Com. v. Manus, G.

• Court: Superior Court of Pennsylvania
• Decided: August 15, 2016
• Docket: 2879 EDA 2015
• Status: Unpublished

Opinion

J-S46023-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

GLENN H. MANUS

Appellant No. 2879 EDA 2015

Appeal from the PCRA Order September 11, 2015 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0000520-2008 CP-23-CR-0000521-2008 CP-23-CR-0002534-2008

BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.: FILED AUGUST 15, 2016

Glenn H. Manus appeals, pro se, from the order entered September

11, 2015, in the Court of Common Pleas of Delaware County, dismissing as

untimely his second petition filed pursuant to the Pennsylvania Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546. Manus seeks relief

from the judgment of sentence to serve an aggregate term 18½ to 39 years’

imprisonment plus 30 years of probation, imposed on April 3, 2009,

following his jury conviction of aggravated indecent assault, involuntary

deviate sexual intercourse, indecent assault, indecent assault on person less

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S46023-16

than thirteen, and corruption of minors.1 On appeal, Manus raises three

issues: (1) Whether petitioner meets one of the timeliness exceptions

pursuant to 42 Pa.C.S. § 9545(b)(1)(i-iii), (2) Whether petitioner was

convicted by the Commonwealth in violation of his Fifth, Sixth and

Fourteenth Amendments rights, based upon the Commonwealth’s failure to

have within the court record a proper designation of authority, authorizing

the assistant district attorney to represent the Commonwealth, and whether

prior PCRA and trial counsel were ineffective for failing to object or notify the

court of the Commonwealth’s failure, and (3) Whether the Commonwealth of

Pennsylvania had subject matter jurisdiction to prosecute petitioner, and

whether petitioner should be subject to scrutiny and adhere to rules of

appellate procedure and/or other rules of court. See Manus’s Brief at vii.

Based on the following, we affirm.

The charges against Manus arose in 2007, when multiple minors

reported that Manus had sexually molested them. As stated above, Manus

was convicted in a jury trial of the above-mentioned charges, and sentenced

on April 3, 2009. On August 2, 2010, this Court affirmed the judgment of

sentence on direct appeal, and on February 2, 2011, the Pennsylvania

Supreme Court denied allowance of appeal. Commonwealth v. Manus, 11

1 See 18 Pa.C.S. §§ 3125(b), 3123(a)(6), 3126(a)(1), 3126(a)(7), and 6301(a)(1).

-2- J-S46023-16

A.3d 1007 (Pa. Super. 2010) (unpublished memorandum), appeal denied,

14 A.3d 825 (Pa. 2011).

On August 24, 2011, Manus filed a pro se PCRA petition. Counsel was

appointed, submitted a no-merit letter and, on July 30, 2012, the PCRA

court dismissed Manus’s petition. On April 11, 2013, the Superior Court

affirmed the decision of the PCRA Court, and Manus’s petition for allowance

of appeal was denied by the Pennsylvania Supreme Court on October 16,

2013. Commonwealth v. Manus, 75 A.3d 550 (Pa. Super. 2013)

(unpublished memorandum), appeal denied, 77 A.3d 1259 (Pa. 2013).

On March 11, 2015, Manus filed this pro se PCRA petition — his

second, asserting PCRA counsel was ineffective for failing to raise trial

counsel’s ineffectiveness in (1) failing to preserve and file post-verdict

motions based on the fact that the arresting officers provided inaccurate

information in their affidavit of probable cause, (2) failing to investigate

whether the Commonwealth “initiated a Written Designation … that

authorized [the] Deputy District Attorney … to act on behalf of the

Commonwealth,” (3) permitting the Deputy District Attorney to act on behalf

of the Commonwealth; and (4) failing to notify the court and the District

Attorney of the arresting officers’ deliberate and willful deceit. See Motion

for Post Conviction Collateral Relief, 3/11/2015, at 3.

-3- J-S46023-16

On March 17, 2015, the PCRA court appointed counsel to represent

Manus for his second PCRA petition and, on July 30, 2015, appointed counsel

filed a Turner/Finley2 no-merit letter and application to withdraw.

