Com. v. Austin, S.
886 EDA 2016
| Pa. Super. Ct. | Dec 21, 2016Background
- Shaun Patrick Austin was convicted by jury on September 18, 2009 of 96 counts of possession of child pornography and initially sentenced to 72–192 years; remanded and resentenced on January 13, 2012 to 35–70 years. Direct appeals were ultimately exhausted with the Pennsylvania Supreme Court denying allowance of appeal on October 22, 2013.
- Austin filed a timely PCRA petition on February 28, 2014; appointed counsel filed an amended petition and the PCRA court denied relief on April 10, 2015 after hearings. An appeal from that denial was later discontinued by counsel on December 10, 2015.
- While the earlier PCRA matter was pending on appeal, Austin filed a pro se “Nunc Pro Tunc PCRA” petition on May 8, 2015 seeking to reinstate the February 28, 2014 petition and to add numerous claims, many alleging ineffective assistance of trial/PCRA/resentencing counsel.
- The PCRA court treated the May 8, 2015 filing as a serial PCRA petition, concluded it was untimely because Austin’s judgment of sentence became final January 21, 2014, and found Austin failed to plead or prove any statutory timeliness exception under 42 Pa.C.S. § 9545(b)(1).
- The Superior Court affirmed, holding timeliness is jurisdictional, Austin did not invoke or prove a statutory exception, and therefore the court lacked jurisdiction to reach the merits of his claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a second/serial PCRA petition is the proper vehicle to raise ineffective assistance of prior PCRA counsel | Austin argued he could file a subsequent PCRA to raise PCRA-counsel ineffectiveness and sought to revive prior PCRA claims | Commonwealth argued serial petition is governed by PCRA timeliness rules and exceptions; petition was untimely | Court held serial PCRA petitions are allowed but subject to PCRA timeliness; Austin’s serial petition was untimely and no exception was proven |
| Whether the May 8, 2015 pro se filing was timely under the PCRA | Austin did not assert a timeliness argument or statutory exception in the petition | Commonwealth and PCRA court treated the May 8 filing as untimely because judgment was final Jan 21, 2014 and petition was filed after the one-year deadline | Court held the May 8, 2015 petition was untimely and jurisdictionally barred |
| Whether Austin pleaded or proved a statutory exception to the one-year time bar (gov’t interference; newly discovered facts; new retroactive constitutional right) | Austin asserted numerous substantive claims (ineffective assistance, prosecutorial misconduct, police misconduct, sentencing errors) but did not plead a PCRA time-bar exception | Commonwealth noted no exception was pled or proven; exceptions must be pleaded in the petition and raised below, not first on appeal | Court held Austin failed to plead/prove any § 9545(b)(1) exception; petition dismissed for lack of jurisdiction |
| Whether the court should have addressed the merits (e.g., ineffective assistance at trial/resentencing) despite timeliness defect | Austin sought review of multiple ineffectiveness and other claims | Commonwealth relied on timeliness jurisdictional rule to preclude merits review | Court declined to reach merits due to jurisdictional timeliness bar |
Key Cases Cited
- Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000) (when a PCRA appeal is pending, a subsequent PCRA petition cannot be filed until resolution by highest state court or expiration of time for review; subsequent petition must be filed within 60 days of final resolution)
- Commonwealth v. Austin, 66 A.3d 798 (Pa. Super. 2013) (direct-appeal decision addressing convictions and need for resentencing)
- Commonwealth v. Austin, 77 A.3d 1258 (Pa. 2013) (denial of allowance of appeal affirming disposition on direct appeal)
- Commonwealth v. Hernandez, 79 A.3d 649 (Pa. Super. 2013) (timeliness of PCRA petition is jurisdictional and petitioner must plead and prove any timeliness exception)
- Commonwealth v. Johnson, 966 A.2d 523 (Pa. 2009) (standard of review for PCRA disposition and deference to PCRA court’s factual findings)
- Commonwealth v. Burton, 936 A.2d 521 (Pa. Super. 2007) (statutory exceptions to PCRA timeliness must be included in the petition and cannot be first raised on appeal)
- Commonwealth v. Henkel, 90 A.3d 16 (Pa. Super. 2014) (serial PCRA petition may present claim of prior PCRA-counsel ineffectiveness but still must be timely)