Com. v. Langerston, D.

• Court: Superior Court of Pennsylvania
• Decided: July 6, 2016
• Docket: 108 EDA 2016
• Status: Unpublished

Opinion

J-S46028-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

DARRYL LANGERSTON

Appellant No. 108 EDA 2016

Appeal from the PCRA Order December 15, 2015 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0002149-2006

BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.: FILED JULY 06, 2016

Darryl Langerston appeals, pro se, from the order entered December

15, 2015, in the Court of Common Pleas of Montgomery County, denying, as

untimely filed, his sixth petition filed pursuant to the Pennsylvania Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Langerston seeks

relief from the judgment of sentence of a term of 20 to 40 years’

imprisonment imposed on November 14, 2006, following his convictions of

third-degree murder and possessing an instrument of a crime.1 On appeal,

Langerston argues: (1) the PCRA court erred in dismissing his petition as

untimely filed when he demonstrated the facts supporting his claim were

____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 See 18 Pa.C.S. §§ 2502(c) and 907(a), respectively. J-S46028-16

unknown to him until recently; (2) trial counsel was ineffective for failing to

challenge a sentence outside the sentencing guideline range and failing to

challenge inadmissible hearsay evidence; and (3) the trial court had no

jurisdiction because the criminal statutes he was convicted under are

unconstitutional. See Langerston’s Brief at ii. Based upon the following, we

affirm.

The PCRA court aptly summarized the facts and procedural history

underlying this appeal and we adopt the PCRA court’s summary of the

background of this case.2 See PCRA Court Opinion, 2/16/2016 at 2-4.

As noted above, the PCRA court concluded Langerston’s petition was

untimely filed. “The PCRA timeliness requirement … is mandatory and

jurisdictional in nature.” Commonwealth v. Taylor, 67 A.3d 1245, 1248

(Pa. 2014) (citation omitted), cert. denied, Taylor v. Pennsylvania, 134

S.Ct. 2695 (2014). Therefore, we must determine the timeliness of the

petition before reviewing Langerston’s substantive claims. Id. Generally, all

PCRA petitions must be filed within one year of the date the judgment of

sentence becomes final, unless the petition alleges, and the petitioner

proves, that one of the three enumerated exceptions to the time for filing

2 On January 6, 2016, the PCRA court ordered Langerston to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Langerston complied with the PCRA court’s directive, and filed a concise statement on January 22, 2016.

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requirement is met. See 42 Pa.C.S. § 9545(b)(1). The PCRA exceptions

that allow for review of an untimely petition are as follows: (1)

governmental interference; (2) the discovery of previously known facts; and

(3) a newly recognized constitutional right. See 42 Pa.C.S. §9545(b)(1)(i)-

(iii).

Our review of the record confirms that the PCRA court properly

determined Langerston’s petition, filed December 9, 2015, was untimely,

and that Langerston failed to prove the “unknown facts” exception to the

PCRA’s one year time bar. See PCRA Court Opinion, 2/16/2016 at 6-10

(finding: Langerston conceded petition was untimely; the information

contained in the recently acquired Sentencing Guideline form was not “new,”

as it was available at the time of his sentencing hearing; “[t]he Sentencing

Guideline form is nothing but a new source of information that Langerston

heard first hand at his sentencing hearing[;]” and in any event, Langerston

did not demonstrate the form could not have been acquired sooner had he

exercised due diligence). Therefore, we adopt the discussion of the PCRA

court as dispositive of his first issue on appeal.

With regard to his remaining claims, we note that they are substantive

challenges to either trial counsel’s stewardship or the jurisdiction of the trial

court. See Langerston’s Brief at ii. However, it is well established that

“[t]he PCRA’s timeliness requirements are jurisdictional; therefore, a court

may not address the merits of the issues raised if the petition was not timely

filed.” Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. Super. 2012)

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(citation omitted). Accordingly, we are precluding from addressing the

remaining claims on appeal.3

Order affirmed.4

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/6/2016

3 We note Langerston does not argue that any of the statutory exceptions to the one-year time bar applies to his claims that counsel failed to challenge hearsay evidence and that the criminal statutes he was convicted under are unconstitutional. Moreover, Langerston’s challenge regarding purported hearsay evidence was rejected in his first PCRA petition. See Commonwealth v. Langerston, 981 A.2d 315 (Pa. Super. 2009) (unpublished memorandum). Accordingly, even if his petition was timely filed, that particular claim would be unreviewable as previously litigated. See 42 Pa.C.S. § 9543(a)(3) (petitioner only eligible for PCRA relief if the allegation of error has not been previously litigated or waived). 4 In the event of further proceedings, the parties are directed to attach the PCRA court’s February 16, 2016 opinion to this memorandum.

-4- Circulated 06/22/2016 02:30 PM ...

IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY PENNSYLVANIA CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA CP-46-CR-OOO 214 9-2 006

DARRYL LANGERSTON 108 EDA 2016

OPINION

CARPENTER J. FEBRUARY 16, 2016

FACTUAL AND PROCEDURALHISTORY

Appellant, Darryl Langerston ("Langerston"), appeals from a final

order of dismissal dated December 15, 2015, dismissing his untimely sixth pro

se petition, seeking post-conviction relief pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.CS.A. §§9541-9546. While Langerston acknowledged the

facially untimeliness of his most recent PCRA petition, Langerston attempted to

invoke the newly-discovered facts exception at Section 9545(b)(l)(ii), arguing

that he exercised due diligence in requesting a copy of the Pennsylvania

Commission on Sentencing Guideline Sentence Form from the Montgomery·

County Clerk of Courts on September 16, 2015 at which time he realized he was

sentenced to "a sentence greater than the lawful maximum for a standard range

sentence." See, PCRA petition 11/12/15, p. II. However, this Court determined

that Langerston could not establish that the facts upon which his claim was

predicated were unknown to him and that they could not have been ascertained r

by the exercise of due diligence. Therefore, this Court concluded that the newly-

discovered facts exception was unavailable to Langerston. Accordingly, the

underlying merits of this untimely fifth PCRA petition were not reviewed based

upon this Court's lack of jurisdiction. By way of a brief background, on August 23, 2006, a jury convicted

Appellant of third degree murder and possession of an instrument of crime for

the February 7, 2006, stabbing death of Roderick Jackson. On November 14,

2006, Appellant was sentenced to a term of 20 to 40 years' imprisonment. A

timely direct appeal was not filed; however, Langerston's direct appeal rights

were reinstated and a nunc pro tune direct appeal was filed. On November 26,

2007, the Pennsylvania Superior Court affirmed Langerston's judgment of

sentence. On March 24, 2008, Langerston filed a timely first PCRA petition.

Counsel was appointed, and finding no meritorious issues to pursue, counsel

filed a no-merit letter. After proper notice pursuant to Pa.R.Crim.P. 907, a final

order dismissing Langerston's PCRA petition was issued on July 10, 2008.

Langerston appealed. On June 16, 2009, the Pennsylvania Superior Court

affirmed the dismissal and the Pennsylvania Supreme Court denied

Langerston's petition for allowance of appeal. On February 8, 2010, Langerston filed an untimely second PCRA

petition. He filed a response to the pre-dismissal notice styled as a writ of

habeas corpus ad subjiciendum. On May 20, 2010, the writ of habeas corpus was dismissed. On June 2, 2010, the untimely second PCRA petition was also

2 ,.

dismissed. Langerston appealed both orders, but later withdrew the appeal

from the denial of his habeas corpus petition. The Pennsylvania Superior Court

affirmed the dismissal of his second PCRA petition on February 25, 2011, and

subsequently the Pennsylvania Superior Court denied Langerston's petition for

allowance of appeal. On October 28, 2011, Langerston filed an untimely third PCRA

petition, which was ultimately dismissed on January 11, 2012. The dismissal

was appealed, and on August 29,· 2012, the Pennsylvania Superior Court

affirmed the dismissal. On March 6, 2013, Langerston filed an untimely fourth PCRA

petition. It was dismissed on April 1, 2013. Langerston did not appeal.

A fifth untimely PCRA petition was filed on October 8, 2014. It was

dismissed on November 10, 2014, after Langerston withdrew it. Most recently on December 9, 2015, Langerston filed an untimely

sixth PCRA petition, which is currently at issue in this appeal. Therein,

Langerston acknowledged its untimeliness, but attempted to invoke the newly-

discovered facts exception at Section 9545(b)(l)(ii), arguing that he exercised

due diligence in requesting a copy of his Pennsylvania Commission on

Sentencing Guideline Sentence Form ("Sentencing Guideline form") from the

Montgomery County Clerk of Courts on September 16, 2015, at which time he

realized he was sentenced to "a sentence greater than the lawful maximum for a standard range sentence." A more detailed understanding of his timeliness

exception claim comes from Langerston's attached memorandum of law and his

3 I

argument in support of his ineffectiveness of counsel claim where he explains

that the undersigned, as the sentencing judge, intended to only sentence him to

the standard range sentence but that the Commonwealth submitted an

erroneous Sentencing Guideline form which caused this Court to sentence him

to the statutory maximum and not the standard range. See. PCRA petition

12/9/15, attached Memorandum of Law, p. 1. On November 19, 2015, this Court issued a pre-dismissal notice,

notifying Langerston of this Court's intention to dismiss his current PCRA

petition because it was untimely and no timeliness exceptions to applied and of

his right to respond to the notice. On December 9, 2015, Langerston did file a

response. He asserted in his response that the Sentencing Guideline form was

not a matter of record prior to his September 16, 2015, request, and that this

Court improperly determined that the newly discovered evidence exception did

not apply. No further explanation was provided. On December 15, 2015, this

Court issued a final dismissal order, dismissing Langerston's untimely sixth

PCRA petition. Langerston filed a timely appeal. This 1925(a) Opinion follows.