Counsel’s no-merit letter explained, inter alia, that “[a]s the instant PCRA

petition was filed on March 11, 2015, the current PCRA [petition] is facially

untimely,” and that Manus “does not provide any meaningful information

that would suggest that any of the instant claims constitute after-discovered

evidence, that would allow him to plead that or any other exception under

Sec. 9545(b)(1).” No-Merit Letter, 7/30/2015, at 6. In addition, appointed

counsel opined in the no-merit letter that the issues Manus sought to raise

had been waived or were previously litigated. Id. at 7.

On August 10, 2015, Manus filed objections to counsel’s application to

withdraw. On August 12, 2015, the PCRA court granted counsel’s request to

withdraw and provided Manus with notice, pursuant to Pa.R.Crim.P. 907, of

its intent to dismiss the petition. The PCRA court subsequently dismissed

the petition on September 14, 2015, and this appeal timely followed. 3

Our standard of review for an order denying PCRA relief is well-

established:

2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 3 The PCRA court did not order Manus to file a Pa.R.A.P. 1925(b) statement.

-4- J-S46023-16

This Court’s standard of review regarding a PCRA court’s order is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have no support in the certified record.

Commonwealth v. Turpin, 87 A.3d 384 (Pa. Super. 2013) (citation

omitted).

At the outset, we address the issue of timeliness since “the PCRA’s

timeliness requirements are jurisdictional in nature and must be strictly

construed; courts may not address the merits of the issues raised in a

petition if it is not timely filed.” Commonwealth v. Walters, 135 A.3d

589, 591 (Pa. Super. 2016) (citation omitted).

Generally, any PCRA petition “including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes

final[.]” 42 Pa.C.S. § 9545(b)(1). A sentence 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.” 42 Pa.C.S. § 9545(b)(3).

Here, on August 2, 2010, this Court affirmed the judgment of

sentence, and on February 2, 2011, the Pennsylvania Supreme Court denied

allowance of appeal. Commonwealth v. Manus, 11 A.3d 1007 (Pa. Super.

2010) (unpublished memorandum), appeal denied, 14 A.3d 825 (Pa. 2011).

Therefore, under the PCRA, Manus’s judgment of sentence became final on

May 3, 2011, after the 90-day period within which to file a petition seeking

-5- J-S46023-16

certiorari with the United States Supreme Court expired. See 42 Pa.C.S. §

9545(b)(3). See also U.S.Sup.Ct.R. 13. Accordingly, Manus had until May

3, 2012, to file a timely PCRA petition. See 42 Pa.C.S. § 9545(b)(1), supra.

Consequently, the present petition, filed March 11, 2015, is patently

untimely.

Nevertheless, we may consider an untimely PCRA petition if the

petitioner pleads and proves one of the PCRA’s three exceptions:

(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. § 9545(b)(1)(i-iii). Furthermore, any petition involving one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

In his brief, Manus complains the PCRA court’s Rule 907 notice failed

to address specific reasons for the intent to dismiss, and “therefore not

affording the Petitioner opportunity to object in the proper manner to include

one of the timeliness exceptions under 42 Pa.C.S. [§§] 9545(b)(1)(i-iii).”

-6- J-S46023-16

Manus’s Brief at 8. This argument, however, is unavailing. When a

Turner/Finley letter has been filed and served on the defendant, the PCRA

court can dismiss a PCRA petition without a hearing and without notice of its

intent to do so where the court waits 20 days following the service of the

letter. See Commonwealth v. Bond, 630 A.2d 1281 (Pa. Super. 1993);

see also Commonwealth v. Hopfer, 965 A.2d 270, 271, 275 (Pa. Super.

2009). Here, Manus was informed by the no-merit letter that the PCRA

petition was untimely. Even if, arguendo, we were to regard the Rule 907

notice as a necessary pre-requisite, this Court has held that the failure to

provide Rule 907 notice is not reversible error where a PCRA petition is

otherwise untimely. Commonwealth v. Pursell, 749 A.2d 911, 917 n.7

(Pa. 2000); Commonwealth v. Davis, 916 A.2d 1206, 1208 (Pa. Super.

2007). In this case, the PCRA court’s failure to mention timeliness as a basis

for its intent to dismiss would have no effect since, as more fully discussed

below, Manus’s petition is untimely in all respects.

