J-A18041-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : NORMAN ELDER BOOHER : : Appellant : No. 1459 WDA 2021
Appeal from the PCRA Order Entered November 16, 2021 In the Court of Common Pleas of Washington County Criminal Division at No(s): CP-63-CR-0002368-2019
BEFORE: STABILE, J., MURRAY, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: NOVEMBER 9, 2022
Norman Elder Booher appeals the denial of his request for relief under
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. He claims
the court erred by failing to issue notice of its intent to dismiss his petition
without a hearing pursuant to Rule 907 of the Pennsylvania Rules of Criminal
Procedure. We affirm.
On December 17, 2019, Booher pled guilty to burglary and was
sentenced the same day to three to six years’ incarceration followed by two
to three years reporting probation with credit for time served.1 Booher did not
file a direct appeal. Booher filed the instant petition on November 14, 2021,
after the denial of a series of PCRA petitions. He raised claims of ineffective
assistance of counsel, the unavailability of exculpatory evidence, and a
____________________________________________
1 18 Pa.C.S.A. § 3502(a)(4). J-A18041-22
violation of the United States and Pennsylvania constitutions. The petition did
not raise any time-bar exception and did not address the timeliness of the
petition. The next day, the court dismissed the petition, stating that the
petition “contains the same issues as his previous six petitions.” Order, filed
11/16/21. The court did not issue a Rule 907 notice. It later justified its
conclusion in its Pa.R.A.P. 1925(a) opinion by citing the comment to Rule 907,
which states that in certain circumstances, the court may summarily dismiss
a PCRA petition. This timely appeal followed.
Booher raises one issue: “Did the PCRA court err in failing to comply
with the notice requirements of Pa.R.Crim.P. 907 before dismissing Booher’s
petition?” Booher’s Br. at 4.
We review the denial of PCRA relief to determine whether the PCRA
court’s factual findings are supported by the record and if it committed any
legal error. See Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).
When a court determines that a PCRA petition should be dismissed
without a hearing, the court must provide notice of its intent to dismiss
pursuant to Rule 907. See Pa.R.Crim.P. 907(1); Commonwealth v. Guthrie,
749 A.2d 502, 503 (Pa.Super. 2000) (stating issuance of Rule 1507 (prior
version of Rule 907) notice is mandatory).
Booher argues that the court was required to issue notice of its intent
to dismiss his petition. He also maintains that the court erroneously
interpreted the comment in Rule 907 to conclude that Rule 907 notice was
excused here. He contends that despite the court’s interpretation, “nothing in
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the comment creates a freestanding right to dismiss a petition without
complying with the notice requirement.” Booher’s Br. at 10.
Booher’s claim deals with the proper interpretation of a Rule of Criminal
Procedure. “The interpretation of procedural rules is a question of law, so our
standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Phillips, 141 A.3d 512, 518 (Pa.Super. 2016) (citation
omitted). When interpreting the Rules of Criminal Procedure, “we employ the
same principles employed in the interpretation of statutes.” Id. (citation
omitted). Our objective in interpreting the criminal rules “is to ascertain and
effectuate the intention of our Supreme Court[.]” Id. (internal quotations and
citations omitted). “When the words of a [rule] are clear and free from all
ambiguity, the letter of it is not to be disregarded under the pretext of
pursuing its spirit.” 1 Pa.C.S.A. § 1921(b).
Here, the PCRA court concluded that it was not required to issue Rule
907 notice because Booher’s petition raised the same facts and issues as his
first PCRA petition. The court determined that the comment in Rule 907 stating
that a court may summarily dismiss a petition raising the same issues and
facts, excuses a court “from compliance with the process” of Rule 907. Rule
1925(a) Opinion, filed 2/1/22, at 3. It also determined that if courts were
required to “conduct the lengthy notice process” each time it denied a PCRA
petition for the same meritless issues, “it would rapidly and unjustifiably
exhaust the time and judicial resources of the courts of this Commonwealth[.]”
Id. at 5.
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The relevant comment of Rule 907 provides:
The judge is permitted, pursuant to paragraph (1), to summarily dismiss a petition for post-conviction collateral relief in certain limited cases. To determine whether a summary dismissal is appropriate, the judge should thoroughly review the petition, the answer, if any, and all other relevant information that is included in the record. If, after this review, the judge determines that the petition is patently frivolous and without support in the record, or that the facts alleged would not, even if proven, entitle the defendant to relief, or that there are no genuine issues of fact, the judge may dismiss the petition as provided herein.
A summary dismissal would also be authorized under this rule if the judge determines that a previous petition involving the same issue or issues was filed and was finally determined adversely to the defendant. See 42 Pa.C.S. § 9545(b) for the timing requirements for filing second and subsequent petitions.
