Com. v. Calhoun, G.

• Court: Superior Court of Pennsylvania
• Decided: June 18, 2024
• Docket: 453 WDA 2023
• Status: Unpublished

Opinion

J-S10041-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : GARY CALHOUN : : Appellant : No. 453 WDA 2023

Appeal from the PCRA Order Entered March 9, 2023 In the Court of Common Pleas of Cambria County Criminal Division at No(s): CP-11-CR-0000449-2012

BEFORE: OLSON, J., KING, J., and LANE, J.

MEMORANDUM BY LANE, J.: FILED: June 18, 2024

Gary Calhoun (“Calhoun”) appeals pro se from the order dismissing his

sixth petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”).1 We affirm.

In 2011, Calhoun’s minor daughter, then eleven years old, disclosed

that Calhoun repeatedly touched and rubbed her vaginal area in a circular

motion with his fingers, ostensibly so that he could check to see if she was

wiping properly. The Commonwealth charged Calhoun with corruption of

minors and related offenses. In 2013, a jury convicted Calhoun of one count

of corruption of minors. On December 17, 2013, the trial court sentenced

Calhoun to a term of twenty-five to fifty years’ imprisonment, which included

a mandatory twenty-five-year sentence pursuant to 42 Pa.C.S.A. § 9718.2,

due to his prior convictions for sexual offenses. Calhoun filed a direct appeal, ____________________________________________

1 See 42 Pa.C.S.A. §§ 9541-9546. J-S10041-24

and this Court affirmed the judgment of sentence on November 12, 2014.

See Commonwealth v. G.C., 113 A.3d 347 (Pa. Super. 2014) (unpublished

memorandum). Calhoun did not seek further review by the Pennsylvania

Supreme Court.

On January 5, 2015, Calhoun timely filed his first PCRA petition. The

PCRA court appointed counsel, who filed an amended petition. The court

denied PCRA relief, and this Court affirmed that ruling. See Commonwealth

v. Calhoun, 154 A.3d 851 (Pa. Super. 2016) (unpublished memorandum).

Thereafter, Calhoun filed several unsuccessful PCRA petitions, the most recent

being his fifth unsuccessful petition, the denial of which this Court affirmed in

July 2022. See Commonwealth v. Calhoun, 283 A.3d 404 (Pa. Super.

2022) (unpublished memorandum).

On January 19, 2023, Calhoun filed the instant pro se PCRA petition, his

sixth. On the pre-printed PCRA form, Calhoun acknowledged that his petition

was untimely, but asserted that the timeliness exceptions for governmental

interference and a newly recognized constitutional right applied. Calhoun also

requested the recusal of the PCRA court judge, Honorable Norman

Krumenacker.

The PCRA court issued notice of its intent to dismiss the petition without

a hearing pursuant to Pa.R.Crim.P. 907. Calhoun did not file a response. The

PCRA court determined that the petition was untimely and Calhoun failed to

plead or prove any of the PCRA’s timeliness exceptions. On March 9, 2023,

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the court dismissed the petition. Calhoun timely filed a pro se notice of appeal.

Both Calhoun and the PCRA court complied with Pa.R.A.P. 1925(b).

On appeal, Calhoun raises the following issues for our review:

1. Whether the PCRA court erred in dismissing . . . Calhoun’s petition without a hearing because the [PCRA] permits a PCRA court to consider an untimely petition that establishes that the failure to discover or develop the ineffective assistance of counsel claim within the one-year period was the result of interference by government officials.

2. Whether the PCRA court erred in dismissing . . . Calhoun’s petition without a hearing because the [PCRA] permits an untimely claim (i.e.: ineffective assistance of counsel) where the facts upon which those claims are predicated were unknown to . . . Calhoun and could not have been ascertained by the exercise of due diligence.

3. Whether the PCRA court erred in dismissing . . . Calhoun’s motion for recusal because of the production of evidence establishing bias, prejudice or unfairness, creates an appearance of impropriety, which raises a substantial doubt as to [the PCRA judge’s] ability to preside impartially.

