express terms, limited to the context of Appellant's assertions of error, the PCRA affords a potential remedy for claims that traditionally were rooted in habeas corpus principles, in which the petitioner asserts that he has been "convicted of [a] crime[] he did not commit," 42 Pa.C.S. § 9542, due to, inter alia, a violation of the Pennsylvania or federal constitution, id. § 9543(a)(2)(i).
However, we need not, and hence should not, seek to reconcile any potentially conflicting lines of precedent that pertain to whether Appellant's petition should be treated as one that is not cognizable under the PCRA, and hence is an appropriate plea for habeas corpus relief. See Sedat, Inc. v. Fisher , 617 A.2d 1, 4 (Pa. Super. 1992) ("An advisory opinion is one which is unnecessary to decide the issue before the court, and it is true that the courts of this Commonwealth are precluded from issuing such advisory opinions."); accord Borough of Marcus Hook v. Penna. Mun. Retirement Bd. , 720 A.2d 803, 804 (Pa. Cmwlth. 1998). This is especially true inasmuch as the question necessarily implicates Appellant's constitutional right to habeas corpus relief, as distinct from the relief afforded by the PCRA. See In re Fiori , 673 A.2d 905, 909 (Pa. 1996) ("[C]ourts should avoid constitutional issues when the issue at hand may be decided upon other grounds."). Thus, instead of seeking to resolve that broad question, we explain below why Appellant's claims fail under either PCRA or habeas corpus principles, rendering the larger inquiry immaterial to the outcome of this case.
We begin by determining whether, assuming the trial court properly treated Appellant's petition as one under the PCRA, that court erred in dismissing the petition. Our standard of review of a trial court's denial of PCRA relief calls upon us to assess "whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record." Commonwealth v. Garcia , 23 A.3d 1059, 1061 (Pa. Super. 2011) (citations omitted).
It is well-established that the PCRA time limits are jurisdictional, and are meant to be both mandatory and applied literally by the courts to all PCRA petitions, regardless of the potential merit of the claims asserted. Commonwealth v. Leggett , 16 A.3d 1144, 1145 (Pa. Super. 2011); Commonwealth v. Murray , 753 A.2d 201, 202-03 (Pa. 2000). "[N]o court may properly disregard or alter [these filing requirements] in order to reach the merits of the claims raised in a PCRA petition that is filed in an untimely manner." Murray, 753 A.2d at 203; see also Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).
Despite facial untimeliness, a tardy PCRA petition nonetheless will be considered timely if (but only if) the petitioner pleads and proves one of the three exceptions to the one-year time limit enumerated in §§ 9545(b)(1)(i)-(iii) of the PCRA, which provide:
(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:42 Pa.C.S. § 9545(b). When an appellant files a facially untimely petition under the PCRA, and fails expressly to invoke any of the exceptions to the PCRA's one-year jurisdictional time limit, his petition is untimely and we must deny Appellant relief. See, e.g., Commonwealth v. Wilson , 824 A.2d 331, 336 (Pa. Super. 2003) ("Appellant's failure to timely file his PCRA petition, and his failure to invoke any of the exceptions to the timeliness requirements of the PCRA, results in an untimely PCRA petition under any analysis.").
(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.
Appellant's judgment of sentence was entered on October 19, 1981. This Court affirmed his judgment of sentence on June 22, 1984. The Pennsylvania Supreme Court denied allowance of appeal on January 12, 1987. Appellant did not thereafter file a petition for a writ of certiorari in the United States Supreme Court within the 90 days afforded Appellant from that date. U.S.Sup.Ct.R. 13(1). Accordingly, his judgment of sentence became final on or about April 12, 1987.
Thus, analyzed under the PCRA, Appellant's petition, filed on October 15, 2009, well over twenty years after his judgment of sentence became final, is untimely under the PCRA's one-year time limit. Appellant does not dispute the untimeliness of his petition, should the PCRA apply, nor has he pleaded any of the exceptions to that time limit. Consequently, the trial court did not commit an error of law in dismissing Appellant's petition to the extent it was appropriately treated as a petition under the PCRA.
