J. S06043/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA
Appellee :
:
v. :
:
THOMAS JOHN CROSSLEY, :
:
Appellant : No. 1905 EDA 2014
Appeal from the PCRA Order June 2, 2014 In the Court of Common Pleas of Delaware County Criminal Division No(s).: CP-23-CR-0004531-2009 CP-23-CR-0005623-2009
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA
Appellee :
:
v. :
:
THOMAS JOHN CROSSLEY, :
:
Appellant : No. 2002 EDA 2014
Appeal from the PCRA Order June 2, 2014 In the Court of Common Pleas of Delaware County Criminal Division No(s).: CP-23-CR-0004523-2009 CP-23-CR-0004531-2009
CP-23-CR-0005623-2009
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA
Appellee :
:
v. :
:
THOMAS JOHN CROSSLEY, :
:
Appellant : No. 2071 EDA 2014
J. S06043/15
Appeal from the PCRA Order June 2, 2014 In the Court of Common Pleas of Delaware County Criminal Division No(s).: CP-23-CR-0004523-2009 CP-23-CR-0004531-2009
CP-23-CR-0005623-2009
BEFORE: BENDER, P.J.E., LAZARUS, and FITZGERALD,* JJ. JUDGMENT ORDER BY FITZGERALD, J.: FILED FEBRUARY 06, 2015 Appellant, Thomas John Crossley, appeals pro se from the order of the Delaware County Court of Common Pleas that dismissed his second Post Conviction Relief Act1 (PCRA) petition without a hearing. Appellant claims the instant PCRA petition should be considered an extension of his first PCRA petition because counsel in that proceeding “abandoned” him. He further asserts he is entitled to withdraw his guilty pleas because the trial court threatened to sentence him to 160 years’ imprisonment. No relief is due.
Having reviewed Appellant’s pro se arguments, the record, and the PCRA court’s opinion, we conclude the PCRA court properly determined: (1) the instant petition was not timely filed; and (2) Appellant failed to assert an exception to the PCRA time-bar. See PCRA Ct. Op., 9/19/14, at 9, 10-13. Because the PCRA court has summarized and applied the relevant law, we
*
Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546. Appellant averred he deposited the instant second PCRA petition with prison officials on April 30, 2012. See generally Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (discussing prisoner mailbox rule). He challenges convictions that became final on April 2, 2010.
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J. S06043/15
affirm on the basis of its opinion that it lacked jurisdiction to consider the merits of the instant petition. See id. As to Appellant’s arguments that the present petition was a timely extension of his first petition, the Pennsylvania Supreme Court has abrogated equitable exceptions to the PCRA time bar, such as the “extension theory.” See Commonwealth v. Robinson, 837 A.2d 1157, 1161-62 (Pa. 2003). As to Appellant’s contention that he was “abandoned” by counsel during the first PCRA proceeding, that claim is frivolous because counsel was permitted to withdraw by the PCRA court after filing a Turner/Finley2 no-merit letter. See Commonwealth v. Crossley, 1067 EDA 2011 (unpublished memorandum) (Pa. Super. Apr. 2, 2012).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 2/6/2015
2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc); accord Commonwealth v. Quail, 729 A.2d 571 (Pa. Super. 1999) (noting “once counsel has entered an appearance on a defendant’s behalf he is obligated to continue representation until the case is concluded or he is granted leave by the court to withdraw his appearance” (emphasis added)).
IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA CRIMINAlJ
COMMONWEALTH OF PENNSYLVANIA NOS. 4523-09 4531-09
5623-09
v.
THOMAS J. CROSSLEY
A. Sheldon Kovach, Esquire - Deputy District Attorney for the Commonwealth Thomas Crossley - Pro Se
OPINION
Kelly, J. Date: September 19, 2014 A criminal complaint was filed in No. 4531-09 by the Tinicum Township Police Department on May 27, 2009, inter alia, charging Thomas J. Crossley (hereinafter refened to as "Defendant" or "Crossley") with Robbery' and related offenses. The Defendant on July 22, 2009, before the Magisterial District Judge per the advice and with the consent of counsel waived his Preliminary Hearing. Defendant Crossley was fOlTllally arraigned before the trial court on August 20, 2009, at which time the Office of the District Attorney of Delaware County lodged against him, inter alia, the following Criminal Informations: Information A - Robber/ and Information D - Possessing InstlUments of Crime. 3 On June 8, 2009, the Pennsylvania State Police and Willistown Township Police Depmiment filed a criminal complaint in No. 5623-09, inter alia, charging Defendant Crossley with Burglm'y - 72 Counts;4 Criminal Conspiracy (Burglary) - 72 Counts;5 and Firearms Not to
I 18 Pa.C.S. § 3701. 2 !d. ) 18 Pa.C.S. § 907. 4 18 Pa.C.S. § 3502. 5 18 Pa.C.S. § 903(3502).
