Com v. Gilmore, M.
Com v. Gilmore, M. No. 1115 EDA 2016
| Pa. Super. Ct. | Apr 21, 2017Background
- Marvin Gilmore pled guilty on December 13, 2002 to carrying a firearm without a license, resisting arrest, and two counts of attempted murder; he was resentenced on April 21, 2003 to an aggregate 30 to 69 years' incarceration.
- Gilmore sought to withdraw his plea and later filed multiple PCRA petitions; earlier petitions (2003, 2005, 2007) were dismissed as untimely and those dismissals were affirmed on appeal.
- On August 12, 2010 Gilmore filed his fourth PCRA petition (amended in 2012 and 2015); the PCRA court issued a Rule 907 notice and dismissed the petition as untimely on March 18, 2016.
- Gilmore claimed the petition was timely under the PCRA exceptions because he learned (in 2010 via his mother’s affidavit) that court reporter notes from his plea colloquy had been lost or destroyed, and argued government interference and the discovery of new facts.
- The Superior Court concluded his judgment became final June 6, 2003, so a PCRA petition filed after June 6, 2004 is untimely absent a statutory exception; Gilmore’s 2010 petition was facially untimely.
- The court rejected both asserted exceptions: (1) the “new facts” exception because Gilmore had evidence in 2008 that the notes were unavailable and did not file within 60 days of discovery; (2) the “governmental interference” exception because he failed to prove destruction or that interference prevented timely filing, and he was present at the plea colloquy and thus could have raised the plea voluntariness claims earlier.
Issues
| Issue | Gilmore's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Whether Gilmore’s 2010 PCRA petition was timely under the PCRA time‑bar exceptions | Petition timely under 42 Pa.C.S. § 9545(b)(1)(ii) (new facts) and (i) (governmental interference): he discovered in 2010 that plea notes were destroyed | Petition is facially untimely; Gilmore discovered unavailability earlier (2008) and failed to file within 60 days; no proof of government interference | Petition untimely; exceptions not met; dismissal affirmed |
| Whether alleged destruction/ loss of plea notes satisfies the 60‑day filing requirement under § 9545(b)(2) | Learned of loss in 2010 via affidavit; filed within 60 days | Evidence shows he knew in 2008 (letter from court reporter); did not file within 60 days | New‑facts exception fails — he did not file within 60 days of when claim could have been presented |
| Whether the loss/destroyed notes constitute governmental interference under § 9545(b)(1)(i) | Repeated requests for notes were ignored, resulting in destruction and preventing earlier filing | No proof of destruction; petitioner knew notes were unavailable in 2008; being present at plea undermines claim of inability to raise voluntariness earlier | Governmental‑interference exception not shown; no adequate proof or explanation of how interference prevented earlier filing |
| Whether absence of notes prejudiced ability to challenge plea voluntariness | Lack of transcript prevented demonstrating plea was not knowing/ voluntary, and that consecutive sentences were not disclosed | Gilmore attended plea colloquy and could have known whether sentencing exposure was disclosed; absence of notes does not excuse delay | Claim related to plea voluntariness does not overcome PCRA time bar given failure to satisfy exceptions |
Key Cases Cited
- Ousley v. Commonwealth, 21 A.3d 1238 (Pa. Super. 2011) (standard of review for denial of PCRA relief)
- Brown v. Commonwealth, 111 A.3d 171 (Pa. Super. 2015) (timeliness of PCRA petition is jurisdictional)
- Cox v. Commonwealth, 146 A.3d 221 (Pa. 2016) (standards for § 9545(b)(1)(ii) new‑facts exception and due diligence)
- Abu‑Jamal v. Commonwealth, 941 A.2d 1263 (Pa. 2008) (no merits analysis required to invoke § 9545(b)(1)(ii))
- Hawkins v. Commonwealth, 953 A.3d 1248 (Pa. 2008) (governmental interference exception and relation to Brady‑type claims)
- Haskins v. Commonwealth, 60 A.3d 538 (Pa. Super. 2012) (elements of a Brady claim)
- Rojas v. Commonwealth, 874 A.2d 638 (Pa. Super. 2005) (when judgment becomes final after post‑sentence motions)
- Borrero v. Commonwealth, 692 A.2d 158 (Pa. Super. 1997) (same principle on finality and post‑sentence motions)