Com. v. Brown, K.

Opinion

J-S52039-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

KAREEN BROWN

Appellant No. 984 EDA 2014

Appeal from the PCRA Order February 25, 2014 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0000837-2007

BEFORE: GANTMAN, P.J., ALLEN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 29, 2014

Appellant, Kareen Brown, appeals from the order entered in the

Chester County Court of Common Pleas, dismissing as untimely his first 1 We

affirm.

The relevant facts and procedural history of this case are as follows.

Appellant robbed a Kentucky Fried Chicken restaurant at gunpoint on June 8,

2005. On May 15, 2008, at the conclusion of a three-day trial in which

Appellant represented himself, a jury convicted Appellant of seven (7)

counts of robbery, one (1) count of aggravated assault, and related charges.

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1 42 Pa.C.S.A. §§ 9541-9546.

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*Former Justice specially assigned to the Superior Court. J-S52039-14

The trial court imposed an aggregate sentence of sixteen (16) to thirty-two

affirmed the judgment

of sentence on April 9, 2010. On September 24, 2010, the Pennsylvania

Appellant subsequently filed a petition for a writ of certiorari with the United

States Supreme Court, which the Court denied on March 7, 2011. See

Commonwealth v. Brown, 998 A.2d 1002 (Pa.Super. 2010) (unpublished

memorandum), appeal denied, 608 Pa. 615, 8 A.3d 341 (2010), cert.

denied, ___ U.S. ___, 131 S.Ct. 1616, 179 L.Ed.2d 511 (2011).

Appellant filed the current pro se PCRA petition on July 26, 2013. On

July 30, 2013, the PCRA court appointed counsel, who filed an amended

petition on August 26, 2013. On December 2, 2013, the PCRA court issued

tition without a hearing, pursuant

to Pa.R.Crim.P. 907. After Appellant filed a reply and the PCRA court issued

an amended Rule 907 notice, the court dismissed the petition on February

25, 2014. On March 25, 2014, Appellant timely filed a notice of appeal. On

April 15, 2014, the PCRA court ordered Appellant to file a concise statement

of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b), and

Appellant timely complied.

Appellant raises the following issue for our review:

WHETHER THE [PCRA] COURT ERRED BY DISMISSING

PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME

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COURT OF THE UNITED STATES HAD BEEN DENIED AND APPELLANT FILED HIS PCRA PETITION BEYOND THE TIME LIMIT SET BY STATUTE?

-4).

PCRA petition was timely. Commonwealth v. Hutchins, 760 A.2d 50

(Pa.Super. 2000). The timeliness of a PCRA petition is a jurisdictional

requisite. Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008),

cert. denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009). A

court may not examine the merits of a petition for post-conviction relief that

is untimely. Commonwealth v. Abu-Jamal, 574 Pa. 724, 735, 833 A.2d

719, 726 (2003). A PCRA petition must be filed within one year of the date

the underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A

view, 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

timeliness provisions in the PCRA allow for very limited circumstances under

which the late filing of a petition will be excused. To invoke an exception, a

petition must allege and the petitioner must prove:

(i) the failure to raise a 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;

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(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 was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petitioner asserting a timeliness

exception must file a petition within sixty days of the date the claim could

petition is not filed within one year of the expiration of direct review, or not

eligible for one of the three limited exceptions, or entitled to one of the

exceptions, but not filed within 60 days of the date that the claim could have

been first brought, the trial court has no power to address the substantive

Commonwealth v. Gamboa-Taylor,

562 Pa. 70, 77, 753 A.2d 780, 783 (2000). For purposes of the timeliness

exception regarding the discovery of new facts, due diligence demands that

the petitioner take reasonable steps to protect his own interests, and the

petitioner must explain why he could not have obtained the new fact earlier

with the exercise of due diligence; this rule is strictly enforced.

Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.Super. 2010).

2011, upon the United States Sup

for a writ of certiorari. Appellant filed the current PCRA petition on July 26,

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petition is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant

PCRA. Appellant argues his counsel on direct appeal failed to notify him of

the denial of the petition for a writ of certiorari with the United States

Supreme Court, thereby depriving Appellant of the knowledge that the

judgment became final.

After a thorough review of the record, the briefs of both parties, the

applicable law, and the well-reasoned opinion of the Honorable William P.

s issue merits no relief. The PCRA court

opinion properly disposes of the question presented. (See PCRA Court

Opinion, filed May 8, 2014, at 3-6) (finding: Appellant failed to plead

jurisdictional facts, that, if proven, would establish as matter of law that he

acted with due diligence; Appellant failed to explain why he could not have

learned new fact that United States Supreme Court denied certiorari earlier

showing he took reasonable steps to protect his own interests; status of

ition was

untimely, and PCRA court had no jurisdiction to review it). Based upon the

-barred. See

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Monaco, supra; Gamboa-Taylor, supra. Accordingly, we affirm on the

pinion.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/29/2014

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