Calhoun’s Brief, 11/27/23, at 6 (unnecessary capitalization omitted).2

Our standard of review of an order dismissing a PCRA petition is well-

settled:

We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level.

____________________________________________

2 On appeal, Calhoun also requests this Court to consider his pro se PCRA petition filed on December 18, 2013, as he claims it is still pending and, accordingly, the PCRA court lacked jurisdiction to consider his subsequent PCRA petitions. See Calhoun’s Brief at 16. However, this Court did not affirm his judgment of sentence on direct appeal until November 12, 2014. Accordingly, the 2013 petition was prematurely filed and, thus, ineligible for relief under the PCRA. See 42 Pa.C.S.A. § 9545(b)(1).

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This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court’s ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court’s decision on any grounds if the record supports it. Further, we grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Where the petitioner raises questions of law, our standard of review is de novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

Under the PCRA, any petition, including a second or subsequent petition,

must be filed within one year of the date the judgment of sentence becomes

final. See 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 such

review. See 42 Pa.C.S.A. § 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).

On November 12, 2014, this Court affirmed Calhoun’s judgment of

sentence. As Calhoun did not petition the Pennsylvania Supreme Court for

allowance of appeal, his judgment of sentence became final upon the

expiration of the thirty-day appeal period, on December 12, 2014. See 42

Pa.C.S.A. § 9545(b)(3); see also Pa.R.A.P. 1113(a) (providing a petition for

allowance of appeal shall be filed within thirty days after the entry of the order

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of the Superior Court). Calhoun then had one year from that date, until

December 12, 2015, to file a timely PCRA petition. See 42 Pa.C.S.A. §

9545(b)(1). As the instant sixth petition was not filed until January 19, 2023,

it is patently untimely under the PCRA’s one-year time bar.

Nevertheless, Pennsylvania courts may consider an untimely PCRA

petition if the petitioner explicitly pleads and proves one of three exceptions

set forth under section 9545(b)(1). These exceptions are as follows:

(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.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke one of

these exceptions “shall be filed within one year of the date the claim could

have been presented.” 42 Pa.C.S.A. § 9545(b)(2). Our Supreme Court has

emphasized that “it is the petitioner who bears the burden to allege and prove

that one of the timeliness exceptions applies.” Commonwealth v. Marshall,

947 A.2d 714, 719 (Pa. 2008) (citation omitted).

To be eligible for relief under the PCRA, a petitioner must plead and

prove by a preponderance of the evidence that the allegation of error has not

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been previously litigated or waived. See 42 Pa.C.S.A. § 9543(a)(3). An issue

has been previously litigated if: (1) 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 (2) it has been raised and decided in a proceeding collaterally

attacking the conviction or sentence. Id. § 9544(a)(2), (3).

In his first two issues, Calhoun contends that the PCRA court erred by

dismissing his petition as untimely filed. As explained above, in his PCRA

petition, Calhoun indicated that he intended to invoke both the governmental

interference exception and the newly recognized constitutional right exception

to the PCRA’s one-year time bar. See PCRA Petition, 1/19/23, at 3. To

demonstrate the governmental interference exception, the petition must plead

and prove the failure to previously raise the claim was the result of

interference by government officials, and the information could not have been

obtained earlier with the exercise of due diligence. See Commonwealth v.

Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008) (explaining that the exception

requires the petitioner to plead that the facts upon which the claim is

predicated were not previously known to the petitioner and could not have

been ascertained through due diligence). To demonstrate a new constitutional

right, the petition must plead and prove that the right asserted is a

constitutional right recognized by the Supreme Court of the United States or

the Pennsylvania Supreme Court, and the right has been held to apply

retroactively to cases on collateral review within the previous year. See

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Commonwealth v. Spotz, 171 A.3d 675, 679 (Pa. 2017). Notably, invoking

either of these exceptions requires a petitioner to plead and prove that he

could not have obtained the information underlying these exceptions more

than one year before he filed his petition. See 42 Pa.C.S.A. § 9545(b)(2)

(stating that any petition invoking a timeliness exception shall be filed within

one year of the date the claim could have been presented); see also

Commonwealth v. Stokes, 959 A.2d 306, 309-10 (Pa. 2008) (explaining

that section 9545(b)(2) “requires a petitioner to plead and prove that the

information on which he relies could not have been obtained earlier, despite

the exercise of due diligence”).

