Commonwealth v. Brown

943 A.2d 264, 596 Pa. 354, 2008 Pa. LEXIS 264

• Court: Supreme Court of Pennsylvania
• Decided: March 26, 2008
• Docket: 162 MAP 2005
• Status: Published

Opinions

OPINION

Justice SAYLOR.

Appeal was allowed to determine whether the filing of an untimely notice of appeal displaces the statutory one-year period for filing a state post-conviction petition, as suggested by a passage from this Court’s decision in Commonwealth v. Murray, 562 Pa. 1, 753 A.2d 201 (2000).¹

Appellant was convicted of possession of a controlled substance, possession with intent to deliver, and criminal conspiracy. In May 2001, the trial court imposed a sentence of incarceration spanning from four to eight years. Appellant secured substitute counsel, who sought to make an oral post-sentence motion; further, counsel indicated that he intended to file written post-sentence motions identical to those that had been filed by a codefendant. Counsel, however, failed to follow through on this commitment, and written post-sentence motions were never filed. The trial court nevertheless issued an order purporting to deny Appellant’s post-sentence motions in April 2002, eleven months after sentencing.

Six days later, Appellant filed a notice of appeal from the judgment of sentence. A year later (May 2003), the Superior Court quashed the appeal as untimely, holding that, under Rule of Criminal Procedure 720, only a “written post-sentence motion” will toll the time period for the filing of a notice of appeal following the imposition of sentence. Pa.R.Crim.P. 720(A)(1); see also Pa.R.Crim.P. 720(A)(3) (“If the defendant does not file a timely post-sentence motion, the defendant’s notice of appeal shall be filed within 30 days of imposition of sentence.... ”). This Court denied Appellant’s petition for allowance of appeal in December 2003.

In February 2004, Appellant filed a pro se petition under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546 (the “PCRA”), requesting reinstatement of his direct appeal rights nunc pro tunc and asserting substantive challenges to the judgment of sentence. At a hearing on the petition, the Commonwealth stipulated that Appellant’s appellate counsel was ineffective in his failure to file a timely post-sentence motion or notice of appeal. The PCRA court reinstated Appellant’s direct appeal rights but denied relief on the merits of the substantive challenges that Appellant had presented. Appellant lodged an appeal in the Superior Court.

In a divided memorandum opinion, a panel of the Superior Court quashed the appeal, holding that the post-conviction court lacked jurisdiction to reinstate Appellant’s direct appeal rights or to otherwise adjudicate his claims for relief, in light of the PCRA’s timing provision requiring that any post-conviction petition be filed within one year of the date when the judgment became final. See 42 Pa.C.S. § 9545(b). Initially, the lead author observed that compliance with the one-year timing limitation has been construed by this Court to be a jurisdictional requisite to post-conviction review. See Commonwealth v. Fahy, 558 Pa. 313, 328-29, 737 A.2d 214, 222 (1999). The author reasoned that, in the absence of a timely written post-sentence motion, Appellant’s judgment of sentence became final in June 2001, thirty days after sentence imposition; thus, to implicate a PCRA court’s jurisdiction, any post-conviction petition was due to be filed by June 2002. In a footnote, the lead author recognized this Court’s decision in Murray, 562 Pa. at 1, 753 A.2d at 201, and the Superior Court’s in Commonwealth v. Mazzarone, 856 A.2d 1208 (Pa.Super.2004), in which the courts calculated the commencement of the PCRA’s one-year time period from the disposition of untimely-filed notices of appeal. The author, however, did not apply the approach from those cases.

Judge Klein concurred in the result, observing that a “safety net” for most of the harsh results yielded by the PCRA’s one-year time bar is found in the exceptions of section 9545(b) pertaining to governmental interference, after-discovered evidence, and retroactive application of certain constitutional rulings. See 42 Pa.C.S. § 9545(b)(1 )(i)-(iii). Senior Judge Montemuro dissented, based on the Murray and Mazzarone decisions.

We allowed appeal to address the discrepancy between the Superior Court’s decision and the approach to the one-year time bar to post-conviction review suggested by this Court’s reasoning in Murray. The appeal presents a question of law, over which our review is plenary.

