Com. v. Rivera, M.

• Court: Superior Court of Pennsylvania
• Decided: October 5, 2023
• Docket: 1620 MDA 2022
• Status: Unpublished

Opinion

J-S24015-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL RIVERA : : Appellant : No. 1620 MDA 2022

Appeal from the PCRA Order Entered October 18, 2022 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0000972-2001

BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED: OCTOBER 5, 2023

Appellant, Michael Rivera, appeals pro se from the October 18, 2022

order denying as untimely his petition for collateral relief under the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546. The PCRA court

concluded that Appellant failed to establish an exception to the statutory time-

bar. We affirm.

The Commonwealth charged Appellant with, inter alia, murder, alleging

that Appellant, using a stolen gun, shot and killed the victim in an alley.

Appellant entered a negotiated guilty plea on December 6, 2001, to one count

of homicide in the third degree, carrying a firearm without a license,

possessing an instrument of crime, and receiving stolen property. The parties

agreed to an aggregate sentence of 30 to 60 years of incarceration, and the

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* Former Justice specially assigned to the Superior Court. J-S24015-23

trial court ordered a pre-sentence report before agreeing to accept the term.

On December 14, 2001, the court imposed the agreed-upon sentence, and

also imposed a $1,300 fine, which was not specified in the plea agreement.

Appellant did not file a direct appeal. In January of 2002, Appellant filed

his first PCRA petition, alleging that plea counsel informed him that the

negotiated sentence called for an aggregate sentence of 20 to 40 years of

incarceration. Appointed counsel filed a Turner/Finley “no merit” letter,1

and the PCRA court ultimately granted her petition to withdraw and dismissed

Appellant’s petition. Appellant appealed to this Court, but we dismissed due

to Appellant’s failure to file a brief. Order at 1065 MDA 2002, 3/21/03.

Appellant has since filed at least three more PCRA petitions.2 Appellant

filed a second PCRA petition on or about October 6, 2003, alleging that his

sentence was illegal due to the imposition of the fine, as well as costs and

restitution. The PCRA court denied the petition and, in its subsequent

Pa.R.A.P. 1925(a) opinion, it determined that Appellant waived his appellate

claims for failing to file a concise statement as directed. On appeal, we

affirmed, noting in the alternative that Appellant’s PCRA petition was untimely ____________________________________________

1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

2 In addition to the petitions discussed infra, Appellant filed two other motions

that should have been treated as PCRA petitions. On July 19, 2007, Appellant filed a motion for reconsideration of his sentence, which the court struck on October 17, 2007. On September 13, 2011, Appellant filed another motion for modification of sentence, which the court denied but did not treat as a PCRA petition.

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and that he failed to plead and prove any exception to the time-bar.

Commonwealth v. Rivera, 864 A.2d 583 (Pa. Super. 2004) (unpublished

memorandum).

Appellant filed his third PCRA petition on May 22, 2012, alleging that

trial counsel was ineffective for failing to object to the imposition of the fine

and for failing to inform Appellant that court costs would be included. He also

asserted that the sentence was illegal in any event as fines and costs were

not part of his plea bargain. The PCRA court issued a Pa.R.Crim.P. 907 notice

of its intent to dismiss the petition without a hearing on the basis that

Appellant failed to plead and prove a time-bar exception. The PCRA court

subsequently dismissed the petition on June 22, 2012. Appellant appealed,

and we again dismissed the appeal due to Appellant’s failure to file a brief.

Order at 1274 MDA 2012, 2/14/13.

On April 28, 2014, Appellant filed his fourth PCRA petition, styled as a

petition for a writ of habeas corpus, raising claims similar to those in his May

of 2012 petition. The PCRA court denied the petition on the merits, and on

appeal, we concluded that the court should have treated the petition under

the PCRA’s framework. Commonwealth v. Rivera, 118 A.3d 451 (Pa. Super.

2015) (unpublished memorandum)

Appellant, pro se, filed the petition at issue here on April 11, 2022.

Appellant generically alleged that all his prior attorneys were ineffective for

failing to properly present the aforementioned claims. Appellant also asserted

that his illegal-sentence claims were reviewable independent of the PCRA as

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the illegal nature of his sentence was “obvious on the face of the record,”

implicating the court’s authority to correct the sentence at any point in time.

See Commonwealth v. Holmes, 933 A.2d 57, 66 (Pa. 2007) (discussing the

“time-honored inherent power of courts” to correct patent errors). As to the

claims not implicating the legality of his sentence, Appellant argued that our

Supreme Court’s decision in Commonwealth v. Bradley, 261 A.3d 381 (Pa.

