Com. v. Chick, E.
2381 EDA 2015
Pa. Super. Ct.Aug 24, 2016Background
- In Feb 2005 police stopped Eldon Chick, found firearms; Chick was convicted in Nov 2005 of VUFA offenses from that stop and sentenced in Feb 2006 (11.5–23 months + probation).
- A separate prosecution arose from a Dec 29, 2004 shooting of Terry Flores; ballistics linked Chick’s handgun to that shooting. Chick was convicted by jury in Sept 2006 of aggravated assault, VUFA §6106, and PIC and sentenced in June 2007 to consecutive terms (total 130–300 months).
- Chick’s direct appeal from the Flores conviction was exhausted when the Pennsylvania Supreme Court denied allowance of appeal on Feb 12, 2010 (judgment final May 13, 2010).
- Chick filed a pro se PCRA petition on Aug 22, 2011 (more than three months after the one-year PCRA deadline), alleging trial counsel was ineffective for not moving to dismiss the Flores §6106 charge on double jeopardy grounds.
- PCRA court dismissed the petition as untimely and lacking merit; Chick argued he only learned of the Supreme Court denial in July 2011 and thus filed within 60 days of the “newly discovered fact.”
- The Superior Court affirmed, holding Chick’s petition untimely because he failed to exercise due diligence in learning of the denial and failed to plead a valid timeliness exception; the court declined to reach merits for lack of jurisdiction and noted double jeopardy claim would fail on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of PCRA petition | Chick: PCRA filed within 60 days of learning Supreme Court denied allowance (a newly discovered fact), so §9545(b)(1)(ii) exception applies | Commonwealth/PCRA court: Chick waited 15 months to learn of denial; he failed to exercise due diligence, so exception not met | Petition untimely; exception not satisfied; dismissal affirmed |
| Ineffective assistance (failure to move to dismiss §6106 on double jeopardy grounds) | Chick: Trial counsel should have moved to dismiss the Flores §6106 charge because prior VUFA conviction barred subsequent prosecution under §110(1)(ii) / double jeopardy | Commonwealth/PCRA court: Even if timely, the Flores §6106 charge was not the same conduct/episode as the earlier VUFA conviction; double jeopardy test not met | Court did not reach merits for jurisdictional timeliness reason; alternatively, double jeopardy claim would fail on merits |
Key Cases Cited
- Commonwealth v. Johnston, 42 A.3d 1120 (Pa. Super. 2012) (standard for appellate review of PCRA denials and threshold timeliness requirement)
- Commonwealth v. Ragan, 923 A.2d 1169 (Pa. 2007) (PCRA court findings standard of review)
- Commonwealth v. Carr, 768 A.2d 1164 (Pa. Super. 2001) (review of PCRA factual findings)
- Commonwealth v. Perrin, 947 A.2d 1284 (Pa. Super. 2008) (burden to plead and prove PCRA timeliness exceptions)
- Commonwealth v. Geer, 936 A.2d 1075 (Pa. Super. 2007) (same; petitioners must plead and prove exceptions)
- Commonwealth v. Abu-Jamal, 941 A.2d 1263 (Pa. 2008) (PCRA timeliness is jurisdictional and strictly construed)
- Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007) (equitable tolling/abandonment facts can excuse timeliness where due diligence shown)
- Commonwealth v. Miskovitch, 64 A.3d 672 (Pa. Super. 2013) (elements for §110 double jeopardy bar; prosecutions must arise from same conduct/episode)