Manus maintains that he meets the timeliness exception set forth at

42 Pa.C.S. § 9545(b)(1)(ii). He asserts “[s]tarting in July of 2013, [Manus],

in the exercise of due diligence, pursued whether the Deputy District

Attorney … had specific designation of authority to represent the

Commonwealth in criminal cases.” Manus’s Brief at 9. Manus states “all

Right-to-Know requests failed [his] efforts and [he] was never able to fully

ascertain the true and correct facts,” his letters to various government

-7- J-S46023-16

officials resulted in information that was “not in response to his implicit

requests,” and “he was stonewalled by the Delaware County government

and/or judicial system, by either no response … or information that [he]

never requested.” Id. Manus claims his friends went in person to the

Delaware County Office of Judicial Support on February 3, 2015, to ascertain

the facts of a proper designation of the Deputy District Attorney. According

to Manus, “[o]n February 25, 2015, [Manus] learned that the proper

designation of authority for [the Deputy District Attorney] still could not be

ascertained,” and “[h]e then filed his second PCRA petition on March 11,

2015.” Id. at 10.

While Manus specifically relies on the unknown fact exception, Section

9545(b)(1)(ii), his argument also implicitly suggests the governmental

interference exception, Section 9545(b)(1)(i), applies. With both

exceptions, Manus must satisfy the requirement that he filed his claims

within 60 days of the date the claim could have been presented. 42 Pa.C.S.

§ 9545(b)(2). In this regard, our Supreme Court has held that Section

9545(b)(2)’s 60-day rule requires a petitioner to plead and prove that the

information on which his claims are based could not have been obtained

earlier despite the exercise of due diligence. Commonwealth v. Edmiston,

65 A.3d 339, 346 (Pa. 2013), cert. denied, Edmiston v. Pennsylvania, 134

S. Ct. 639 (2013).

-8- J-S46023-16

Our review confirms the PCRA judge’s determination that Manus has

failed to show due diligence as required by Section 9545(b)(2). That is,

Manus failed to plead and prove why he could not have discovered and

raised the alleged issue regarding the Deputy District Attorney through the

exercise of due diligence at the time of trial, during his direct appeal, or in

his first PCRA petition. As the Honorable James F. Nilon, Jr., cogently

opined:

To pass any of [the PCRA] exceptions, [Manus] must seek relief within 60 days of the date the claim could have been presented. 42 Pa.C.S. § 9545(b)(2). [Manus] filed his present Petition on March 11, 2015, so in order for any issue to be timely, he had to demonstrate that he could not have raised that issue until January 10, 2015, or later. Most of the issues in [Manus’s] petition accuse all prior counsel of ineffectiveness, but he never explained why he did not know or should not have known about their ineffectiveness until January 10, 2015.

The first issue in his Petition claims that the police officers willfully provided inaccurate information in the Affidavit of Probable Cause, and secondly that the Deputy District Attorney who tried the case was not authorized to act on behalf of the Commonwealth, but he never explained why he did not know or should not have known about these defects until January 10, 2015.

****

Because [the PCRA] “timeliness requirements are mandatory and jurisdictional in nature, no court may properly disregard or alter them in order to reach the merits of the claims raised in a PCRA petition that is filed in an untimely manner.” Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000). Here, [Manus] cannot prove an exception to the PCRA time-bar. Information related to the affidavit of probable cause inaccuracies, or the D.A. designation issues have been available for years, including when [Manus’s] first PCRA petition was being prepared. As these facts were easily discoverable and in the public record for longer than

-9- J-S46023-16

60 days before this petition was filed, the petition is time barred, and the court lacks jurisdiction to address the merits.

[Manus failed to provide any basis recognized by law that would excuse the untimely filing of this Petition. This Court does not have jurisdiction to entertain any of the claims that [Manus] raised. [Manus] has filed an untimely PCRA [petition], and this Court properly denied his request for relief without a hearing.

PCRA Court Opinion, 11/19/2015, at 8–9. We agree with the sound

assessment of Judge Nilon that, because Manus has not demonstrated due

diligence in filing his claim within 60 days of when it could first be presented,

he cannot satisfy any statutory exception that would overcome the PCRA

time-bar. Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/15/2016

- 10 -