Com. v. McCollister, E.

• Court: Superior Court of Pennsylvania
• Decided: December 30, 2019
• Docket: 1636 EDA 2018
• Status: Unpublished

Opinion

J-S52036-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ERIC C. MCCOLLISTER : : Appellant : No. 1636 EDA 2018

Appeal from the PCRA Order Entered April 25, 2018 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0002043-2007

BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 30, 2019

Eric C. McCollister appeals pro se from the order dismissing as untimely

his petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

Although he was represented by several different attorneys prior to trial,

McCollister acted pro se at his 2008 jury trial. The Commonwealth presented

evidence that in 2006, McCollister broke into the home of his former employer,

beat him, poured dishwashing liquid over him, and stole $8,000 in cash from

a dresser drawer. See Trial Court Opinion, filed October 19, 2009, at 2. The

jury convicted McCollister of burglary, criminal trespass, two counts of

robbery, two counts of aggravated assault, and simple assault.1

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1 18 Pa.C.S.A. §§ 2702, 3503, 3701, 3502, and 2701, respectively. J-S52036-19

McCollister was represented by counsel at his sentencing hearing. The

Commonwealth presented evidence that McCollister had twice been convicted

in Delaware for burglaries of residences where people were present. Due to

the prior convictions, the court imposed a 25-year, mandatory minimum

sentence under Pennsylvania’s “three strikes law.” See 42 Pa.C.S.A. §

9714(a)(2). The aggregate sentence was 40 years to life imprisonment.

McCollister filed a post-sentence motion and direct appeal.2 This Court

affirmed McCollister’s judgment of sentence on August 30, 2010. See

Commonwealth v. McCollister, 11 A.3d 1042, No. 1401 EDA 2009

(Pa.Super. 2010) (unpublished memorandum). McCollister did not seek

review in the Supreme Court of Pennsylvania.

McCollister filed a pro se PCRA petition on January 5, 2015. The PCRA

court appointed counsel, who filed an Amended Petition. The PCRA court

issued notice of its intent to dismiss the petition based on its untimeliness.

See Pa.R.A.P. 907. McCollister filed a pro se response. The PCRA court

thereafter appointed new PCRA counsel, who filed a Second Amended Petition.

The Second Amended Petition, which included the arguments of the

Amended Petition, asserted that McCollister’s petition was timely because it

was filed within 60 days of the order in Commonwealth v. Armstrong, 107

A.3d 735 (Pa., filed December 30, 2014), in which the Supreme Court held

that a third-strike sentence under Section 9714(a)(2) requires prior ____________________________________________

2 McCollister was represented by counsel for his post sentence motion, but represented himself on direct appeal.

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sentencing as a second-strike offender. Id. (adopting the reasoning set forth

in Commonwealth v. Armstrong, 74 A.3d 228, 239-42 (Pa.Super. 2013)).

The Second Amended Petition also argued that McCollister’s third-strike

sentence was illegal according to Alleyne v. United States, 570 U.S. 99

(2013), which held that a trial court cannot increase a minimum sentence

based upon a preponderance of the evidence, and that Alleyne should be

applied retroactively to cases on collateral review pursuant to Montgomery

v. Lousiana, 136 S.Ct. 718 (2016). The Second Amended Petition further

argued McCollister’s third-strike sentence was illegal because Section

9714(a)(2) was unconstitutionally vague, and advanced claims of trial counsel

ineffectiveness.

The court held an evidentiary hearing. At the hearing, in addition to the

claims raised in his Second Amended Petition, McCollister raised the claim that

his pretrial counsel was ineffective for failing to communicate a plea deal.

McCollister alleged he discovered this alleged failure during the course of the

PCRA proceedings. McCollister also asserted his petition was timely due to

governmental interference during the sentencing proceedings, and that it was

timely due to the decision of Johnson v. United States, 135 S.Ct. 2551

(2015), which struck a federal sentencing statute as unconstitutionally vague.

McCollister testified at the hearing, as did his pretrial counsel and the trial

prosecutor. Following the hearing, the PCRA court dismissed the petition as

untimely.

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McCollister appealed,3 and filed a request to proceed pro se. We

remanded the case for the PCRA court to conduct a Grazier hearing. Order,

9/17/18 (per curiam). The PCRA court conducted a hearing, allowed counsel

to withdraw, and appointed standby appellate counsel. McCollister now

represents himself on appeal.

Our standard of review of an order denying relief under the PCRA “is

limited ‘to whether the PCRA court’s determination is supported by evidence

of record and whether it is free of legal error.’” Commonwealth v. Hart, 199

A.3d 475, 481 (Pa.Super. 2018) (quoting Commonwealth v. Pew, 189 A.3d

486, 488 (Pa.Super. 2018)).