be Carried Without a License (11 Counts).6 Before the Magisterial Dish'ict Court on September 17, 2009, the multiple allegations of Firearms Not to be Carried Without a License? were withdrawn· by the prosecution seemingly in exchange for the Defendant's counseled waiver of his Preliminary Hearing as to the balance of charges. Defendant Crossley was fOlmally arraigned before the trial comi on October 15,2009, at which time the Delaware County District Attorney's Office, infer alia, lodged against him the following Criminal Informations:
InfOlmation A - Burglary - 72 Counts8 and Information B - Criminal Conspiracy (Burglary) -
72 Counts. 9 In case No. 4523-09, a criminal complaint was filed on June 8, 2009, by the Norwood Police Department, inter alia, charging Defendant Crossley with Robbery; 10 Criminal Conspiracy (Robbery and all other alleged offenses)/l Possessing Inshuments of Crime; 12 and Prohibited Offensive Weapons,u The Defendant on July 22, 2009, with his attorney's advice and consent waived his Preliminary Hearing before the Magisterial District COUIt. Defendant Crossley was formally al1'aigned before the trial comt on August 20, 2009, at which time the Office of the District Attorney of Delaware County, infer alia, lodged against him the following Criminal Informations: Information A - Robbery; 14 Information B - Criminal Conspiracy
618 Pa.C.S. § 6106. 7 Id. s 18 Pa.C.S. § 3502. 9 18 Pa.C.S. § 903(3502). 10 18 Pa.C.S. § 3701. 11 18 Pa.C.S. § 903. 12 18 Pa.C.S. § 907. 13 18 Pa.C.S. § 908. 14 18 Pa.C.S. § 3701.
(Robbery and all other charged offenses - 6 Counts);IS Information C - Prohibited Offensive Weapons; 16 and Information F - Possessing Instruments of Crime. 17
Defendant Crossley in these three (3) cases entered on March 3, 2010, counseled,
19
negotiated guilty pleas before this court. 18 The Defendant regarding No. 5623-09 entered pleas
of guilty to Information A - Burglary - 70 Counts20 and Infonnation B - Criminal Conspiracy (Burglary) - one (1) consolidated Count,21 The Defendant in No. 4531-09 entered a guilty plea to Infonnation A - Robbery (Threatens Serious Bodily Injury).22 As to No. 4523-09, Defendant Crossley as well entered a plea of guilty to Information A - Robbery (Threatens Serious Bodily InjUly).23 N.T. 3/3/10, pp. 3-37. A pre-sentence investigation was waived. N.T. 3/3/10, p. 37.
IS 18 Pa.C.S. § 903. 16 18 Pa.C.S. § 908. 17 18 Pa.C.S. § 907.
18 The Office of the Public Defender of Delaware County detelmined at bar Defendant Crossley was eligible for that office's professional services. The Public Defender's Office subsequently lodged a Petition for Appointment of Conflict Counsel and the court resultantly appointed Amanda L. H. Brinton, Esquire as the Defendant's attomey pel' order dated June 30, 2009. On 01' about January 12,2010, Ms. Brinton filed a Motion to Appoint Co-Counsel and after such a hearing, this motion was granted by order of January 26, 2010, and C. Scott Shields, Esquire was designated as co-counsel to assist Ms. Brinton in such a manner as the defense lawyers mutually agreed. See Orders dated Jlllle 30, 2009, and January 26, 2010.
19 Material to No. 5623-09, immediately prior to entry of the Defendant's guilty pleas, without objection, and to facilitate the attorneys' negotiations, the Commonwealth withdrew Counts I, 38, and 53 of Information A - Burglary, and motioned to amend Information A to add Count 73 - Burglary, reflecting the residence at 1325 Baltimore Pike, Springfield, Pa. N.T. 3/3/10, pp. 4-5.
