Com. v. Bittinger, R.

• Court: Superior Court of Pennsylvania
• Decided: May 22, 2019
• Docket: 1741 MDA 2018
• Status: Unpublished

Opinion

J-S07020-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROBERT A. BITTINGER : : Appellant : No. 1741 MDA 2018

Appeal from the PCRA Order Entered September 18, 2018 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-MD-0000520-1985

BEFORE: OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED: MAY 22, 2019

Robert A. Bittinger appeals from the order dismissing his petition filed

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A §§ 9541-9546. We

affirm.

In 1985, Bittinger pled guilty to first-degree murder and criminal

conspiracy1 in connection with the contract killing of his co-worker’s wife. After

we remanded the case for resentencing, the court sentenced Bittinger to serve

a sentence of life imprisonment followed by a consecutive term of five to ten

years’ imprisonment. We affirmed this judgment of sentence in 1986.

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* Retired Senior Judge assigned to the Superior Court.

1 See 18 Pa.C.S.A. §§ 2502(a) and 903, respectively. J-S07020-19

The following year, Bittinger filed a petition for relief under the

predecessor to the PCRA, the Post Conviction Hearing Act.2 After appointing

counsel and holding a hearing, the PCHA court denied relief. On appeal, this

Court affirmed.

In 1995, Bittinger filed a pro se “request for certain court records,”

which the court treated as a serial PCRA petition. See PCRA Court Order, filed

1/24/95, at 1. The court dismissed the petition without a hearing. In 1997,

Bittinger filed another PCRA petition that the court dismissed. Bittinger did not

appeal from the dismissal of his 1995 or 1997 petitions.

In 2016, Bittinger filed another PCRA petition, which the court dismissed

as untimely. We affirmed the dismissal in September 2017.

On August 29, 2018, Bittinger filed the pro se PCRA Petition which gives

rise to the instant appeal. In the Petition, Bittinger launched several attacks

on the validity of his judgment of sentence that we need not repeat here.

Relevant to our disposition, Bittinger asserted the Petition was timely under

the “governmental interference” exception to the PCRA’s timeliness

limitations. See 42 Pa.C.S.A. § 9545(b)(1)(i). Bittinger argued that his 1995

petition was timely and that the PCRA court judge who dismissed that petition

was biased and had a conflict of interest. Specifically, Bittinger asserted that

2 See Commonwealth v. Brimage, 580 A.2d 877, 878 n.1 (Pa.Super. 1990) (“Effective April 13, 1988, the Pennsylvania Legislature repealed in part and substantially modified in part the Post Conviction Hearing Act, renaming it the Post Conviction Relief Act”).

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the Honorable Richard A. Lewis, who was the PCRA court judge that dismissed

his 1995 PCRA petition, had been the District Attorney of Dauphin County and

had prosecuted Bittinger in this case in 1985. Bittinger alleged that as District

Attorney, President Judge Lewis had had a “distinct significant personal

involvement in critical adversary decisions regarding the prosecution.” Supp.

to PCRA Pet., 8/29/18, at ¶ 20. Bittinger requested that the PCRA court re-

open the 1995 petition or allow Bittinger to re-submit it.

The PCRA court issued an order explaining that the Petition was

untimely, notifying Bittinger of its intention to dismiss the Petition, and

allowing Bittinger 20 days to respond to the notice. See Pa.R.Crim.P. 907.

Bittinger responded, reasserting that President Judge Lewis had had a conflict

of interest when adjudicating his 1995 petition. Bittinger added that President

Judge Lewis had also adjudicated his 1997 and 2016 petitions, and argued

that he “objects” to President Judge Lewis’s failure to recuse himself from

deciding the instant petition. Bittinger’s Response to Rule 907 Notice, 9/14/18,

at 1. The PCRA court denied the Petition as untimely, and Bittinger appealed.3

3 Although the court dismissed the Petition on September 18, 2018, and Bittinger’s notice of appeal was not docketed as received by the trial court until October 19, 2018, 31 days later, we decline to quash the appeal as untimely. The certified record does not reflect the date Bittinger mailed the notice of appeal from prison, but we may presume Bittinger delivered it to prison authorities on or before October 18, 2018, within the appeal period. See Pa.R.A.P. 121(a); Commonwealth v. Patterson, 931 A.2d 710, 714 (Pa.Super. 2007).

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Bittinger argues we should consider his Petition timely under the

governmental interference exception because “[President] Judge Lewis[’s]

failure to recuse demonstrates a constitutional violation against [Bittinger’s]

due process rights.” Bittinger’s Br. at iii. We need not reach the question of

whether recusal was warranted, whether that issue is waived,4 or the merits

of the underlying attacks on Bittinger’s judgement of sentence because the

Petition is untimely.

“The PCRA’s time limitations implicate our jurisdiction and may not be

altered or disregarded in order to address the underlying merits of a claim.”

Commonwealth v. Greco, --- A.3d ----, 2019 PA Super 30 (Feb. 8, 2019).

When a petitioner files a PCRA petition more than one year after his or her

judgment of sentence has become final, the petitioner must plead and prove

that one of three enumerated exceptions applies. 42 Pa.C.S.A. § 9545(b)(1)(i-

iii). The first of these, known as the “governmental interference exception,”

allows for the filing of a petition when “the failure to raise the claim previously

was the result of interference by government officials . . . in violation of the

Constitution or laws of this Commonwealth or the Constitution or laws of the

United States[.]” Id. at (b)(1)(i). The petitioner must file the petition within

4See Commonwealth v. Luketic, 162 A.3d 1149, 1158-59 (Pa.Super. 2017) (stating a request for recusal must be timely and specific).

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one year of the date he or she could have first presented the claim. Id. at

(b)(2).5

Here, Bittinger’s judgment of sentence became final in 1986. See id. at

(b)(3). Bittinger argues that his 2018 Petition is timely because President

Judge Lewis presided over his PCRA petitions in 1995, 1997, and 2016, and

the instant Petition. However, Bittinger does not explain how President Judge

Lewis interfered with his ability to file a timely PCRA petition challenging his

judgment of sentence. His claim therefore falls short of a colorable allegation

of governmental interference. Id. at (b)(1)(i). Moreover, Bittinger fails to

assert that he filed the instant Petition within one year of discovering that

President Judge Lewis interfered with the timely presentation of his claims.

Id. at (b)(2). Even assuming his 1995, 1997, and 2016 petitions were timely

and improperly dismissed, Bittinger does not deny he was aware at the time

of those dismissals that President Judge Lewis presided over his case.

As Bittinger has failed to plead and prove how the governmental

interference exception applies to his Petition, or allege that his Petition was

filed within one year of his discovery of any governmental interference, we

hold that the Petition was untimely filed. The PCRA court was therefore without

5 This section of the PCRA was amended effective December 24, 2018, to apply to claims arising on or after December 24, 2017. The amendment applies to Bittinger’s instant Petition, filed in August 2018.

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jurisdiction to entertain the Petition, and we affirm the order of the court

dismissing it.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/22/2018

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