2021), which held that PCRA petitioners are not required to raise a challenge

to PCRA counsel’s ineffectiveness in a response to a Rule 907 notice of intent

to dismiss, qualified as an exception to the PCRA’s time-bar. The PCRA court

issued a notice of intent to dismiss citing cases holding that Bradley does not

authorize the filing of an untimely PCRA petition. The PCRA court

subsequently dismissed the petition on October 18, 2022.

On November 10, 2022, Appellant filed a pro se notice of appeal and

attached a concise statement of matters complained of on appeal, listing six

points of error. The PCRA court issued an order on November 29, 2022,

directing Appellant to file a concise statement, specifying that issues “not

properly included in the Statement … shall be deemed waived.” Order,

12/1/22 (single page). Appellant did not file a duplicate or amended concise

statement. In its Pa.R.A.P. 1925(a) opinion, the court concluded that

Appellant “failed to preserve any matters for appellate review pursuant to Rule

1925(b).” PCRA Court Opinion, 1/13/23, at unnumbered 2. The

Commonwealth agrees that Appellant has failed to preserve any issues for

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review, and, alternatively, that Appellant’s petition is untimely and that he

failed to plead and prove an exception.

We decline to find that Appellant has waived all issues for failing to

comply with the PCRA court’s November 29, 2022, order. The PCRA court’s

opinion does not mention Appellant’s joint notice of appeal and attached

concise statement. The purpose of a Rule 1925(b) statement is “to aid trial

judges in identifying and focusing upon those issues which the parties plan to

raise on appeal.” Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998).

By attaching a concise statement to the notice of appeal, Appellant indicated

which points of error he intended to raise. Thus, this is not a case where the

“failure to comply with the court’s order to file a Rule 1925(b) statement

compelled the court to speculate which of those claims [the appellant] would

maintain on appeal.” Commonwealth v. Butler, 812 A.2d 631, 633 (Pa.

2002). While it would have been preferable for Appellant to comply with the

order by filing a duplicate copy, we decline to find that Appellant waived all

claims in the absence of authority directly addressing this scenario. As stated

in Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d

222, 225 (Pa. Super. 2014) (en banc), “it is the trial court’s order that triggers

an appellant’s obligation” in determining whether an appellant has waived his

appellate issues based on non-compliance with Rule 1925. The trial court

order merely stated that issues “not properly included” in the concise

statement would be waived. Neither the Commonwealth nor the trial court

cited a case holding that an anticipatory concise statement does not serve the

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“notice” function of Rule 1925. We will assume, for purposes of our

disposition, that Appellant preserved his issues by including them in the

anticipatory filing.

We now address Appellant’s issues, all of which concern the merits of

his underlying PCRA claims. We agree with the Commonwealth that Appellant

failed to establish that his petition met an exception to the time-bar, which

precludes discussion of the merits. The PCRA states that all petitions must be

filed within one year of the judgment of sentence becoming final, and “the

timeliness requirements of the PCRA leave a court without jurisdiction to

consider the merits of an untimely petition[.]” Commonwealth v. Smith,

818 A.2d 494, 499 (Pa. 2003). The PCRA codifies three statutory exceptions

to this requirement:

(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:

(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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42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, any petition attempting to

invoke one of these exceptions must “be filed within one year of the date the

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

Appellant’s brief does not specifically discuss the three possible time-

bar exceptions. He does not cite any interference by government officials

pursuant to (i). As to (ii), in Commonwealth v. Stahl, 292 A.3d 1130, 1136

(Pa. Super. 2023), we rejected the argument that a PCRA petition filed after

Bradley’s publication represented the first opportunity to raise a claim

challenging initial PCRA counsel’s ineffectiveness, as the appellant there “was

fully aware of those claims of ineffectiveness of PCRA counsel” prior to the

decision in Bradley. Commonwealth v. Stahl, 292 A.3d 1130, 1135 (Pa.

Super. 2023). The same point applies here. Moreover, publication of new

cases cannot serve as a “fact” that triggers the (ii) exception.

Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011) (holding that

“subsequent decisional law does not amount to a new ‘fact’ under section

9545(b)(1)(ii) of the PCRA”).

Finally, regarding the new-constitutional-right exception, it does not

appear that any reported decision has directly addressed this claim to date.

We note that the right to counsel during a timely PCRA proceeding is by

legislative grace, as it is rule-based in nature and not required by the United

States Constitution. See generally Pennsylvania v. Finley, 481 U.S. 551,

555 (1987) (“We have never held that prisoners have a constitutional right to

counsel when mounting collateral attacks upon their convictions … and we

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decline to so hold today. Our cases establish that the right to appointed

counsel extends to the first appeal of right, and no further.”). The United

States Supreme Court has affirmed that “the Constitution does not guarantee

the assistance of counsel at all” in collateral proceedings. Davila v. Davis,

582 U.S. 521, 529 (2017). The Bradley decision dictated a process by which

PCRA petitioners could effectuate their rule-based right to effective assistance

of counsel. Bradley, 261 A.3d at 397 (explaining that, pre-Bradley, “a

petitioner was required to raise PCRA counsel’s ineffectiveness in response to

the PCRA court’s Rule 907 notice of intention to dismiss the petition”).

