Com. v. Carmon, S.

• Court: Superior Court of Pennsylvania
• Decided: December 5, 2017
• Docket: 549 EDA 2017
• Status: Unpublished

Opinion

J-S57021-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

v.

SHALAMAR R. CARMON

Appellant No. 549 EDA 2017

Appeal from the PCRA Order dated January 23, 2017 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0003283-2004

BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY SOLANO, J.: FILED DECEMBER 05, 2017

Appellant, Shalamar R. Carmon, appeals pro se from the order

dismissing his third petition filed under the Post Conviction Relief Act

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

On October 3, 2006, a jury convicted Appellant of first-degree murder,

and he was sentenced that same day to life imprisonment without parole.

He filed a direct appeal, and this Court affirmed his judgment of sentence on

January 4, 2008. Commonwealth v. Carmon, 947 A.2d 822 (unpublished

memorandum). On June 26, 2008, the Supreme Court denied his allocatur

petition. Commonwealth v. Carmon, 951 A.2d 1160 (Pa. 2008).

Appellant did not petition the United States Supreme Court for a writ of

certiorari. Therefore, his judgment of sentence became final on September J-S57021-17

24, 2008, ninety days after the Pennsylvania Supreme Court denied his

allocatur petition. 42 Pa.C.S. § 9545(b)(3); U.S. Sup. Ct. Rule 13.

Appellant filed a timely PCRA petition, within one year, on June 12,

2009. The PCRA court appointed counsel, held an evidentiary hearing, and

dismissed the petition. Appellant appealed, and this Court affirmed the

denial of relief. Commonwealth v. Carmon, 29 A.3d 830 (Pa. Super.

2011) (unpublished). Appellant petitioned for collateral relief a second time

on February 3, 2012. This time, the PCRA court denied relief on the ground

that the petition was untimely. Appellant unsuccessfully appealed.

Commonwealth v. Carmon, 62 A.3d 463 (Pa. Super. 2012) (unpublished).

Appellant filed the petition that is now before us, his third, on

December 12, 2016. The PCRA court dismissed the petition as untimely by

an order dated January 23, 2017. Appellant filed a timely appeal in which

he raises five issues:

[1.] Whether Appellant is entitled to Post-Conviction Relief, when the evidence of record support[s] Appellant’s claim that he is being detained illegally, in violation of due process of law, under an illegal sentence, where he was never sentenced by a judgment of the law of the land that lawfully authorizes the deprivation of his liberty, as required by the Due Process Clause of the Pa.Const. art.1 § 9 and the 14th amendment of the U.S.Const.?

[2.] Whether 18 Pa.C.S.§ 1102(a)(1) could have ever lawfully authorized an imposition of a mandatory sentence of life imprisonment without the possibility of parole upon Appellant, as a result of his 1st degree murder conviction?

[3.] Whether the PCRA Court erred in dismissing Appellant’s PCRA petition as untimely, when Appellant established his illegal

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sentence claim within the plain language of the timeliness exception of 42 Pa.C.S.§ 9545(b)(1)(i) & § 9545(b)(2), where the evidence of record substantially supports the material fact that the Sentencing Judge’s failure to satisfy the Due Process requirement of Notice, reasonably calculated, under all the circumstances pertaining to the judgment of sentence imposed upon Appellant, interfered with this illegal sentence claim being presented previously?

[4.] Whether the PCRA Court erred in dismissing Appellant’s PCRA petition as untimely, when the evidence of record does not support the PCRA Court’s conclusion that Appellant’s argument, demonstrating that he did not know he was being illegally detained under an illegal sentence, within the plain language of 42 Pa.C.S.§ 9545(b)(1)(ii) & § 9545(b)(2), was unavailing, because Appellant was convicted of 1st degree murder, and on October 3, 2006, was sentenced to life imprisonment without the possibility of parole, which is a mandatory sentence, pursuant to 18 Pa.C.S.§ 1102(a)(1)?

[5.] Whether the PCRA Court erred in dismissing Appellant’s PCRA petition as untimely, when the PCRA Court’s jurisdiction to address the merits of Appellant’s illegal sentence claim is clearly seen, where Appellant’s judgment of sentence could have never become final, because the evidence of record support[s] Appellant’s argument that the judgment of sentence imposed upon Appellant was never legally determined by a statute that lawfully authorized the deprivation of Appellant’s liberty?

Appellant’s Brief at 4.

