Com. v. Ford, H.

Opinion

J-S14013-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : HAROLD FRANKLIN FORD, : : Appellant : No. 3637 EDA 2017 :

Appeal from the Order Entered October 26, 2017 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0003457-2002

BEFORE: OTT, J., McLAUGHLIN, J., and RANSOM, J.

MEMORANDUM BY OTT, J.: FILED MAY 15, 2018

Harold Franklin Ford appeals, pro se, from the order entered October

26, 2017, denying his serial petition for collateral relief filed pursuant to the

Post Conviction Relief Act (“PCRA”).1 Ford seeks relief from the judgment of

sentence of an aggregate term of 25 to 50 years’ imprisonment imposed on

June 30, 2003, following his jury conviction of robbery and conspiracy. On

appeal, Ford insists his mandatory minimum 25-year sentence for robbery,

imposed pursuant to Pennsylvania’s “three strikes” law, 42 Pa.C.S. § 9714, is

illegal because he was never sentenced for a second strike. Since we conclude

Ford’s petition is untimely filed, we affirm the order denying relief.

____________________________________________

 Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546. J-S14013-18

The following procedural history is relevant to our review. On December

18, 2002, a jury convicted Ford of robbery and conspiracy based upon his

participation in a June 2002 robbery at a hotel in Chester County. On June

30, 2003, the trial court sentenced Ford to a mandatory minimum term of 25

to 50 years’ imprisonment, pursuant to Section 9714(a)(2), for his robbery

conviction, concluding the conviction was Ford’s “third strike” under the law.2

Ford’s judgment of sentence was affirmed by this Court on direct appeal, and

the Supreme Court subsequently denied his petition for review on April 19,

2005. See Commonwealth v. Ford, 859 A.2d 829 [2087 EDA 2003] (Pa.

Super. 2004) (unpublished memorandum), appeal denied, 872 A.2d 1198 (Pa.

2005). On May 2, 2005, Ford filed a timely, pro se PCRA petition. Counsel

was appointed and filed an amended petition, which the PCRA court ultimately

dismissed on May 29, 2007. This Court affirmed the PCRA court’s order on

appeal, and, once again, the Supreme Court denied Ford’s petition for review.

See Commonwealth v. Ford, 947 A.2d 1251 (Pa. Super. 2008), appeal

denied, 959 A.2d 319 (Pa. 2008).

Thereafter, Ford filed multiple pro se petitions seeking PCRA relief, none

of which were successful. See Commonwealth v. Ford, 988 A.2d 719 [826

EDA 2009] (Pa. Super. 2009) (unpublished memorandum); Commonwealth

v. Ford, 31 A.3d 755 [3455 EDA 2010] (Pa Super. 2011) (unpublished ____________________________________________

2 The court also imposed a concurrent term of 10 to 20 years’ imprisonment for the criminal conspiracy conviction.

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memorandum); Commonwealth v. Ford, 81 A.3d 996 [1988 EDA 2012] (Pa.

Super. 2013) (unpublished memorandum); Commonwealth v. Ford, 159

A.3d 46 [1337 EDA 2016] (Pa. Super. 2016) (unpublished memorandum).

On October 17, 2017, Ford filed the present petition, seeking

modification/reconsideration of his sentence based upon new case law. See

Petition, 10/17/2017. The trial court denied the petition by order entered

October 26, 2017, and this timely appeal followed.3

Preliminarily, we note the trial court should have treated Ford’s motion

as a serial PCRA petition. The PCRA “is the exclusive vehicle for obtaining

post-conviction relief … regardless of the manner in which a petition is titled.”

Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001).

Indeed, our Supreme Court has held all “claims that could be brought under

the PCRA must be brought under that Act.” Commonwealth v. Descardes,

136 A.3d 493, 499 (Pa. 2016) (quotation omitted). Here, Ford’s petition filed

in October of 2017, appeared to challenge the legality of his mandatory

3 Although not directed to do so, Ford filed a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) on December 19, 2017.

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minimum sentence.4 An illegal sentencing claim is cognizable under the Act,5

and, therefore, the trial court should have treated the filing as a PCRA petition.

Nevertheless, although the trial court denied Ford’s petition on the

merits, it is well-settled that we may affirm the ruling of a trial court on any

basis. Commonwealth v. Reed, 107 A.3d 137, 144 (Pa. Super. 2014).

Here, it is evident that Ford’s petition was untimely filed, and he failed to plead

or prove any of the time-for-filing exceptions to the PCRA. See 42 Pa.C.S. §

9545(b)(1).

A PCRA petition must be filed within one year of the date the underlying

judgment becomes final. See 42 Pa.C.S. § 9545(b)(1).

The PCRA timeliness requirement … is mandatory and jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d 1035, 1038 (Pa. Super. 2007), appeal denied, 597 Pa. 715, 951 A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa. 1, 753 A.2d 201, 203 (2000)). The court cannot ignore a petition’s untimeliness and reach the merits of the petition. Id.

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied,

134 S.Ct. 2695 (U.S. 2014). ____________________________________________

4 The inartfully drafted, pro se petition avers Ford was sentenced as a third strike offender “without ever being sentenced as a 2nd strike offender in violation of the case law[.]” Defendant’s Pro Se Petition for Review/Modification and Reconsideration of Sentence, 10/17/2017, at 1. Ford also claims he is in poor health and has been a model inmate. See id. at 1- 3.

5See Commonwealth v. Montgomery, ___ A.3d ___, ___, 2018 PA Super 54, *6 (Pa. Super. Mar. 14, 2018).

