Com. v. Carter, S. (memorandum)

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J- S60020- 13 N ON - PRECED EN TI AL D ECI SI ON - SEE SUPERI OR COURT I .O.P. 6 5 .3 7 COMMONWEALTH OF PENNSYLVANI A I N THE SUPERI OR COURT OF PENNSYLVANI A Appellee v. SEAN CARTER Appellant No. 149 WDA 2013 Appeal from t he PCRA Order of Novem ber 19, 2012 I n t he Court of Com m on Pleas of Allegheny Count y Crim inal Division at No.: CP- 02- CR- 0004283- 2006 BEFORE: FORD ELLI OTT, P.J.E., WECHT, J., and STRASSBURGER, J. * MEMORANDUM BY WECHT, J.: FI LED: February 3, 2014 Sean Cart er appeals from t he Novem ber 19, 2012 order dism issing his t hird pet it ion for relief under t he Post - Convict ion Relief Act ( PCRA ) , 42 Pa.C.S. §§ 9541- 46, as unt im ely. We affirm . On direct appeal, we sum m arized t he fact ual and init ial procedural hist ory of t his case as follows: Since Oct ober of 2005, [ Cart er] had been under t he supervision of Agent Nicholas Sobol of t he Pennsylvania Board of Probat ion and Parole. While under supervision, [ Cart er] was supposed t o be living wit h his m ot her at 582 Ardm ore Boulevard in Pit t sburgh. On February 28, 2006, Agent Sobol received inform at ion t hat [ Cart er] was selling narcot ics from t he residence locat ed at 7209 Fleury Way in Pit t sburgh. Agent Sobol went t o t he Fleury Way residence accom panied by approxim at ely six agent s from t he Board of Probat ion and Parole. When t he ____________________________________________ * Ret ired Senior Judge assigned t o t he Superior Court . J- S60020- 13 agent s arrived at t he residence, [ Cart er] opened t he door. [ Cart er] was adm inist rat ively det ained and placed in handcuffs. [ Cart er] also inform ed Agent Sobol t hat he had purchased t he residence. A fem ale ident ified as Loret t a Wade was observed st anding in t he living room wit h out erwear on. During a pat down of Ms. Wade, agent s recovered a single piece of crack cocaine weighing t wo ounces, a sm all am ount of m arij uana, and a crack pipe. No drugs or paraphernalia were found on [ Cart er s] person. The agent s observed [ t hat ] t he house was in a dilapidat ed condit ion, was sparsely furnished, and was not set up for housekeeping. Agent s conduct ed a search of t he im m ediat e area[ ,] which included t he living room . There, t hey found plast ic baggies inside a night st and. On t he living room sofa, t he agent s recovered a prescript ion bot t le labeled wit h [ Cart er s] nam e, a sock cont aining a solid rock of crack cocaine weighing 35.63 gram s, eight een t o t went y plast ic baggies, and a cell phone. [ Cart er] was arrest ed and charged wit h various drug offenses. [ Cart er] filed a m ot ion t o suppress, which was denied following a hearing. The case proceeded t o a non- j ury t rial on March 27, 2007. At t rial, t he suppression hearing t ranscript was incorporat ed int o t he record. The Com m onwealt h also present ed t he t est im ony of Agent Sobol, Agent David Bole, Det ect ive John McBurney[ , and] expert t est im ony from Ray Bonacci of t he Allegheny Count y Dist rict At t orney s Office Narcot ics Enforcem ent Team . [ Cart er] t est ified in his own defense and denied inform ing Agent Sobol t hat he had purchased t he Fleury Way residence. He also denied [ t hat ] he was engaged in selling crack cocaine from t hat address. At t he close of t he evidence, [ Cart er] was found guilt y of [ possession wit h int ent t o deliver ( PWI D ) ] , possession of a cont rolled subst ance, and possession of drug paraphernalia.