Also, regarding No. 5623-09, as part of the plea agreement, counsel agreed that while the Defendant would plead guilty to Information A - Burglary - 70 Counts, these seventy (70) counts merged for sentencing purposes to only five (5) counts, those being as follows: Count 34 (Home-Person Present on January 6, 2009); Count 19 (Home- Person Present on October 23, 2008); Count 39 (Home-Person Present on December 16,2008); Count 4 (Home-No Person Present on September 26, 2008); and Count 73 (Home-No Person Present on October 28, 2008). N.T. 3/3/10, pp. 5-10. Pumtant to the lawyers' understanding it was similarly agreed that the Defendant would plead guilty to one (I) consolidated count of Conspiracy to Commit Burglary - Home-Person Present with the offense dates encompassing the applicable times of the seventy (70) object burglaries (September 12, 2008 - January 7, 2009). N.T. 3/3/10, PI'. 9-10.
20 18 Pa.C.S. § 3502. 21 18 Pa.C.S. § 903(3502). 22 18 Pa.C.S. § 3701(a)(I)(ii). 23 !d.
4
Wholly consistent with the attorneys' negotiations, the court oil that same date (March 3, 2010) sentenced Defendant Crossley in No. 5623-09 to a period of incarceration at a state correctional institntion of two (2) tlll'ough six (6) years on Count Nos. 34, 19,4,73, and 39 of Information A - Burglarl4 with each count's term to be served consecutive to the other.
Regarding Infonnation B - Conspiracy to Commit Burgl ary25 - one (I) merged count, the court again pursuant to counsel's agreement directed a ten (10) year period of state probationary oversight to be served consecutively to the sentences of imprisol1l'nent imposed under Infonnation A - Burglary26 - (Counts 34, 19,4, 73 and 39). See Certificate of Imposition of Judgment of Sentence - No. 5623-09.
In accord with the lawyers' negotiations, the cOUli as well on March 3, 2010, sentenced Defendant Crossley in No. 4531-09 to a term of incarceration of five (5) through ten (10) years per Information A - Robberl7 and directed that tltis sentence was to run concurrent to that imposed at No. 5623-09. See Certificate of Imposition of Judgment of Sentence - No. 4531-09.
Consistent with counsel's plea understanding, the court also on March 3, 2010, sentenced Defendant Crossley in No. 4523-09 under Information A - Robber/ 8 to a period of imprisomnent of five (5) through ten (l0) years and directed that this sentence was to run concurrently with those imposed at Nos. 4531-09 and 5623-09. See Certificate ofImposition of Judgment of Sentence - No. 4523-09.
Thus, the aggregate sentence the cOUli imposed pursuant to the plea negotiations of the lawyers was ten (10) tlll'ough thirty (30) years incarceration followed by ten (10) years
24 18 Pa.C.S. § 3502. 25 18 Pa.C.S. § 903(3502). 26 18 Pa.C.S. § 3502. 27 18 Pa.C.S. § 3701. 28 [d.
5
consecutive state, probationary supervision. N.T. 3/3/10, pp. 10-13,40-46. See also Certificates of Imposition of Judgment of Sentence. The court as well concluded at sentencing, without objection, that the Defendant was not eligible for recidivism risk reduction incentive (RRRl) consideration due to his past criminal history and/or the nature of his convictions at bal'. See 61 Pa.C.S. §§ 4501 et seq. See also N.T. 3/3/10, pp. 44-46.
No timely post-sentence motions were lodged, including any pleading requesting modification of sentence and/or withdrawal of Defendant Crossley's previously entered guilty pleas. No direct appeal to the Superior Court ofPellllsylvania was filed.
Defendant Crossley lodged collectively in the above-captioned matters a pro se Motion to Modify Sentence on or about August 23, 2010, which this court was constrained to treat as a Post Conviction Collateral Relief Act filing. See Commonwealth v. Stout, 978 A.2d 984, 986-87 (Pa.Super. 2009); Commonwealth v. Fowler, 930 A.2d 586, 591-92 (pa.Super. 2007); Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa.Super. 2001); and Commonwealth v. Evans, 866 A.2d 442, 443 (Pa.Super. 2005) citing Commonwealth v. Hockenbmy, 455 Pa.Super. 626, 635, 689 A.2d 283, 288 (1997). Henry DiBenedetto Forrest, Esquire was appointed by the cOUli on or about September 7, 2010, for purposes of the then pending collateral motion to represent Defendant Crossley. See COlllmonwealth v. Luckett, 700 A.2d 1014, 1016 (Pa.Super. 1997). See also Order dated September 7,2010.
Mr. DiBenedetto Forrest on November 4, 2010, filed an "Application to Withdraw Appearance" and suppOliillg "No Merit Letter." See "Application to Withdraw Appearance" and "No Merit Letter" dated November 4,2010. By order dated January 20, 2011, the cOUli granted the application of court appointed counsel to withdraw and served notice on the Defendant that it
6
intended to dismiss his then outstanding collateral motion, absent a hearing. See Order and Dismissal Notice dated January 20, 2011.
