J-S34038-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : JAMES W. CRISE, : : Appellant : No. 53 WDA 2018
Appeal from the PCRA Order December 1, 2017 in the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0001899-2008 CP-65-CR-0004502-2008
BEFORE: BOWES, STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 31, 2018
James W. Crise (Appellant) pro se appeals from the December 1, 2017
order denying his petition filed under the Post Conviction Relief Act (PCRA),
42 Pa.C.S. §§ 9541-9546. We affirm.
We provide the following background. In 2009, Appellant was
convicted of various crimes including involuntary deviate sexual intercourse
(IDSI). Appellant was sentenced to an aggregate term of 20 to 55 years of
imprisonment, which included a 10-year mandatory minimum sentence.
This Court denied Appellant relief on direct appeal, and his judgment of
sentence became final in 2011 after our Supreme Court denied his petition
for allowance of appeal. Commonwealth v. Crise, 24 A.3d 455 (Pa. Super.
2011) (unpublished memorandum), appeal denied, 24 A.3d 863 (Pa. 2011).
Appellant’s first three PCRA petitions resulted in no relief.
* Retired Senior Judge assigned to the Superior Court. J-S34038-18
Appellant filed the petition that is the subject of the instant appeal on
September 18, 2017. Therein, he claimed that he was entitled to relief due
to ineffective assistance of counsel1 and having been given an illegal
sentence. PCRA Petition, 9/18/2017, at ¶ 4(II), 4(VI). Appellant also
suggested that two timeliness exceptions applied to this otherwise untimely-
filed fourth PCRA petition. Id. at ¶ 5.
The PCRA court issued an opinion and notice of its intent to dismiss
Appellant’s petition without a hearing, to which Appellant filed a response in
opposition. On December 1, 2017, the PCRA court entered an order
dismissing Appellant’s petition as untimely filed. Appellant timely filed a
notice of appeal, and both Appellant and the PCRA court complied with
Pa.R.A.P. 1925.
Appellant raises two issues for our review. Before we may consider
them, we must determine whether the PCRA court correctly held that his
petition was untimely filed, for the timeliness of a post-conviction petition is
jurisdictional. See, e.g., Commonwealth v. Lewis, 63 A.3d 1274, 1280–
81 (Pa. Super. 2013) (quoting Commonwealth v. Chester, 895 A.2d 520,
522 (Pa. 2006)) (“[I]f a PCRA petition is untimely, neither this Court nor the
[PCRA] court has jurisdiction over the petition. Without jurisdiction, we
simply do not have the legal authority to address the substantive claims.”).
1 Appellant does not raise this claim on appeal.
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Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
of sentence is final unless the petition alleges, and the petitioner proves,
that an exception to the time for filing the petition is met, and that the claim
was raised within 60 days of the date on which it became available. 42
Pa.C.S. § 9545(b).
It is clear that Appellant’s 2017 petition is facially untimely: his
judgment of sentence became final in 2011. However, we may consider an
untimely-filed PCRA petition if Appellant explicitly pled and proved one of
three exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i-iii). Any petition
invoking one of these exceptions “shall be filed within 60 days of the date
the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, although inarticulately stated in his brief, Appellant’s petition
arguably asserts the after-recognized and retroactively-applied constitutional
right exception found at 42 Pa.C.S. § 9545(b)(1)(iii) (providing an exception
where “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”) based on Alleyne v. United States, 570 U.S. 99
(2013). See PCRA Petition, 9/18/2017, at ¶ 5; Appellant’s Brief at 6-7. In
Alleyne, the Supreme Court of the United States “held that any fact that, by
law, increases the penalty for a crime must be treated as an element of the
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offense, submitted to a jury, rather than a judge, and found beyond a
reasonable doubt.” Commonwealth v. Washington, 142 A.3d 810, 812
(Pa. Super. 2016), citing Alleyne, 570 U.S. at 116. The U.S. Supreme
Court reasoned that a Sixth Amendment violation occurs where these
sentence-determinative facts are not submitted to a jury. Alleyne, 570 U.S.
at 104. However, our Supreme Court has held specifically
that Alleyne does not apply retroactively to cases on collateral review.
See Washington, 142 A.3d at 820. Thus, Appellant has not satisfied this
exception.
Next, Appellant attempts to assert the newly-discovered-facts
timeliness exception found at 42 Pa.C.S. § 9545(b)(1)(ii) (providing an
exception where “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”). See PCRA Petition, 9/18/2017 at ¶ 5; Appellant’s Brief at 7.
Specifically, Appellant claims that he recently discovered that the trial judge
has a “business relationship” with a close anonymous relative of Appellant’s,
insomuch as Appellant claims the relative allegedly sold the trial judge illegal
narcotics. PCRA Petition, 9/18/2017, at ¶ 5(II); see also Appellant’s Brief
at 7. Appellant submitted an anonymous, handwritten letter from an
unspecified relative, dated June 12, 2017, in support of his newly-discovered
facts exception claim. Appellant’s Brief at Exhibit A.