Appellant’s arguments stress the equities of his situation, in which he initially had believed that he was pursuing a timely appeal in the Superior Court, but was deprived of the benefit of appellate review by virtue of the ineffective assistance of his counsel. Further, he observes that, under the Commonwealth’s theory, by the time counsel’s dereliction was discovered by him (i.e., when the Superior Court quashed his initial appeal from the judgment of sentence), the one-year period for the filing of a timely post-conviction petition already would have expired. Thus, he asks this Court to apply the approach from Murray to conclude that his petition was not jurisdictionally precluded. The Commonwealth, on the other hand, supports the reasoning of the lead author of the Superi- or Court panel. Further, it requests that we take this opportunity to modify Murray, since it is in clear conflict with the language of Section 9545(b)(3), which prescribes that the one-year time period for filing a PCRA petition commences upon the expiration of the period allowed for filing a direct appeal, where no such appeal is timely filed. According to the Commonwealth, to rule otherwise would not only disregard an express legislative prescription, but also, would permit defendants to extend the time for asserting PCRA claims by merely lodging untimely submissions in the appellate courts.

In Murray, the post-conviction petitioner was convicted of two criminal offenses and was sentenced in November 1995. His trial counsel filed an untimely notice of appeal, which was dismissed in January 1996. In July 1997, the petitioner filed his PCRA petition, alleging ineffective assistance of counsel in the failure to file a timely direct appeal. The PCRA court dismissed the petition as untimely, and the Superior Court affirmed. See Murray, 562 Pa. at 2-3, 753 A.2d at 201-02.

On discretionary review, this Court opened its analysis with reference to the PCRA’s timing provision, explaining that, subject to specific exceptions that had not been pled in the case, the statute prescribes that “[a]ny petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final[.]” Murray, 562 Pa. at 3-4, 753 A.2d at 202 (quoting 42 Pa.C.S. § 9545(b)). The petitioner argued that the PCRA’s timeliness provisions should not apply to his claim that his trial counsel was ineffective for failing to file a timely direct appeal, because that claim, if proven, would establish that he was denied his constitutional rights to the effective assistance of counsel and to a direct appeal. See id. The Court determined, however, that the nature of the constitutional violations alleged had no effect on the application of the PCRA time bar, under the plain meaning of the post-conviction statute, and in light of this Court’s holding that the timeliness requirements are jurisdictional in nature. See id. at 5, 753 A.2d at 203 (citing Fahy, 558 Pa. at 328-29, 737 A.2d at 222; Commonwealth v. Peterkin, 554 Pa. 547, 553-55, 722 A.2d 638, 641 (1998)).

Further, in rejecting Appellant’s alternative argument that his conviction had never become final because he had never fully litigated a direct appeal, Murray relied on the plain language of the PCRA commencing the one-year period “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 the time for seeking the review.” Murray, 562 Pa. at 5, 753 A.2d at 203 (quoting 42 Pa.C.S. § 9545(b)(3)) (emphasis in original). Additionally, and of particular significance to the present case, the Court indicated that the petitioner’s judgment of sentence had become final, and deemed the one-year period allowed for the filing of a post-conviction petition to have commenced, thirty days after the petitioner’s appeal was quashed as untimely by the Superior Court. See id.

We agree with the Commonwealth that Murray’s statement in this last regard was incorrect, as it is facially at variance with Section 9545’s prescription that a judgment of sentence is final for purposes of the one-year time bar upon the expiration of the time for seeking review in circumstances in which direct appellate review is unavailable. Notably, the Court’s error in this regard was not significant to the outcome of Mum-ay, as the petitioner’s post-conviction submission was untimely utilizing either the correct and earlier date of December 1995 (thirty days after imposition of sentence) in the calculation or the later date that Murray employed. See Murray, 562 Pa. at 5, 753 A.2d at 203. Moreover, the Court in Murray was not resolving any argument distinguishing between the expiration of the appeal period and the dismissal of the untimely notice of appeal as the trigger for the commencement of the one-year limitation period, because, again, such distinction was immaterial to the outcome. Therefore, the relevant passage from Mum-ay was in the nature of dictum, which does not have the effect of precedent. See Commonwealth v. Singley, 582 Pa. 5, 15, 868 A.2d 403, 409 (2005).²