In his petition, Calhoun failed to plead or prove that his claim regarding

governmental interference was only recently discovered or that he filed the

instant petition within one year of such discovery. See 42 Pa.C.S.A. §

9545(b)(2); see also Stokes, 959 A.2d at 309-10. Indeed, Calhoun indicated

in his petition that he filed a prior PCRA petition in 2015 raising a claim that

his trial counsel was ineffective for failing to raise the instant claim of

governmental interference. See PCRA Petition, 1/19/23, at 3. Thus, as the

instant petition reflects that Calhoun was aware of his governmental

interference claim since at least 2015, he failed to satisfy the timeliness

exception set forth at section 9545(b)(1)(i) by pleading and proving in his

petition that he filed it within one year of the date the instant governmental

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interference claim could have been presented. See 42 Pa.C.S.A. §

9545(b)(2).

With respect to the newly recognized constitutional right exception to

the PCRA’s one-year time bar, Calhoun indicated in his petition that he

satisfied the timeliness exception set forth in section 9545(b)(1)(iii) based on

the Pennsylvania Supreme Court’s decision in Commonwealth v. Baker-

Myers, 255 A.3d 223 (Pa. 2021). See PCRA Petition, 1/19/23, at 3. However,

the High Court did not recognize any new constitutional right in that decision,

let alone one that applied retroactively. Moreover, even if that decision had

recognized any new constitutional right which applied retroactively to cases

on collateral review, the instant petition was not filed within one year of that

decision. Thus, Calhoun failed to satisfy the timeliness exception set forth in

section 9545(b)(1)(iii) by pleading and proving in his petition that he was

entitled to the benefit of a constitutional right newly-recognized by the

Supreme Court of the United States or the Pennsylvania Supreme Court, and

that the right has been held to apply retroactively to cases on collateral review

within the previous year. See Spotz, 171 A.3d at 679.3

In his final issue, Calhoun claims that the PCRA court erred in dismissing

his petition on the basis that he requested the recusal of the PCRA court judge,

3 In his brief, Calhoun argues that he satisfied the newly-discovered fact exception to the PCRA’s one-year time bar; however, he did not assert this timeliness exception in his petition. See PCRA Petition, 1/19/23, at 3

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Honorable Norman A. Krumenacker. As Calhoun failed to plead or prove any

exception to the PCRA’s one-year time bar, the PCRA court lacked jurisdiction

to consider this issue. Moreover, for Calhoun to be eligible for relief on this

issue, he needed to plead and prove by a preponderance of the evidence that

this claim has not been previously litigated. See 42 Pa.C.S.A. § 9543(a)(3).

Our review of the record reveals that Calhoun filed a pro se motion for

disqualification of the same PCRA court judge in conjunction with his fifth PCRA

petition. See Calhoun, 283 A.3d 404 (unpublished memorandum at *2). The

PCRA court denied the recusal motion and Calhoun appealed the denial order.

This Court affirmed the PCRA court’s denial of Calhoun’s recusal motion. See

id. (unpublished memorandum at *6). Therefore, because this same recusal

issue has been raised and decided in a proceeding collaterally attacking

Calhoun’s conviction or sentence, it has been previously litigated. See 42

Pa.C.S.A. § 9544(a)(3). Thus, even if Calhoun had been able to overcome

the untimeliness of his petition, this issue was ineligible for relief under the

PCRA. See id. § 9543(a)(3).

Having determined that Calhoun’s sixth petition was untimely filed and

that he failed to plead or prove any exception to the PCRA’s one-year time

bar, we conclude that the PCRA court lacked jurisdiction to consider it.

Accordingly, we affirm the PCRA court’s order dismissing the petition.

Order affirmed.

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DATE: 06/18/2024

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