J-S04040-16

                                2016 PA Super 95

COMMONWEALTH OF PENNSYLVANIA,                 :    IN THE SUPERIOR COURT OF
                                              :          PENNSYLVANIA
                    Appellee                  :
                                              :
                      v.                      :
                                              :
CHARLES VOLK,                                 :
                                              :
                    Appellant                 :    No. 572 WDA 2015


                   Appeal from the PCRA Order March 25, 2015,
               in the Court of Common Pleas of Allegheny County,
              Criminal Division, at No(s): CP-02-CR-0017708-2008

BEFORE: BOWES, OLSON, and STRASSBURGER*, JJ.

OPINION BY STRASSBURGER, J.:                           FILED APRIL 29, 2016

        Charles Volk (Appellant) appeals from the order entered March 25,

2015, dismissing his petition filed pursuant to the Post Conviction Relief Act

(PCRA).1 After careful review, we affirm.

        The certified record reveals the following facts relevant to this appeal.

On March 19, 2009, following a jury trial, Appellant was convicted of

terroristic threats and recklessly endangering another person (REAP).         On

that date, the Honorable Joseph K. Williams, III, sitting as factfinder, also

convicted him of the summary offenses of criminal mischief and public

drunkenness.       On August 19, 2009, Appellant was sentenced to an

aggregate term of not less than two nor more than four years’ incarceration,



* Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
J-S04040-16


to be followed by a consecutive period of three years’ probation. Appellant’s

post-sentence motions were denied, and Appellant timely filed a direct

appeal. On September 21, 2010, a panel of this Court affirmed Appellant’s

judgment of sentence in part, and reversed and vacated in part. 2 The matter

was remanded to allow the trial court to address an issue concerning

restitution.3 Commonwealth v. Volk, 13 A.3d 989 (Pa. Super. 2010)

(unpublished memorandum). Appellant did not seek review by our Supreme

Court.

     On September 23, 2011, Appellant timely filed a pro se PCRA petition.

Counsel was appointed and on March 9, 2012, counsel filed an amended

PCRA petition.   On April 10, 2012, Appellant filed a supplement to the

amended PCRA petition.       After the filing of additional motions and

supplements by Appellant, and responses from the Commonwealth, a

hearing with respect to Appellant’s PCRA claims was held on November 28,

2012 and March 13, 2013. At the close of the PCRA hearing on March 13,

2013, Judge Williams granted Appellant 30 days in which to file a brief in

support of the claims he raised during the hearing. The Commonwealth was




2
  Specifically, this Court vacated both of Appellant’s summary convictions,
but upheld his conviction for the offenses of terroristic threats and REAP.
3
   On December 13, 2010, upon direction of this Court, the trial court
conducted a restitution hearing. Following that hearing, the court vacated
its previous order of restitution. Trial Court Order, 12/15/2010.
                                    -2-
J-S04040-16


given an additional 15 days to respond.            Both Appellant and the

Commonwealth complied with this directive.4

        A year later, on March 12, 2014, Appellant appeared before the trial

court for a probation violation hearing.5    Following the hearing, the trial

court revoked Appellant’s probation and sentenced him to a term of not less

than six nor more than 18 months’ incarceration with 455 days credit for

time served.      Application of the appropriate credit time meant that

Appellant’s sentence would expire on or about August 1, 2014.

        On April 11, 2014, Appellant’s counsel filed a motion to secure

compensation for fees and costs, which Judge Williams granted on April 12,

2014.

        Nothing further happened with the case until February 23, 2015, when

Judge Williams filed a notice of intent to dismiss Appellant’s PCRA petition

due to lack of jurisdiction as Appellant was no longer serving a sentence

and, thus, was not eligible for relief under 42 Pa.C.S. § 9543(a)(1)(i).

Appellant filed a response.   On March 26, 2015, the trial court issued an

order dismissing Appellant’s petition. This appeal followed.




