Com. v. Sculco, T.

• Court: Superior Court of Pennsylvania
• Decided: June 8, 2016
• Docket: 967 MDA 2015
• Status: Unpublished

Opinion

J. S27025/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : v. : : TOMMASO SCULCO, : : Appellant : No. 967 MDA 2015

Appeal from the PCRA Order April 27, 2015 In the Court of Common Pleas of Berks County Criminal Division No(s): CP-06-CR-0002481-2006

BEFORE: SHOGAN, J., DUBOW, J., and STEVENS, P.J.E. *

MEMORANDUM BY DUBOW, J.: FILED JUNE 08, 2016

Appellant, Tommaso Sculco, appeals pro se from the Order of April 27,

2015, which dismissed Appellant’s second Post Conviction Relief Act

(“PCRA”)1 Petition as untimely. After careful review, we affirm on the basis

of the PCRA court’s Opinion that holds that Appellant failed to establish that

his petition falls within one of the exceptions to the timeliness requirements.

On September 6, 2007, a jury convicted Appellant of Criminal

Conspiracy to Commit Criminal Homicide, two counts of Corrupt

Organization, one count of Criminal Conspiracy to Commit Delivery of a

Controlled Substance, and one count of Delivery or Possession with Intent to

* Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541-9546. J.S27025/16

Manufacture or Deliver a Controlled Substance.2 On October 22, 2007, the

trial court sentenced Appellant to an aggregate term of thirty-six (36) to

seventy (70) years’ incarceration. N.T. Sentencing, 10/22/07, at 80-4.

On December 3, 2007, Appellant filed a Notice of Appeal and on May

1, 2009, this Court remanded the case for the limited purpose of

resentencing. See Commonwealth v. Sculco, No. 2038 MDA 2007,

unpublished memorandum (Pa. Super. filed May 1, 2009). On October 4,

2010, the trial court resentenced Appellant to an aggregate term of thirty-

one to seventy years’ incarceration. N.T. Resentencing, 10/4/10, at 2-10.

The PCRA court set forth the relevant factual and procedural history of

this case in its July 27, 2015 Opinion and we adopt its recitation for

purposes of this appeal.3 See PCRA Ct. Op., dated 7/27/15, at 1-3.

Appellant raises the following issue on appeal:

Whether the [PCRA] court erred when it dismissed the appellant’s PCRA Petition as untimely and without any type of review, when the appellant did indeed claim one of the time-bar exceptions under 9545(b)(1)(ii) – facts unknown and not discoverable by due diligence, as well as filed the petition within sixty (60) days of the date the claim could have been presented.

2 18 Pa.C.S. § 903(a)(1), 18 Pa.C.S. § 911(b)(3), 18 Pa.C.S. § 911(b)(4), 18 Pa.C.S. § 903(a)(1), 35 P.S. § 780-113(a)(30), respectively. 3 We note that the PCRA court erroneously stated that on October 22, 2007, the trial court sentenced Appellant to a “total term of not less than sixteen (16) years nor more than [forty] (40) years in a state correctional facility,” which is the sentenced that was imposed on Conspiracy to Commit Murder, not the total sentence. Trial Ct. Op. at 1. This error is not relevant to disposition.

-2- J.S27025/16

Appellant’s Brief at 4.

The question of whether a PCRA Petition is timely raises a question of

law; this Court’s standard of review is de novo and our scope of review is

plenary. Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013).

It is well settled that “[t]he filing mandates of the PCRA are

jurisdictional in nature and are strictly construed.” Id. Consequently, “[a]n

untimely petition renders this Court without jurisdiction to afford relief.” Id.

After a thorough review of the record, the briefs of the parties, the

applicable law, and the comprehensive and well-reasoned Opinion of the

PCRA court, we conclude that the PCRA petition is untimely and this Court is

without jurisdiction to afford relief. Accordingly, we affirm on the basis of

the PCRA court Opinion, which holds that Appellant’s PCRA Petition is

patently untimely pursuant to 42 Pa.C.S. § 9545(b)(1), that Appellant’s

assertion of attorney abandonment may constitute a factual basis for the

“new claim” timeliness exception pursuant to 42 Pa.C.S. § 9545(b)(1)(ii),

but that Appellant failed to file this PCRA Petition within the required sixty

days of the date that the Petitioner could have presented the claim pursuant

to 42 Pa.C.S. § 9545(b)(2), rendering the Petition untimely. See PCRA Ct.

Op. at 3-6.

The parties are instructed to attach a copy of the PCRA court’s Opinion

to all future filings.

-3- J.S27025/16

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/8/2016

-4- Circulated 05/13/2016 10:17 AM

COMMONWEALTH OF PENNSYL VAl'\IIA IN THE COURT OF COMMON PLEAS OF BERKS COUNTY, PENNSYLVANIA CRIMINAL DIVISION v. No. CP-06-CR-2481-06 TOMASSO SCULCO, Superior Court No. 967i\tIDA-2015 Appellant LUDGATE, S.J.