However, the statutory language “has been held” in the Section 9545(b)(1)(iii)

exception has been interpreted by our Supreme Court to mean that the

relevant Supreme Court, in this case the Supreme Court of Pennsylvania, must

have recognized the right at the time the petition is filed. Commonwealth

v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002) (“By employing the past

tense in writing this provision, the legislature clearly intended that the right

was already recognized at the time the petition was filed.”). In other words,

even if a case decides a new constitutional right that must be afforded

retroactive status as a matter of constitutional law, the Supreme Court of

Pennsylvania must first recognize the retroactivity of the decision per its

interpretation of the statutory language. Commonwealth v. Reid, 235 A.3d

1124, 1160 (Pa. 2020) (“While Montgomery [v. Louisiana, 577 U.S. 190

(2016)] … enshrined Teague [v. Lane, 489 U.S. 288 (1989),] as a

constitutional command that extends to state post-conviction proceedings, it

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in no way alters the Abdul-Salaam Court’s statutory interpretation of Section

9545(b)(1)(iii).”).3 Our Supreme Court has not held that Bradley qualifies as

a case that must be applied retroactively.

The only real support for Appellant’s claim that Bradley satisfies a time-

bar exception is his citation, for its persuasive value, to our unpublished

decision in Commonwealth v. Riley, 1818 EDA 2020 (Pa. Super. filed Sept.

2, 2022), which Appellant notes states that a claim of PCRA counsel

ineffectiveness may be raised under Bradley so long as it “‘sprang’ from the

original, timely PCRA petition and did not constitute a second or subsequent

petition.” Appellant’s Brief at 5. This is an accurate statement of the law, but ____________________________________________

3 We recognize that the Reid decision involved only four Justices of the Supreme Court participating, with the tie broken by a special appointment of three Judges from this Court. Justice Dougherty’s opinion, joined by Justice Mundy, sharply disagreed with Justice Donohue’s dissenting opinion, joined by Justice Wecht, on the continued viability of the Abdul-Salaam interpretation with respect to cases that would qualify under the retroactivity framework developed in Teague.

There is no need to elaborate on the nuances of that doctrine as the Bradley decision, which does not involve any federal constitutional right in the first place, would clearly not satisfy either of the two categories of cases recognized by Teague as requiring retroactive application. The decision clearly does not place “certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe” as the Bradley case has nothing to do with substantive criminal law. Teague, 489 U.S. at 307. Nor could it qualify as a “watershed” rule of procedure as the High Court has since declared that no ruling will ever qualify under that exception. Edwards v. Vannoy, 141 S.Ct. 1547, 1560-61 (2021) (“The watershed exception is moribund. … [N]o stare decisis values would be served by continuing to indulge the fiction that Teague’s purported watershed exception endures.”).

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Appellant does not address the fact that his petition was not timely under the

PCRA. Bradley applies to claims raised on appeal from the denial of a timely

PCRA, but as we have explained, the case does not qualify as an exception to

the time-bar. Because the instant petition is facially untimely, Riley is of no

help to Appellant.

Alternatively, Appellant argues that his illegal-sentence claim, i.e., that

the portion of his sentence imposing a fine must be vacated as it was not

specified in the original plea agreement, may be examined outside of the PCRA

as the sentencing order reveals a patent error. In Commonwealth v.

Jackson, 30 A.3d 516 (Pa. Super. 2011), we held that a claim that a sentence

is patently illegal is still subject to the PCRA and its time requirements. Id.

at 521 (“[Holmes, supra,] recognized the limited authority of a trial court to

correct patent errors in sentences absent statutory jurisdiction[;] … it did not

establish an alternate remedy for collateral relief that sidesteps the

jurisdictional requirements of the PCRA.”). Our Supreme Court has granted

allowance of appeal to determine whether Jackson was correctly decided.

Commonwealth v. McGee, 276 A.3d 701 (Pa. 2022) (granting allowance of

appeal to determine whether Jackson should be overruled). Thus, even

accepting arguendo that Appellant’s illegal sentence claim implicates the

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legality of his sentence, Jackson remains good law.4 The PCRA court

therefore did not err in dismissing the petition as untimely.

Order affirmed.

Date: 10/05/2023

4 The fact that Appellant relies on the transcript of the guilty plea to establish that the parties did not include a fine undermines the claim that the error is patent. Holmes, 933 A.2d at 66 (“Holmes’s sentencing order … contained a patent mistake, a fact apparent from a review of the docket without resort to third-party information.”).

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