Defendant Crossley on Febmary 8, 2011, lodged a pro se Answer to the court's Dismissal Notice. See Defendant's Answer dated Febmary 8,2011. Per order of April 5, 2011, the court dismissed the Defendant's pro se PCRA petition in the form of his Motion to Modify Sentence. See Order dated April 5, 2011. Defendant Crossley pro se filed a timely Notice of Appeal on April 15,2011, to the Superior Court of Pennsylvania from the order dismissing his collateral pleading. These appeals were individually docketed before the appellate cOUli at Nos. 1067 EDA 2011, 1068 EDA 2011, and 1070 EDA 2011. See Superior COUli Nos. 1067 EDA 2011, 1068 EDA 2011, and 1070 EDA 2011. 29 This court via order dated April 28, 2011, directed Defendant Crossley to file of-record a Concise Statement of Matters Complained of on Appeal. See Order dated April 28, 2011. Responding to this order, the Defendant lodged on May 10, 2011, a statement of such appellate complaints. See Statement of Matters Complained of on Appeal, May 10, 2011. Although the Defendant by this statement advanced four (4) separate assignments of errol', the collective thmst of his appellate complaint was the failure of his trial attorneys to challenge what he characterized as an excessive and unduly harsh sentence tlU'ough the timely filing of a sentencing modification motion as he purpOltedly requested of them. See Statement of Matters Complained of on Appeal, April 28, 2011.
Tllis COUIt issued its opinion on October 25, 20 II, in support of dismissing the Defendant's first collateral filing. The Superior Court by memorandum opinion dated April 2, 2012, affirmed the dismissal of the Defendant's original collateral pleading concluding, inter
29 The Superior Court by order of August 12. 20 II. for briefing and argument purposes consolidated these appeals. See Superior COUlt Nos. 1067 EDA 2011.1068 EDA 2011. and 1070 EDA 2011.
7
alia, that" ... Crossley's issue raised on appeal is waived, and in any event, meritless." See Superior COUli Nos. 1067 EDA 2011,1068 EDA 2011, and 1070 EDA 2011, Opinion, p. 4.
Defendant Crossley lodged collectively in the above-captioned matters his second and current Petition for Post Conviction Collateral Relief on or about May 1, 2012. See Petition for Post Conviction Collateral Relief. By this subsequent PCRA filing, the Defendant generally maintained that his pleas of guilty were unlawfully induced under ciIcumstances that made it likely that the inducement caused him to plead guilty, and he is innocent of all those crimes forming his convictions' basis?O See Defendant's Petition, p. 3.
By order of cOUlt, Henry DiBenedetto Forrest, Esquire for purposes of the instant collateral action was once more appointed to represent Defendant Crossley. Mr. DiBenedetto Fonest filed on or about July 30, 2012, an Application to Withdraw Appearance grounded in
30Although he averred in his most recent PCRA his "i1111ocence," Defendant Crossley by his first collateral pleading lodged with this comi to the contrary admitted that "[H]e under stands [sic] the wrong he has done and frilly takes responsibility of his actions." See Defendant's Motion to Modify Sentence, August 23, 2010. The Defendant's belated claim of i1mocence was not only contradicted by his first PCRA filing's acknowledgment of guilty, but as well belied by the material case records.
In No. 5623-09, the evidence against Defendant Crossley is comprehensively set forth by the fifty (50) page criminal complaint supporting probable cause affidavit which reveals, inter alia, the Defendant was identified along with a co-defendant, John Cartlidge, Sr., by at least three (3) employees of different pawn shops as seIling items on numerous occasions taken during celiain of the burglaries. Defendant Crossley was also identified by a bmglarized home owner and a neighbor of another burglary victim as well as by employees of a storage facility from which investigators recovered various propeliy taken during the course of the burglaries. TIle Defendant's wife acknowledged to investigators her teenage daughter was given a Chrishnas gift by the Defendant which she knew he had stolen during one of the burglaries. See Criminal Complaint and Probable Cause Affidavit, No. 5623-09.
Regarding No. 4523-09, inter alia, the knife point robbery was caphlred on the store's security tape. From the surveillance video, the Defendant's wife identified him to investigators. His wife also advised investigators that Defendant Crossley admitted to her committing this robbery. See Criminal Complaint and Probable Cause Affidavit, No. 4523-09.
Concerning No. 453 I -09, inter alia, this knife point robbelY was also captured by that convenience store's video surveillance system. Once more, Defendant Crossley's wife readily identified him to investigators from the surveillance tape and further admitted to her participation in this crime as the Defendant's driver. See Criminal Complaint and Probable Cause Affidavit, No. 453 1-09.