4
  The Commonwealth’s reply brief does not appear on the official court
docket; however, the original is included in the certified record and is date
stamped as having been filed on May 20, 2013.
5
 The record reveals that Appellant completed the full four years of his prison
sentence, but within 24 hours of release to probation tested positive for
cocaine. Appellant’s Petition to Lift Detainer, 7/24/2013.
                                     -3-
J-S04040-16


     Our standard of review of the denial of a PCRA petition is limited to

examining whether the court’s rulings are supported by the evidence of

record and free of legal error.   Commonwealth v. Anderson, 995 A.2d

1184, 1189 (Pa. Super. 2010).

     The language of the PCRA limits eligibility for relief to petitioners who

plead and prove by a preponderance of the evidence that they have been

convicted of a crime under the laws of the Commonwealth and are “at the

time relief is granted: (i) currently serving a sentence of imprisonment,

probation or parole for the crime; (ii) awaiting execution of a sentence of

death for the crime; or (iii) serving a sentence which must expire before the

person   may   commence    serving   the   disputed   sentence.”   42   Pa.C.S.

§ 9543(a)(1) (emphasis added). Our Supreme Court has consistently

interpreted this language to bar PCRA relief from those who are not serving

a sentence. Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997).6


6
  At the time Ahlborn timely filed his PCRA petition, he was still serving a
sentence following his conviction for driving under the influence. Three days
before Ahlborn’s scheduled PCRA hearing, his sentence expired and he was
unconditionally released from prison. His PCRA petition was subsequently
dismissed under section 9543(a)(1)(i). Both the Superior Court, sitting en
banc, and our Supreme Court affirmed the dismissal, despite the petition’s
being filed while he was incarcerated and despite the ongoing collateral
consequences of his DUI conviction. The Supreme Court explained “the
denial of relief for a petitioner who has finished serving his sentence is
required by the plain language of the statute. To be eligible for relief a
petitioner must be currently serving a sentence of imprisonment, probation
or parole. To grant relief at a time when appellant is not currently serving
such a sentence would be to ignore the language of the statute.” Ahlborn,
699 A.2d at 720 (emphasis in original).


                                     -4-
J-S04040-16


Applying subsection 9543(a)(1)(i), Judge Williams dismissed Appellant’s

petition for lack of jurisdiction.7 Trial Court Opinion, 2/23/2015, at 2-3.

      Appellant recognizes the Court’s position, but argues that the eligibility

limitation set forth in section 9543(a) is unconstitutional on its face as it

violates procedural and substantive due process, the right to counsel, and

the right to appeal. Appellant’s Brief at 19-25.

      Our Supreme Court has held that “constitutional rights are not

absolute   and   the   legislature   may    place   reasonable   restrictions   on

constitutional rights.” Commonwealth v. Morris, 771 A.2d 721, 732 (Pa.

2001) (citation omitted). In Commonwealth v. Peterkin, 722 A.2d 638,

642 (Pa. 1998), the Court concluded that the PCRA time limitations provided

a “reasonable opportunity for those who have been wrongly convicted to

demonstrate the injustice of their conviction,” and thus, struck “a reasonable

balance between society’s need for finality in criminal cases and the

7
  Judge Williams’ opinion and order erroneously dismiss Appellant’s petition
under Pennsylvania Rule of Criminal Procedure 909, which deals with
“Procedures for Petitions in Death Penalty Cases: Stays of Execution of
Sentence; Hearing; Disposition.”       Because Appellant was convicted of
terroristic threats, recklessly endangering another person, and two summary
offenses, and was granted a hearing on his post-conviction claims, the
subsection applicable to the dismissal of his PCRA petition was Pa.R.Crim.P.
908(D)(1). (“Upon the conclusion of the hearing the judge shall determine
all material issues raised by the defendant’s petition and the
Commonwealth’s answer, or by the Commonwealth’s motion to dismiss, if
any. (1) If the judge dismisses the petition, the judge promptly shall issue
an order denying relief. The order shall be filed and served as provided in
Rule [of Criminal Procedure] 114.”).




