Com. v. Borchert, J.
205 WDA 2016
| Pa. Super. Ct. | Aug 24, 2016Background
- James R. Borchert was convicted by jury in 2008 of third-degree murder and voluntary manslaughter for shooting his wife and her paramour; sentenced to 23–46 years imprisonment.
- Direct appeal affirmed by Superior Court; Pennsylvania Supreme Court denied allowance of appeal in November 2010; judgment of sentence became final February 22, 2011.
- Borchert filed a timely first PCRA petition (treated from a habeas filing) in December 2011; after an evidentiary hearing it was denied in September 2012 and that denial was affirmed on appeal in 2013.
- On December 21, 2015 Borchert filed a pro se “Motion to Modify Sentence Nunc Pro Tunc,” asserting sentencing challenges, suppression claim, prosecutorial charging theory, and ineffective assistance of trial counsel.
- The trial court treated the motion as a PCRA petition, issued Pa.R.Crim.P. 907 notice, and dismissed it on January 13, 2016 as untimely under the PCRA. Borchert appealed pro se.
- The Superior Court affirmed, holding the motion was properly treated as a PCRA petition and was untimely with no timeliness exception invoked or proven.
Issues
| Issue | Borchert's Argument | Commonwealth/Trial Court's Argument | Held |
|---|---|---|---|
| Whether the pro se motion should be treated as a PCRA petition | The motion was titled a nunc pro tunc sentence modification and should not be treated as PCRA | Post-judgment petitions are to be treated as PCRA petitions when filed after sentence is final; claims are PCRA-cognizable | Court properly treated the motion as a PCRA petition |
| Whether the petition was timely | Claims raised were substantive and should be considered on the merits despite timing | Petition filed Dec 2015 was filed more than one year after finality in Feb 2011 and is untimely | Petition untimely; no timeliness exception pleaded or proven; dismissed |
| Whether legality/discretionary sentencing, suppression, charging, or IAC claims can be reviewed despite untimeliness | These claims merit review and relieve timeliness concerns | Such claims are cognizable under PCRA but still subject to PCRA time limits | Such claims must satisfy PCRA timeliness; they did not here |
| Whether appeal should be quashed for briefing defects | Briefing defects warrant dismissal | Court may review if arguments are ascertainable | Superior Court declined to quash and addressed merits of timeliness issue |
Key Cases Cited
- Fowler v. Commonwealth, 930 A.2d 586 (Pa. Super. 2007) (post-judgment motions filed after sentence final are to be treated as PCRA petitions)
- Jackson v. Commonwealth, 30 A.3d 516 (Pa. Super. 2011) (any petition filed after judgment becomes final is a PCRA petition)
- Bennett v. Commonwealth, 930 A.2d 1264 (Pa. 2007) (PCRA time limits implicate jurisdiction and cannot be ignored)
- Fahy v. Commonwealth, 737 A.2d 214 (Pa. 1999) (legality of sentence claims are reviewed under the PCRA but must meet PCRA time limits)
- Ragan v. Commonwealth, 923 A.2d 1169 (Pa. 2007) (standard of appellate review for PCRA dismissal)