Opinion
2313 EDA 2023
06-21-2024
COMMONWEALTH OF PENNSYLVANIA v. JAMES FRANKLIN HOLMES Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered July 31, 2023 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0002480-2016.
Benjamin D. Kohler, Esq.
BEFORE: DUBOW, J., SULLIVAN, J., and BENDER, P.J.E.
MEMORANDUM
SULLIVAN, J.:
James Franklin Holmes ("Holmes") appeals pro se from the denial of his serial petition pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.
In December 2015, Pennsylvania State Police ("PSP") executed a search warrant at Holmes's residence as part of an investigation into a child sex-trafficking operation. The PSP seized media storage devices and computers. After they secured a second warrant, the PSP found hundreds of images of child pornography on the storage devices and computers.
In May 2019, following the denial of his motions to suppress, a jury convicted Holmes at trial of 477 counts of possession of child pornography. The court imposed an aggregate sentence of twenty to forty years of imprisonment, followed by five years of probation.
Holmes filed a direct appeal. His counsel filed a motion to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). Counsel identified potential challenges to the scope of the search warrant, the sufficiency and weight of the evidence, and the legal and discretionary aspects of sentence. On February 19, 2021, this Court affirmed Holmes's judgment of sentence, and granted counsel's petition to withdraw. See Commonwealth v. Holmes, 249 A.3d 1160 (Pa. Super. 2021) (unpublished memorandum) ("Holmes I"). Holmes did not file a petition for allowance of appeal in the Pennsylvania Supreme Court.
In August 2021, Holmes filed a pro se PCRA petition. The court appointed counsel, who file a petition to withdraw and a "no merit" letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). The court granted counsel's petition. Holmes filed a pro se appeal, asserting a series of challenges to the search warrant, the withholding of exculpatory evidence, errors of law, weight, and ineffective assistance of trial and PCRA counsel. This Court affirmed the denial of PCRA relief. See Commonwealth v. Holmes, 283 A.3d 399 (Pa. Super. 2022) (unpublished memorandum) ("Holmes II"). The Supreme Court denied Holmes's petition for allowance of appeal. Commonwealth v. Holmes, 295 A.3d 237 (Pa. 2023).
Holmes filed a second PCRA petition pro se on April 27, 2023. The PCRA court subsequently issued a notice of intent to dismiss the petition pursuant to Pa.R.Crim.P. 907, to which Holmes responded. On July 31, 2023, the PCRA court dismissed the petition. Holmes filed a timely notice of appeal and he and the trial court complied with Pa.R.A.P. 1925.
On appeal, Homes raises four issues for our review:
I. Did the PCRA court err in failing to appoint substitute PCRA counsel to [Holmes] who was a first-time, indigent PCRA petitioner raising a timely ineffective assistance claim against PCRA counsel?
II. Did the PCRA court err in not considering new evidence to be timely?
III. Did the PCRA court err in not recognizing the material significance of the Lycoming County "John Doe" arrest warrant as it pertains to finding probable cause in the search of [Holmes's] residence, Brady violations, and violations of his rights under the United States and Pennsylvania constitutions?
IV. Did the PCRA court err in failing to recognize that the new evidence presented provides sufficient proof to the claim that both trial and PCRA court was [sic] ineffective in their assistance by failing to investigate [Holmes's] case?
See Brady v. Maryland, 373 U.S. 83 (1963).
Holmes's Brief at 2 (capitalization standardized). Our standard of review of an order dismissing a PCRA petition is well-settled:
We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court's decision on any grounds if the record supports it. Further, we grant great deference to the factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Where the petitioner raises questions of law, our standard of review is de novo and our scope of review plenary.Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations omitted). The PCRA petitioner "has the burden to persuade this Court that the PCRA court erred and that such error requires relief." Commonwealth v. Wholaver, 177 A.3d 136, 144-45 (Pa. 2018) (internal citations omitted). Further, "it is well settled that this Court may affirm a valid judgment or order for any reason appearing as of record." Id. at 145 (internal citation omitted).
Before this Court can consider the merits of any of Holmes's claims, we must first assess whether we have jurisdiction to review them. Under the PCRA, any petition including a second or subsequent petition shall be filed within one year of the date the judgment of sentence becomes final. See 42 Pa.C.S.A. § 9545(b)(1). The PCRA's timeliness requirements are jurisdictional in nature, and a court may not address the merits of the issues raised if the PCRA petition was not timely filed. See Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
A judgment of sentence becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review. See 42 Pa.C.S.A. § 9545(b)(3).
