Com. v. Howard, M.

• Court: Superior Court of Pennsylvania
• Decided: September 5, 2018
• Docket: 2718 EDA 2017
• Status: Unpublished

Opinion

J-S41042-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : MICHAEL L. HOWARD : : Appellant : No. 2718 EDA 2017

Appeal from the PCRA Order August 4, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002767-2010

BEFORE: GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 05, 2018

Appellant, Michael L. Howard, appeals pro se from the order entered in

the Philadelphia County Court of Common Pleas, which denied his second

petition brought pursuant to the Post-Conviction Relief Act (“PCRA”) at 42

Pa.C.S.A. §§ 9541-9546. We affirm.

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

August 9, 2011, the court convicted Appellant of possession with intent to

distribute, possession of a controlled substance, possession of drug

paraphernalia, possession of an instrument of crime, conspiracy, and persons

not to possess firearms. On September 23, 2011, the court sentenced

Appellant to an aggregate term of 15 to 30 years’ imprisonment. This Court

affirmed the judgment of sentence on March 19, 2013, and our Supreme Court

denied Appellant’s petition for an allowance of appeal on August 28, 2013.

____________________________________ * Former Justice specially assigned to the Superior Court. J-S41042-18

See Commonwealth v. Howard, 64 A.3d 1082 (Pa.Super. 2013), appeal

denied, 621 Pa. 114, 74 A.3d 118 (2013).

On November 4, 2013, Appellant timely filed his first PCRA petition pro

se and an amended pro se petition on August 28, 2014, that raised a

sentencing claim under Alleyne v. United States, 570 U.S. 99, 133 S.Ct.

2151, 186 L.Ed.2d 314 (2013). The PCRA court appointed counsel, who filed

an amended PCRA petition, without the Alleyne challenge, on September 29,

2014. On June 22, 2015, the PCRA court issued notice of its intent to dismiss,

per Pa.R.Crim.P. 907; and, on August 7, 2015, the PCRA court denied relief.

This Court affirmed the denial of PCRA relief on March 28, 2017. See

Commonwealth v. Howard, 168 A.3d 351 (Pa.Super. 2017) (unpublished

memorandum). On May 23, 2017, Appellant filed pro se the current PCRA

petition, which asserted the governmental interference exception to the PCRA

time-bar and claimed the first PCRA court, and this Court on appeal, failed to

address the Alleyne challenge Appellant had raised in his pro se amended

first PCRA petition back in 2014. The PCRA court issued Rule 907 notice on

June 9, 2017, and denied relief on August 4, 2017. On August 14, 2017,

Appellant timely filed a pro se notice of appeal. The PCRA court did not order

and Appellant did not file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).

Appellant raises the following issue for our review:

WHETHER THE PCRA COURT ERRED BY DISMISSING [APPELLANT’S] PCRA PETITION CONCLUDING THAT

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APPELLANT DID NOT MEET THE GOVERNMENTAL [INTERFERENCE] SECTION AND FACTS UNKNOWN SECTION WHERE THE APPELLATE COURT OVERLOOKED APPELLANT’S ILLEGAL SENTENCE CLAIM UNDER ALLEYNE WHICH WAS PRESERVED BY APPELLANT IN THE PREVIOUS APPEAL?

(Appellant’s Brief at 5).

Notwithstanding the phrasing of Appellant’s issue presented on appeal,

he argues he properly raised a challenge to his sentence under Alleyne in his

pro se amended first PCRA petition in 2014, but counsel’s amended PCRA

petition excluded that issue; and this Court overlooked it and did not address

it sua sponte on appeal. Appellant contends these omissions constitute

governmental interference to meet that exception to the PCRA time-bar.

Appellant submits he raised this claim in his current PCRA petition, which he

filed within 60 days of this Court’s March 28, 2017 decision on appeal.

Appellant avers his illegal sentence challenge is non-waivable because he

previously raised it in the PCRA court. Appellant concludes his sentence under

Section 9712.1 is unconstitutional per Alleyne and Commonwealth v.

Newman, 99 A.3d 86 (Pa.Super. 2014), and this Court must vacate the

sentence. We cannot agree.

As a preliminary matter, the timeliness of a PCRA petition is a

jurisdictional requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super.

2016). No court has jurisdiction to review an untimely PCRA petition.

Commonwealth v. Albrecht, 606 Pa. 64, 994 A.2d 1091 (2010). A PCRA

petition must be filed within one year of the date the underlying judgment

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becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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.” 42 Pa.C.S.A. § 9545(b)(3). The three

statutory exceptions to the PCRA timeliness provisions allow for very limited

circumstances under which the late filing of a petition will be excused. 42

Pa.C.S.A. § 9545(b)(1).

To meet the governmental interference exception to the PCRA time-bar,

a petitioner must plead and prove that government officials prevented him

from raising a claim. 42 Pa.C.S.A. § 9545(b)(1)(i); Commonwealth v.

Crawley, 559 Pa. 9, 12, 739 A.2d 108, 110 (1999). See also

Commonwealth v. Yarris, 557 Pa. 12, 24-25, 731 A.2d 581, 577 (1999)

(stating appointed counsel does not qualify as government official for

purposes of Section 9545(b)(1)(i)). Importantly, a court must have a

legitimate jurisdictional basis to entertain a legality of sentence claim, even if

a sentencing error is obvious. Commonwealth v. Jackson, 30 A.3d 516

(Pa.Super. 2011), appeal denied, 616 Pa 634, 47 A.3d 845 (2012). If the

claim is raised in a patently untimely PCRA petition, the petitioner must first

overcome certain jurisdictional hurdles to correct his sentence. Id. at 522.

Instantly, this Court affirmed the judgment of sentence on March 19,

2013, and our Supreme Court denied Appellant’s petition for an allowance of

appeal on August 28, 2013. Appellant sought no further review, so the

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judgment of sentence became final on or about November 26, 2013, following

expiration of the 90-days for filing a petition for certiorari with the U.S.

Supreme Court. See U.S.Sup.Ct. Rule 13. Appellant filed his current PCRA

petition on May 23, 2017, which is patently untimely.

To resolve his timeliness problem, Appellant asserted the governmental

interference exception to the PCRA time-bar to assert his Alleyne issue.

Appellant, however, failed to prove the exception because government

officials did not prevent him from raising an Alleyne claim. See 42 Pa.C.S.A.

§ 9545(b)(1)(i); Crawley, supra. Although Appellant introduced an Alleyne

question in his amended pro se first PCRA petition, his appointed counsel

abandoned it, and counsel’s decision does not qualify as interference of

government officials. See Yarris, supra. Likewise, this Court’s failure to

address the claim sua sponte in its disposition on appeal from the denial of

the first PCRA petition does not satisfy the governmental interference

exception to the statutory time-bar. See 42 Pa.C.S.A. § 9545(b)(1). Thus,

Appellant’s current petition remains time-barred, and the PCRA court lacked

jurisdiction to review it.1 See Zeigler, supra; Jackson, supra. Accordingly,

we affirm.

Order affirmed.

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1 We are unable to confirm in the certified record that Appellant actually received any mandatory minimum sentence, which might explain how and why counsel abandoned it in the first PCRA petition and this Court did not raise it sua sponte on appeal from the denial of the first PCRA petition.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/5/18

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