We acknowledge Appellant’s equitable arguments; however, it is now well settled that there is no generalized equitable exception to the jurisdictional one-year time bar pertaining to post-conviction petitions. See Commonwealth v. Robinson, 575 Pa. 500, 508, 837 A.2d 1157, 1161 (2003).³ Additionally, we note that in Peterkin the Court considered the one-year time bar in the context of the provision of the Pennsylvania Constitution restricting the government’s ability to suspend the privilege of the writ of habeas corpus, see Pa. Const, art. I § 14, concluding that the timing requirement represented a reasonable restriction. See Peterkin, 554 Pa. at 557-58, 722 A.2d at 642. While Peterkin did not explore specific circumstances along the lines of those that Appellant faced, there is no effort in the briefing in this appeal to present a developed argument grounded on the Pennsylvania Constitution that Peterkin should be reconsidered and/or overruled in whole or in part. See generally Abu-Jamal, 574 Pa. at 731 n. 5, 833 A.2d at 724 n. 5 (declining to reconsider Peterkin ).⁴

We hold that, in circumstances in which no timely direct appeal is filed relative to a judgment of sentence, and direct review is therefore unavailable, the one-year period allowed for the filing of a post-conviction petition commences upon the actual expiration of the time period allowed for seeking direct review, as specified in the PCRA.

The order of the Superior Court is affirmed.

Justice BALDWIN did not participate in the consideration or decision of this case. Chief Justice CAPPY and Justice NEWMAN did not participate in the decision of this case. Justice EAKIN joins the opinion. Chief Justice CASTILLE joins the opinion and files a concurring opinion. Justice BAER files a dissenting opinion.

1 . The decision in this case was held pending issuance of Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264 (2007).

2 . In several passages, the dissent suggests that Appellant relied to his detriment on the Murray decision and that he is therefore being punished for this Court's mistake in the dictum in that case. See, e.g., Dissenting Opinion, op. at 370-72, 943 A.2d at 274. Appellant, however, has not asserted that he was contemporaneously aware of the Murray dictum and forewent efforts to confirm the timeliness of his direct appeal on such account. Thus, we fail to see the detrimental reliance. Rather, it appears that the Murray dictum is presently invoked by Appellant in a post hoc manner, just as it would have been entirely possible for him to present alternative arguments, such as the constitutional claim fashioned sua sponte by the dissent.

3 . See also Commonwealth v. Abu-Jamal, 574 Pa. 724, 731 n. 5, 833 A.2d 719, 724 n. 5 (2003); Commonwealth v. Rienzi, 573 Pa. 503, 508, 827 (2003); Commonwealth v. Eller, 569 Pa. 622, 634, 807 A.2d 838, 845 (2002).

Again, and as highlighted by Judge Klein, the exceptions to the one-year time bar are those delineated in the PCRA, see 42 Pa.C.S. § 9543(b)(l)(i)-(iii), which must be alleged in any petition that does not otherwise facially comply with the general rule of timeliness.

4 . The Court, however, has recognized the potential availability of an as-applied constitutional challenge to the application of the PCRA’s time restriction, see Commonwealth v. Abdul-Salaam, 571 Pa. 219, 226-27, 812 A.2d 497, 501 (2002), which approach was recently reaffirmed in Commonwealth v. Bennett, 593 Pa. 382, 398, 930 A.2d 1264, 1273 (2007). Therefore, the dissent's contention that this Court has "steadfastly and unremittingly” signaled its unwillingness to consider any and all arguments such as might yield restoration of direct appeal rights, see Dissenting Opinion, op. at 278, is not well founded. The controlling points here are that Appellant has raised no such argument in his present appeal, see generally Commonwealth v. LaCava, 542 Pa. 160, 176 n. 9, 666 A.2d 221, 228 n. 9 (1995) (explaining that issues are waived when not included in the appellant’s brief), and, as the dissent ultimately comes around to recognizing, the statutory one-year time bar applies by its terms to Appellant's post-conviction petition. See Dissenting Opinion, op. at 275, Finally, we differ with the dissent to the degree it is suggesting that a litigant may rely on dictum to omit essential argument on a significant constitutional matter. See id. at 273.