Commonwealth v. Rozier

18 Pa. D. & C.5th 569
CourtPennsylvania Court of Common Pleas, Lawrence County
DecidedDecember 2, 2010
Docketnos. 650, 651, and 656 of 1996, C.R.
StatusPublished

This text of 18 Pa. D. & C.5th 569 (Commonwealth v. Rozier) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lawrence County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Rozier, 18 Pa. D. & C.5th 569 (Pa. Super. Ct. 2010).

Opinion

PICCIONE, J,

This opinion is issued pursuant to Pa.R.A.P. 1925(a) in support of the February 7, 2006 order of court granting the commonwealth’s motion to dismiss and finding that this court lacked jurisdiction to hear the merits of defendant’s motion for post conviction collateral relief. On appeal, defendant asserts that the court erred in denying defendant’s motion as untimely. The relevant background of this case follows.

On March 14,1997, defendant pled guilty to the charges of possession with intent to deliver, felony delivery, and delivery of a controlled substance. He was sentenced on [571]*571August 21, 1997 to three consecutive terms of 15 months to 120 months incarceration. Defendant subsequently filed a motion to modify sentence on August 29, 1997, which was denied on September 3,1997, and a pro se petition for reduction of sentence on September 19, 1997, which was denied on September 25, 1997. No appeals were taken from the denials of defendant’s motions.

Defendant did not file a petition for relief under the Post Conviction Relief Act (“PCRA”) until September 8, 2005. However, the criminal docket entries indicate that the prothonotary received correspondence from defendant on December 1, 1997, requesting paperwork to file an appeal. Further, the docket entry for September 8, 1999 indicates that defendant requested leave to proceed in forma pauperis, which was granted. Despite this activity, no PCRA petition was filed prior to the expiration of the one-year time limit for such petitions.

On September 8, 2005, defendant filed a motion for post conviction collateral relief, arguing that the court imposed an illegal sentence on him and that his counsel was ineffective for failing to file an appeal of the denial of defendant’s petition for reduction of sentence. The commonwealth responded with a motion to dismiss, claiming that defendant’s sentence was statutorily authorized, that defendant waived the claim by failing to raise it on direct appeal, that defendant’s motion was untimely, and that the commonwealth had been prejudiced by defendant’s nine-year delay. The court held a hearing on defendant’s motion on February 1, 2006. In the order dated February 7, 2006, the court concluded that it was without jurisdiction to address the merits of defendant’s claims because his motion was untimely.

No further action was taken in this matter until [572]*572September 14,2009, when defendant filed another motion for post conviction collateral relief. Defendant claimed that this second PCRA petition was timely because he. filed it within 60 days of the date he discovered that his previous attorney failed to pursue an appeal of the court’s February 7, 2006 order. A hearing was scheduled for September 8, 2010 to give defendant the opportunity to demonstrate that his second PCRA petition met one of the exceptions to the PCRA’s timeliness requirement. During the hearing, the commonwealth agreed to the reinstatement of defendant’s PCRA appeal rights nunc pro tunc and the parties entered the following stipulation:

[Defendant’s] counsel at the time was ineffective for failing to file an appeal of that February...7th, 2006 order;
That [defendant] was incarcerated in the Lawrence County Jail until March 30, 2006, when he was transported back to S.C.I. Camp Hill. The order denying the...February 7, 2006 P.C.R.A. petition was mailed to [defendant] at the S.C.I. Camp Hill address and not the Lawrence County Jail;
That upon his return to S.C.I. Camp Hill on or about March 30, 2006 and after receiving his back mail, [defendant] discovered that the court had denied his P.C.R.A. petition, and during that period of time, thought an appeal had been filed by his counsel.
...The docket will reflect that on May 25, 2006, the defendant did send correspondence inquiring about his appeal and P.C.R.A. petition;
That [defendant] would testify that he received no response from counsel to that May 26, 2006 [573]*573correspondence;
...[Defendant], the Commonwealth would stipulate, believed that an appeal was ongoing with respect to that February 7, 2006 order for a period of approximately three years, until September of2009, when [defendant] was informed by a paralegal at his place of incarceration that, in fact, an appeal had not been filed after it was checked on, and on that basis, [defendant] filed his September 2009 P.C.C.R. petition, the one that’s before the court today.
...[Defendant] did take timely action as required under the timeliness exception to the one-year limit on filing P.C.R.A. petitions, he exercised due diligence when he found out an appeal was not filed and that his belief that an appeal was filed was reasonable under the circumstances.N.T., 9/8/10, at 4-6. [574]*574result 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;

[573]*573The court subsequently granted defendant’s second PCRA motion, permitting defendant to appeal nunc pro tunc the order of court dated February 7, 2006.

On appeal, defendant argues that the court erred in denying his original, September 8, 2005 motion for post conviction collateral relief as untimely. The timeliness requirements of the PCRA are mandatory and jurisdictional in nature. Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999). “Pennsylvania law makes clear no court has jurisdiction to hear an untimely PCRA petition.” Commonwealth v. Monaco, 996 A.2d 1076 (Pa. Super. 2010). A timely PCRA petition must be filed within one year of the date that the judgment becomes final, unless one of the following exceptions applies:

(i) the failure to raise the claim previously was the
[574]*574(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.A. § 9545(b). A petition invoking one of the above exceptions must be filed within 60 days of the date that the petition could have been presented. Id. at §9545(b) (2). “[I]t is the petitioner who bears the burden to allege and prove that one of the timeliness exceptions applies.” Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008) (citing Commonwealth v. Abu-Jamal, 941 A.2d 1263,1267 (Pa. 2008)).

There is no dispute that defendant’s September 8, 2005 motion for post conviction collateral relief was untimely. The judgment became final, at the latest, on October 25, 1997, meaning defendant’s motion was filed almost seven years after the expiration of the one-year time limit.

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Related

Commonwealth v. Lambert
884 A.2d 848 (Supreme Court of Pennsylvania, 2005)
Commonwealth v. Fahy
737 A.2d 214 (Supreme Court of Pennsylvania, 1999)
Commonwealth v. Marshall
947 A.2d 714 (Supreme Court of Pennsylvania, 2008)
Commonwealth v. Abu-Jamal
941 A.2d 1263 (Supreme Court of Pennsylvania, 2008)
Commonwealth v. Monaco
996 A.2d 1076 (Superior Court of Pennsylvania, 2010)
Commonwealth v. Bennett
930 A.2d 1264 (Supreme Court of Pennsylvania, 2007)

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Bluebook (online)
18 Pa. D. & C.5th 569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-rozier-pactcompllawren-2010.