Salient to all three (3) prosecutions, the Commonwealth long had in place a cooperative plea agreement with the co-defendants, John Cmilidge, Sr. and Jolm Cmilidge, Jr., requiring their testimony at the Defendant's trials, as the prosecution deemed necessary.
8
concerns of the attorney - client relationship being materially lUptnred. By order dated July 31, 2012, Mr. DiBenedetto Forrest was permitted to step aside and Stephen D. Molineux, Esquire was appointed stewardship of the Defendant's pending collateral interests.
Mr. Molineux in compliance with the dictates of Commonwealth v. Finley, 481 U.S. 551, 558-59,107 S.Ct. 1990,1995 (1987), COllllllonwealth v. Tumer, 518 Pa. 491, 495, 544 A.2d 927, 928-29 (1988), and COllllllonwealth v. Friend, 896 A.2d 607, 614-15 (Pa.Super. 2006) filed an "Application to Withdraw Appearance" and suppOliing "No Merit Letter." The Defendant's lawyer concluded that the instant pro se collateral petition was untimely lodged and/or otherwise ave11'ed no meritorious issues. "No Merit Letter," pp. 3-4. Per order dated January 7, 2014, the cOUli granted Mr. Molineux's withdrawal application and entered a related Notice of Intent to Dismiss Without a Hearing. See Order and Dismissal Notice dated Janumy 7, 2014. The court by order dated June 2, 2014, dismissed the Defendant's present PCRA petition. See Order dated June 2, 2014.
On June 25, 2014, the Defendant timely filed a pro se Notice of Appeal. See Notice of Appeal. The COUlt by order of June 26, 2014, instlUcted Defendant Crossley to lodge a statement of appellant complaints. See Order dated June 26, 2014. Responding to tlllS order (June 26, 2014), Defendant Crossley timely filed on July 16, 2014, a Statement of Matters Complained of on Appeal raising the below discussed assignments of error.
I. Whether Appellant's guilty plea was improperly coerced by the Court's threats to sentence him to 160 years and he would die in prison, thus his plea was invalid. When Defense counsei condoned such conduct by the court it had Appellant to believe the Court's admonition to be true. Defense counsel fwd no reasonable basis for failing to clarify tile consequences witlt Appellant or seek to withdraw the guilty plea based upon the conduct of the court, and Defense COlli/set should have conferred witlt Appellant regarding possible altematives instead of allowing Appellant to proceed based on assumption regarding itOII' to proceed givell the court's conduct. Such conduct of COUIISel was ineffective and induced Appellallt to enter all invoiunimy guilty plea.
9
II. Appellant's second post conviction petition was not untimely,' ratlter in tlte interest of justice should be considered merely an extellsion of litigation of appellant's timely first post conviction petition, which involved tlte wit/u/r(l)v!ll by defense counsel alld counsel's abandonment of appellant.
Foremost, this court lacks the requisite jurisdiction to deciding the merits, if any, of Defendant Crossley's immediate past collateral filing. Moreover, the Defendant has waived for purposes of Post Conviction Relief Act review those challenges tlus PCRA petition advanced and/or the previous litigation relevant to Ius guilty pleas' legal validity during his long since concluded 20 I 0 collateral action now renders Defendant Crossley ineligible for Post Conviction Relief Act remedy grounded in an attack on Ius guilty pleas' lawfulness.
A defendant must file a PCRA petition, including a second or subsequent one(s) within one (1) year from the date judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(l). A sentencing judgment becomes final for purposes of the Post Conviction Relief Act " ... at the conclusion of direct review, including discretionary review in the Supreme COUli of the United States and the Supreme COUli of Pelillsylvania, or at the expiration of time for seeking the review." 42 Pa.C.S. § 9545(b)(3). This otherwise mandated one (I) year filing date is excused only if a defendant alleges and proves one of the statutOly exceptions set fOl1h in subsections (i), (ii) and/or (iii) of the Act's Section 9545, relating to government interference, newly discovered evidence, or a constitutional right recogluzed by the federal and/or state Supreme Courts that is applied retroactively. 42 Pa.C.S. § 9545(b)(1)(i)(ii)(iii). Even should one or more of these enumerated exceptions to the one (1) year lodging requisite attach, a defendant for purposes of the COUIt's necessary jurisdiction must file any such collateral pleading" ... witlun 60 days of the date the claim could have been presented." 42 Pa.C.S. § 9545(b)(2).