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In the unpublished decision affirming the denial of PCRA relief from

Ford’s fifth petition, a panel of this Court found as follows:

In the case sub judice, [Ford] was sentenced on June 30, 2003, and this Court affirmed his judgment of sentence on July 12, 2004. [Ford] filed a petition for allowance of appeal, which our Supreme Court denied on April 19, 2005. Thereafter, [Ford] did not file a petition for a writ of certiorari with the United States Supreme Court. Therefore, [Ford’s] judgment of sentence became final ninety days later, on July 18, 2005, when the time for seeking certiorari from the United States Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3) (indicating when judgment of sentence becomes final); U.S. Sup. Ct. R. 13(1) (stating “a petition for a writ of certiorari to review a judgment in any case...is timely when it is filed with the Clerk of this Court within 90 days after entry of the judgment[ ]”). Thus, [Ford] had until July 18, 2006, to file a timely PCRA petition; however, [Ford] filed the instant PCRA petition on March 7, 2016, and, therefore, it is patently untimely under the PCRA

Ford, supra, 159 A.3d 46 (unpublished memorandum at *2). Accordingly,

the petition sub judice, filed on October 17, 2017, is untimely as well.

Although Ford does not explicitly invoke any of the time for filing

exceptions, he does imply that he is entitled to relief based upon the

Pennsylvania Supreme Court’s decision in Commonwealth v. Armstrong,

107 A.3d 735 (Pa. 2014). In that case, the Supreme Court affirmed, without

further opinion, the decision of this Court, which held that a defendant cannot

be sentenced under the third strike provision of Section 9714, when his second

strike offense was committed before he was convicted and sentenced as a first

strike offender, and, therefore, the defendant had no opportunity to reform.

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See Commonwealth v. Armstrong, 74 A.3d 228, 241-242 (Pa. Super.

2013).

We conclude the Armstrong decision does not provide Ford with relief.

First, it is well-settled that judicial decisions do not equate to “newly

discovered facts” pursuant to the exception set forth in Section

9545(b)(1)(ii).6 See Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa.

Super. 2013), appeal denied, 81 A.3d 75 (Pa. 2013). Second, the “newly

recognized constitutional right” exception, codified in subsection

9545(b)(1)(iii), applies only 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.” 42 Pa.C.S. §

9545(b)(1)(iii). The Pennsylvania Supreme Court did not recognize a new

constitutional right in Armstrong, but rather, affirmed the Superior Court’s

discussion that dealt with a question of statutory construction. Further, the

Supreme Court has not held that Armstrong is to be applied retroactively to

cases in which the judgment of sentence had become final. Finally, even if

6 See 42 Pa.C.S. § 9545(b)(1)(ii) (providing exception to the timing requirements when “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”).

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Armstrong did provide Ford with a basis for relief, his present petition was

not filed within 60 days of the Supreme Court’s decision as required by Section

9545(b)(2).7 See 42 Pa.C.S. § 9545(b)(2) (“Any petition invoking an

exception provided in paragraph (1) shall be filed within 60 days of the date

the claim could have been presented.”). Therefore, Ford has failed to invoke

a timing exception based on Armstrong.

Furthermore, we note that, in any event, Ford raised a virtually identical

claim in the appeal from the denial of his first PCRA petition. Specifically, he

argued “because he was never sentenced as a second strike offender pursuant

to section 9714, he cannot be sentenced as a third strike offender.” Ford,

supra, 947 A.2d at 1254. A panel of this Court rejected this claim as follows:

[T]he Commonwealth’s Sentencing Memorandum filed on June 17, 2003, in support of its Notice of Intent to Invoke Mandatory Minimum Sentencing Provisions, provides clear proof that Ford’s prior convictions satisfy the mandates of both [Commonwealth v.] Shiffler[, 879 A.2d 185 (Pa. 2005),] and section 9714. Specifically, our review of the Commonwealth’s Sentencing Memorandum reveals the following:

1. On September 20, 1974, in case nos. 148–73 and 186– 73, Ford pled guilty to, inter alia, the charge of Robbery While Armed and Robbery, respectively, and was sentenced to two concurrent terms of four to eight years imprisonment.

7 Indeed, the Supreme Court’s decision in Armstrong was rendered on December 30, 2014, and the present petition was filed nearly three years later, on October 17, 2017.

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2. On September 11, 1979, in case no. 1199–78, Ford was sentenced to 24 months to 59 months imprisonment following his conviction of, inter alia, Robbery.

3. On December 20, 1991, in case no. 2883–88, Ford was sentenced to four to ten years imprisonment following his conviction of Robbery.

Commonwealth's Sentencing Memorandum, 06/17/03, Exhibits A, B, C, D.

Clearly, the record contradicts Ford’s assertion that the requirements for a third strike offender were not established. Specifically, the record reflects that Ford was sentenced for crimes of violence on three occasions prior to the instant offense, and given intervening opportunities to reform, of which he clearly failed to take advantage. As noted by the learned trial judge, Ford’s current Robbery conviction actually represents his fourth strike. Accordingly, we find no error in the trial court’s imposition of the mandatory minimum sentence pursuant to section 9714(a)(2).

Ford, supra, 947 A.2d at 1255. Therefore, we conclude Ford is entitled to no

relief.8

Order affirmed.

8 We recognize that because the trial court did not treat Ford’s motion as a PCRA petition, it failed to provide him with the requisite notice of its intent to dismiss the petition pursuant to Pa.R.Crim.P. 907. Nevertheless, when a petition is untimely filed, the court’s failure to provide Rule 907 notice does not constitute reversible error. See Commonwealth v. Lawson, 90 A.3d 1, 5-6 (Pa. Super. 2014).

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/15/18

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