Our Supreme Court has previously described a petitioner’s burden under the newly-discovered fact exception as follows.
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[S]ubsection (b)(1)(ii) has two components, which must be alleged and proved. Namely, the petitioner must establish that: 1) “the facts upon which the claim was predicated were unknown” and 2) “could not have been ascertained by the exercise of due diligence.” 42 Pa.C.S. § 9545(b)(1)(ii) (emphasis added).
Commonwealth v. Bennett, [] 930 A.2d 1264, 1272 ([Pa.] 2007). Due diligence demands that the petitioner take reasonable steps to protect his own interests. A petitioner must explain why he could not have learned the new fact(s) earlier with the exercise of due diligence. This rule is strictly enforced.
Commonwealth v. Medina, 92 A.3d 1210, 1216 (Pa. Super. 2014) (some
citations and quotation marks omitted).
The PCRA court addressed Appellant’s assertion as follows:
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J-S34038-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : JAMES W. CRISE, : : Appellant : No. 53 WDA 2018
Appeal from the PCRA Order December 1, 2017 in the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0001899-2008 CP-65-CR-0004502-2008
BEFORE: BOWES, STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 31, 2018
James W. Crise (Appellant) pro se appeals from the December 1, 2017
order denying his petition filed under the Post Conviction Relief Act (PCRA),
42 Pa.C.S. §§ 9541-9546. We affirm.
We provide the following background. In 2009, Appellant was
convicted of various crimes including involuntary deviate sexual intercourse
(IDSI). Appellant was sentenced to an aggregate term of 20 to 55 years of
imprisonment, which included a 10-year mandatory minimum sentence.
This Court denied Appellant relief on direct appeal, and his judgment of
sentence became final in 2011 after our Supreme Court denied his petition
for allowance of appeal. Commonwealth v. Crise, 24 A.3d 455 (Pa. Super.
2011) (unpublished memorandum), appeal denied, 24 A.3d 863 (Pa. 2011).
Appellant’s first three PCRA petitions resulted in no relief.
* Retired Senior Judge assigned to the Superior Court. J-S34038-18
Appellant filed the petition that is the subject of the instant appeal on
September 18, 2017. Therein, he claimed that he was entitled to relief due
to ineffective assistance of counsel1 and having been given an illegal
sentence. PCRA Petition, 9/18/2017, at ¶ 4(II), 4(VI). Appellant also
suggested that two timeliness exceptions applied to this otherwise untimely-
filed fourth PCRA petition. Id. at ¶ 5.
The PCRA court issued an opinion and notice of its intent to dismiss
Appellant’s petition without a hearing, to which Appellant filed a response in
opposition. On December 1, 2017, the PCRA court entered an order
dismissing Appellant’s petition as untimely filed. Appellant timely filed a
notice of appeal, and both Appellant and the PCRA court complied with
Pa.R.A.P. 1925.
Appellant raises two issues for our review. Before we may consider
them, we must determine whether the PCRA court correctly held that his
petition was untimely filed, for the timeliness of a post-conviction petition is
jurisdictional. See, e.g., Commonwealth v. Lewis, 63 A.3d 1274, 1280–
81 (Pa. Super. 2013) (quoting Commonwealth v. Chester, 895 A.2d 520,
522 (Pa. 2006)) (“[I]f a PCRA petition is untimely, neither this Court nor the
[PCRA] court has jurisdiction over the petition. Without jurisdiction, we
simply do not have the legal authority to address the substantive claims.”).
1 Appellant does not raise this claim on appeal.
-2- J-S34038-18
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
of sentence is final unless the petition alleges, and the petitioner proves,
that an exception to the time for filing the petition is met, and that the claim
was raised within 60 days of the date on which it became available. 42
Pa.C.S. § 9545(b).
It is clear that Appellant’s 2017 petition is facially untimely: his
judgment of sentence became final in 2011. However, we may consider an
untimely-filed PCRA petition if Appellant explicitly pled and proved one of
three exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i-iii). Any petition
invoking one of these exceptions “shall be filed within 60 days of the date
the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, although inarticulately stated in his brief, Appellant’s petition
arguably asserts the after-recognized and retroactively-applied constitutional
right exception found at 42 Pa.C.S. § 9545(b)(1)(iii) (providing an exception
where “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”) based on Alleyne v. United States, 570 U.S. 99
(2013). See PCRA Petition, 9/18/2017, at ¶ 5; Appellant’s Brief at 6-7. In
Alleyne, the Supreme Court of the United States “held that any fact that, by
law, increases the penalty for a crime must be treated as an element of the
-3- J-S34038-18
offense, submitted to a jury, rather than a judge, and found beyond a
reasonable doubt.” Commonwealth v. Washington, 142 A.3d 810, 812
(Pa. Super. 2016), citing Alleyne, 570 U.S. at 116. The U.S. Supreme
Court reasoned that a Sixth Amendment violation occurs where these
sentence-determinative facts are not submitted to a jury. Alleyne, 570 U.S.
at 104. However, our Supreme Court has held specifically
that Alleyne does not apply retroactively to cases on collateral review.