William Ross Stoycos, Esquire, Deputy Attorney General, for the Commonwealth Tomasso Sculco, prose

iVIEiVIORANDUM OPINION LUDGATE, S.J. Dated: Julyd 7 ~015 Before the Court is the appeal of the dismissal of Tomasso Sculco's [Appellant] second

Petition for Post-Conviction Collateral Relief, filed on December 10, 2014.

I. FACTUAL AND PROCEDURAL BACKGROUND

On September 6, 2007, following a jury trial, Appellant was found guilty beyond a

reasonable doubt of one count of Criminal Conspiracy to Commit Murder in the First Degree, 18

Pa.CS.A. §903(a)(1); two counts of Corrupt Organizations, 18 Pa.CS.A.§ 911(b)(4)(predicate

acts - on more than one occasion); one count of Criminal Conspiracy to Commit Delivery of a

Controlled Substance, 18 Pa.C.S.A. § 903; and one count of Delivery or Possession with Intent

to Manufacture or Deliver a Controlled Substance, Cocaine, 35 P.S. § 780-113(a)(30)(at

least 10 grams but less than 100 grams). On October 22, 2007, Appellant was sentenced by this

Court to a total term of not less than sixteen (16) years nor more than ( 40) years in a state

correctional facility.

During trial and sentencing, Appellant was represented by Abby Rigdon, Esq., who also

subsequently filed a post-sentence motion, which was denied on November 2, 2007. On

. December 3, 2007, Appellant filed a Notice of Appeal to the Pennsyh1ania' Superior Court, On 1 ;r t iiprYr ~;:AH]8 May 1, 2009, the P~im'sylVania' Superior Cami affirmed in part and reversed in part. The ·0 • ,-1 I"' ·.I· l ?. 1qr.tt1 .t m.. ~ . . . . . ·. judgment 2ii was of sente ce .. · I( - ... ~

vacated aha the case was remanded for re-sentencing.

1 .. ~'Pi Commonwealth v. Sculco, Superior Court. Non-precedential Decision, 2038 MDA 2007, ,, 'f' .. 5/1/09. On October 4, 2010, Appellant was resentenced in accordance with the Superior Court

opinion of May 1, 2009. On November 3, 2010, Appellant filed a Notice of Appeal to the (;) (I! Superior Courtof Pennsylvania. ~~ ~\j 1::: On December 1, 2010, Attorney Rigdon filed a Notice of Intention to File an

Anders/McClendon Brief in lieu of a Concise Statement of Matters Complained of on Appeal.

On January 5, 2012, the Superior Court granted Attorney Rigdon's petition to withdraw as

counsel, and affirmed Appellant's judgment of sentence. Appellant did not seek an allowance of

appeal to the Pennsylvania Supreme Court.

On August 20, 2012, Appellant filed his first PCRA petition pursuant to 42 Pa.C.S.A. §

9541 et. seq. On September 7, 2012, PCRA counsel, Lauren Marks, Esquire, was appointed. A

PCRA evidentiary hearing was held before this Court on October 22, 2013. On December 10,

2013, PCRA counsel filed a brief in support of Appellant's PCRA petition. After a review of the

evidence and all relevant statutes and caselaw, the relief requested in the Amended PCR,( · :;: .

petition was denied by Opinion and Order of April 24, 2014, which we incorporate by reference.

On May 28, 2014, in lieu of an appeal to the Superior Court, PCRA counsel filed a "No

Merit" letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.1988) and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988), and a petition to withdraw as

counsel in this court. Before the request to withdraw was granted, on June 5, 2014, Appellant,

pro se, filed an appeal to the Superior Court, also asking for new counsel to be appointed to

represent him with his appeal. On July 18, 2014, the Superior Court ordered PCRA counsel for

Appellant to ~'2Fry:s,mri~Y~i:,f8~HJ>Pea1 should not be quashed as untimely. Counsel responded

by again fil~ :"-i '1WP ~ija1fff'l~Wir and petition to withdraw. PCRA counsel did not file a

2 ~Q" response to the show cause order and did not address the timeliness of the appeal. The Superior ,··-~ Court quashed the pro se appeal and dismissed counsel's petition to withdraw as moot.

Commonwealth v. Sculco, 957 iVIDA 2014 (Pa.Super.2014)(0rder filed 8/11/14).

On December 10, 2014, Appellant filed a second PCRA petition, asserting abandonment

of PCRA counsel and asking that his appeal rights be reinstated nunc pro tune and that new

counsel be appointed.

11. ANALYSIS AND LEGAL CONCLUSIONS

Appellant's second PCRA petition was filed after the effective date of the 1995 amendments

to the PCRA; therefore, the jurisdictional time limits established by those amendments govern

this case. Commonwealth v. Fahy, 737 A.2cl 214, 217-18 (Pa.1999). A PCRA petition,

including a second or subsequent one, must be filed within one year of the date the petitioner's

judgment of sentence became final, unless. he pleads and proves one of the three exceptions

outlined in 42 Pa.CS.§ 9545(b)(l); Commonwealth v. Howard, 788 A.2d 351, 354 (Pa.2002).