10
The Superior Court has repeatedly held second or subsequent PCRA petitions untimely when such collateral pleadings were not filed within one (1) year after a defendant's judgment of sentence became final. Commonwealth v. Johnson, 945 A.2d 185, 188 (pa.Super. 2008) and Commonwealth v. Davis, 916 A.2d 1206, 1208-09 (Pa.Super. 2007). Moreover, a second or additional PCRA petition will only be considered if a defendant demonstrates that the proceedings resulting in his conviction were so unfair that a misca!Tiage of justice occurred which no civilized society can tolerate, or a defendant is innocent of the convicted crimes. Commonwealth v. Lawson, 519 Pa. 504, 513-14, 549 A.2d 107, 112 (1988) and Commonwealth v. SZlichon, 534 Pa. 483, 487, 633 A.2d 1098, 1100 (1993).
Salient to all of the above-captioned matters, no direct appeal from the sentencing judgments resulting from Defendant Crossley's guilty pleas was ever sought. Hence, these sentence judgments became final on April 2, 2010. 42 Pa.C.S. § 9545(b)(3). Thus, in order to satisfy the Post Conviction Relief Act's one (1) year filing mandate, the Defendant was required to lodge his present PCRA pleading no later than April 2, 2011. 42 Pa.C.S. § 9545(b)(1 )(3). As it was filed on or about May 1,2012, the Defendant's Post Conviction Relief Petition was lodged belatedly. The instant PCRA petition was filed some approximate thirteen (13) months beyond the date his sentencing judgments at bar became final and accordingly, this collateral filing was on its face patently untimely.
Implicitly conceding the belated nature of his cunent PCRA petition, Defendant Crossley maintains that this" ... second post conviction petition was not untimely; rather in the interest of justice should be considered merely an extension of litigation of appellant's timely first post conviction petition [sic] .... " See Statement of Matters Complained, No.2. The Defendant's contention that his present Post Conviction Relief Petition should be considered merely an
11
extension of his original 2010 collateral lodging is misguided. "Once a PCRA petition has been decided and the ruling on it has become final, there is nothing for a subsequent petition 01'
pleading to 'extend.' Far from continuing into perpetuity, the trial cOUli's jurisdiction over a matter generally ends once an appeal is taken from a fmal order or, if no appeal is taken, thitiy days elapse after the final order. See 42 Pa.C.S. § 5505." Commonwealth v. Robinson, 575 Pa. 500, 508, 837 A.2d 1157, 1162 (2003). When Defendant Crossley filed his second PCRA petition there was no ongoing collateral litigation before this court. His first collateral pleading had since been dismissed by this court, the dismissal appealed to the Superior COUli, and the appellate cOUli had affirmed the original PCRA filing's dismissal. See Dismissal Notice dated Janmny 20, 2011; Order dated April 5, 2011; Superior Court Nos. 1067 EDA 2011, 1068 EDA 2011, and 1070 EDA 2011, Opinion, p. 4. In sh01t, on the present collateral petition's lodging, " '" there was nothing for a subsequent petition 01' pleading to 'extend.' " Id. The Defendant's attempt to impute the timeliness of his first Post Conviction Relief Act filing to his current and clearly tardy collateral petition in an effort to vest this cOUli with the requisite jUl'isdiction necessary to an adjudication of its merit simply fails.
Hence, the Defendant's only remaining avenues to asselt the jUl'isdiction necessary for his sought after collateral relief through this court were the exceptions enumerated within the Post Conviction Relief Act relating to government interference, newly discovered evidence, 01' a constitutional right recognized by the federal and/or state Supreme COUltS that is applied retroactively. Id. 575 Pa. at 509-10, 837 A.2d at 1162-63. See also 42 Pa.C.S. § 9545(b)(1 )(i)(ii)(iii).
Via the Defendant's PCRA petition, but not in his statement of appellate complaints, he alleged the applicability of two (2) exceptions to the Act's one (1) year filing date. See
12
Defendant's Petition, p. 2. Defendant Crossley maintained that his failure to previously raise the challenges at bar was the result of govermnental official intelference and/or that the salient facts underlining the instant claims were unknown to him and could not have been previously discerned with the exercise of due diligence. Defendant's Petition, p. 2. See also 42 Pa.C.S. § 9545(b)(1 )(i)(ii). Even from a cursory review of the case records, it is readily evident these contentions lack any support.
