Commonwealth v. Swartzfager

59 A.3d 616, 2012 Pa. Super. 249, 2012 WL 5858804, 2012 Pa. Super. LEXIS 3492
CourtSuperior Court of Pennsylvania
DecidedNovember 20, 2012
StatusPublished
Cited by54 cases

This text of 59 A.3d 616 (Commonwealth v. Swartzfager) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Swartzfager, 59 A.3d 616, 2012 Pa. Super. 249, 2012 WL 5858804, 2012 Pa. Super. LEXIS 3492 (Pa. Ct. App. 2012).

Opinion

OPINION BY GANTMAN, J.:

Appellant, Christopher Swartzfager, appeals from the order entered in the Venan-go County Court of Common Pleas, denying his petition brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We vacate and remand for further proceedings.

The relevant facts and procedural history of this appeal are as follows. Appellant pled guilty on September 29, 1998, to attempted rape. On November 23,1998, the court sentenced Appellant to sixty-six (66) to two hundred forty (240) months’ imprisonment. This Court affirmed the judgment of sentence on October 11, 2000. Appellant did not file a petition for allowance of appeal with our Supreme Court.

Appellant filed a pro se PCRA petition on October 19, 2001. The court appointed counsel, who filed a “no-merit” letter and motion to withdraw on March 19, 2003, concluding Appellant’s pro se PCRA petition was untimely filed. On April 2, 2003, the court granted counsel leave to withdraw. That same day, the court issued notice of its intent to dismiss the petition without a hearing, pursuant to Pa.R.Crim.P. 907. Appellant filed a pro se notice of appeal on April 21, 2003, from the April 2nd order granting counsel’s motion to withdraw. In its Rule 907 notice and again in its opinion submitted to this Court, the PCRA court adopted counsel’s position that Appellant’s 2001 petition was untimely on its face and lacked any exception.2 By order dated September 22, 2003, [618]*618this Court quashed the appeal sua sponte as interlocutory, and not immediately ap-pealable, because the challenged order granting counsel leave to withdraw was not a final disposition of Appellant’s PCRA petition. Since then, no further action related to Appellant’s 2001 PCRA petition occurred.

Appellant filed another pro se PCRA petition on December 29, 2011. On March 22, 2012, the court issued Rule 907 notice of intent to dismiss without a hearing. Appellant then filed a pro se notice of appeal on April 10, 2012. The court entered a final order denying PCRA relief on April 23, 2012.3 Also on April 28, 2012, the court ordered Appellant to file a concise statement of errors complained of on appeal, pursuant to Pa.R.AP. 1925(b). Appellant timely filed a pro se Rule 1925(b) statement on May 4, 2012.

Appellant raises two issues for our review:

THE TRIAL COURT ILLEGALLY SENTENCED APPELLANT TO FIVE AND [ONE-JHALF TO TWENTY YEARS IN PRISON FOR AN INCHOATE CRIME.
THE REQUIREMENTS OF MEGAN’S LAW WERE ILLEGALLY IMPOSED UPON APPELLANT WHEN HE WAS SENTENCED, INCARCERATED AND ON PAROLE.

(Appellant’s Brief at 3).

As a preliminary matter, we must determine whether Appellant timely filed the current PCRA petition. Commonwealth v. Harris, 972 A.2d 1196 (Pa.Super.2009), appeal denied, 603 Pa. 684, 982 A.2d 1227 (2009). Pennsylvania law makes clear no court has jurisdiction to hear an untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837 A.2d 1157 (2003). The most recent amendments to the PCRA, effective January 16, 1996, provide that a PCRA petition, including a second or subsequent petition, must be filed within one year of the date the underlying judgment becomes final. 42 Pa. C.S.A. § 9545(b)(1); Commonwealth v. Bretz, 830 A.2d 1273 (Pa.Super.2003). A judgment is deemed 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.” 42 Pa.C.S.A. § 9545(b)(3).

The three statutory exceptions to the timeliness provision in the PCRA allow for very limited circumstances under which the late filing of a petition will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a petition must allege and the petitioner must prove:

(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 [619]*619and has been held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). “As such, when a PCRA petition is not filed within one year of the expiration of direct review, or not eligible for one of the three limited exceptions, or entitled to one of the exceptions, but not filed within 60 days of the date that the claim could have been first brought, the trial court has no power to address the substantive merits of a petitioner’s PCRA claims.” Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 788 (2000).

Pennsylvania law vests PCRA courts “with discretion to permit the amendment of a pending, timely-filed post-conviction petition_” Commonwealth v. Flanagan, 578 Pa. 587, 605, 854 A.2d 489, 499 (2004).

[T]he prevailing rule remains simply that amendment is to be freely allowed to achieve substantial justice. The [Pennsylvania Supreme] Court has recognized that adherence to such rules governing post-conviction procedure is particularly appropriate since, in view of the PCRA’s time limitations, the pending PCRA proceeding will most likely comprise the petitioner’s sole opportunity to pursue collateral relief in state court.

Id. at 605, 854 A.2d at 500 (emphasis added) (internal citations omitted). In the absence of a final ruling on a timely-filed first PCRA petition, another petition for post-conviction relief can be considered an amended first timely petition. See Commonwealth v. Williams, 573 Pa. 613, 828 A.2d 981 (2003) (holding pro se petitioner’s subsequent PCRA petitions constituted amendments to timely-filed first petition; although petitioner filed pro se motion to withdraw first PCRA petition, court took no action on motion; thus, motion to withdraw first PCRA petition was without ef-feet, first PCRA petition remained valid, and court could not find subsequent PCRA petitions untimely).

Nevertheless, the PCRA also provides for the dismissal of a properly filed petition under certain circumstances:

§ 9543. Eligibility for relief

* * *

(b) Exception.

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Bluebook (online)
59 A.3d 616, 2012 Pa. Super. 249, 2012 WL 5858804, 2012 Pa. Super. LEXIS 3492, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-swartzfager-pasuperct-2012.