We now turn to the substance of Appellant's argument that the trial court erred in failing to analyze his petition as one based upon principles of habeas corpus. Notably, in Appellant's appeal from the trial court's February 6, 2003 denial of his second PCRA petition, this Court addressed a similar argument regarding whether the claim presented was cognizable under the PCRA, and, therefore, subject to the PCRA's jurisdictional time limits. Commonwealth v. Wells , 844 A.2d 1290 (Pa. Super. 2003) (unpublished), Slip Op. at 4-6. In that PCRA petition, as he had done on direct appeal, see generally Commonwealth v. Wells , 478 A.2d 123 (Pa. Super. 1984) (unpublished), Appellant challenged the sufficiency of the evidence to support his first-degree murder conviction. He did not assert actual innocence, but rather contended that evidence of his diminished capacity compelled a guilty verdict of third- rather than first-degree murder. Wells , 844 A.2d 1290, Slip Op. at 8-9.
Focusing upon 42 Pa.C.S. § 9543(a) rather than section 9542, we agreed with Appellant that his sufficiency claim was not cognizable under the PCRA. Id. at 5. We so ruled because he alleged neither a constitutional violation nor ineffective assistance of counsel, the two alternative bases for PCRA relief identified in subsection 9543(a)(2). Id.
Section 9543(a)(2), in relevant part, provides for relief when the underlying judgment of sentence resulted from one or more of the following:
(i) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.42 Pa.C.S. § 9543(a)(2).
(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
Conversely, in the instant case Appellant has asserted a violation of his speedy trial and due process rights to prompt sentencing. See, generally, Commonwealth v. Anders , 699 A.2d 1258, 1263 (Pa. Super. 1997), rev'd on other grounds, 725 A.2d 170 (Pa. 1999) ("The asserted right to promptness in appeals is framed in terms of due process rather than the speedy trial right, inasmuch as the latter right does not extend to the taking of appeals."). Although we are unaware of any precedent dictating such an approach under the particular circumstances of this case, our Supreme Court previously has addressed due process challenges to the timeliness of sentencing as prayers for habeas corpus, rather than PCRA relief. See Commonwealth v. West , 938 A.2d 1034 (Pa. 2007); Commonwealth v. Glass , 586 A.2d 369 (Pa. 1991). Accordingly, we consider whether Appellant is entitled to relief if his petition was properly styled a petition for habeas corpus rather than a petition for relief under the PCRA.
In Glass , our Supreme Court explained that questions regarding delays in sentencing should be analyzed under the same standard as that applied to alleged speedy trial violations:
This Court has firmly established a framework for analysis of cases where delays in sentencing have implicated rights to a speedy trial under the Sixth Amendment and under Article I, § 9 of the Pennsylvania Constitution. Commonwealth v. Glover , 458 A.2d 935 (Pa. 1983); Commonwealth v. Pounds, 417 A.2d 597, 599 (Pa. 1980). The factors to be considered in such cases were described as follows in Commonwealth v. Glover , 458 A.2d at 937:Glass , 586 A.2d at 371-72 (citations modified). As noted, supra, sentencing delay claims that hinge upon the denial of one's right to the prompt review of a right to appeal, where that right is guaranteed by state law, are to be analyzed as due process claims under the fourteenth amendment to the United States Constitution. See Anders , 699 A.2d at 1263.
In determining whether a defendant's constitutional speedy trial right has been violated, it must first be determined whether the delay itself is sufficient to trigger further inquiry. Barker v. Wingo , 407 U.S. 514 (1972); Jones v. Commonwealth , 434 A.2d 1197 (Pa. 1981). If the delay is sufficient to trigger further inquiry, the reviewing court must balance the length of the delay with the reason for the delay, the defendant's timely assertion
of his right to a speedy trial, and any resulting prejudice to the interests protected by the right to a speedy trial. Barker v. Wingo , supra; Commonwealth v. Pounds, 417 A.2d 597 (Pa. 1980).
The only significant difference between the test used in the speedy trial analysis and one employed in the due process analysis relates to the prejudice prong of the Glover test. A defendant must establish that the state's action in causing or allowing the delay was fundamentally unfair, not merely undesirable, in order to establish a due process violation.Id. (citing Commonwealth v. Greer , 554 A.2d 980, 986 (Pa. Super. 1989)) (internal citations, quotation marks, and brackets omitted).