The Defendant's assertion that he was previously precluded from raising the challenges at bar because of governmental official interference is without modest specificity and/or particularity. The govermnent authorities allegedly interfering with the Defendant's ability to timely bring these claims are not explicitly or impliedly identified. Celiainly, there is no evidence at bar that the Commonwealth in any marmer precluded Defendant Crossley from pursuing prior the grounds the collateral petition on appeal advances. Assuming the Defendant is refelTing to this court as the interfering govermnental official, the collective case records are simply devoid of suppOliing evidence. Moreover, the Defendant's complaints about this COUIt'S
supposed commentary were offered directly to him in counsel's presence some two (2) years before the instant PCRA petition on appeal was lodged. See Defendant's Petition, pp. 3-4. See also Statement of Matters Complained. Accordingly, the complained about comments of this court cannot reasonably excuse the Defendant from having not timely moved forward previous with such a collateral challenge. By relevant statutory definition, COUIt appointed trial counsel for purposes of the Post Conviction Relief Act's filing exceptions are not govemment officials. 42 Pa.C.S. § 9545(b)(4). See also Defendant's Petition, p. 2.
As material to his seeming attempt to bring the belatedly lodged collateral pleading at bar within an exception to the one (I) year filing mandate, Defendant Crossley in his current PCRA
13
petition incredulously aven-ed that even with the exercise of due diligence the facts on which the current collateral claims on appeal are predicated were unknown to him. Unquestionably, the comments of this court that the Defendant now takes issue with in both his present PCRA filing and the instant appeal were by his very own acknowledgment previously known to him. See Defendant's Petition, pp. 3-4. See also Statement of Matters Complained, No.2. Per his current PCRA petition's plain terms, the Defendant averred that the court offered such purported commentary directly to him on FeblUary 26, 2010. Defendant's Petition, p. 3. Defendant Crossley's assertion that this information was past unknown to him and only came to his attention on the exercise of due diligence within sixty (60) days of his present PCRA pleading's lodging is unquestionably refuted by his collateral petition's plain averments.
The statutory time-bar set fOlih in the Post Conviction Relief Act's Section 9545 is mandatory as well as jurisdictional in nature and hence, may not be altered or disregarded to reach the merits of claims raised in a belated collateral filing. Commonwealth v. Taylor, 933 A.2d 1035, 1038 (pa.Super. 2007) citing Commonwealth v. Murray, 562 Pa. 1,4,753 A.2d 201, 203 (2000). See also 42 Pa.C.S. § 9545. COUlis simply cannot adjudicate those issues raised in an nntimely PCRA petition. COllllllonwealth v. Brown, 596 Pa. 354, 359-60, 943 A.2d 264, 267 (2008) and COlllmonwealth v. Crews, 581 Pa. 45, 50-51, 863 A.2d 498, 501 (2004). See also Commonwealth v. Beasley, 559 Pa. 604, 609, 741 A.2d 1258, 1261 (1999). This court clearly lacked the requisite jurisdiction necessary to deciding the merits, if any, of Defendant Crossley's most recent collateral filing. Id. See also Commonwealth v. Murray supra 562 Pa. at 4, 753 A.2d at 203.
Section 9543 ofthe Post Conviction Relief Act (PCRA), inter alia, provides to be eligible for relief a defendant must establish by a preponderance of the evidence that the conviction(s)
14
resulted from one or more of the Act's specifically enumerated errors and/or defects and that such have not been waived. See 42 Pa.C.SA § 9543(a)(1)(2)(3). See also COllllllonwealth v. Banks, 540 Pa. 143, 148-149, 656 A.2d 467, 469 (1995). A collateral claim is waived for purposes of the Post Conviction Relief Act" ... 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. § 9544(b).
As detailed above, those circumstances averred by Defendant Crossley in SUppOlt of the subsection (ii) filing exception were personal to him and have been well known to him since at least March 3, 2010, the date of his guilty pleas and resultant sentencings. See 42 Pa.C.S. § 9545(b)(ii). Having failed to raise the issues of this COUlt'S supposed inducement and his trial attorney's alleged ineffectiveness for then failing to address such" ... before trial, at trial, during unitary review, on appeal or in a prior state post conviction proceeding '" ," the Defendant has waived any such collateral challenge as a basis of Post Conviction Relief Act remedy, assuming arguendo this cOUlt even has requisite jurisdiction. See 42 Pa.C.S. § 9544(b). See also 42 Pa.C.S. § 9543(a)(4).
