Com. v. McCool, J.

• Court: Superior Court of Pennsylvania
• Decided: April 14, 2016
• Docket: 1056 MDA 2015
• Status: Unpublished

Opinion

J-S24029-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JOHN ROBERT MCCOOL,

Appellant No. 1056 MDA 2015

Appeal from the PCRA Order June 8, 2015 In the Court of Common Pleas of Snyder County Criminal Division at No(s): CP-55-CR-0000142-1980 CP-55-MD-0000136-2011

BEFORE: GANTMAN, P.J., BOWES, AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.: FILED APRIL 14, 2016

John Robert McCool appeals pro se from the order dismissing as

untimely his serial PCRA petition. We affirm and we deny Appellant’s motion

to strike the Commonwealth’s brief.1

On June 2, 1980, the Commonwealth charged Appellant in Snyder

County, Pennsylvania with, inter alia, kidnapping, rape, and involuntary

deviate sexual intercourse. At that time, Appellant was awaiting trial in New

York for robbery. On July 30, 1980, the New York court convicted him, ____________________________________________

1 Appellant sought to strike the Commonwealth’s brief because it was filed forty-three days late. Significantly, however, Appellant does not assert that the delay was prejudicial. At most, he notes that this case was submitted on briefs without oral argument, which is typical for PCRA appeals. Thus, upon review of the motion and the applicable rules of appellate procedure, we deny the motion to strike the Commonwealth’s brief. J-S24029-16

imposed a sentence of fifteen years to life imprisonment, and incarcerated

him in that state. On February 16, 1981, Appellant was temporarily

transferred to Pennsylvania pursuant to the Interstate Agreement on

Detainers Act (“IADA”), 42 Pa.C.S. § 9101 et seq., to be tried on the

kidnapping and sex offenses in Snyder County and unrelated offenses in

Northumberland County that are not relevant herein.

In addressing a prior appeal, this Court succinctly summarized the

remaining procedural history as follows:

On February 26, 1981, McCool, represented by former Snyder County Public Defender Harry L. Wilcox, Esquire (“Attorney Wilcox”), was convicted of rape, involuntary deviate sexual intercourse (“IDSI”), and kidnapping. Attorney Wilcox filed a post-trial [m]otion on McCool’s behalf, which the trial court subsequently denied for failure to file a brief. On June 10, 1981, the trial court sentenced McCool to consecutive prison terms of ten to twenty years for his conviction of rape, ten to twenty years for his conviction of kidnapping, and five to ten years for his conviction of IDSI [an aggregate term of twenty- five to fifty years imprisonment]. McCool filed no direct appeal of his judgment of sentence.

On July 1, 1996, McCool filed his first [p]etition for relief under the Post Conviction Relief Act (“PCRA”), after which appointed counsel filed an amended [p]etition. In that [p]etition, McCool alleged that (a) he was deprived of due process under the [IADA]; (b) a new trial was warranted based upon after discovered facts regarding the manufacture of black duct tape; and (c) that Attorney Wilcox rendered ineffective assistance by failing to file a brief in support of McCool’s post-trial [m]otions.

On February 11, 1997, the PCRA court denied McCool relief on his claim pertaining to the IAD[A], but concluded that Attorney Wilcox had rendered ineffective assistance by failing to file a brief supporting McCool’s post-trial [m]otions. McCool, with new counsel, filed [m]otions for a new trial and for

-2- J-S24029-16

arrest of judgment. The trial court denied McCool’s post-trial [m]otions and re-imposed its judgment of sentence on June 10, 1981. On July 29, 1998, this Court affirmed McCool’s judgment of sentence, after which the Pennsylvania Supreme Court denied allowance of appeal. Commonwealth v. McCool, 724 A.2d 957 (Pa. Super. 1998) (unpublished memorandum), appeal denied, 751 A.2d 187 (Pa. 2000). In his nunc pro tunc direct appeal, McCool raised no claim regarding the IAD[A].