Pa.R.Crim.P. 907, comment (emphasis added).
A plain reading of this comment explains that a court may summarily
dismiss a PCRA petition without a hearing under certain conditions, but must
do so pursuant to the procedures set forth in Rule 907. These conditions
include if: 1)the petition is frivolous and without support in the record; 2) the
facts alleged, even if true, would not entitle the petitioner to relief; 3) there
are no genuine issues of fact; or 4) a previous petition involving the same
issue or issues was filed and determined adversely to the petitioner. However
even under these circumstances, subsection one of Rule 907 provides that the
court “shall” give notice of its intent to dismiss a petition without a hearing.
Pa.R.Crim.P. 907(1). The comment does not purport to create an exception to
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this requirement, and we do not see how it could without contradicting the
unambiguous terms of Rule 907 itself. See 1 Pa.C.S.A. § 1921(b). Therefore,
we conclude that the court erred in failing to issue notice of its intent to dismiss
Booher’s petition.
Nevertheless, no relief is due here because of the untimely nature of
Booher’s petition. See Commonwealth v. Ziegler, 148 A.3d 849, 851 n. 2
(Pa.Super. 2016) (“[F]ailure to issue Rule 907 notice is not reversible error
where the record is clear that the petition is untimely”). A petitioner seeking
relief under the PCRA petition must file the petition within one year of the
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J-A18041-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : NORMAN ELDER BOOHER : : Appellant : No. 1459 WDA 2021
Appeal from the PCRA Order Entered November 16, 2021 In the Court of Common Pleas of Washington County Criminal Division at No(s): CP-63-CR-0002368-2019
BEFORE: STABILE, J., MURRAY, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: NOVEMBER 9, 2022
Norman Elder Booher appeals the denial of his request for relief under
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. He claims
the court erred by failing to issue notice of its intent to dismiss his petition
without a hearing pursuant to Rule 907 of the Pennsylvania Rules of Criminal
Procedure. We affirm.
On December 17, 2019, Booher pled guilty to burglary and was
sentenced the same day to three to six years’ incarceration followed by two
to three years reporting probation with credit for time served.1 Booher did not
file a direct appeal. Booher filed the instant petition on November 14, 2021,
after the denial of a series of PCRA petitions. He raised claims of ineffective
assistance of counsel, the unavailability of exculpatory evidence, and a
____________________________________________
1 18 Pa.C.S.A. § 3502(a)(4). J-A18041-22
violation of the United States and Pennsylvania constitutions. The petition did
not raise any time-bar exception and did not address the timeliness of the
petition. The next day, the court dismissed the petition, stating that the
petition “contains the same issues as his previous six petitions.” Order, filed
11/16/21. The court did not issue a Rule 907 notice. It later justified its
conclusion in its Pa.R.A.P. 1925(a) opinion by citing the comment to Rule 907,
which states that in certain circumstances, the court may summarily dismiss
a PCRA petition. This timely appeal followed.
Booher raises one issue: “Did the PCRA court err in failing to comply
with the notice requirements of Pa.R.Crim.P. 907 before dismissing Booher’s
petition?” Booher’s Br. at 4.
We review the denial of PCRA relief to determine whether the PCRA
court’s factual findings are supported by the record and if it committed any
legal error. See Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).
When a court determines that a PCRA petition should be dismissed
without a hearing, the court must provide notice of its intent to dismiss
pursuant to Rule 907. See Pa.R.Crim.P. 907(1); Commonwealth v. Guthrie,
749 A.2d 502, 503 (Pa.Super. 2000) (stating issuance of Rule 1507 (prior
version of Rule 907) notice is mandatory).
Booher argues that the court was required to issue notice of its intent
to dismiss his petition. He also maintains that the court erroneously
interpreted the comment in Rule 907 to conclude that Rule 907 notice was
excused here. He contends that despite the court’s interpretation, “nothing in
-2- J-A18041-22
the comment creates a freestanding right to dismiss a petition without
complying with the notice requirement.” Booher’s Br. at 10.
Booher’s claim deals with the proper interpretation of a Rule of Criminal
Procedure. “The interpretation of procedural rules is a question of law, so our
standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Phillips, 141 A.3d 512, 518 (Pa.Super. 2016) (citation
omitted). When interpreting the Rules of Criminal Procedure, “we employ the
same principles employed in the interpretation of statutes.” Id. (citation
omitted). Our objective in interpreting the criminal rules “is to ascertain and
effectuate the intention of our Supreme Court[.]” Id. (internal quotations and
citations omitted). “When the words of a [rule] are clear and free from all
ambiguity, the letter of it is not to be disregarded under the pretext of
pursuing its spirit.” 1 Pa.C.S.A. § 1921(b).