When reviewing the propriety of an order denying PCRA relief, this

Court is limited to determining whether the evidence of record supports the

conclusions of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). The PCRA

court’s findings will not be disturbed unless there is no support for them in

the certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa.

Super. 2014).

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A PCRA petition must be timely. In order to be timely, it must be filed

within one year of the date the petitioner’s judgment of sentence becomes

final. 42 Pa.C.S. § 9545(b)(1). 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.” 42 Pa.C.S. §

9545(b)(3). However, an untimely petition may be considered when the

petition alleges, and the petitioner proves, that one of the three limited

exceptions to the time for filing the petition set forth at 42 Pa.C.S. §

9545(b)(1) is met. A petition invoking one of these exceptions must be filed

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

Pa.C.S. § 9545(b)(2). In order to be entitled to proceed under an exception

to the PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164,

1167 (Pa. Super. 2001).

Whether a PCRA petition is timely is a question of law; this Court’s

standard of review is de novo and our scope of review is plenary.

Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013). It is well

settled that “[t]he filing mandates of the PCRA are jurisdictional in nature

and are strictly construed.” Id. Consequently, “[a]n untimely petition

renders this Court without jurisdiction to afford relief.” Id.

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Here, Appellant’s judgment of sentence became final on

September 24, 2008. He therefore had to file a timely petition by

September 24, 2009. 42 Pa.C.S. § 9545(b)(1). Because Appellant filed the

underlying petition on December 12, 2016, we agree with the PCRA court

that the petition is untimely and we lack jurisdiction to review it. After a

thorough review of the record, the applicable law, and the opinion of the

Honorable Douglas G. Reichley, sitting as the PCRA court, we affirm on the

basis of Judge Reichley’s comprehensive and well-reasoned opinion, which

holds that Appellant’s third PCRA petition is untimely, and that “Appellant did

not establish the existence of any applicable exception to the PCRA’s time

requirements,” and states, “while the [PCRA court] does not have

jurisdiction to address the merits, the [PCRA court] observes that Appellant’s

sentence [of life imprisonment for first degree murder in accordance with 42

Pa.C.S. § 9711] is not illegal.” PCRA Court Opinion, 2/27/17, at 4-5

(unpaginated). In the event of future filings, the parties are instructed to

attach a copy of the PCRA court’s February 27, 2017 opinion.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/5/2017

-5- Circulated 11/15/2017 04:04 PM

IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA

vs. No. 3283/ 2004 EDA 2017 SHALAMAR R. CARMON, Defendant

ORDER

AND NOW, this r)1-k day of February, 2017, it appearing that the Appellant has filed a Notice of Appeal in the above -captioned matter; and it further appearing that the

accompanying Memorandum Opinion satisfies the requirements of Pa.R.A.P. 1925(a);

IT IS HEREBY ORDERED that the Clerk of Courts, Criminal, transmit the record in

the above -captioned matter to the Superior Court forthwith.

By the Court:

Ac '414764 Dougla G. Reichley, J.

m rn cebto r JUL,: NAL COL _ , lC eN)

Iriotot-11 se ' Foy e IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA CRIMINAL DIVISION

1925(a) Opinion

Shalamar Carmon, Appellant, has appealed from the Court's order dismissing his third

Post Conviction Relief Act (PCRA) petition on January 23, 2017. For the reasons set forth

herein, the Court was without jurisdiction to consider Appellant's PCRA petition and said

petition was properly dismissed.

Factual and Procedural Background

This case stems from a 2004 homicide, which was litigated in Case No. CP-39-CR-

0003283-2004. Appellant was charged with and subsequently convicted of Murder in the First

Degree for the murder of Jason Fritchman. A jury convicted Appellant in October of 2006 and he

was sentenced to life imprisonment without parole. The Superior Court affirmed that sentence,

Commonwealth v. Carmon, 947 A.2d 822 (Pa. Super. 2008) (unpublished memorandum), and the

Pennsylvania Supreme Court rejected Appellant's allocatur petition on June 26, 2008.

Commonwealth v. Carmon, 951 A.2d 1160 (Pa. 2008) (table).

Appellant filed a timely PCRA petition alleging ineffectiveness of pretrial and trial

counsel for failing to seek suppression of identification testimony and failing to object to the

introduction of photographs of the crime scene. His PCRA petition was denied and dismissed on

June 11, 2010. Appellant appealed to the Superior Court, which affirmed. Commonwealth v. Cameron, 29 A.3d 830 (Pa. Super. 2011) (table). The Supreme Court rejected the Appellant's

appeal. Commonwealth v. Cameron, 29 A.3d 370 (Pa. 2011) (table).