Holmes's judgment of sentence became final on March 22, 2021, when he did not file a petition for allowance of appeal in the Pennsylvania Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3); Commonwealth v. Rojas, 874 A.2d 638, 643 (Pa. Super. 2005). Holmes had until March 22, 2022, to file the instant petition but did not file it until April 2023. Thus, Holmes's petition is facially untimely, precluding review of the merits of the issues raised in the petition unless Holmes proves a time-bar exception. See Albrecht, 994 A.2d at 1093; see also 42 PA.C.S.A. §9545(b)(1)(i)-(iii).
March 21, 2021, the thirtieth day, was a Sunday. See 1 Pa.C.S.A. § 1908 (stating that where the last day of a time-period specified in a statute is a Sunday, that date shall be omitted from the computation of time).
Of relevance here, section 9545(b)(1)(ii) provides an exception to the jurisdictional time-bar if "the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence[.]" 42 Pa.C.S.A. § 9545(b)(1)(ii). Due diligence "demands that the petitioner take reasonable steps to protect his own interests. A petitioner must explain why he could not have learned the new fact(s) earlier with the exercise of due diligence. This rule is strictly enforced." Commonwealth v. Medina, 92 A.3d 1210, 1216 (Pa. Super. 2014) (internal quotations and citations omitted). Any PCRA petition invoking an exception under section 9545(b)(1) "shall be filed within one year of the date the claim could have been presented." 42 Pa.C.S.A. § 9545(b)(2); see also Commonwealth v. Williamson, 21 A.3d 236, 242 (Pa. Super. 2011) (holding that "a petitioner invoking section 9545(b)(1)[] must still comply with section 9545(b)(2) by presenting the claim within [one year] of discovering the new fact") (internal citations omitted, emphasis in original).
Holmes's first issue asserts error in the court's failure to appoint substitute PCRA counsel on his first PCRA petition after his first counsel filed a Finley brief and the court granted his application to withdraw. See Holmes's Brief at 9-13. Holmes did not plead or offer proof that his claim satisfied a time-bar exception. Thus, this Court does not have jurisdiction to review Holmes's claim. See 42 Pa.C.S.A. § 9545(b)(1) (requiring a PCRA petition allege, and the petitioner prove, the application of a time bar exception); Beasley, 741 A.2d at 1261 (Pa. 1999) (same).
Our Supreme Court's decision in Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), permitting an appellant to assert the ineffectiveness of PCRA counsel for the first time on appeal, does not change this result. See Commonwealth v. Branthafer, --- A.3d ---, ---, 2024 WL 1472452 at *5 (Pa. Super. 2024) (holding that although Bradley expanded the opportunities for petitioners to raise ineffectiveness claims, such claims must still satisfy the jurisdictional one-year time-bar requirement).
In any event, Holmes was not deprived of his right to counsel on his first PCRA petition; the law entitled him to "an independent review of the record by competent counsel," see Finley, 550 A.2d at 393, and this Court concluded he received that review by rejecting Holmes's challenge to PCRA counsel's effectiveness. See Holmes II, 283 A.3d 399 at *6.
Holmes's next two issues involve his assertion of newly discovered evidence in the form of documents concerning the search warrant and the alleged withholding of exculpatory evidence. See Holmes's Brief at 9-23. These claims were previously litigated and thus do not serve as an exception to the time-bar. See Trial Court Opinion, 10/27/23, at 3; Trial Court Order, 5/24/23, at 3, citing Holmes II. To the extent Holmes asserts the existence of new evidence relating to those claims, we agree with the PCRA court that Holmes previously raised this issue in his first PCRA petition, and on appeal of the denial of that petition. See Holmes II, 283 A.3d at 400 n.10. Holmes fails to demonstrate why he could not obtain the documents that allegedly constitute new evidence sooner with the exercise of due diligence. Accordingly, he fails to establish a time-bar exception. See Medina, 92 A.3d at 1216.
Finally, to the extent Holmes asserts the "new evidence" establishes the ineffectiveness of trial counsel and prior PCRA counsel, assertions of ineffective assistance do not constitute a time-bar exception. See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785 (Pa. 2000). Holmes accordingly fails to raise a time-bar exception permitting review of his claims.
Order affirmed.
Judgment Entered.