Com. v. Everett, J.

Opinion

J-A06012-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JEVON A. EVERETT : : Appellant : No. 1450 WDA 2022

Appeal from the PCRA Order Entered November 22, 2022 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0012952-2006

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and BECK, J.

MEMORANDUM BY LAZARUS, P.J.: FILED: MARCH 5, 2024

Jevon A. Everett appeals, pro se, from the order, entered in the Court

of Common Pleas of Allegheny County, dismissing his petition filed pursuant

to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After

careful review, we affirm.

In 2008, Everett was convicted by a jury of first-degree murder. On

December 11, 2008, the trial court sentenced Everett to a term of life

imprisonment without the possibility of parole. Everett appealed to this Court,

and we affirmed his judgment of sentence on March 24, 2011. See

Commonwealth v. Everett, 26 A.3d 1202 (Pa. Super. 2011) (Table).

Everett filed a petition for allowance of appeal, which our Supreme Court

denied on October 30, 2011. See Commonwealth v. Everett, 32 A.3d 1275

(Pa. 2011) (Table). Everett did not seek further review with the United States

Supreme Court. J-A06012-24

Everett subsequently litigated three PCRA petitions unsuccessfully. See

Commonwealth v. Everett, 272 A.3d 503 (Pa. Super. 2022) (Table)

(summarizing procedural history). After this Court affirmed the dismissal of

Everett’s third PCRA petition, he filed a petition for allowance of appeal in our

Supreme Court, which was denied on July 27, 2022. See Commonwealth

v. Everett, 282 A.3d 1130 (Pa. 2022) (Table).

On August 18, 2022, Everett, pro se, filed the instant “Motion to

Compel,” which the PCRA court properly treated as his fourth PCRA petition.

See 42 Pa.C.S.A. § 9542 (PCRA “shall be the sole means of obtaining collateral

relief and encompasses all other common law and statutory remedies for the

same purpose that exist when this subchapter takes effect”). On October 19,

2022, the PCRA court issued notice of its intent to dismiss Everett’s petition

pursuant to Pa.R.Crim.P. 907. Everett filed a pro se response. On November

22, 2022, the PCRA court dismissed Everett’s petition as untimely filed.

Everett filed a timely notice of appeal. On December 8, 2022, the PCRA

court ordered Everett to file a Pa.R.A.P. 1925(b) concise statement of issues

complained of on appeal. On December 15, 2022, Everett filed a “Response

to Order,” in which he raised no appellate claims, but asserted that the PCRA

court’s Rule 1925(b) order was improper because the PCRA court lacked

jurisdiction over the case. The PCRA court filed a Rule 1925(a) opinion.

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Prior to reaching Everett’s claims,1 we must address the timeliness of

the instant PCRA petition. “On appeal from the denial of relief under the

[PCRA], the standard of review is whether the findings of the PCRA court are

supported by the record and free of legal error.” Commonwealth v. Martin,

5 A.3d 177, 182 (Pa. 2010). Additionally, any PCRA petition “shall be filed

within one year of the date the judgment because final.” 42 Pa.C.S.A. §

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 review.” Id. at § 9545(b)(3). The PCRA’s timeliness requirements

are jurisdictional in nature, and a court may not address the merits of the

issues raised if the PCRA petition was not timely filed. Commonwealth v.

Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

Instantly, as we have concluded before, Everett’s judgment of sentence

became final in January 2012, after expiration of the time in which Everett

could have filed a petition for writ of certiorari in the Supreme Court of the

United States. See Commonwealth v. Everett, 272 A.3d 503 (Pa. Super.

2022) (Table); see also Sup.Ct.R. 13 (allowing 90 days to file petition for writ

of certiorari); 42 Pa.C.S.A. § 9545(b)(3). Consequently, Everett’s instant

petition, filed on August 23, 2022, is patently untimely.

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1 In light of our conclusion, discussed infra, that Everett has failed to preserve

any claims whatsoever, we decline to summarize his claims here.

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However, Pennsylvania courts may consider an untimely petition if the

petitioner can explicitly plead and prove one of the three exceptions set forth

at 42 Pa.C.S.A. §§ 9545(b)(1)(i)-(iii). These three exceptions are as follows:

(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 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.

Id. Any petition invoking one of these exceptions “shall be filed within one

year of the date the claim could have been presented.”2 Id. at § 9545(b)(2).

“The PCRA petitioner bears the burden of proving the applicability of one of

the exceptions.” Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017).

As we noted supra, there were no claims preserved in Everett’s

“Response” to the PCRA court’s Rule 1925(b) order. Rather, Everett claimed

that the PCRA court had no jurisdiction over his case and that it was

“improper” for the PCRA court to order the filing of a Rule 1925(b) concise

2 We observe that section 9545(b)(2) was amended on October 24, 2018, effective in 60 days (i.e., December 24, 2018), extending the time for filing from 60 days of the date the claim could have been first presented, to one year. The amendment applies to claims arising on December 24, 2017, or thereafter. See Act 2018, Oct. 24, P.L. 894, N. 146, § 3. However, in light of the fact that Everett has preserved no claims for our review, we make no determination of when his claims could have arisen.

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statement. See Response to Order, 12/15/22, at 1-2. Moreover, we observe

that Everett did not invoke any exceptions to the PCRA time-bar in his

underlying PCRA petition. Consequently, Everett has not preserved any

claims for appeal, let alone a claim that would satisfy one or more of the time-

bar exceptions to the PCRA. See Pa.R.A.P. 302(a) (“issues not raised in the

lower court are waived and cannot be raised for the first time on appeal”).

Therefore, Everett has not properly invoked any time-bar exception to the

PCRA, and, accordingly, we affirm the PCRA court’s dismissal of Everett’s

fourth PCRA petition.

Order affirmed.

FILED: 3/5/2024

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