Com. v. Harris

• Decision Date: 22 April 2009
• Docket Number: No. 634 Middle District Appeal 2007.,634 Middle District Appeal 2007.
• Citation: 2009 PA Super 78,972 A.2d 1196
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Samuel E. HARRIS.
• Court: Pennsylvania Superior Court

972 A.2d 1196

2009 PA Super 78

COMMONWEALTH of Pennsylvania, Appellant v. Samuel E. HARRIS.

No. 634 Middle District Appeal 2007.

Superior Court of Pennsylvania.

Submitted February 26, 2009.

Filed April 22, 2009.

Susan E. Moyer, Asst. Dist. Atty., for Com., appellant.

Vincent J. Quinn, Lancaster, for appellee.

BEFORE: FORD ELLIOTT, P.J., DONOHUE and POPOVICH, JJ.

OPINION BY FORD ELLIOTT, P.J.:

¶ 1 The Commonwealth appeals the March 30, 2007 order granting Samuel Harris's ("appellee's") petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. The PCRA court determined that appellee had received ineffective assistance of counsel when his attorney failed to file a motion to suppress his statements to the police following his arrest. After careful review, we reverse the order of the PCRA court.

¶ 2 The procedural history of this case is as follows. Appellee was alleged to have engaged in various illegal activities with the minor female victim, F.B. Appellee was arrested on April 11, 2001 on unrelated charges by members of the East Lampeter Township Police. He subsequently provided an inculpatory statement to the police about the events with F.B. and was charged with two counts of rape, two counts of involuntary deviate sexual intercourse, two counts of aggravated indecent assault, one count of indecent assault, one count of false imprisonment, and one count of corruption of minors.

¶ 3 On January 11, 2002, appellee pled guilty to all charges pursuant to a negotiated plea agreement.¹ On this same date, appellee was sentenced to an aggregate term of 7½ to 15 years' imprisonment. Immediately after appellee was sentenced, the Commonwealth requested that the trial court order appellee to undergo assessment by the Sexual Offender's Assessment Board ("SOAB") to assess appellee's sexually violent predator ("SVP") status. The trial court denied the Commonwealth's request on the grounds that certain provisions of Megan's Law² were unconstitutional.³

¶ 4 At this point, the record becomes convoluted. On January 23, 2002, the Commonwealth filed a notice of appeal to the Pennsylvania Supreme Court pursuant to 42 Pa.C.S.A. § 722(7), from the January 7, 2002 order and judgment of sentence, asserting the SVP provisions of Megan's Law were, in fact, constitutional. On February 6, 2002, the Pennsylvania Supreme Court reserved ruling on the Commonwealth's appeal pending the outcome of a related case, Williams II.

¶ 5 On February 8, 2002, appellee also filed a notice of appeal from the January 11, 2002 judgment of sentence. Appellee's court-appointed counsel filed an Anders brief and a motion to withdraw. A panel of this court affirmed the judgment of sentence on October 18, 2002 and permitted counsel to withdraw. Commonwealth v. Harris, 815 A.2d 1126 (Pa.Super.2002) (unpublished memorandum). Appellee did not file an appeal with the Pennsylvania Supreme Court.

¶ 6 On June 22, 2004, the Pennsylvania Supreme Court reversed the trial court's order insofar as it found specified provisions of Megan's Law unconstitutional and remanded for further proceedings. Commonwealth v. Harris, 578 Pa. 240, 851 A.2d 856 (2004), citing Williams II, supra; Maldonado, supra. Ultimately, the SOAB determined that appellee did not meet the criteria of a sexually violent predator. On November 3, 2004, the Commonwealth filed notice that appellee would not be subject to the SVP provisions of Megan's Law II.

¶ 7 On December 21, 2004, appellee filed a pro se PCRA petition. Counsel was appointed and an amended petition was filed on May 27, 2005 raising issues regarding the ineffectiveness of appellate counsel for not raising the issue of prior counsel's failure to file a motion to suppress the statement made to the police. On November 28, 2005, a PCRA hearing was held to determine the timeliness of the petition; the court found appellee's petition had been timely filed. (See opinion and order, 3/30/07 at 4-10.) On October 2 and 4, 2005, hearings were held regarding the merits of the petition. Thereafter, the PCRA court granted appellee relief, permitting him to withdraw his guilty plea and proceed to trial. The Commonwealth filed a notice of appeal on April 9, 2007. The court directed the Commonwealth to file a concise statement of matters complained of on appeal. The Commonwealth complied, and the PCRA court filed an opinion.

¶ 8 On appeal, the Commonwealth raises two issues:

WHETHER THE PCRA COURT ERRED BY FINDING THAT GUILTY PLEA COUNSEL [WAS] INEFFECTIVE FOR NOT LITIGATING A SUPPRESSION ISSUE WHEN SUCH A MOTION WOULD HAVE BEEN UNSUCCESSFUL?

