Commonwealth v. Hoopengarner

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COMMONWEALTH OF PENNSYLVANIA v. ERNEST JAMES HOOPENGARNER Appellant

No. 1728 MDA 2022

No. J-S35028-23

Superior Court of Pennsylvania

January 17, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the PCRA Order Entered November 14, 2022 In the Court of Common Pleas of Lancaster County Criminal Division at No(s) CP-36-MD-0000666-1983

Benjamin D. Kohler, Esq.

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and COLINS, J. ^[*]

MEMORANDUM

McLAUGHLIN, J.

Ernest James Hoopengarner appeals pro se from the order dismissing his fifth Post Conviction Relief Act ("PCRA") petition as untimely. See 42 Pa.C.S.A. §§ 9541-9546. Hoopengarner argues his trial counsel and subsequent counsel were ineffective. Hoopengarner has also filed an Application for Relief, contesting the court's ability to rely on its Pa.R.Crim.P. 907(a) Notice ("Rule 907(a) Notice") for its Pa.R.A.P. 1925(a) opinion ("Rule 1925(a) Opinion"), and the Commonwealth's ability to rely on the PCRA court's Rule 907(a) Notice in lieu of a brief. We affirm the order of the PCRA court and deny Hoopengarner's Application for Relief.

Hoopengarner pleaded guilty to murder.^[1] The court determined, following a hearing, that Hoopengarner had committed murder of the first degree. It sentenced Hoopengarner to life imprisonment in 1983. Hoopengarner did not file any post-sentence motions or a direct appeal.

Since his sentencing, Hoopengarner has filed four petitions seeking collateral relief. He has also filed petitions seeking DNA testing, requests for records and transcripts, and multiple petitions in federal court. The appeals in this case have come before this Court four times.^[2]

Hoopengarner filed the instant petition, his fifth petition, on September 27, 2022. The PCRA court issued a Rule 907(a) Opinion explaining that it found the petition to be untimely and intended to dismiss it without a hearing. The court considered Hoopengarner's arguments that his petition was timely under all three exceptions to the PCRA's time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). It recounted that Hoopengarner claimed his petition was timely under the "governmental interference" exception^[3] because the court had allegedly directed Hoopengarner's trial counsel to manipulate and intimidate him into withdrawing his first petition for collateral relief, in which he was seeking a direct appeal. The court denied this claim on the basis that it was factually unsubstantiated and had been previously litigated.

The court also rejected Hoopengarner's claim his petition was timely under the "newly discovered facts" exception.^[4] Hoopengarner asserted he recently discovered that the transcript of his preliminary hearing was not available and had determined his prior counsel had been ineffective for proceeding without it. The court denied this claim on the basis that an allegation of PCRA counsel's ineffectiveness cannot be invoked as a newly discovered fact for the purposes of PCRA timeliness, and because "[t]here are no missing . . . transcripts, as has been argued by Hoopengarner for years." Rule 907(a) Op. at 11-12.

Finally, the court assessed Hoopengarner's claim that his petition was timely under the "newly recognized constitutional right" exception.^[5]Hoopengarner argued that Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), allows him to raise claims of prior counsel ineffectiveness at the first available opportunity. The court denied this claim, finding Bradley inapplicable to the instant case, and finding that Bradley does not purport to create an exception to the PCRA time-bar.

Hoopengarner responded, arguing that an evidentiary hearing would "provide a fair opportunity to develop the facts supporting his claims within his pending [petition.]" Mot. for Evidentiary Hearing, 11/7/22, at 2. The court thereafter dismissed the petition,^[6] and Hoopengarner appealed.

The PCRA court filed an order stating that in lieu of authoring a Rule 1925(a) opinion explaining its decision, it directs this Court to the reasoning stated in its Rule 907(a) Opinion. The Commonwealth did not file a brief. Instead, it filed a letter stating it will rely upon the court's Rule 1925(a) Opinion.