See Washington, 142 A.3d at 820. Thus, Appellant has not satisfied this
exception.
Next, Appellant attempts to assert the newly-discovered-facts
timeliness exception found at 42 Pa.C.S. § 9545(b)(1)(ii) (providing an
exception where “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”). See PCRA Petition, 9/18/2017 at ¶ 5; Appellant’s Brief at 7.
Specifically, Appellant claims that he recently discovered that the trial judge
has a “business relationship” with a close anonymous relative of Appellant’s,
insomuch as Appellant claims the relative allegedly sold the trial judge illegal
narcotics. PCRA Petition, 9/18/2017, at ¶ 5(II); see also Appellant’s Brief
at 7. Appellant submitted an anonymous, handwritten letter from an
unspecified relative, dated June 12, 2017, in support of his newly-discovered
facts exception claim. Appellant’s Brief at Exhibit A.
Our Supreme Court has previously described a petitioner’s burden under the newly-discovered fact exception as follows.
-4- J-S34038-18
[S]ubsection (b)(1)(ii) has two components, which must be alleged and proved. Namely, the petitioner must establish that: 1) “the facts upon which the claim was predicated were unknown” and 2) “could not have been ascertained by the exercise of due diligence.” 42 Pa.C.S. § 9545(b)(1)(ii) (emphasis added).
Commonwealth v. Bennett, [] 930 A.2d 1264, 1272 ([Pa.] 2007). Due diligence demands that the petitioner take reasonable steps to protect his own interests. A petitioner must explain why he could not have learned the new fact(s) earlier with the exercise of due diligence. This rule is strictly enforced.
Commonwealth v. Medina, 92 A.3d 1210, 1216 (Pa. Super. 2014) (some
citations and quotation marks omitted).
The PCRA court addressed Appellant’s assertion as follows:
Notably, [Appellant] states that the [trial c]ourt “has had an ongoing ‘business’ relationship with a close relative of [Appellant,]” and “there is photographic evidence of the [trial court judge] purchasing several items from [Appellant’s] relative.” He states that “the relative will remain ‘Jane Doe’ as to protect her from threats that the [p]rosecution and [j]udge have been accused of in the past with other witnesses.”
[Appellant] avers that this “business relationship” meets the newly discovered evidence exception. [Appellant], however, while stating that the facts were unknown to him and could not have been ascertained by due diligence, contradicts his own argument by stating in the next line that “the [trial court judge] was made aware of this relationship during the trial, and failed to recuse herself.”
[Appellant’s] claim is spurious and without a scintilla of merit. The [trial court] is not aware of any “business relationship” with any close relative of [Appellant], and [Appellant’s] previous claims regarding witness intimidation and threats from both the district attorney’s office and the [trial court] have been equally as specious. [Appellant] has also failed to plead how he learned of such information, whether it met the
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60-day statutory deadline, and how it affected his trial. As noted by the Superior Court in [Appellant’s third PCRA petition], the [trial court] cannot and will not try to make his arguments for him in regards to meeting the statutory guidelines of the PCRA. Based on the information presented by [Appellant], the [trial court] does not have jurisdiction to entertain the merits of his argument.
Trial Court Opinion, 11/6/2017, at 5-6. We agree with the PCRA court that
Appellant cannot simultaneously assert that the facts were both unknown
and known to him, and thus, he fails to meet the requirements of the
Furthermore, Appellant has not only failed to establish that the letter
from his relative contained new facts, but he also failed to satisfy the
requirements to establish due diligence in obtaining said letter. According to
Appellant, the anonymous author of this letter “sold illegal narcotics to the
[t]rial [j]udge, and during one such transaction in 2009, [she] told the
[j]udge [she is] related to [Appellant].” Appellant’s Brief at 7. Even if the
trial court were to have believed the letter, this purported fact is not new, as
Appellant avers that the trial court judge knew this fact at the time of trial.
PCRA Petition, 9/18/2017, at 2 (unnumbered). Moreover, Appellant has not
explained why he did not present this sooner.
Because Appellant’s petition was filed untimely without exception, the
PCRA court lacked jurisdiction to consider it on the merits. See
Commonwealth v. Albrecht, 994 A.2d 1091, 1095 (Pa. 2010) (affirming
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dismissal of PCRA petition without a hearing because appellant failed to
meet burden of establishing timeliness exception).
Therefore, the PCRA court properly dismissed the petition for lack of
jurisdiction.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 7/31/2018
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