[ 1 ] On June 19, 2007, [ Cart er] was sent enced t o 5 t o 10 years im prisonm ent . Com m on w e a lt h v. Ca r t e r , No. 1329 WDA 2007, slip op. at 1- 3 ( Pa. Super. June 9, 2008) . We affirm ed Cart er s j udgm ent of sent ence on June 9, 2008. ____________________________________________ 1 35 P.S. §§ 780- 113( a) ( 30) , ( 16) , and ( 32) , respect ively. - 2 - J- S60020- 13 I d. at 1, 7. Cart er did not seek allowance of appeal t o t he Pennsylvania Suprem e Court . On Sept em ber 10, 2008, Cart er filed a t im ely pro se PCRA pet it ion, his first . 19, The PCRA court denied t hat pet it ion wit hout a hearing. 2010, we m em orandum . affirm ed t he PCRA court s order in an On February unpublished Se e Com m on w e a lt h v. Ca r t e r , No. 546 WDA 2009 ( Pa. Super. Feb. 19, 2010) . Cart er filed a pet it ion for allowance of appeal, which our Suprem e Court denied on July 21, 2010. Com m on w e a lt h v. Ca r t e r , 998 A.2d 958 ( Pa. 2010) ( per curiam ) . On June 9, 2011, Cart er filed a second pro se PCRA pet it ion. On August 12, 2011, t he PCRA court , concluding t hat Cart er failed t o sat isfy t he PCRA s st rict t im e lim it , se e 42 Pa.C.S. § 9545( b) ( 1) , dism issed Cart er s second pet it ion. I n an unpublished per curiam m em orandum , we affirm ed t he PCRA court s dism issal order, also concluding t hat Cart er s pet it ion was unt im ely. Com m on w e a lt h v. Ca r t e r , No. 1405 WDA 2011, slip op. at 6 ( April 11, 2012) . Cart er did not file a pet it ion for allowance of appeal wit h t he Pennsylvania Suprem e Court . The PCRA court set fort h t he procedural event s t hat occurred aft er Cart er s second PCRA appeal as follows: On March [ 21] , 2012, during t he pendency of his [ second PCRA appeal] t o t he Superior Court , [ Cart er] filed a NOTI CE OF APPEAL [ 2012 NEW CASE LAW] . The Court ent ert ained t he filing under t he Post - Convict ion Relief Act . Com m on w e a lt h v. 771 A.2d 1232, 1135 ( Pa. 2001) ( quot ing H a ll, Com m on w e a lt h v. Ya r r is, 731 A.2d 581, 586 ( Pa. 1999) ) . Because of t he assert ions m ade by [ Cart er] in his t hird PCRA, - 3 - J- S60020- 13 counsel was appoint ed t o represent [ Cart er] on April 17, 2012 a dat e aft er t he Superior Court issued it s Opinion at No. 1405 WDA 2011. On May 11, 2012, counsel filed a m ot ion for leave t o wit hdraw under Com m on w e a lt h v. Tu r ne r , 544 A.2d 927 ( Pa. 1988) and Com m on w e a lt h v. Fin le y, 550 A.2d 213 ( Pa. Super. 1988) . The m ot ion was grant ed on May 30, 2012, and [ Cart er] was ordered t o not ify t he Court in writ ing whet her he wished t o proceed wit h his PCRA. On June 18, 2012, [ Cart er] inform ed t he Court t hat he wished t o proceed wit h his pet it ion. On June 26, 2012, [ Cart er] filed a m ot ion for leave t o am end his PCRA. That m ot ion was grant ed. On Sept em ber 19, 2012, [ Cart er] filed a MOTI ON TO PRESERVE AFTER- DI SCOVERED EVI DENCE. On Oct ober 3, 2012, [ Cart er] filed a SUPPLEMENT TO AMEND P.C.R.A. Not ice was given on Oct ober 17, 2012, of [ t he] Court s int ent t o dism iss [ Cart er s] request for post convict ion relief because t he pet it ion was bot h t im e barred and m erit less. [ Cart er] filed his obj ect ions t o t his not ice on Oct ober 29, 2012. Addit ional obj ect ions t o t his Court s not ice of int ent ion t o dism iss were filed on Novem ber 7, 2012. On Novem ber 19, 2012, [ Cart er s t hird] post - convict ion was dism issed. PCRA Court Opinion ( P.C.O. ) , 3/ 18/ 2013, at 2- 3 ( gram m ar and cit at ions m odified) . On Decem ber 13, 2012, Cart er filed a not ice of appeal. Along wit h t he not ice of appeal, Cart er filed a concise st at em ent of errors com plained of on appeal pursuant t o Pa.R.A.P. 1925( b) . On