Assuming arguendo, Defendant Crossley is in some way able to demonstrate this court enjoyed the jurisdiction necessary to deciding the merits of his CUlTent PCRA filing and he has not under the Post Conviction Relief Act waived such a claim via his failure to advance the same in his fust lodged PCRA pleading (2010), the Defendant's instant challenge to the lawfulness of his pleas of guilty should be seen as "previously litigated" during the course of his 2010 collateral action thus rendering Defendant Crossley ineligible for Post Conviction Relief Act remedy grounded in an attack on his guilty pleas' legal validity. 42 Pa.C.S. §§ 9543(a)(3) and 9S44(a).
15
Section 9544 of the Post Conviction Relief Act provides in material pali as follows regarding the past litigation of a collateral claim. "For purposes of this subchapter, an issue has been previously litigated if: ... it has been raised and decided in a proceeding collaterally attacking the conviction or sentence." 42 Pa.C.S. § 9544(a)(3).
Resulting from Defendant Crossley's 2010 PCRA pleading, this court in its Dismissal Notice made explicit findings of fact and conclusions of law related to the lawfulness of the Defendant's guilty pleas. See Dismissal Notice, January 20, 2011, pp. 10-15. Similal'ly, this cOUli in its opinion to suppOli the dismissal of Defendant Crossley's 2010 collateral filing fully discussed the Defendant's pleas of guilty being legally valid. Trial COUli Opinion, October 25, 2011, pp. 14-20. In affirming the dismissal of Defendant Crossley's first collateral action, the Superior Court, inter alia, concluded that" ... even if Crossley had not waived his claim, his argument lacks merit for the following reasons: ... the record suppOlis a fmding that Crossley's pleas were knowingly, intelligently, and voluntarily offered." Superior Comi Nos. 1067 EDA 2011, 1068 EDA 2011, and 1070 EDA 2011, Opinion, pp. 3-4. On such a case record, it most celiainly appears that the Defendant's CUl1'ent challenge to the lawfulness oflns guilty pleas was past" ... decided in a proceeding collaterally attacking the conviction or sentence." 42 Pa.C.S. § 9S44(a)(3). Defendant Crossley is thus ineligible for Post Conviction Relief Act Remedy grounded in his present attack on his pleas of guilty supposedly being unlawful. 42 Pa.C.S. § 9S43(a)(3).
"The right to an evidentiary hearing on a post-conviction petition is not absolute. A PCRA court may decline to hold a hearing if the petition's claim is patently frivolous and without a trace of suppoli in either the record or from other evidence." COllllllonwealth v. Payne, 794 A.2d 902, 906 (Pa.Super. 2002) citing COllllllonwealth v. Jordan, 772 A.2d 1011, 1014
16
(Pa.Super. 2001). "The controlling factor in determining whether a petition may be dismissed without a hearing is the status of the substantive assertions in the petition." Jd. at 906 quoting Comlllonwealth v. Weddington, 514 Pa. 46, 50, 522 A.2d 1050, 1052 (1987).
The Superior Court has held that appellate review of a PCRA's dismissal is conducted:
[I)n the light most favorable to the prevailing party at the PCRA level. Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa.Super.
2010). TIlls review is Iinlited to the fmdings of the PCRA cOUli and the evidence of record. Jd. We will not disturb a PCRA court's lUling if it is supported by evidence of record and is free of legal error. Jd. This COUli may affirm a PCRA court's decision on any grounds if the record suppOlis it. Jd. We grant great deference to the factual findings of the PCRA court and will not disturb those fmdings unless they have no support in the record. Commonwealth v. Cartel; 21 A.3d 680, 682 (Pa.Super. 2011). However, we afford no such deference to its legal conclusions. Commonwealth v.
Paddy, 609 Pa. 272, 15 A.3d 431, 442 (2011); Commonwealth v.
Reaves, 592 Pa. 134, 923 A.2d 1119, 1124 (2007). FUlther, where the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary. COlllmonwealth v.
Colavita, 606 Pa. 1,993 A.2d 874,886 (2010).
Commonwealth v. Rykard, 55 A.3d 1177, 1183 (pa.Super. 2012) quoting COllllllonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012).
Salient to Defendant Crossley's present and secondary collateral pleading at bar, tillS comt in light of the foregoing concluded that no reasoned purpose would be served by any further proceedings as there were no genuine issues of material fact, it lacked necessary jurisdiction, the instant collateral claim had otherwise been waived as well as past litigated, and resultantly, the Defendant was not entitled to Post Conviction Act Relief remedy. These fmdings of this court are amply suppOlied by the instant case records, and it committed no related legal error. Jd.
17
For the aforementioned reasons, tlus comt's dismissal of Defendant Crossley's current pro se Motion for Post Conviction Relief, should be affirmed.
BY THE COURT:
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