Com. v. Bell, D.

• Court: Superior Court of Pennsylvania
• Decided: July 20, 2018
• Docket: 2461 EDA 2017
• Status: Unpublished

Opinion

J-S36044-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : DEVON BELL : : Appellant : No. 2461 EDA 2017

Appeal from the PCRA Order June 29, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0702871-1999

BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J.

JUDGMENT ORDER BY GANTMAN, P.J.: FILED July 20, 2018

Appellant, Devon Bell, appeals pro se from the order entered in the

Philadelphia County Court of Common Pleas, which dismissed as untimely his

serial petition filed under the Post Conviction Relief Act (“PCRA”), at 42

Pa.C.S.A. §§ 9541-9546. On August 10, 2001, the court convicted Appellant

of first-degree murder, aggravated assault, conspiracy, and possessing

instruments of crime. The court sentenced Appellant on December 10, 2001,

to life imprisonment for the murder conviction and lesser terms of

imprisonment for some of the remaining crimes. This Court affirmed the

judgment of sentence on September 10, 2004, and our Supreme Court denied

allowance of appeal on January 28, 2005. See Commonwealth v. Bell, 863

A.2d 1218 (Pa.Super. 2004), appeal denied, 582 Pa. 661, 868 A.2d 450

(2005). J-S36044-18

From 2005 to 2016, Appellant unsuccessfully litigated at least two PCRA

petitions. On February 17, 2017, Appellant filed the current pro se serial PCRA

petition. The court issued Pa.R.Crim.P. 907 notice on April 11, 2017, and

Appellant responded pro se on April 21, 2017. The court denied PCRA relief

on June 29, 2017. On July 25, 2017, Appellant timely filed a pro se notice of

appeal and voluntary concise statement per Pa.R.A.P. 1925(b).

Preliminarily, the timeliness of a PCRA petition is a jurisdictional

requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A

PCRA petition, including a second or subsequent petition, shall be filed within

one year of the date the underlying judgment of sentence becomes final. 42

Pa.C.S.A. § 9545(b)(1). A judgment of sentence is deemed 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.” 42 Pa.C.S.A. § 9545(b)(3). The

statutory exceptions to the PCRA time-bar allow for very limited circumstances

under which the late filing of a petition will be excused; a petitioner asserting

a timeliness exception must file a petition within 60 days of when the claim

could have been presented. 42 Pa.C.S.A. § 9545(b)(1-2).

Instantly, Appellant’s judgment of sentence became final on April 28,

2005, upon expiration of the time for filing a petition for writ of certiorari with

the U.S. Supreme Court. See U.S.Sup.Ct.R. 13. Appellant filed the current

PCRA petition on February 17, 2017, which is patently untimely. See 42

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Pa.C.S.A. § 9545(b)(1). Appellant attempts to invoke the “new constitutional

right” exception to the statutory time-bar per Section 9545(b)(1)(iii), claiming

he is entitled to relief under Johnson v. United States, ___ U.S. ___, 135

S.Ct. 2551, 192 L.Ed.2d 569 (2015) (holding “residual clause” of federal

Armed Career Criminal Act of 1984, which permits increased sentences for

individuals who have committed three or more “violent felonies,” including any

felony that involves conduct that presents serious potential risk of physical

injury to another, is unconstitutionally vague) and Welch v. United States,

___ U.S. ___, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016) (holding Johnson

announced new substantive rule that applies retroactively to cases on

collateral review). Nevertheless, our Supreme Court has held that Johnson

and Welch do not satisfy the new constitutional right exception to the PCRA

time-bar where the PCRA petitioner was sentenced under state statutes. See

Commonwealth v. Spotz, ____ Pa. ___, 171 A.3d 675 (2017) (holding

neither Johnson nor Welch affords appellant relief because he was not

sentenced under federal Armed Career Criminal Act; at this juncture, Johnson

and Welch apply only to federal prisoners sentenced under relevant federal

statute).1 Therefore, the court properly dismissed Appellant’s petition as

untimely.

Order affirmed.

____________________________________________

1 Appellant’s remaining claims fail to allege a timeliness exception, so we give them no further attention.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/20/2018

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