March 18, 2013, t he PCRA court issued an opinion pursuant t o Pa.R.A.P. 1925( a) . Cart er raises t wo issues for our review : I. Whet her ( in) review ing t he propert y [ sic] of t he ( PCRA ) court s dism issal of [ Cart er s] t hird/ subsequent PCRA filing, it was an abuse of discret ion for t he ( PCRA ) court t o det erm ine t hat it was unt im ely filed under Tit le 42 Pa.C.S.A. §9545( b) ( 1) [ sic] where t he pet it ion was t im ely filed under Tit le 42 Pa.C.S.A. §9545( b) ( 1) ( i- iii) and §9545( b) ( 2) , because t he m at erial set fort h in [ Cart er s] - 4 - J- S60020- 13 subsequent pet it ion pled and proved all t hree lim it ed except ions of t he t im e- bar provisions? II. Whet her t he PCRA court erred and denied [ Cart er] his federal and st at e const it ut ional right s t o due process of law by dism issing [ Cart er s] t hird/ subsequent PCRA pet it ion wit hout an evident iary hearing and accept ing appoint ed counsel s Finle y/ Tur ne r no- m erit LETTER as a basis for dism issal [ sic] where [ Cart er] raised subst ant ial quest ions of disput ed fact s regarding t he t im eliness of his subsequent PCRA filing? Brief for Cart er at 4. Our st andard of review regarding an order denying a PCRA pet it ion is lim it ed t o whet her t he det erm inat ion of t he PCRA court is support ed by t he record and is free of legal error. 1169, 1170 ( Pa. 2007) . Com m on w e a lt h v. Ra ga n , 923 A.2d The PCRA court s findings will not be dist urbed unless t here is no support for t hat court s findings in t he cert ified record. Com m on w e a lt h v. Ca r r , 768 A.2d 1164, 1166 ( Pa. Super. 2001) . The cent ral focus of t his case is t he t im eliness of Cart er s t hird PCRA pet it ion. The t im e lim it at ions on PCRA pet it ions have m andat ory j urisdict ional im plicat ions and m ay not be alt ered or disregarded in order t o address t he m erit s of a pet it ion. Com m on w e a lt h v. H a r r is, 972 A.2d 1196, 1199- 1200 ( Pa. Super. 2009) . I n Com m on w e a lt h v. Ja ck son, we art iculat ed t he t im eliness st andards under t he PCRA as follows: The PCRA provides for an act ion by which persons convict ed of crim es t hey did not com m it and persons serving illegal sent ences m ay obt ain collat eral relief. 42 Pa.C.S.A. § 9542. When an act ion is cognizable under t he PCRA, t he PCRA is t he sole m eans of obt aining collat eral relief and encom passes all ot her com m on law and st at ut ory rem edies for t he sam e purpose[ .] 42 Pa.C.S.A. § 9542. - 5 - J- S60020- 13 I n order for a court t o ent ert ain a PCRA pet it ion, a pet it ioner m ust com ply wit h t he PCRA filing deadline. Se e Com m on w e a lt h v. Robin son, 837 A.2d 1157, 1161 ( Pa. 2003) . The t im e for filing a pet it ion is set fort h in 42 Pa.C.S.A. § 9545( b) , which provides in relevant part : ( b) Tim e for filin g pe t it ion. ( 1) Any pet it ion under t his subchapt er, including a second or subsequent pet it ion, shall be filed wit hin one year of t he dat e t he j udgm ent becom es final, unless t he pet it ion alleges and t he pet it ioner proves t hat : ( i) t he failure t o raise t he claim previously was t he result of int erference by governm ent officials wit h t he present at ion of t he claim in violat ion of t he Const it ut ion or laws of t his Com m onwealt h or t he Const it ut ion or laws of t he Unit ed St at es; ( ii) t he fact s upon which t he claim is predicat ed were unknown t o t he pet it ioner and could not have been ascert ained by t he exercise of due diligence; or ( iii) t he right assert ed is a const it ut ional right t hat was recognized by t he Suprem e Court of t he Unit ed St at es or t he Suprem e Court of Pennsylvania aft er t he t im e period provided in t his sect ion and has been held by t hat court t o apply ret roact ively. * * * 42 Pa.C.S.A. § 9545( b) . [ T] he t im e lim it at ions pursuant t o . . . t he PCRA are j urisdict ional. Com m on w e a lt h v. Fa h y, 737 A.2d 214, 222 ( Pa. 1999) . [ Jurisdict ional t im e] lim it at ions are m andat ory and int erpret ed lit erally; t hus, a court has no aut horit y t o ext end filing periods except as t he st at ut e perm it s. I d. I f t he pet it ion is det erm ined t o be unt im ely, and no except ion has been pled and proven, t he pet it ion m ust be dism issed wit hout a hearing because Pennsylvania court s are wit hout j urisdict ion t o consider t he m erit s of t he pet it ion. Com m on w e a lt h v. Pe r r in, 947 A.2d 1284, 1285 ( Pa. Super. 2008) . - 6 - J- S60020- 13 Com m on w e a lt h v. Ja ck son , 30 A.3d 516, 518- 19 ( Pa. Super. 2011) , appeal denied, 47 A.3d 845 ( Pa. 2012) . Cart er s j udgm ent of sent ence becam e final on or about July 9, 2008, when t he period for filing a pet it ion for allowance of appeal wit h t he Pennsylvania Suprem e Court elapsed. Se e 42 Pa.C.S. § 9545( b) ( 3) ( [ A] j udgm ent becom es final at t he conclusion of direct review, including discret ionary review in t he Suprem e Court of t he Unit ed St at es and t he Suprem e Court of Pennsylvania, or at t he expirat ion of t im e for seeking t he review. ) . Thus, Cart er had unt il July 9, 2009 t o file a t im ely PCRA pet it ion. Cart er did not file his t hird PCRA pet it ion unt il March 21, 2012, rendering t he pet it ion facially unt im ely by alm ost t hree years. Therefore, t o est ablish j urisdict ion over his pet it ion, Cart er m ust have specifically alleged and proved one of t he except ions set fort h at 42 Pa.C.S. §§ 9545( b) ( 1) ( i) - ( iii) . Throughout his filings, which include t he original pet it ion and at least one supplem ent al filing, Cart er m ade m ult iple at t em pt s t o sat isfy one of t he PCRA s t hree except ions t o t he t im e bar. We w ill address each in t urn. I n his original filing, Cart er first at t em pt ed t o est ablish j urisdict ion under t he newly recognized const it ut ional right except ion. Se e 42 Pa.C.S. § 9545( b) ( 1) ( iii) ; NOTI CE OF APPEAL 3/ 21/ 2012, at 2. [ 2012 NEW CASE LAW] , filed To successfully invoke t his except ion, Cart er m ust dem onst rat e not only t hat a new const it ut ional right has been recognized by eit her t he Pennsylvania Suprem e Court or t he Unit ed St at es Suprem e Court , but also t hat t he Court has held t hat t he newly recognized right applies - 7 - J- S60020- 13 ret roact ively. Se e § 9545( b) ( 1) ( iii) . Cart er appears t o predicat e his claim upon t he Unit ed St at es Suprem e Court s decision in M a ple s v. Th om a s, 132 S.Ct . 912 ( 2012) . I n M a ple s, t he Suprem e Court held t hat an at t orney's com plet e abandonm ent of a client in a st at e post - convict ion proceeding, which left t he pet it ioner unrepresent ed at a crit ical t im e, m ay serve as cause t o excuse a procedural default for federal habeas corpus review. I d. at 917. The Court did not recognize a new const it ut ional right t hat would apply t o Cart er s case, nor was any such right held t o apply ret roact ively. Thus, Cart er s assert ion of t he new const it ut ional right except ion t o t he PCRA s t im e bar is unavailing. Also in his March 21, 2012 filing, Cart er at t em pt ed t o est ablish t he PCRA court s j urisdict ion by assert ing t he newly discovered fact s except ion. Se e 42 Pa.C.S. § 9545( b) ( 1) ( ii) . Cart er does not indicat e precisely t he nat ure of t he newly discovered fact s. Cart er alludes t o a wit ness t hat was referenced in an earlier PCRA pet it ion. Cart er does not ident ify t his wit ness, nor does he expound upon what inform at ion t hat t his wit ness possesses t hat would const it ut e newly discovered fact s for t he purposes of t he except ion. Moreover, Cart er does not explain why he could not have discovered t his wit ness, and t he inform at ion possessed by t he wit ness, wit h due diligence at t he t im e of t rial. I d. Consequent ly, Cart er failed t o prove t he applicabilit y of t he newly discovered fact except ion. I n his am ended PCRA pet it ion, Cart er again at t em pt ed t o sat isfy t he newly discovered fact except ion by arguing t hat he had recent ly learned - 8 - J- S60020- 13 from t he Allegheny Count y Recorder of Deeds t hat t he address 7209 Fleury Way does not exist . Way t hat At t rial, Cart er was found inside of a hom e on Fleury cont ained drugs and drug dist ribut ion paraphernalia. The Com m onwealt h m aint ained t hat t he address of t his hom e was 7209 Fleury Way. Cart er argued in his am ended pet it ion t hat , had t he recent ly discovered inform at ion t hat t he address does not exist been present ed at t rial, t he result of t he t rial would have been different . SUPPLEMENT TO AMEND P.C.R.A., 10/ 5/ 2012, at 2. Se e Defendant s Assum ing, arguendo, t hat Cart er s fact ual claim is accurat e, t hat no such address exist s, Cart er m ade no effort t o dem onst rat e t hat t his inform at ion could not have been ascert ained at t he t im e of t rial wit h t he exercise of due diligence. Se e 42 Pa.C.S. § 9545( b) ( 1) ( ii) ( Requiring proof t hat t he fact s upon which t he claim is predicat ed were unknown t o t he pet it ioner and could not have been ascert ained by t he exercise of due diligence. ) . Hence, his claim t hat t his inform at ion warrant s applicat ion of t he newly discovered fact except ion necessarily fails. Finally, in his am ended PCRA pet it ion, Cart er m aint ained t hat t he Unit ed St at es Suprem e Court s decision in M a r t in e z v. Rya n, 132 S.Ct . 1309 ( 2012) , creat ed a new const it ut ional right and applied ret roact ively so as t o sat isfy subsect ion 9545( b) ( 1) ( iii) . M a r t in e z, as was t he case in M a ple , dealt exclusively wit h a federal court s abilit y t o review a case for federal habeas corpus purposes t hat cont ained a procedural default during t he st at e court proceedings. The case did - 9 - not est ablish any new J- S60020- 13 const it ut ional right t hat is applicable t o Cart er, nor did it hold t hat any const it ut ional right should apply ret roact ively. Therefore, M a r t in e z cannot serve as a basis t o est ablish t he newly recognized const it ut ional right except ion t o t he PCRA s t im e- bar. Cart er s t hird PCRA pet it ion was facially unt im ely. For t he preceding reasons, Cart er did not est ablish t he applicabilit y of any of t he except ions t o t he PCRA s st rict t im e lim it at ion. As such, t he PCRA court was wit hout j urisdict ion t o rule upon t he m erit s of t he pet it ion. Addit ionally, in response t o Cart er s second st at ed issue, because of our holding t hat t he pet it ion was unt im ely, t he PCRA court also did not abuse it s discret ion in accept ing counsel s Tu r n e r / Fin le y let t er and grant ing counsel s m ot ion t o wit hdraw as counsel. Order affirm ed. Judgm ent Ent ered. Joseph D. Selet yn, Esq. Prot honot ary Dat e: 2/ 3/ 2014 - 10 - J- S60020- 13 - 11 -

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