Com. v. Gibboney, D.
1081 EDA 2017
| Pa. Super. Ct. | Oct 19, 2017Background
- Gibboney pled guilty pursuant to a plea agreement to DUI-related charges and was sentenced to 3–10 years imprisonment; he did not file a direct appeal.
- He timely filed a first PCRA petition which was denied by the PCRA court and that denial was affirmed on appeal in 2015.
- After the Supreme Court decided Birchfield v. North Dakota (June 23, 2016), Gibboney filed a second, pro se PCRA petition (filed Aug. 25, 2016) arguing warrantless blood testing violated his Fourth Amendment rights under Birchfield.
- The PCRA court appointed counsel, who later sought to withdraw; the court gave Gibboney notice of intent to dismiss and then dismissed the petition as untimely. Counsel’s withdrawal was permitted.
- Gibboney also raised, on appeal, claims that the trial court failed to comply with 75 Pa.C.S.A. § 3814 (drug and alcohol assessments) and that PCRA counsel was ineffective for not amending the petition to include that claim.
- The Superior Court affirmed dismissal: the petition was untimely, Birchfield was not shown to be a retroactive new constitutional right, and Gibboney waived suppression claims by pleading guilty; the § 3814 claim was untimely and meritless so counsel was not ineffective for failing to raise it.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of second PCRA petition | Birchfield announced a new constitutional rule (Fourth Amendment) and satisfies the § 9545(b)(1)(iii) exception, petition filed within 60 days of Birchfield | Petition was filed more than one year after judgment became final and no retroactivity shown for Birchfield | Petition untimely; Birchfield not shown to apply retroactively, so PCRA court lacked jurisdiction |
| Viability of Fourth Amendment/suppression claim after guilty plea | Blood test was illegally obtained in violation of the Fourth Amendment (per Birchfield) | Guilty plea waived suppression and related defects unless plea involuntary, sentence illegal, or lack of jurisdiction | Claim waived by guilty plea; no allegation plea was involuntary or that Birchfield made sentence illegal |
| Illegal sentence for failure to comply with § 3814 | Trial court failed to comply with drug/alcohol assessment statute, making sentence illegal | Claim is untimely and was not pled in a timely PCRA petition; raised first on appeal | Claim not cognizable because it does not meet PCRA timing exceptions and was raised improperly on appeal |
| Ineffective assistance of PCRA counsel for not raising § 3814 claim | PCRA counsel should have amended the petition to include § 3814 claim | Counsel cannot be ineffective for failing to raise a meritless or untimely claim | No ineffectiveness: claim would be meritless/untimely, so counsel not ineffective |
Key Cases Cited
- Spotz v. Commonwealth, 18 A.3d 244 (Pa. 2011) (standard of review for PCRA legal conclusions; de novo review)
- Hernandez v. Commonwealth, 79 A.3d 649 (Pa. Super. 2013) (timeliness of PCRA petition is jurisdictional)
- Burton v. Commonwealth, 936 A.2d 521 (Pa. Super. 2007) (statutory timeliness exceptions must be pled in the petition)
- Tareila v. Commonwealth, 895 A.2d 1266 (Pa. Super. 2006) (guilty plea waives all defects except a few narrow categories)
- Fowler v. Commonwealth, 930 A.2d 586 (Pa. Super. 2007) (jurisdiction in PCRA tied to filing of a timely petition; claims must satisfy PCRA time limits)
- Baldwin v. Commonwealth, 760 A.2d 883 (Pa. 2000) (counsel not ineffective for failing to raise meritless claims)
- Birchfield v. North Dakota, 136 S. Ct. 2160 (U.S. 2016) (warrantless blood tests in DUI cases implicate Fourth Amendment; decision not held retroactive here by the courts below)