WHETHER THE PCRA COURT ERRED BY FINDING THAT DEFENDANT'S GUILTY PLEA WAS TAINTED WHERE GUILTY PLEA COUNSEL CANNOT BE FOUND TO HAVE BEEN INEFFECTIVE?

Commonwealth's brief at 4.

¶ 9 Preliminarily, as did the lower court, we consider whether the PCRA petition was timely filed. See Commonwealth v. Hutchins, 760 A.2d 50, 53 (Pa.Super.2000) (holding that an appellate court may consider the issue of jurisdiction in a PCRA appeal sua sponte). It is imperative to note that the timeliness requirements of the PCRA are jurisdictional in nature. Commonwealth v. Pursell, 561 Pa. 214, 219, 749 A.2d 911, 913 (2000). Statutory time restrictions may not be altered or disregarded to reach the merits of the claims raised in the petition. Commonwealth v. Taylor, 933 A.2d 1035, 1038 (Pa.Super.2007).

¶ 10 A petition for relief under the PCRA, including a second or subsequent petition, must be filed within one year of the date the judgment becomes final unless the petition alleges, and the petitioner proves, that an exception to the time for filing the petition, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is met.⁴ "[I]t is now well settled that there is no generalized equitable exception to the jurisdictional one-year time bar pertaining to post-conviction petitions." Commonwealth v. Brown, 596 Pa. 354, 360, 943 A.2d 264, 267 (2008). "The PCRA confers no authority upon this Court to fashion ad hoc equitable exceptions to the PCRA time-bar in addition to those exceptions expressly delineated in the Act." Commonwealth v. Eller, 569 Pa. 622, 634, 807 A.2d 838, 845 (2002).

¶ 11 According to the plain language of 42 Pa.C.S.A. § 9545(b)(3), 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." See Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 76, 753 A.2d 780, 783 (2000) (the petition must be filed within one year of the "expiration of direct review" if one of the three limited exceptions does not apply). This case ultimately presents an interesting procedural knot to untie in terms of when appellee's judgment became final for PCRA purposes —was it 30 days after this court affirmed his judgment of sentence and resolved appellee's appeal or, as the PCRA court found, 90 days after the Pennsylvania Supreme Court disposed of the Commonwealth's appeal by its order finding Megan's Law applied as it was constitutional? Our review of relevant authority has produced no cases that directly discuss the unique circumstances of this case.

¶ 12 The PCRA court credited appellee's theory that the one-year PCRA petitioning period should commence from September 20, 2004—90 days after the Pennsylvania Supreme Court reversed that portion of the trial court's January 7, 2002 order denying the Commonwealth's request for an SVP assessment. (PCRA court opinion, 3/30/07 at 10.) The PCRA court found that the ultimate question in this matter involves the meaning of the phrase "conclusion of direct review" and the term "judgment"; thus, the court considered the Statutory Construction Act of 1972, 1 Pa.C.S.A. § 1501 et seq. (PCRA court opinion, 3/30/07 at 6-7.)

¶ 13 In conducting its review, the court observed that the purpose of the Act is "`to channel claims for post-conviction relief through the PCRA, to ensure that the post-conviction review process remains open for review of certain fundamental claims implicating the reliability of the conviction and/or sentence, but to limit this opportunity to a single, counseled petition.'" (Id. at 7, quoting Commonwealth v. Williams, 566 Pa. 553, 565, 782 A.2d 517, 524 (2001).) See 42 Pa.C.S.A. § 9542. The court noted that this stated purpose does not limit the phrase "direct review" to review sought by a defendant as the Commonwealth has the right to appeal in limited circumstances. (PCRA court opinion, 3/30/07 at 7.) "The Act does not draw a distinction between direct review at the request of the Commonwealth and direct review at the request of a defendant, nor is there evidence of legislative intent indicating that such a distinction exists." (Id.)

¶ 14 The second term the court examined is the term "judgment." We agree with the PCRA court's finding that the imposition of SVP status is a component of the judgment of sentence even though the ultimate collateral consequences are non-punitive. Commonwealth v. Williams, 574 Pa. 487, 832 A.2d 962, 986 (2003); Commonwealth v. Plucinski, 868 A.2d 20, 27-28 (Pa.Super.2005) ("Judgment of sentence reversed and vacated with regard to Appellant's SVP classification; judgment of sentence affirmed in all other respects."); Commonwealth v. Dixon, 907 A.2d 533, 539 (Pa.Super.2006), appeal denied, 591 Pa. 722, 920 A.2d 830 (2007) ("Thus, we conclude that the trial court did not abuse its discretion when it found that Appellant was a sexually violent predator.... Accordingly, we affirm the judgment of sentence."); Commonwealth v. Krouse, 799 A.2d 835 (Pa.Super.2002), appeal denied, 573 Pa. 671, 821 A.2d 586 (2003) (reversing judgment of sentence in regard to the SVP determination). Pursuant to 42 Pa.C.S.A. § 9795.4(e)(3), the trial court is to determine "prior to sentencing" whether the Commonwealth has proven by clear and convincing evidence that the...