Commonwealth v. Callahan
Decision Date | 23 September 2014 |
Docket Number | No. 273 WDA 2014,273 WDA 2014 |
Citation | 101 A.3d 118,2014 PA Super 208 |
Parties | COMMONWEALTH of Pennsylvania, Appellee v. Varian C. CALLAHAN, Appellant. |
Court | Pennsylvania Superior Court |
Randall T. Hetrick, Mercer, for appellant.
Robert G. Kochems, Assistant District Attorney, Mercer, for Commonwealth, appellee.
BEFORE: DONOHUE, OLSON and PLATT,* JJ.
Appellant, Varian C. Callahan, appeals from the order entered on January 14, 2014 denying his petition filed under the Post–Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541 –9546. We affirm.
This Court has previously summarized the factual background of this case as follows:
Commonwealth v. Callahan, 69 A.3d 1287 (Pa.Super.2013) (unpublished memorandum), at 1–3 (footnote omitted).
The procedural history of this case is as follows. On April 19, 2010, Appellant was convicted of robbery,1 theft by unlawful taking,2 making terroristic threats,3 and recklessly endangering another person.4 On June 3, 2010, he was sentenced to an aggregate term of 10 to 20 years' imprisonment. Appellant did not file a post-sentence motion, but did file a direct appeal with this Court in which he argued that the evidence was insufficient and the jury's verdict was against the weight of the evidence. On December 6, 2010, this Court affirmed Appellant's judgment of sentence, finding that Appellant waived his two issues by failing to file a post-sentence motion raising the weight of the evidence claim and failing to include citations to relevant authority regarding the sufficiency of the evidence claim. Commonwealth v. Callahan, 23 A.3d 569 (Pa.Super.2010) (unpublished memorandum).
Appellant filed a timely pro se PCRA petition alleging that his trial counsel5 was ineffective for failing to file a post-sentence motion, failing to preserve his sufficiency of the evidence claim, failing to call an additional alibi witness, and failing to pursue a motion to suppress.6 The PCRA court appointed counsel and held an evidentiary hearing. On March 22, 2012, the PCRA court granted Appellant relief on his claims that trial counsel was ineffective for failing to file a post-sentence motion and failing to preserve his sufficiency of the evidence claim.7 Therefore, the PCRA court reinstated Appellant's right to file a post-sentence motion and his right to file a direct appeal nunc pro tunc. The PCRA court also denied relief on Appellant's claim that trial counsel was ineffective for failing to call an additional alibi witness and for failing to pursue the motion to suppress. Instead of filing a postsentence motion and a direct appeal, PCRA counsel chose to appeal the PCRA court's denial of Appellant's ineffectiveness claim regarding trial counsel's failure to call an additional alibi witness. We affirmed that order on March 11, 2013. Commonwealth v. Callahan, 69 A.3d 1287 (Pa.Super.2013) (unpublished memorandum).
Appellant then filed a second pro se PCRA petition on April 30, 2013.8 Counsel was appointed and filed an amended PCRA petition. That petition alleged that Appellant's first PCRA counsel was ineffective for failing to file a post-sentence motion and direct appeal nunc pro tunc and for failing to appeal the PCRA court's denial of Appellant's suppression claim. The PCRA court held an evidentiary hearing, after which it denied Appellant's PCRA petition. The PCRA court concluded that PCRA counsel was not ineffective for failing to file a post-sentence motion nunc pro tunc, for failing to file a direct appeal nunc pro tunc, or for failing to appeal the PCRA court's denial of the ineffectiveness claim based upon trial counsel's failure to pursue the suppression motion. The PCRA court concluded all three issues lacked arguable merit. This timely appeal followed.9
Appellant presents one issue for our review:
Whether the [PCRA] court erred in denying the Appellant's [second PCRA] petition alleging that trial counsel was ineffective for failing to file post-sentence motions dealing with the sufficiency of the evidence and the weight of the evidence and also for failing to file a direct appeal pertaining to these issues?
Commonwealth v. Gandy, 38 A.3d 899, 902 (Pa.Super.2012), appeal denied, 616 Pa. 651, 49 A.3d 442 (2012) (internal quotation marks and citation omitted). Thus, we shall forego assessment of the merits of the claim set forth in Appellant's brief and, instead, concentrate our attention on whether Appellant timely filed his PCRA petition and, if not, whether he has raised a viable statutory exception to the PCRA's timeliness requirement. As the timeliness of a PCRA petition is a question of law, our standard of review is de novo and our scope of review is plenary. See Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super.2013) (citations omitted).
A PCRA petition is timely if it is “filed within one year of the date the judgment [of sentence] becomes final.”
42 Pa.C.S.A. § 9545(b)(1). “[A] judgment becomes 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). “This Court has explained that when a PCRA petitioner's direct appeal rights are reinstated nunc pro tunc in his first PCRA petition, a subsequent PCRA petition will be considered a first PCRA petition for timeliness purposes.” Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa.Super.2013), appeal denied, ––– Pa. ––––, 91 A.3d 162 (2014) (citation omitted); Commonwealth v. Donaghy, 33 A.3d 12, 14 n. 5 (Pa.Super.2011), appeal denied, 615 Pa. 753, 40 A.3d 120 (2012).
The first issue we must confront is when Appellant's judgment of sentence became final. There appear to be two possibilities. Under general PCRA principles, Appellant's judgment of sentence became final on April 23, 2012, the last day Appellant could have filed his direct appeal nunc pro tunc. See Turner, 73 A.3d at 1286 ( ).10 However, if Appellant's judgment of sentence did not become final until he failed to seek allocatur with respect to our affirmance of the PCRA court's order denying in part his first PCRA petition, then his judgment of sentence became final on April 10, 2013. See Pa.R.A.P. 1113(a).
We hold that Appellant's judgment of sentence became final on April 23, 2012. The plain language of the PCRA provides that a judgment of sentence becomes final at the conclusion of direct review or when the time for seeking direct review expires. See 42 Pa.C.S.A. § 9545(b)(3). In fixing the date upon which a judgment of sentence becomes final, the PCRA does not refer to the conclusion of collateral review or the time for appealing a collateral review determination. Thus, the plain language of the PCRA statute shows that a judgment of sentence becomes final immediately upon expiration of the time for seeking direct review, even if other collateral proceedings are still ongoing. As this result is not absurd or unreasonable, we may not look for further manifestations of legislative intent. See Commonwealth v. Hall, –––Pa. ––––, 80 A.3d 1204, 1211 (2013) (internal quotation marks omitted) (We may “look beyond the plain language of the statute only when words are unclear or ambiguous, or the plain meaning would lead to a result that is absurd, impossible of execution or unreasonable.”).
Having determined that Appellant's judgment of...
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