Com. v. Cash, T.
190 MDA 2016
| Pa. Super. Ct. | Aug 26, 2016Background
- Theodore J. Cash was convicted in 1993 for delivery of cocaine (759-1991) and sentenced March 8, 1995 to 2.5–10 years to run consecutively to a separate 3–10 year sentence for a 1991 drug transport conviction (682-1991).
- Direct appeal affirmed on January 4, 1996; judgment became final February 5, 1996. No PCRA petition was filed within one year of finality.
- In 2014–2015 Cash filed a pro se habeas petition and then a pro se PCRA petition (Feb. 10, 2015) claiming improper calculation of his prior record score and an illegal mandatory minimum under 18 Pa.C.S. § 7508; counsel was appointed and later filed an amended PCRA petition.
- The Commonwealth moved to dismiss as time‑barred; the PCRA court dismissed the first PCRA petition on Oct. 27, 2015. Cash filed a second pro se PCRA petition on Dec. 2, 2015, asserting newly discovered evidence (sentencing guideline forms) and ineffective assistance of PCRA counsel for failing to raise trial counsel ineffectiveness.
- The PCRA court dismissed the second petition as untimely. On appeal, the Superior Court affirmed, holding Cash failed to prove a timeliness exception and that Alleyne did not apply because no mandatory minimum sentence was imposed in the instant case.
Issues
| Issue | Cash's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Whether Cash's second PCRA petition was timely under 42 Pa.C.S. § 9545 | The sentencing guideline forms he received after the first PCRA constituted newly discovered facts excusing the one‑year bar | Petition was filed 19 years after finality and no § 9545(b)(1) exception applies | Dismissed as untimely; Cash failed to plead/prove a § 9545(b)(1) exception |
| Whether receipt of sentencing guideline forms qualifies as "new facts" under § 9545(b)(1)(ii) | Forms were previously unseen evidence that could not have been discovered earlier | Forms are sources of information, not new "facts"; underlying facts were available at sentencing | Forms do not satisfy § 9545(b)(1)(ii) because they are informational sources, not previously unknown facts |
| Whether ineffective assistance by prior PCRA counsel excuses the PCRA time bar | Prior PCRA counsel’s failure to raise certain claims amounted to abandonment justifying a late petition | Claims of PCRA counsel ineffectiveness generally do not excuse lateness; allowing this would eviscerate the statute of limitations | Rejected; prior PCRA counsel’s conduct did not establish abandonment sufficient to overcome the time bar |
| Whether Alleyne v. United States renders Cash’s sentence illegal | Alleyne requires any fact increasing mandatory minimum be found by jury; Cash argued his sentence was mandatory/illegal under Alleyne | No mandatory minimum was imposed in the instant case, so Alleyne is inapplicable | Rejected; record shows no mandatory minimum sentence in this case |
Key Cases Cited
- Alleyne v. United States, 133 S. Ct. 2151 (2013) (facts increasing mandatory minimum must be found by jury)
- Martinez v. Ryan, 132 S. Ct. 1309 (2012) (federal habeas rule permitting certain claims of ineffective assistance of trial counsel when state collateral counsel was ineffective)
- Edmiston v. Beard, 65 A.3d 339 (Pa. 2013) ("facts" under § 9545(b)(1)(ii) must be previously unknown and not part of the public record)
- Bennett v. Commonwealth, 930 A.2d 1264 (Pa. 2007) (discusses effect of post‑conviction counsel abandonment; limits on using counsel ineffectiveness to evade timeliness rules)
- Commonwealth v. Gamboa‑Taylor, 753 A.2d 780 (Pa. 2000) (rejects permitting serial PCRA petitions alleging PCRA counsel ineffectiveness to circumvent § 9545 time bar)
- Commonwealth v. Copenhefer, 941 A.2d 646 (Pa. 2007) (PCRA petitions generally must be filed within one year of finality unless an enumerated exception applies)
- Commonwealth v. Wilson, 824 A.2d 331 (Pa. Super. 2003) (standard of review for PCRA dismissals)
- Perez v. Superintendent, 799 A.2d 848 (Pa. Super. 2002) (appointed counsel must meaningfully participate or amend pro se filings; court may find proceedings effectively uncounseled)