                                      -5-
J-S04040-16


convicted person’s interest.” Id. at 643.      The Court went on to note that

“[t]he purpose of [the PCRA] is not to provide convicted criminals with the

means to escape well-deserved sanctions, but to provide a reasonable

opportunity for those who have been wrongly convicted to demonstrate the

injustice of their conviction[s].” Id.

      Applying the principles of Ahlborn and Peterkin, the Supreme Court

in Commonwealth v. Turner, 80 A.3d 754, 769 (Pa. 2013), rejected a

facial due process challenge to section 9543(a), holding that where a

“[p]etitioner’s liberty is no longer burdened by a state sentence, [he or] she

has no due process right to collateral review of that sentence.” The Court

explained as follows.

             In the collateral review context, the United States
      Supreme Court has held that although states have no
      constitutional obligation to provide a means for collaterally
      attacking convictions, if they do, then such procedures must
      comport with the fundamental fairness mandated by the Due
      Process Clause. In this regard, states have substantial discretion
      to develop and implement programs to aid prisoners seeking to
      secure post[-]conviction review. When a state [chooses] to offer
      help to those seeking relief from convictions and custody, due
      process does not dictat[e] the exact form such assistance must
      assume. Moreover, states need not provide post-conviction
      petitioners with the full panoply of procedural protections that
      the Constitution requires be given to defendants who are in a
      fundamentally different position-at trial and on first appeal as of
      right. Indeed, the United States Supreme Court has stated that
      post-conviction petitioners have only a limited interest in post-
      conviction relief. To deny due process, the complained-of aspect
      of the state post-conviction procedures must be fundamentally
      inadequate to vindicate the defendant’s liberty interest, and
      must offend some principle of justice so rooted in the traditions
      and conscience of our people as to be ranked as fundamental or


                                         -6-
J-S04040-16


     transgress any recognized principle of fundamental fairness in
     operation.

                                       ***

            Because individuals who are not serving a state sentence
     have no liberty interest in and therefore no due process right to
     collateral review of that sentence, the statutory limitation of
     collateral review to individuals serving a sentence of
     imprisonment, probation, or parole is consistent with the due
     process prerequisite of a protected liberty interest. 42 Pa.C.S.[]
     § 9543(a)(1)(i). Of course, the legislature was free to extend a
     statutory right of collateral review to individuals like [Turner]
     who had completed their sentence[s] and, had they done so,
     they would be constitutionally obligated to ensure that those
     rights were impacted only in accord with due process....
     However, the legislature did not do so. Rather, the General
     Assembly, through the PCRA, excluded from collateral review
     those individuals who were no longer subject to a state
     sentence, thereby limiting the statutory right of collateral review
     to those whose liberty was constrained.

            The legislature was aware that the result of the custody or
     control requirement of Section 9543(a)(1)(i) would be that
     defendants with short sentences would not be eligible for
     collateral relief. Indeed, that was the apparent intent: to restrict
     collateral review to those who seek relief from a state sentence.
     The legislature’s exclusion from collateral relief of individuals
     whose liberty is no longer restrained is consistent with the
     eligibility requirements of habeas corpus review under the
     general state habeas corpus statute, 42 Pa.C.S.[] § 6501, et
     seq.

Turner, 80 A.3d at 763-67 (citations, quotations, and footnotes omitted).

Because we are bound by the Supreme Court’s determination in Turner,

Appellant’s due process claims fail.8 See, e.g., Commonwealth v. Friday,


8
  Appellant concedes that his substantive due process, right-to-counsel, and
right-to-appeal claims fail if we reject his facial challenge to the statute’s
constitutionality. Appellant’s Brief at 34. Accordingly, in light of our
disposition, we need not address these claims. See Turner, 80 A.3d at 764
                                    -7-
J-S04040-16


90 A.2d 856, 859 (Pa. Supper. 1952) (“[Superior] Court is bound by the

decisions of the Supreme Court of Pennsylvania.”).

