Com. v. Kennedy, S.

• Court: Superior Court of Pennsylvania
• Decided: June 1, 2015
• Docket: 215 EDA 2013
• Status: Unpublished

Opinion

J-S35008-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

STEPHEN KENNEDY

Appellant No. 215 EDA 2013

Appeal from the PCRA Order November 18, 2005 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0108491-2004

BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY MUNDY, J.: FILED JUNE 01, 2015

Appellant, Stephen Kennedy, appeals pro se nunc pro tunc from the

November 18, 2005 order, dismissing his first petition for relief filed

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

9546. After careful review, we quash this appeal.

On September 23, 2004, the trial court imposed an aggregate

sentence of 23½ to 47 years’ imprisonment after Appellant was found guilty

of attempted murder, carrying a firearm without a license, possessing an

instrument of a crime, and aggravated assault.1 Appellant did not file a

direct appeal with this Court. As a result, Appellant’s judgment of sentence

____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S.A. §§ 901, 6106, 907, and 2702, respectively. J-S35008-15

became final on October 25, 2004, when the filing period for a notice of

appeal to this Court expired.2 See generally 42 Pa.C.S.A. § 9545(b)(3);

Pa.R.A.P. 903(c).

Appellant filed a timely PCRA petition on March 22, 2005. The PCRA

court appointed counsel, who filed a petition to withdraw along with a “no-

merit” letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.

1988), Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en

banc), and their progeny. On November 18, 2005, the PCRA court entered

an order dismissing Appellant’s PCRA petition without a hearing, and

granting PCRA counsel’s petition to withdraw. Appellant did not file a notice

of appeal with this Court, which was due within 30 days, by December 19,

2005.3 See generally Pa.R.A.P. 903(a).

On May 14, 2009, Appellant filed his second PCRA petition. 4 On

December 10, 2012, the PCRA court entered an order granting Appellant’s

PCRA petition, limited to reinstating his appeal rights nunc pro tunc from the ____________________________________________ 2 We note that the 30th day was Saturday, October 23, 2004. Because the last day to file fell on a weekend, Appellant had until Monday, October 25, 2004, to timely file a notice of appeal. See generally 1 Pa.C.S.A. § 1908. 3 We note the 30th day was Sunday, December 18, 2005. See generally 1 Pa.C.S.A. § 1908. 4 We treat May 14, 2009, as the filing date under the prisoner mailbox rule, as the certified record contains the postmark from the envelope in which the petition was mailed. See generally Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011) (citation omitted), appeal denied, 46 A.3d 715 (Pa. 2012).

-2- J-S35008-15

November 18, 2005 order dismissing his first PCRA petition. Appellant filed

a notice of appeal on January 7, 2013.

Instantly, the Commonwealth avers that Appellant’s appeal should be

quashed, as the PCRA court lacked jurisdiction to grant Appellant relief

because his second PCRA petition was untimely filed. Commonwealth’s Brief

at 6; see also, e.g., Commonwealth v. Huddleston, 55 A.3d 1217, 1220-

1222 (Pa. Super. 2012) (addressing the Commonwealth’s argument that the

PCRA court lacked jurisdiction to reinstate the defendant’s direct appeal

rights nunc pro tunc), appeal denied, 63 A.3d 774 (Pa. 2013). As noted

above, Appellant’s judgment of sentence became final on October 25, 2004.

Therefore, his second PCRA petition filed on May 14, 2009 was facially

untimely. See generally 42 Pa.C.S.A. § 9545(b)(1).

However, in his petition, Appellant averred that two time-bar

exceptions apply. Appellant first argued that the government interference

exception applied because he had “been in the Restricted Housing Unit

(RHU) since May 17, 2009[.]” Appellant’s PCRA Petition, 5/14/09, at 3. This

Court has held that RHU housing does not satisfy the government

interference exception to the time-bar. Commonwealth v. Barrett, 761

A.2d 145, 148 (Pa. Super. 2000).

Appellant also argued that the newly-discovered fact exception

applied. First, Appellant argued that he “suffers from learning and mental

difficulties which prevented him from [discovering] the operative facts [of his

-3- J-S35008-15

PCRA petition].” Appellant’s PCRA Petition, 5/14/09, at 3. Second,

Appellant argues that PCRA counsel abandoned him, which under

Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007), would satisfy the

time-bar exception. Appellant’s PCRA Petition, 5/14/09, at 3.

It is axiomatic that the newly-discovered fact exception requires that

the petitioner plead and prove there were facts previously unknown to him.

Commonwealth v. Brown, 111 A.3d 171, 177 (Pa. Super. 2015); see also

generally 42 Pa.C.S.A. § 9545(b)(1)(ii). Here, Appellant’s petition on its

face did not identify what the new operative facts were, for the purposes of

the time-bar exception. Furthermore, to the extent Appellant argued that

Bennett applied, we note that PCRA counsel did not abandon Appellant, but

rather was legally permitted to withdraw as counsel under Turner/Finley.

Therefore, we conclude the PCRA court lacked jurisdiction to restore

Appellant’s PCRA appeal rights nunc pro tunc. As a result, Appellant’s

January 7, 2013 notice of appeal was patently untimely, as it was filed 2,607

days after the PCRA court entered its November 18, 2005 order dismissing

his first PCRA petition.

Based on the foregoing, we conclude the PCRA court lacked jurisdiction

to restore Appellant’s PCRA appeal rights nunc pro tunc, rendering

Appellant’s notice of appeal untimely. Accordingly, we conclude that we are

without jurisdiction, and quash this appeal.

Appeal quashed.

-4- J-S35008-15

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/1/2015

-5-