Com. v. Holbrook, C.

• Court: Superior Court of Pennsylvania
• Decided: September 18, 2018
• Docket: 1326 WDA 2017
• Status: Unpublished

Opinion

J-S30019-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

CURTIS LATICE HOLBROOK

Appellant No. 1326 WDA 2017

Appeal from the PCRA Order entered August 17, 2017 In the Court of Common Pleas of Cambria County Criminal Division at No: CP-11-CR-0000886-1991

BEFORE: BENDER, P.J.E., STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 18, 2018

Appellant, Curtis Latice Holbrook, appeals from the August 17, 2017

order of the Court of Common Pleas of Cambria County, denying his second

petition for collateral relief pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

The factual and procedural background are not at issue here. Briefly,

on January 9, 1992, Appellant entered a guilty plea to possession with intent

to deliver. At the plea colloquy, Appellant admitted that he was in possession

of 3.2 grams of crack cocaine that he intended to sell. N.T. Guilty

Plea/Sentencing, 1/9/92 at 6-8. On the same day, Appellant was sentenced

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* Retired Senior Judge assigned to the Superior Court. J-S30019-18

to serve 15 months to five years in state prison. Appellant did not appeal his

sentence.

On February 10, 2014, Appellant filed his first PCRA petition pro se,

alleging his plea counsel was ineffective in advising him to plead guilty to

possessing 3.2 grams of crack cocaine, when he actually possessed only .5

gram (a personal use amount). In his petition, Appellant also claimed that he

became aware of the amount issue at the time of sentencing in a federal court

proceeding. Finally, in his petition, Appellant stated that he was serving a

federal sentence in a federal prison.

The PCRA court denied his first petition as untimely. Appellant appealed

to this Court. On appeal, we concluded that, regardless of timeliness issues,

Appellant was not eligible for relief because at the time he filed his first PCRA

petition, he was no longer serving the challenged sentence. Specifically, we

found that Appellant’s challenged sentence expired January 3, 2002. See

Commonwealth v. Holbrook, No. 1156 WDA 2014, unpublished

memorandum at 6 (Pa. Super. filed October 30, 2015).

On May 19, 2017, Appellant filed an uncounseled “writ of error coram

nobis.” After retaining counsel, Appellant filed, inter alia, “motions to reinstate

post sentencing rights nunc pro tunc and to withdraw guilty plea.” Appellant’s

Brief at 2. On August 17, 2017, the PCRA court denied relief. This appeal

followed.

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On appeal, Appellant argues that “the [PCRA] court abused its discretion

in denying Appellants [sic] motion to withdraw his guilty plea.” Appellant’s

Brief at iii.

We note several, non-exclusive problems with the instant appeal. While

Appellant acknowledges that the PCRA subsumed essentially all post-collateral

remedies, Appellant’s Brief at 3, he makes no effort to explain why the instant

petition, which was filed over 24 years after the expiration of the term for

filing a timely PCRA petition, is timely. See 42 Pa.C.S.A. § 9545(b)(1).

Similarly, Appellant provides no discussion of what exception, if any, he met

to overcome the one-year jurisdictional bar. Id. These omissions are fatal to

the instant appeal. See 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 addition, nowhere does Appellant explain why he would be eligible

for PCRA relief considering that he is not serving the sentence he is

challenging. See 42 Pa.C.S.A. § 9543(a)(1). Indeed, in 2014, we noted the

same, and it was fatal to his first PCRA petition. See Holbrook, supra, at 6.

Yet, Appellant makes no effort to explain how, approximately three years after

his first appeal, he became eligible for PCRA relief once again.

In light of the foregoing, we affirm the order of the PCRA court.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/18/2018

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