      Appellant also contends that section 9543(a)(1)(i) is unconstitutional

as applied to him. Appellant’s Brief at 26-28. Here, Appellant filed his pro se

PCRA petition well within the one-year time frame allotted by the statute.

Following a two-day hearing, the PCRA court permitted both sides to brief

the issues.   Those briefs were filed by May 20, 2013; however, nothing

happened with respect to Appellant’s PCRA claims for 21 months, until

February 23, 2015, when Judge Williams filed a notice of intent to dismiss

Appellant’s petition because his sentence had expired in August of 2014.

Although Appellant pointedly states that he is not making a claim that his

case was ignored by the PCRA court, Appellant’s Brief at 26, he really is

making that claim.    The clear issue here is whether the delay violated his

due process rights.

      In Commonwealth v. Burkett, 5 A.3d 1260, 1276 (Pa. Super. 2010),

we analyzed a claim that conduct of the PCRA court, Commonwealth, and

appellant’s appointed attorneys unreasonably delayed occurrence of his

PCRA hearing and disposition of his PCRA petition, thus violating his right to

due process. In so doing, we applied the test set forth in Barker v. Wingo,

407 U.S. 514 (1972).



(holding that because “process is not an end in itself,” once a court has
found that the petitioner does not have a valid liberty interest, a challenge to
both procedural and substantive due process must fail).
                                     -8-
J-S04040-16


      Pursuant to Barker, the court first considers whether the delay
      itself is sufficient to trigger further inquiry. Second, the court
      must evaluate the reason for the delay. Thirdly, the court must
      ascertain the timeliness of the defendant’s assertion of his right;
      and lastly, the court must decide if there exists any resulting
      prejudice to the defendant.

Burkett, 5 A.3d at 1276.

      The 21-month delay herein is clearly sufficient to trigger further

inquiry; thus, the first prong of the test is satisfied. Id. 5 A.3d at 1279

(holding that “although there is no procedural rule requiring a court to

determine a petition within a certain time frame after conducting a hearing

in a non-death penalty case, presumptively it should not require more than

[the] 120 days [allotted to death penalty cases under Pa.R.Crim.P. 909] to

render a decision.”).

      With respect to the second prong of Barker, Appellant concedes that

the delay herein was not intentional.      Appellant’s Brief at 26.   The PCRA

court takes responsibility for the problem, claiming the case “slipped through

the cracks,” but indicates that the issue has led to better in-chambers case

management. PCRA Court Opinion, 2/23/2015, at 1.9             Accordingly, we

determine the overwhelming reason behind the delay to be negligence on



9
   The PCRA court also attributes some blame for this situation to the
Allegheny County Clerk of Courts for not adhering to “Pa.R.Crim.P.
909(B)(3), (4), (5), and (6)” which “provide a mechanism for tracking and
[notifying] the trial court about pending PCRA matters.” PCRA Court Opinion,
2/23/2015, at n.1. We remind the court that Rule 909 is applicable only to
post-conviction relief in death penalty cases; thus, the court’s
admonishment of the clerk’s office for failing to track this case is misplaced.
                                     -9-
J-S04040-16


the part of the PCRA court. However, as outlined below, the PCRA court’s

culpability does not negate Appellant’s duty to assert his rights.

