Com. v. Ebert, K.
Com. v. Ebert, K. No. 2361 EDA 2016
Pa. Super. Ct.Apr 12, 2017Background
- Keith Ebert was convicted by jury of two counts of DUI and found guilty of careless driving and disorderly conduct; sentenced July 5, 2013 to an aggregate 1 year and 45 days to 5 years and 45 days imprisonment.
- This Court affirmed his judgment of sentence on October 24, 2014; the judgment became final November 24, 2014 (no Supreme Court appeal).
- Ebert filed a first pro se PCRA petition December 3, 2014; appointed counsel filed a Turner/Finley no‑merit letter and withdrew; the PCRA court denied relief July 1, 2015 and this Court affirmed May 6, 2016.
- Ebert filed a second pro se PCRA petition on May 17, 2016; the PCRA court issued a Rule 907 notice and dismissed the petition June 22, 2016 as untimely and not meeting any PCRA exceptions.
- Ebert appealed pro se, raising claims of ineffective assistance of trial counsel (failure to obtain chemical test/discovery and to challenge BAC), a Brady violation (undisclosed BAC evidence), and an abuse of sentencing discretion.
- The Superior Court reviewed timeliness and exceptions under 42 Pa.C.S. § 9545 and affirmed the dismissal: the petition was untimely and Ebert did not plead or prove any applicable exception.
Issues
| Issue | Plaintiff's Argument (Ebert) | Defendant's Argument (Commonwealth/PCRA court) | Held |
|---|---|---|---|
| Timeliness / jurisdiction of second PCRA petition | Petition filed May 17, 2016 was timely or fits an exception | Judgment final Nov 24, 2014; petition filed >1 year later and no valid §9545 exception pleaded | Petition untimely; court lacked jurisdiction; dismissal affirmed |
| Ineffective assistance (failure to obtain chemical test data / challenge BAC) | Trial counsel failed to request discovery of chemical tests and failed to challenge BAC, constituting ineffective assistance | Ineffective‑assistance claims cannot rescue an otherwise untimely PCRA petition | Cannot reach merits; untimely petition not saved by IAC claim |
| Brady / nondisclosure of BAC evidence | Commonwealth withheld BAC/test information that would be favorable | Ebert knew BAC results by March 30, 2012; he did not show unknown facts or governmental interference within §9545 exceptions or file within 60 days of discovery | Brady claim fails as basis to invoke §9545 exceptions; untimely |
| Sentencing discretion | Sentencing court abused discretion by deviating from guidelines based on DA recommendation | Discretionary sentencing claims are not cognizable on collateral review under the PCRA and should be raised on direct appeal | Not cognizable in PCRA; claim fails |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecution must disclose material exculpatory evidence)
- Commonwealth v. Gamboa‑Taylor, 753 A.2d 780 (Pa. 2000) (IAC claims do not save an otherwise untimely PCRA petition)
- Commonwealth v. Abu‑Jamal, 941 A.2d 1263 (Pa. 2008) (requirements for invoking governmental‑interference and newly‑discovered‑facts exceptions to PCRA timeliness)
- Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014) (summary of PCRA timeliness and exceptions)
- Commonwealth v. Springer, 961 A.2d 1262 (Pa. Super. 2008) (no absolute right to evidentiary hearing on PCRA petition)
- Commonwealth v. Wrecks, 934 A.2d 1287 (Pa. Super. 2007) (discretionary sentencing claims not cognizable in PCRA)
- Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (standards for counsel filing no‑merit/withdrawal)
- Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (procedures for no‑merit letter and counsel withdrawal)