McCollister has raised 12 issues, spanning two full pages, which do not

correspond to the argument sections of his brief. See Pa.R.A.P. 2119(a). We

review only those arguments McCollister presents on appeal that address the

timeliness of his petition, as we find this issue dispositive.

3 This is the second time McCollister filed a direct appeal from the order dismissing his petition. After McCollister filed his first appeal, the PCRA court permitted PCRA counsel to withdraw. This Court issued an order directing the PCRA court to conduct a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), to ensure McCollister had made a valid waiver of his right to counsel. Order, 4/25/17 (per curiam). The PCRA court conducted a Grazier hearing, and determined that McCollister had knowingly, intelligently, and voluntarily waived his right to appellate counsel. Nonetheless, this Court vacated the dismissal order and again remanded the case, instructing the PCRA court to conduct another Grazier hearing before allowing counsel to withdraw. See Commonwealth v. McCollister, No. 663 EDA 2017 (Pa.Super. 2018) (unpublished memorandum). The PCRA court conducted a second Grazier hearing, and denied counsel’s petition to withdraw. The PCRA court then dismissed McCollister’s PCRA petition a second time, and McCollister filed the instant appeal.

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The timeliness of a PCRA petition is a jurisdictional prerequisite; if a

petition fails to satisfy the statutory timeliness requirements, a PCRA court

has no jurisdiction to grant relief. Commonwealth v. Rizvi, 166 A.3d 344,

347 (Pa.Super. 2017). A PCRA petition must be filed within one year of the

date the petitioner’s judgement of sentence becomes final, which is at the

conclusion of direct review or the expiration of time for seeking such review.

42 Pa.C.S.A. § 9545(b)(1), (3). As McCollister’s 2015 petition was not filed

within one year of the expiration of the time to seek review in the Pennsylvania

Supreme Court, i.e., by September 29, 2011, it is facially untimely.

A petition filed after the one-year deadline may be deemed timely if one

of three statutory exceptions applies:

(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.

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Id. at § 9545(b)(1)(i-iii). If an exception applies, the petitioner must prove

the petition was filed within 60 days of the earliest date it might have been

filed. Id. at § 9545(b)(2).4

First, McCollister argues that his petition is timely under Section

9545(b)(1)(iii) in light of Johnson. McCollister asserts that Johnson

“illuminates how [Section 9714] suffer[s] from vagueness, numerous

interpretations, arbitrary enforcement, and 6th and 14th Federal Constitutional

amendment concerns.” McCollister’s Br. at F (Summary of Argument).

McCollister further contends that Welch v. United States, 136 S.Ct. 1257

(2016), held that Johnson announced a substantive rule of law that applies

retroactively on collateral review. Id. at F (Summary of Argument), 34, 37-

50.

The Johnson and Welch decisions do not render McCollister’s petition

timely under Section 9545(b)(1)(iii). A petition is only timely under this

exception when it asserts a constitutional right that the Supreme Court of the

United States or the Supreme Court of Pennsylvania has recently recognized

and held to apply retroactively. Id. at § 9545(b)(1)(iii), (b)(2). In order for

this exception to apply, the statute McCollister challenges, 42 Pa.C.S.A. §

9714(a)(2), must have been held unconstitutional at the time he filed his

petition. However, as the Pennsylvania Supreme Court has explained,

442 Pa.C.S.A. § 9545(b)(2) has since been amended to allow a petitioner one year to file a petition. The amendment applies to claims arising on or after December 24, 2017, and thus does not apply to McCollister’s 2015 petition.

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Johnson and Welch addressed a federal sentencing statute; their holdings

did not apply to state prisoners, or make PCRA claims based on allegedly

similar Pennsylvania sentencing statutes timely under Section 9545(b)(1)(iii).

Commonwealth v. Spotz, 171 A.3d 675, 681-82 (Pa. 2017).5

Next, McCollister advances the argument that his petition is timely

under Section 9545(b)(1)(i). McCollister argues the government

misrepresented at sentencing that McCollister was a third strike offender.

McCollister also argues the Commonwealth misrepresented that the court had

jurisdiction to apply the three-strike mandatory minimum, and McCollister

relied on this misrepresentation, but the court did not have jurisdiction,

because the Commonwealth did not provide notice of its intent to seek the

mandatory minimum on the criminal information. McCollister asserts that

Armstrong supports his claim of that the court lacked jurisdiction. See

McCollister’s Br. at F (Summary of Argument), 1-3, 6-8, 10, 14-17.