Although the trial court endeavored to resolve Appellant's claim under the PCRA, we note that we may reverse a trial court's denial of a writ of habeas corpus only for an abuse of discretion. Thus, we may reverse the order in question only when the trial court has misapplied the law or exercised its discretion unreasonably. Rivera v. Pennsylvania Dep't of Corrs. , 837 A.2d 525, 528 (Pa. Super. 2003).
Appellant argues that the trial court erred in treating his petition as one filed under the PCRA because his claims are not cognizable under the PCRA. He contends that challenges to delays in sentencing have been addressed on the merits as habeas corpus petitions in the past for precisely that reason. He acknowledges that, as explained supra, Pennsylvania courts have construed the PCRA to encompass virtually all claims for collateral relief, including those sounding in habeas corpus principles, after the underlying judgment of sentence has become final. However, he emphasizes that Pennsylvania courts also have held that, when a colorable claim for habeas corpus relief is amenable of no remedy under the PCRA, the court may entertain such a claim as a petition for habeas corpus relief outside the framework of the PCRA. See generally Judge , supra.
We need not resolve this question, because Appellant would not be entitled to habeas corpus relief even if that was the proper vehicle for the claims he asserts. In reviewing Appellant's averments as claims sounding in habeas corpus, we are mindful of the cautionary note struck in our decision in Commonwealth v. Wolfe , 605 A.2d 1271 (Pa. Super. 1992):
The writ . . . is an extraordinary remedy and, therefore, a judgment rendered in the ordinary course is beyond the reach of habeas corpus. That conviction cannot be put aside lightly, and it becomes stronger the longer the judgment stands. Consequently, habeas corpus generally is not available to review a conviction which has been affirmed on appeal.Id. at 1273.
If we grant, arguendo, that the delay between Appellant's conviction and sentencing is sufficient to trigger further inquiry, we must balance the duration of the delay with the reason for that delay, Appellant's timely assertion of his right to timely sentencing, and the prejudice, if any, to Appellant's interest in prompt sentencing. Assuming Appellant's right to further inquiry, he has provided, at best, only bald assertions regarding these considerations.
Although Appellant's focus before this Court is on the trial court's decision to treat his petition as one under the PCRA, rather than on the underlying merits of his due process claims, we must consider whether he pleaded an appropriate basis for relief on the merits in his underlying petition, viewed in the light of the habeas corpus principles Appellant argues should apply. In his petition before the trial court, Appellant failed to assert any basis upon which the trial court could conclude that Appellant was prejudiced by the delay in question. Moreover, he did not contend that he ever asserted his right to prompt sentencing, on a timely basis or otherwise, one of the factors prescribed by the Glover test and reaffirmed in Glass specifically in the context of a claim of untimely sentencing. Indeed, Appellant provides no reason for us to believe he raised this issue at any time prior to the filing of his October 15, 2009 petition, approximately twenty-eight years after his judgment of sentence was entered in October 19, 1981.
In Appellant's brief to this Court, his entire attempt to address these aspects of the Glover test consists of the following: "There was a violation that occurred[, due to] which the Petitioner suffered intentional harm. His appeal was delayed, his due process rights were violated, his access to the appellate court was denied, and his speedy trial [r]ights were violated." Brief for Appellee at 13.
In Commonwealth v. McCord , 644 A.2d 1206 (Pa. Super. 1994), we denied relief despite a 51-month delay between verdict and sentencing because the petitioner failed to set forth "any prejudice he may have suffered as a result" of that delay. Moreover, the petitioner had never made a request to be sentenced. Id. at 1212. We find McCord instructive. Absent some effort by Appellant to tie the particulars of his case to the requirements of the Glover test, Appellant sets forth no meritorious basis for relief for any undue delay in the trial court's imposition of sentence. Accordingly, Appellant is not entitled to habeas corpus relief.
For the foregoing reasons, we conclude that Appellant has failed to set forth any basis for habeas corpus or PCRA relief. Consequently, his petition fails regardless whether it is treated as a petition seeking one or the other, and was properly dismissed by the trial court.
We may affirm the trial court's dismissal of Appellant's petition on any basis. See, e.g., Commonwealth v. Beck , 848 A.2d 987, 991 n.8 (Pa. Super. 2004).
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Order affirmed. Jurisdiction relinquished.