On December 12, 2016, Appellant filed the instant PCRA Petition. On December 20,

2016, the Court reviewed that petition and determined it was untimely. Accordingly, the Court

entered an order placing Appellant on notice of the Court's intent to dismiss his PCRA petition

without a hearing. Appellant filed a response to the Court's Notice of Intent to Dismiss on

January 6, 2017.

On January 23, 204, the Court entered an order dismissing the PCRA petition. Appellant filed a Notice of Appeal on February 8, 2017 and timely filed a Concise Statement on February

22, 2017.

This Opinion follows.

Discussion

Appellant has raised 5 issues on appeal, but only the first issue requires consideration.

Appellant alleges the Court erred in dismissing his PCRA petition because he met an exception

to the timeliness requirements of the PCRA as a result of the alleged imposition of an illegal

sentence.

Second or subsequent PCRA petitions "will not be entertained unless the petitioner

presents a strong prima facie showing that a miscarriage of justice may have occurred."

Commonwealth v. Abu-Jamal, 94J A.2d 1263, 1267 (Pa. 2008) (citing Commonwealth v.

Carpenter, 725 A.2d 154, 160 (Pa. 1999)). "A petitioner makes a prima facie showing if he

demonstrates that either the proceedings which resulted in his conviction were so unfair that a

miscarriage of justice occurred which no civilized society could tolerate, or that he v4as jznocapt rn12 F.... ,...rVI CI Z* t") co rrl CV Pfo C.) '11 .1 ....0:11 MC :

Super. 2003) (en banc) (citations omitted).

The timeliness requirements of the PCRA must be strictly construed and are jurisdictional

in nature; thus, courts are precluded from addressing the merits of issues raised in a PCRA

petition if it is untimely. Abu-Jamal, 941 A.2d at 1267. Petitions under the PCRA, including

second or subsequent petitions, must be filed within one year from the date the judgment

becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment becomes final either after direct review,

including discretionary review, or after the expiration of the time for seeking review. Id. §

9545(b)(3).

There are three very narrow exceptions to the one year time period:

(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

Appellant 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 ... and has been held by that court to apply It retroactively. refit- =rn --,1 rri "T1 c)=1 x= Id § 9545(b)(1)(1) -(iii). coo O '-n CO 1%) --s F m .'

p.t.i) u, If the PCRA petitioner can successfully demonstrate the applicability of any of the three

exceptions, he may file his petition within 60 days of the date that his claim could have been

presented. Id. § 9545(b)(2).

In the within matter, Appellant asserted he is eligible for relief because he is challenging

the legality of the sentence imposed. He claims that he is being held illegally "because there is no

statute given by the court order, related to [Appellant's] sentencing proceeding, that ever had the

lawful authority to give the Dept. of Corrections any power to enforce any provisions remotely

close to accepting, confining and depriving Appellant of his liberty in any way...." (Post -

Conviction Relief Act Petition, at 19.) In Appellant's Response to the Court's Notice of Intent to

Dismiss, Appellant explained that his petition is timely because he "did not know he was being

illegally detained under an illegal sentence." (Defendant's Response to the Court's Notice of

Intent to Dismiss, at 2.)

Appellant was convicted of Murder in the First Degree, 18 Pa.C.S.A. § 2501(a). On

October 3, 2006, Appellant was sentenced to life imprisonment without the possibility of parole,

which is a mandatory sentence. 18 Pa.C.S.A. § 1102(a)(1). Appellant's assertion that he was

unaware that his sentence is illegal and that he only came to learn this in October of 2016 was

unavailing. Furthermore, while the Court does not have jurisdiction to address the merits, the

Court observes that Appellant's sentence is not illegal. Id. ("[A] person who has been convicted

of murder of the first degree . shall be sentenced to death or to a term of life imprisonment in

accordance with 42 Pa.C.S. § 9711 (relating to sentencing procedure for murder fir

degree)."). conclusion

Because Appellant did not establish the existence of any applicable exception to the

PCRA's time requirements, the Court properly dismissed Appellant's PCRA petition without a

hearing. Consequently, the Court respectfully recommends that its order dismissing the PCRA

Petition be affirmed.

ouglas . Reichle(,J.

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