The governmental interference exception only applies when “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

5 Although McCollister does not argue on appeal that Armstrong, Alleyne, or Montgomery qualify his petition as timely under Section 9545(b)(1)(iii), we note the PCRA court aptly concluded that they do not. See PCRA Ct. Op., filed 2/1/19, at 8-13. We reassert that Armstrong did not recognize a new constitutional right and hold it to apply retroactively; Alleyne does not apply retroactively, see Commonwealth v. Miller, 102 A.3d 988, 995 (Pa.Super. 2014); Montgomery does not affect Alleyne’s retroactivity; and Alleyne does not extend to mandatory minimums based on prior convictions, see Commonwealth v. Riggle, 119 A.3d 1058, 1064 (Pa.Super. 2015)).

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laws of this Commonwealth or the Constitution or laws of the United States.”

42 Pa.C.S.A. § 9545(b)(1)(i). Here, the Commonwealth offered a legal

position at the sentencing hearing that McCollister now seeks to challenge;

McCollister has not asserted that the Commonwealth interfered with his ability

to raise arguments against application of the three-strikes law at sentencing,

on direct appeal, or in a timely PCRA petition.6 The governmental interference

exception therefore does not apply.

McCollister also claims the Commonwealth interfered with his ability to

challenge the application of Section 9714 to his case because the prosecutor

misrepresented at sentencing that a witness relevant to the prior convictions

was dead, and that McCollister learned on February 13, 2019, that the witness

had not actually died until after sentencing. However, these factual allegations

post-date McCollister’s PCRA petition, the proceedings on that petition, and

McCollister’s appeal of the dismissal of that petition; they therefore have not

been reviewed by the PCRA court. This Court is unable to review claims in the

first instance, and we may not entertain this premature claim. See Pa.R.A.P.

302(a); Commonwealth v. Greco, 203 A.3d 1120, 1124 (Pa.Super. 2019).

Next, McCollister asserts that his petition is timely under Section

9545(b)(1)(ii) because he discovered during the PCRA proceedings that the

Commonwealth had offered McCollister a plea deal that his pretrial counsel

never communicated to him. McCollister argues that the PCRA court’s finding ____________________________________________

6 In fact, McCollister raised the applicability of Section 9714 to his case on direct appeal. See McCollister, No. 1401 EDA 2009 at *10-13.

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that his pretrial counsel had communicated the plea deal was an abuse of

discretion and legal error. See McCollister’s Br. at F (Summary of Argument),

18-19, 21-29, 31-33.

In its Rule 1925(a) opinion, the PCRA court explained that McCollister

and his pre-trial counsel offered conflicting testimony at the evidentiary

hearing regarding the communication of the plea deal. Counsel repeatedly

testified that he had communicated the Commonwealth’s offer to McCollister.

The PCRA court credited counsel’s testimony over McCollister’s testimony, and

found that McCollister’s petition was not timely based on McCollister’s

discovery of the plea offer. PCRA Ct. Op. at 19. As the PCRA court’s findings

are supported by the record, we discern no error in its determination that

McCollister’s petition is not timely under Section 9545(b)(1)(ii).

Finally, McCollister advances that his PCRA counsel were ineffective for

failing to properly present his claims. See McCollister’s Br. at F (Summary of

Argument), 4-5, 20-22, 26, 30, 32, 34-37. McCollister does not assert where

in the record he preserved a claim of PCRA counsel ineffectiveness.7

We conclude these claims are premature. Counsel may not present

claims of his or her own ineffectiveness, and a PCRA petitioner may not engage

in hybrid representation. Commonwealth v. Ford, 44 A.3d 1190, 1199

(Pa.Super. 2012). Nor may an appellant present claims of PCRA counsel’s

7 Although the PCRA court addresses the merits of these claims in its Rule 1925(a) opinion, the PCRA court does not address whether the claims were ever properly before it.

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ineffectiveness for the first time on appeal. Id. at 1200; see also

Commonwealth v. Henkel, 90 A.3d 16, 29 (Pa.Super. 2014) (en banc).

Rather, “issues of PCRA counsel effectiveness must be raised in a serial PCRA

petition or in response to a notice of dismissal before the PCRA court.” Ford,

44 A.3d at 1200.

Here, the court held a hearing and did not issue a notice of dismissal,

and McCollister remained represented by PCRA counsel until after he filed his

notice of appeal. Therefore, McCollister was unable to raise claims of PCRA

counsel’s ineffectiveness before the PCRA court, and is precluded from raising

them for the first time on appeal. We decline review of these claims, without

prejudice to McCollister to raise them in a subsequent, timely PCRA petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/30/19

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