      With respect to the third prong, we conclude that Appellant was not

diligent in attempting to achieve PCRA relief before the expiration of his

sentence.   In the months following Appellant’s PCRA hearing, he never

petitioned the court for a decision on his claims; although his counsel did file

a petition seeking payment for his PCRA work.         Nearly a year after the

hearing, he was brought before the PCRA court for a probation violation,

after which he was resentenced and given 455 days of credit time. At that

point, in March of 2014, Appellant was aware that his sentence would expire

in August of 2014; however, he still did not inform the court or request

expedited review. See Turner, 80 A.3d at 769 (holding that Turner was not

entitled to relief where she failed to move for expedited consideration of her

claim, or raise it earlier in her sentence, to ensure it was reviewed within the

time limitations of the PCRA). Although the delay is not attributable to him,

we decline to find Appellant diligent where he failed to address the delay for

16 months.10 Simply put, by not addressing the delay with the court,




10
    We recognize that it is difficult to tell the emperor he is wearing no
clothes. However, attorneys must sometimes act courageously to do just
that. See, e.g., Keffer v. Bob Nolan's Auto Serv., Inc., 59 A.3d 621,
657-58 (Pa. Super. 2012) (holding that “[w]hen the trial court overlooks or
fails to rule on an issue, the party seeking the court’s ruling must remind the
court that it has not ruled and obtain a definitive ruling on the issue.”).


                                     - 10 -
J-S04040-16


Appellant sat on his rights. Accordingly, we cannot find this prong in favor

of Appellant.

      Finally, we address the prejudice element of the Barker test.

“Prejudice in the context of the present case requires a showing of actual

prejudice.” Burkett, 5 A.3d at 1280. We have held:

      No Pennsylvania court has declared that delay in addressing a
      PCRA petition is prima facie sufficient to establish actual
      prejudice. … Although the excessive delay in this case should not
      be countenanced, it does not establish that Appellant is
      automatically entitled to a new trial or discharge. Appellant still
      must be able to prove that the delay would have likely led to the
      outcome of his PCRA proceeding having been different.

Id.

      Appellant cannot meet this burden. In his PCRA petition, Appellant

assails the testimony of the victim in this matter, his mother, claiming that

he has after-discovered evidence of her mental state at the time of the

incident which was influenced by prescription medication and delusions that

Appellant was part of a conspiracy to harm her.

      However, the record reveals that trial counsel delved into the victim’s

competency on cross-examination, questioning the victim about her ability

to remember the incident and her prescription medication. N.T., 7/1/2009,

at 46-49. Counsel also addressed the victim’s credibility in her closing. Id.

at 117-120.     Further, on direct appeal, a panel of this Court found

Appellant’s weight-of-the-evidence claim, which was premised on what

Appellant believed were inconsistencies and contradictions in his mother’s


                                    - 11 -
J-S04040-16


testimony, to be without merit and affirmed Appellant’s convictions with

respect to terroristic threats and REAP. Volk, 13 A.3d 989 (unpublished

memorandum at *12-13).

      Moreover, the testimony presented at trial supported the jury’s

determination that, at the time he committed the offenses for which he was

charged, Appellant was “manifestly under the influence of alcohol to the

degree that he may endanger himself or other persons or property or annoy

persons in the vicinity.” Id. at *6-7. Finally, Appellant admitted at trial to

the following: being intoxicated at work; “throwing a fit” while in his

mother’s vehicle once she picked him up from his job; breaking a rearview

mirror and tearing off the vehicle’s sun visor; telling his mother she’d “better

get ready to die;” breaking the basement door of his mother’s home;

destroying a table; getting in a “heated exchange” with his mother; and

throwing in the trash a wreath with sentimental value to his mother. N.T.,

7/1/2009, at 96-98. Due to these admissions, and our prior weight-of-the-

evidence   holding,   we   cannot   conclude    that   Appellant   “was   wrongly

convicted.” Peterkin, 722 A.2d at 642. Thus, we decline to find that he

suffered actual prejudice due to the delay.

      We note the unacceptable delay in this case and the manner in which

this case was managed internally by the PCRA court. Nonetheless, due to

our binding precedent, Appellant’s failure to exercise due diligence, and the

lack of actual prejudice, we find that Appellant is not entitled to relief.


                                      - 12 -
J-S04040-16


     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/29/2016




                          - 13 -
