Com. v. Artis, I.

Opinion

J-S21003-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

IVES ARTIS,

Appellant No. 1939 EDA 2014

Appeal from the PCRA Order May 23, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1300162-2006, CP-51-CR-1300163- 2006

BEFORE: BOWES, JENKINS, and PLATT,* JJ.

MEMORANDUM BY BOWES, J.: FILED APRIL 10, 2015

Ives Artis appeals from the order entered May 23, 2014, denying his

serial post-conviction relief petition filed pursuant to the Post-Conviction

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, as untimely. We affirm.

Appellant pled guilty to third-degree murder, robbery, and two firearm

violations on September 10, 2007, and was sentenced that same day. The

facts giving rise to the charges involved the July 17, 2006 shooting of Leis

Desir at 2:43 a.m. while he was fueling his cab at a gas station. The

following morning, at approximately 1:54 a.m., Philadelphia Police Officer

Michael Bolli saw Appellant asleep in the passenger seat of an illegally

parked vehicle. There was a gun inside of a shoe on the floor of the vehicle

beside Appellant. Appellant attempted to flee, but was arrested.

* Retired Senior Judge assigned to the Superior Court. J-S21003-15

Appellant waived his Miranda rights and admitted that he had

demanded the victim give him his money. He continued that the victim

refused and sprayed him with gasoline. Appellant then removed a gun from

his pocket and fired a single shot, hitting the victim in the head. Ballistics

evidence concluded that bullet fragments from the victim’s head were fired

from the weapon located in Appellant’s shoe.

Pursuant to the plea agreement, the court sentenced Appellant to

thirty-five to seventy years imprisonment. Specifically, the court sentenced

Appellant to twenty to forty years incarceration for the murder charge, ten

to twenty years for the robbery count, and two and one-half to five years

each for the firearms violations. Appellant did not appeal; however, on

September 15, 2008, he filed a timely pro se PCRA petition. The court

appointed counsel, who filed an amended petition. The PCRA court denied

that petition. Appellant appealed, and counsel filed a Turner/Finley no-

merit brief and motion to withdraw on appeal. This Court affirmed and

permitted counsel to withdraw. Commonwealth v. Artis, 30 A.3d 551

(Pa.Super. 2011) (unpublished memorandum).

Thereafter, Appellant filed the underlying serial PCRA petition on

October 9, 2013. The court issued a Pa.R.Crim.P. 907 notice of dismissal on

May 1, 2014, and filed its final order denying Appellant’s petition on May 23,

2014. This timely appeal ensued. The PCRA court authored an opinion,

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indicating that Appellant’s petition was untimely and that he did not

establish a timeliness exception. Appellant raises six issues for our review.

1. Whether the [c]ourt below erred in dismissing Post- Conviction Relief Act Petition (PCRA) as being un-timely filed?

2. Whether the sentencing [c]ourt erred in sentencing the petitioner in violation of his right to due process by not conducting a pre-sentencing report investigation and factoring [m]ental [h]ealth issues into mitigation process?

3. Whether sentencing counsel was ineffective for failing to conduct any investigation during mitigation phase?

4. Whether the [c]ourt below erred in [d]ismissing petitioner[’s] Post Conviction [R]elief Act petition (PCRA) for “[n]ewly [d]iscovered” evidence as untimely?

5. Whether [the] [s]entencing [c]ourt and [s]entencing counsel erred/ineffective in forcing the petitioner to accept/take a guilty plea under false pretenses that he was facing the [d]eath penalty, [f]irst degree, and second [d]egree, when the [d]ocket records clearly show the petitioner was only held for trail [sic] for 3rd [d]egree [m]urder?

6. Whether the claim of [a]ctual innocence, [sic] should allow the court to hear petitioner’s [p]etition?

Appellant’s brief at unnumbered page 8.

Preliminarily, we address the timeliness of Appellant’s petition as it

implicates our jurisdiction. Commonwealth v. Taylor, 67 A.3d 1245, 1248

(Pa. 2013). A petitioner has one year from the finality of his judgment of

sentence to file a timely PCRA petition. 42 Pa.C.S. § 9545(b)(1). Judgment

of sentence is final upon the completion of direct review. 42 Pa.C.S. §

9545(b)(3). Since Appellant did not file a direct appeal, his judgment of

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sentence was final thirty days from his sentencing, which was October 10,

2007. Appellant filed the instant petition on October 9, 2013. Thus, the

petition was facially untimely.

Here, Appellant could only file a timely petition by asserting one of

three timeliness exceptions. Those exceptions include interference by

government officials, newly-discovered facts that were unknown to the

petitioner and which could not have been ascertained with due diligence, or

a new constitutional right held to apply retroactively. 42 Pa.C.S. §§

9545(b)(1)(i)-(iii). Any claim arguing an exception to the time-bar must be

filed within sixty days of the date it could have been first presented. 42

Pa.C.S. § 9545(b)(2).

Appellant’s brief is largely incomprehensible, but it appears that he is

maintaining that he discovered his own mental health records and filed his

petition within sixty days of that discovery. The mental health records

attached to Appellant’s petition were a letter from a healthcare provider

indicating that he had attention deficit disorder and a personality disorder in

1997-1998. Since Appellant’s mental health records were available at the

time of his plea, he cannot show that he exercised due diligence in

discovering his own medical records approximately six years after he

entered his plea. Appellant’s claim is patently meritless. The PCRA court

correctly determined that Appellant’s petition was untimely.

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/10/2015

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