Commonwealth v. McCool, 724 A.2d 957 (Pa.Super. 2013) (unpublished

memorandum at 1-3) (emphases added, footnotes omitted).

Thereafter, Appellant filed a petition for a writ of habeas corpus in the

federal court, six PCRA petitions, and a futile civil action. In all but one of

the filings, he asserted some version of the claim that his convictions were

unsound because the Commonwealth violated the IADA in trying him in

Snyder County and returning him to New York following the imposition of the

twenty-five to fifty year sentence herein.2 The federal court denied relief

because Appellant had not exhausted his state court remedies. All of the

iterations of the claim that were leveled in PCRA petitions failed either due to

the fact that the issue was waived pursuant to 42 Pa.C.S. § 9543(b), as a

result of Appellant’s failure to raise it on direct appeal, or due to the PCRA

time bar.

On April 27, 2015, Appellant filed the instant PCRA petition, his sixth.

Again, Appellant challenged the application of the IADA. Thereafter, having ____________________________________________

2 One of the PCRA petitions challenged only the discretionary aspect of his sentence.

-3- J-S24029-16

issued notice on May 19, 2015, of its intent to dismiss the PCRA petition

without hearing pursuant to Pa.R.Crim.P. 907, the PCRA court dismissed the

petition on June 8, 2015, as untimely filed. This appeal followed.

Appellant presents several intertwined arguments in support of his

elaborate contention that the trial court’s misapplication of the IADA

required that the PCRA court set aside the underlying convictions. His

arguments assail the PCRA court’s factual findings and its legal conclusions

regarding the trial court’s jurisdiction vis-à-vis the IADA. He also asserts

purported breakdowns in the trial court’s machinery and invokes the

principle of stare decisis, again, in relation to the trial court’s application of

the IADA. He concludes that since his convictions were void ab initio, he is

currently serving an illegal sentence. No relief is due.

At the outset, we address the irregularity of Appellant’s reply brief.

Prior to the date that the Commonwealth’s brief was originally due, Appellant

purported to file a reply brief that raised for the first time in any of the

proceedings an assertion that he was entitled to relief under the doctrine of

coram nobis.3 The claim fails for at least three reasons.

____________________________________________

3 While Appellant’s precise argument is unclear, the crux of his assertion is that a writ of coram nobis provides an alternative basis for this Court to accord him relief. Our Supreme Court recently explained, “[a] writ of coram nobis ‘is generally available to challenge the validity of a judgment based on facts not before the court when the judgment was entered.’’ Commonwealth v. Descardes, No. 27 MAP 2015, slip op. at 1 n.1 (Pa. (Footnote Continued Next Page)

-4- J-S24029-16

First, the reply brief is defective. Pursuant to Pa.R.A.P. 2113 (a) and

(c), reply briefs are required to be “in reply to matters raised by appellee’s

brief” and “[n]o further briefs may be filed except with leave of court.” The

note following Rule 2113 further explains, “the scope of the reply brief is

limited . . . in that such brief may only address matters raised by appellee

and not previously addressed in appellant’s brief.” Thus, insofar as

Appellant’s purported “reply” brief is not in response to any matters raised

by the Commonwealth, it is defective.

Second, even to the extent the reply brief was not defective, the

substance of Appellant’s argument is waived because he did not file a

petition for a writ of coram nobis or invoke the principles of that doctrine

before the PCRA court. See Pa.R.A.P. 302 (“Issues not raised in the lower

court are waived and cannot be raised for the first time on appeal.”). Since

the issue is waived, we cannot address the merits herein.

Finally, assuming both that the reply brief is not defective and that

Appellant requested coram nobis relief in the PCRA court, we would reject

the request on its merits. Stated plainly, our Supreme Court recently

reaffirmed that where a PCRA petitioner’s request for relief can be

entertained under the PCRA, the petition is considered a PCRA petition and is _______________________ (Footnote Continued)

filed March 29, 2016) (quoting Commonwealth v. Sheehan, 285 A.2d 465, 467 (Pa. 1971)). As explained in the body of this memorandum, coram nobis review is inapplicable in this case.