"A judgment becomes final at the conclusion of direct review by this Court or the United States

Supreme Court, or at the expiration of the time for seeking such review." 42 Pa.CS. §

9545(b)(3); Howard, at 353. The PCRNs timeliness requirements are jurisdictional; therefore,

a court may not address the merits of the issues raised if the petition was not timely filed.

Commonwealth v. Albrecht, 994 A.2cl 1091, 1093 (Pa.2010). "[I]t is now well settled that

there is no generalized equitable exception to the jurisdictional one-year time bar pertaining to

post-conviction petitions." Commonwealth v. Brown, 943 A.2d 264, 267 (Pa.2008). "The

PCRA confers no authority upon this Court to fashion ad hoc equitable exceptions to the PCRA

time-bar in addition to those exceptions expressly delineated in the Act." Commonwealth v.

Eller, 807 A.2cl 838, 845 (Pa.2002).

3 The PCRA squarely places upon the petitioner the burden of proving that an untimely petition

fits within one of the three exceptions to the one year time bar. See Commonwealth v. Crews,

863 A.2d 498, 501 (Pa.2004); Commonwealth v. Bronshtein, 752 A.2d 868, 871 (Pa.2002).

These exceptions are:

"(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 retroactive! y." 42 Pa.C.S. § 9545(b)(1)(i)-(iii).

The PCRA further requires a petition invoking one of these exceptions to "be filed within 60

days of the date the claim could have been presented." 42 Pa.C.S. § 9545(b )(2). See

Commonwealth v. Jones, 54 A.3d 14, 16 - 17 (Pa.2012).

Appellant was sentenced on October 4, 2010. On January 5, 2012, the Superior Court

affirmed Appellant's judgment of sentence. He did not seek an allowance of appeal to the

Pennsylvania Supreme Court. Therefore, Appellant's judgment of sentence became final thirty

days later, on February 5, 2012, at the expiration of the time to seek allocatur from the

Pennsylvania Supreme Court. See Pa.R.A.P. 1113(a); 42 Pa.C.S.A. § 9545(b)(3) (stating, "a

judgment 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.").

4 ,.

.. ~(j This second PCRA petition was filed on December 10, 2014. It had to be filed by February 5,

2013 to meet the initial time bar. Therefore, Appellant had to properly plead and prove that one

of the three exceptions to the time bar applies.

Appellant asserted abandonment by his PCRA counsel on appeal. In Commonwealth v.

Bennett, 930 A.2d 1264 Pa.2007), our Supreme Court found that attorney abandonment may

constitute a factual basis for the second timeliness exception, specifically, that "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." 42 Pa.C.S.A. § 9545(b)(l)(ii). The appeal from

the dismissal of Bennett's first, timely, PCRA petition was dismissed by the Superior Court

because counsel failed to file a brief. Id. at 1266. Our Supreme Court held that Bennett

sufficiently alleged that he had been abandoned by counsel on his first PCRA petition and acted

with due diligence in ascertaining the fact of the abandonment to satisfy the timeliness exception

of the PCRA found at section under 9545(b)(l)(ii). Id. at 1272. See also Commonwealth v.

Huddleston, 55 A.3d 1217, 1220 (Pa.Super.2012).

To assert this exception, Appellant had to file his claim within the restricted time limit of sixty

days from discovery of the abandonment. This second petition would not have been dismissed as

untimely if Appellant had established due diligence in discovering the alleged attorney

abandonment and that his petition was "filed within 60 days of the date the claim could have

been presented." 42 Pa.C.S. § 9545(b)(2). His first petition was denied on April 24, 2014. He

filed a pro se appeal on June 4, 2014, which was quashed. Appellant filed his second PCRA

petition on December l 0, 2014 and we gave him proper notice of our reason for a dismissal

without a hearing. By his own admission, and attached to his Response to the Notice of Intent

to Dismiss, Appellant showed the Court that on July 30, 2014, he was informed by PCRl-\

5 .... I" .]

counsel in a letter that she was not filing an appeal on his behalf because it would be meritless.

He had 60 days from that date, or until September 30, 2014 to file under the exception he asserts,

Therefore, contrary to the assertion in his concise statement, Appellant's second petition is

untimely and no exception to the time bar overcomes that fact because it was not timely filed.

Further, Appellant filed his Notice of Appeal on June 4, 2015. This appeal is facially untimely

and should be quashed. However, this Court has not seen the cash slip submitted to the Superior

Court in response to its rule to show cause order of June 26, 2015. Hence, our reason for

reviewing it on the merits nonetheless.

Therefore, we respectfully request that the Superior Court affirm the Order of April 27,

2015, which dismissed Appellant's second PCRA petition, for the reasons outlined above.

By the Court: