Com. v. Mcginnis, V. (memorandum)

Annotate this Case

Download PDF

J-S71033-15 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. VERNON E. MCGINNIS, JR. Appellant No. 782 WDA 2015 Appeal from the PCRA Order April 15, 2015 In the Court of Common Pleas of Armstrong County Criminal Division at No(s): CP-03-CR-0000547-1996 BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and OTT, J. MEMORANDUM BY OTT, J.: FILED JANUARY 29, 2016 Vernon E. McGinnis, Jr., appeals, pro se, from the order entered on April 15, 2015, in the Armstrong County Court of Common Pleas, which dismissed his untimely.1 eighth petition for post-conviction collateral relief as McGinnis seeks relief from the judgment of sentence of life imprisonment imposed on April 9, 1997, after pleading guilty to the charge of first-degree murder for the fatal shooting of Edward Galvanek. 2 After a thorough review of the record, the parties’ briefs, and applicable law, we affirm on the basis of the PCRA court’s opinion. ____________________________________________ 1 See Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. 2 18 Pa.C.S. § 2502(a). J-S71033-15 The PCRA court aptly summarized the facts and procedural history in its Pa.R.A.P. 1925(a) opinion, and we adopt its recitation. See PCRA Court Opinion, 6/25/2015, at 1.3 McGinnis argues the PCRA court erred in finding his petition was untimely filed and that no timeliness exceptions under 42 Pa.C.S. § 9545(b)(1) apply. See McGinnis’ Brief at 4. Specifically, he states that on January 9, 2015, his mother was cleaning out her deceased father’s estate and discovered correspondence between McGinnis’ plea counsel and his grandfather, which his mother then sent to McGinnis. Id. at 8. He alleges counsel gave misleading information to his grandfather, who was not counsel’s client, and McGinnis did not give counsel consent to consult with his relative. Id.4 McGinnis contends this letter constitutes newly discovered evidence, and that it was unknown to him and could not have been ascertained by the exercise of due diligence. Id. The PCRA court has provided a well-reasoned discussion of its disposition. See PCRA Court Opinion, 6/25/2015, at 2-4 (finding: (1) McGinnis failed to plead to any facts in his petition indicating that the letter ____________________________________________ 3 See also Trial Court Opinion, 5/7/2001, at 1-2; Commonwealth v. McGinnis, 4 A.3d 208 [2034 WDA 2009] (Pa. Super. 2010) (unpublished memorandum). 4 In his brief, McGinnis attaches a copy of the March 11, 1997, letter from his plea counsel to his grandfather. Counsel informs the grandfather that it was in McGinnis’ best interest to accept a guilty plea and that he would be afforded release after ten years, “with good behavior which is no comparison to life or death, upon conviction at trial.” See McGinnis’ Brief at Appendix C, March 11, 1997 Letter from Dennis Paul Zawacki, Esquire, to Clifford Miller. -2- J-S71033-15 on which he now relies could not have been discovered earlier with the exercise of due diligence; and (2) the contents of the letter do not actually contain any new “facts” on which McGinnis could base his petition because McGinnis would have been aware of the various promises or representations both at the time he entered his guilty plea and at sentencing, and therefore, he could not have been unlawfully induced by promises of a release after ten years by either plea counsel or his grandfather).5 We agree and adopt the sound reasoning of the PCRA court as dispositive of the issue raised in this appeal. Accordingly, because McGinnis’ petition is untimely and does not satisfy any exception to the PCRA timeliness requirement, we are without jurisdiction to review his claims. Therefore, the PCRA court did not err in dismissing his petition as untimely. Order affirmed. ____________________________________________ 5 The court also relies on its March 19, 2015, memorandum, which set forth its reasons for dismissing the petition pursuant to Pa.R.Crim.P. 907. See Memorandum, 3/19/2015, at 2-5 (explaining that McGinnis did not indicate in his petition how these additional facts tended to show either that he was given ineffective assistance of counsel or that his guilty plea was unlawfully induced, and that these claims were not substantially supported by the facts in the petition). -3- J-S71033-15 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 1/29/2016 -4- Circulated 12/30/2015 02:25 PM IN THE COURT OF COMMON PLEAS OF ARMSTRONG COMMONWEALTH PENNSYLVANIA OF PENNSYLVANIA v. VERNON COUNTY, E. No. MCGINNIS, CP-03-CR-0000547-1996 JR. 1925(a) OPINION NICKLEACH, S.J. Defendant appeals Relief the Court's Act E. Vernon order ("PCRAu) McGinnis, Jr. dismissing petition, his which was ("Defendantu) eighth ~ost entered Conviction on April 15, 2015. This instant case has a protracted appeal, the Court directs the it filed in this case to the Memoranda September 6, 2010, affirming all serial 2007, July 21, this PCRA petitions. forth in this in his (1) having The opinion Concise been untimely set forth in 42 Pa. prior appeal, Court's on December 2009, facts May 7, Defendant 18, to the attention 2003, and May 27, dismissals background entered Relevant Superior May 29, Relevant Court's Court 2008, Court's In the instant errors history. of Defendant's are also set 2001. asserts the following Statement: erred filed Cons. in denying and not Stat. Ann. Defendant's within § any 9545(b) PCRA petition of the (1); exceptions as Commonwealth v. McGinnis ·No. CP-03-CR-0000547-1996 (2) having The Court been erred untimely filed We continue supported by the untimely by further 907(1), thoroughly petition convinced not have been diligence. was facts 42 Pa. discovered Defendant's letter could simply asking not his Zawacki. a hearing Ann. 65 A.3d grandfather's petition that have been discovered grandfather The letter she items. would earlier I not in the reasons. in his could (1) (ii); {Pa. as Court of due 2013). The was sorting There establish are no that the by Defendant for any correspondence was The he now relies 9545(b) The the facts exercise mother personal P. 2015. any 345-46 339, by Defendant's § served Crim. additional on which with the Stat. been unnecessary. 19, to plead letter was for dismissing following failed R. was for the have to Pa. on Marcy Cons. Defendant's petition would entered the as was adequat~ly Defendant's reasons earlier v . Edmiston, pled in Attorney that discovered See Commonwealth through the Defendant indicating letter forth affirmance petition ruling pursuant that in its Memorandum First, our and that no purpose set recommends that Thus, PCRA petition a hearing.1 and that proceedings. we remain Court also face Defendant's without to find record on its in denying by from possession of the Although Defendant's concise statement appears to raise a third issue for appeal, namely, that the Court erred in denying Defendant's substantive claims that he received ineffective assistance of counsel and entered an unlawfully-induced plea, the Court did not, indeed could not, reach the merits of these substantive issues because we concluded that the petition was untimely. 2 Commonwealth v. McGinnis ·No. CP-03-CR-0000547-1996 Commonwealth, indication his law enforcement, that family. it was Because the letter in early in his contents 2015, petition that which with a PCRA petitioner exception allege found and at section prove newly-discovered or newly facts." Edmiston, citation omitted). a petitioner of due diligence, and must not presented the written guilty t hat a newly Defendant plea, induced Defendant's after 10 his evidence years. Without that the the now letter, entered his was unlawfully Zawacki, would record Id. Defendant Mr. to exercise but are newly-discovered Defendant 3 unknown of public known that the plea considering were and by the source." before prior attorney, grandfather not be previously that a known quotations ascertained must must for previously which on timeliness not merely facts discovered one month contains because were contends approximately source been information the 'facts,' constitute new "facts" Petitioners 352 (internal not have be facts through at Supreme constitute unknown 65 A.3d and could to establish failed to establish willing "(T]o has 9545 (b) (1) (ii). "previously discovered discovered Pennsylvania to what rely have or due diligence. note the may Defendant any his mother Defendant regard from could before he exercised we also precedent presumably that Nor is there concealed years we find Secondly, Court's in any way Defendant and its it or the Court. told be afforded veracity of this release Commonwealth v McGinnis . No. CP-03-CR-0000547-1996 statement, if, by promises induced Defendant's aware in fact, his guilty entered the contents "facts" source on which that they found at cannot section his all on all by either Mr. Defendant of evidence that guilty of the Defendant letter Zawacki have or been both at the time The surfaced plea. unlawfully- would letter for the fact almost do not actually could base his the he is only 18 years because contain petition, after we find any new we conclude timeliness exception 9545(b)(l)(ii).2 of the CONCLUSION above reasons, March 17, issues raised 2015 and for the Memorandum, in Defendant's reasons we recommend concise statement. BY THE COURT, Dated: June ,;.;- , 2015 .c> 2 In the Guilty Plea Questionnaire executed by Defendant on March 25, 1997, Defendant acknowledged his understanding that he was pleading guilty to first degree murder, that the law required him to go to jail for life, and that no one promised him anything or forced him to enter his guilty plea. See Guilty Plea Questionnaire, gs. 9,10,13,15; Certification of Defense Counsel, no. 8. Defendant's s entencing order also clearly indicates t hat his sentence is for a term of incarceration for the duration of his natural life. See Sentencing Order, April 9, 1997. ,J a of those Accordingly, be used to establish stated in the Court's affirmance been and at sentencing. III. For had or representation or representations Defendant that plea plea release or both, promises newly-discovered promises of such grandfather, of those entered Defendant's

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.