-5- J-S24029-16

subject to that statute’s dictates. Commonwealth v. Descardes, No. 27

MAP 2015, slip op. at 17 (Pa. filed March 29, 2016) (“where a petitioner’s

claim is cognizable under the PCRA, the PCRA is the only method of

obtaining collateral review”); see also Commonwealth v. Hall, 771 A.2d

1232, 1235 (Pa. 2001) (if the defendant’s PCRA claims “are cognizable under

the PCRA, the common law and statutory remedies now subsumed by the

PCRA are not separately available” to him); 42 Pa.C.S. § 9542 (PCRA is the

“sole means of obtaining collateral relief and encompasses all other common

law and statutory remedies for the same purpose . . . including habeas

corpus and coram nobis).

Instantly, Appellant’s claims fall within the PCRA. Appellant is eligible

for PCRA relief pursuant to § 9543(a)(1) in that he has been convicted of a

crime under the laws of Pennsylvania and is currently serving the sentence

imposed on those convictions. Moreover, his claims regarding the trial

court’s jurisdiction, the purported break down in court operations, the

propriety of the convictions, and the legality of his sentences are all

cognizable issues under the PCRA. See 42 Pa.C.S. §9543(a)(2)(viii) (the

tribunal conducting proceeding lacked jurisdiction); §9543(a)(2)(iv) (the

improper obstruction by governmental officials); §9543 (a)(2)(vii)

(imposition of illegal sentence). As appellant is eligible for PCRA relief and

his claims are cognizable under the Act, his petition is subsumed by the

PCRA and its statutory time-bar. Hence, Appellant cannot invoke coram

-6- J-S24029-16

nobis as an alternative basis for relief. Descardes, supra. For all of the

foregoing reasons, the assertions leveled in Appellant’s reply brief are

unavailing.

Next, we address the merits of the appeal. As noted previously, the

PCRA court dismissed Appellant’s petition as untimely. Initially, we note our

standard of review. “An appellate court reviews the PCRA court's findings of

fact to determine whether they are supported by the record, and reviews its

conclusions of law to determine whether they are free from legal error.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “The scope of

review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the trial

level.” Id.

It is well settled that an untimely PCRA petition renders the courts of

this Commonwealth without jurisdiction to award relief. Commonwealth v.

Albrecht, 994 A.2d 1091 (Pa. 2010). Pursuant to 42 Pa.C.S. § 9545(b), a

petition must be filed within one year of the date that judgment became final

unless the petitioner alleges and proves one of the timeliness exceptions

found under 42 Pa.C.S. 9545(b). The statute provides:

(b) Time for filing petition.--

(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:

-7- J-S24029-16

(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).

Presently, Appellant’s judgment of sentence became final on May 1,

2000, ninety days after the Supreme Court denied allowance of appeal,

when the period expired to file a petition for a writ of certiorari. Appellant’s

sixth petition was not filed until April 27, 2015. Thus, it is facially untimely.

Appellant declined to assert a specific timeliness exception and even a

charitable reading of his protracted arguments relating to the trial court’s

application of the IADA do not implicate any of the statutory exceptions to

the time bar. His references to the legality of sentence, the purported

breakdowns of trial court’s machinery, and the court’s ability to correct

clerical errors are all futile. See e.g. Commonwealth v. Fahy, 737 A.2d

214, 223 (Pa. 1999) (“Although legality of sentence is always subject to

review within the PCRA, claims must still first satisfy the PCRA's time limits

or one of the exceptions thereto.”). Tellingly, Appellant does not assert that

-8- J-S24029-16

the purported breakdowns and clerical errors that he relies upon were

recently discovered or that they implicated a newly-recognized constitutional

right that has been held to apply retroactively. Hence, the certified record

and governing law supports the trial court’s determination that it lacked

jurisdiction to address the untimely petition. See Albrecht, supra.

Motion to strike the Commonwealth’s brief denied. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/14/2016

-9-