After filing his brief, Hoopengarner filed in this Court "Appellant[']s objection[s] to both the Lancaster County District Attorney and PCRA Court relying on an independ[e]nt opinion pursuant to Pa.R.A.P[.] Rule 1925[a] that does not exist." Application for Relief, 9/19/23. Hoopengarner argues that the court never authored a Rule 1925(a) opinion and that allowing it to rely on its Rule 907(a) Opinion denies him judicial review and violates his right to due process. He also argues the Commonwealth should not be permitted to rely on the Rule 1925(a) Opinion, as it "is not part of the [a]ppeal [p]rocess." Id. at 2.

Rule 1925(a) requires the trial court to either file "a brief opinion of the reasons for the order" under appeal or "specify in writing the place in the record where such reasons may be found." Pa.R.A.P. 1925(a). In directing this Court to the reasons listed in its Rule 907(a) Opinion, the PCRA court complied with the rule. For its part, the Commonwealth, as the appellee, was not required to file a brief. See Pa.R.A.P. 2188. We consequently deny Hoopengarner's application and turn to the merits of the appeal.

Hoopengarner raises the following issues:

I. Whether the P.C.R.A. court erred and abused [its] discretion in dismissing [Hoopengarner]'s Post-Conviction Relief Act Petition without an evidentiary hearing?

II. Whether appellate counsel were ineffective for failing to investigate [Hoopengarner]'s case denying him the right to any meaningful appeal and judicial review?

Hoopengarner's Br. at 20.

Hoopengarner argues that he was denied his right to counsel when he confessed and that he was not given any Miranda warnings.^[7] He asserts three police officers abused and threatened him for two hours, until he gave a "coerced confession to a crime he had no involvement in." Id. at 34.

Hoopengarner also alleges the court failed to retain the transcript of his preliminary hearing, and claims this constitutes a breakdown of the judicial process, a miscarriage of justice, and a violation of due process. He argues that without the preliminary hearing transcript, he is unable to challenge the court's jurisdiction and finding of probable cause or have any meaningful appeal. He relatedly argues his trial counsel was ineffective for failing to secure a transcript.

Hoopengarner next argues his trial counsel was ineffective in relation to his guilty plea. He asserts the plea was defective, as he did not understand the charges against him.

Hoopengarner further argues that the Commonwealth withheld Brady material^[8] and that there was no factual basis for his plea. Hoopengarner relies on the prosecutor's statement during Hoopengarner's degree-of-guilt hearing that the physical facts of the case did not align with Hoopengarner's confession. Hoopengarner argues that had this information been brought forth before he pleaded guilty, he could have proven his confession was coerced and false. He argues the court and counsel had a duty to inform him of his right to withdraw his plea following the prosecutor's admission that the plea lacked a factual basis and that the Commonwealth could not corroborate his coerced confession. He also claims counsel should have objected to the proceeding after the prosecutor made the statement.

Next, Hoopengarner alleges ineffective assistance of counsel and governmental interference in relation to his direct appeal and withdrawal of his first petition for collateral relief. He asserts his trial counsel failed to file a direct appeal, and that the court improperly directed counsel to advise Hoopengarner to withdraw his first petition, in which he was seeking a direct appeal.

Hoopengarner alleges trial counsel and all subsequent counsel have been ineffective in failing to present the forgoing claims. He contends their failure to fully investigate and develop these issues constitutes abandonment and constructive denial of counsel. He also argues that holding him responsible for failing to raise these claims earlier, when it was prior counsel who omitted them, is a violation of due process.

Finally, Hoopengarner argues his petition is timely under both the newly discovered facts exception and the newly recognized constitutional right exception. However, he does not explain how these exceptions apply to his case.

"Our standard of review is well settled." Commonwealth v. Anderson, 234 A.3d 735, 737 (Pa.Super. 2020). "When reviewing the denial of a PCRA petition, we must determine whether the PCRA court's order is supported by the record and free of legal error." Id. (citation omitted).

Here, the court dismissed the petition as untimely. "Our law is clear that the PCRA's time restrictions are jurisdictional in nature[.]" Id. Neither the trial court nor this Court have jurisdiction to address any claims presented in an untimely petition. Id.

To be timely, a petition must be filed within one year of the date the judgment of sentence became final, "unless [the petitioner] pleads and proves one of the three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1)." Id. (citation omitted). The three exceptions are:

(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;

(ii) 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; or

(iii) the right asserted is a constitutional right that

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