Here, the PCRA court concluded that it was not required to issue Rule
907 notice because Booher’s petition raised the same facts and issues as his
first PCRA petition. The court determined that the comment in Rule 907 stating
that a court may summarily dismiss a petition raising the same issues and
facts, excuses a court “from compliance with the process” of Rule 907. Rule
1925(a) Opinion, filed 2/1/22, at 3. It also determined that if courts were
required to “conduct the lengthy notice process” each time it denied a PCRA
petition for the same meritless issues, “it would rapidly and unjustifiably
exhaust the time and judicial resources of the courts of this Commonwealth[.]”
Id. at 5.
-3- J-A18041-22
The relevant comment of Rule 907 provides:
The judge is permitted, pursuant to paragraph (1), to summarily dismiss a petition for post-conviction collateral relief in certain limited cases. To determine whether a summary dismissal is appropriate, the judge should thoroughly review the petition, the answer, if any, and all other relevant information that is included in the record. If, after this review, the judge determines that the petition is patently frivolous and without support in the record, or that the facts alleged would not, even if proven, entitle the defendant to relief, or that there are no genuine issues of fact, the judge may dismiss the petition as provided herein.
A summary dismissal would also be authorized under this rule if the judge determines that a previous petition involving the same issue or issues was filed and was finally determined adversely to the defendant. See 42 Pa.C.S. § 9545(b) for the timing requirements for filing second and subsequent petitions.
Pa.R.Crim.P. 907, comment (emphasis added).
A plain reading of this comment explains that a court may summarily
dismiss a PCRA petition without a hearing under certain conditions, but must
do so pursuant to the procedures set forth in Rule 907. These conditions
include if: 1)the petition is frivolous and without support in the record; 2) the
facts alleged, even if true, would not entitle the petitioner to relief; 3) there
are no genuine issues of fact; or 4) a previous petition involving the same
issue or issues was filed and determined adversely to the petitioner. However
even under these circumstances, subsection one of Rule 907 provides that the
court “shall” give notice of its intent to dismiss a petition without a hearing.
Pa.R.Crim.P. 907(1). The comment does not purport to create an exception to
-4- J-A18041-22
this requirement, and we do not see how it could without contradicting the
unambiguous terms of Rule 907 itself. See 1 Pa.C.S.A. § 1921(b). Therefore,
we conclude that the court erred in failing to issue notice of its intent to dismiss
Booher’s petition.
Nevertheless, no relief is due here because of the untimely nature of
Booher’s petition. See Commonwealth v. Ziegler, 148 A.3d 849, 851 n. 2
(Pa.Super. 2016) (“[F]ailure to issue Rule 907 notice is not reversible error
where the record is clear that the petition is untimely”). A petitioner seeking
relief under the PCRA petition must file the petition within one year of the
judgment of sentence becoming final. 42 Pa.C.S.A. § 9545(b)(1). When the
petition is filed beyond this one-year deadline, the petitioner must plead and
prove at least one time-bar exception. Id. at § 9545(b)(1)(i)-(iii). A failure to
do so will result in the dismissal of the petition, as this Court and the PCRA
court is without jurisdiction to entertain an untimely PCRA petition. See
Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
Booher’s judgment of sentence became final on January 16, 2020. See
42 Pa.C.S.A. § 9545(b)(3) (“a judgment becomes 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”); Pa.R.A.P. 903(a) (30 days to appeal from
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order). Thus, Booher had until January 18, 2021 to file a timely PCRA petition.2
Booher filed his petition in November 2021 making it untimely. Booher’s
petition did not address the petition’s timeliness, much less even attempt to
raise any time-bar exception. As such, because the petition is untimely, we
affirm the order of the court. See Commonwealth v. Pursell, 749 A.2d 911,
917 n. 7 (Pa. 2000) (affirming dismissal of untimely PCRA petition where PCRA
court did not issue Rule 1507 notice to petitioner and petitioner did not plead
and prove any time-bar exception); Ziegler, 148 A.3d at 851;
Commonwealth v. Wiley, 966 A.2d 1153, 1157 (Pa.Super. 2009) (this Court
may affirm the decision of the court on any basis which is supported by the
record).
Order affirmed. Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/9/2022
2 The 30-day deadline fell on a Saturday. See 1 Pa.C.S.A. § 1908 (“Whenever the last day of any such period shall fall on Saturday or Sunday, . . . such day shall be omitted from the computation”).
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