ISSUE I. Whether this Court properly dismissed Langerston's fifth PCRA petition as untimely. when he failed to prove that the timeliness exception at Section 9545(b)(l)(ii), 42 Pa.CS.A. applied. DISCUSSION

I. This Court properly dismissed langerston's second PCRA petition as untimely, when he failed to prove that the timeliness exception at Section 9545(b)(l)(ii), 42 Pa.CS.A. applied.

4 Our appellate court, when reviewing the propriety of an order

dismissing a PCRA petition on timeliness grounds, determines whether the

decision of the trial court is supported by the evidence of record and is free of

legal error. Commonwealth v. Williamson, 21 A.3d 236, 240 (Pa.Super. 2011).

The trial court's findings with regard to the timeliness of a PCRA petition will

not be disturbed unless there is no support for those findings in the certified

record. Id.

The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Robinson, 12 A.3d 477, 479 (Pa.Super. 2011). "Jurisdictional

time limits go to a court's right or competency to adjudicate a controversy." Id.

(quoting Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)). "If the

petition is determined to be untimely, and no exception has been pled and

proven, the petition must be dismissed without a hearing because Pennsylvania

courts are without jurisdiction to consider the merits of the

petition." Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa.Super. 2011)

(quoting Commonwealth v. Perrin, 947 A.2d 1284, 1285 (Pa.Super. 2008))

Any PCRA petition, including a second and subsequent one, must

be filed within one year of the date the judgment of sentence becomes final. 42

Pa.C.S.A. §9545(b)(l). A judgment of sentence becomes final at the conclusion

of direct review, or when the time for seeking such review expires. 42 Pa.C.S.A.

§9545(b)(3).

There are three statutory exceptions to the timeliness requirements

of the PCRA, which provide very limited circumstances to excuse the late filing

5 .,

of a petition. To invoke an exception, a petition must allege and the petitioner

must prove that (1) the failure to raise the claim earlier was due to the

interference of government officials; (2) the claim is predicated on facts that

were unknown to the petitioner and could not have been discovered with due

diligence or (3) the right asserted was recognized by the United States Supreme

Court or the Pennsylvania Supreme Court as a constitutional right after the

petitioner's case was decided and the right has been upheld to apply retroactively. 42 Pa.CS.A. §9545(b)(l)(i)-(iii). A petition alleging one of these

exceptions must be filed within sixty days of the date that the claim could have

been presented. 42 Pa.CS.A. §9545(b)(2). The 60-day rule requires a petitioner

to plead and prove that the information on which he relies could not have been

obtained earlier, despite the exercise of due diligence. Commonwealth v.

Marshall, 596 Pa. 587, 947 A.2d 714, 720 (2008). "As such, when a PCRA

petition is not filed within one year of the expiration of direct review, or not

eligible for one of the three limited exceptions, or entitled to one of the

exceptions, but not filed within 60 days of the date that the claim could have

been first brought, the trial court has no power to address the substantive

merits of a petitioner's PCRA claims." Commonwealth v. Robinson, 12 A.3d 477,

4 79 (Pa.Super. 2011) (quoting Commonwealth v. Gamboa-Taylor, 753 A.2d 780,

783 (Pa. 2000)). In this case, Langerston conceded that his current PCRApetition is

facially untimely. This is not at issue. Rather, at issue is whether the Sentencing

Guideline form can avail him of the newly-discovered facts exception.

6 ·1

The exception at Section 9545(b)(l)(ii) has been explained in

Commonwealth v. Brown, 111 A.3d 171 (Pa.Super. 2015) in detail as follows:

The timeliness exception set forth in Section 9545(b)(l)(ii) requires a petitioner to demonstrate he did not know the facts upon which he based his petition and could not have learned those facts earlier by the exercise of due diligence. Commonwealth v. Bennett, 593 Pa. 382, 395, 930 A.2d 1264, 1271 (2007). Due diligence demands that the petitioner take reasonable steps to protecthis own interests. Commonwealth v. Carr, 768 A.2d 1164, 1168 (Pa.Super.2001). A petitioner must explain why he could not have learned the new fact(s) earlier with the exercise of due diligence. Commonwealth v. Break.iron, 566 Pa. 323, 330-31, 781 A.2d 94, 98 (2001); Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.Super.2010). This rule is strictly enforced. Id. Additionally, the focus of this exception "is on the newly discovered facts, not on a newly discovered or newly willing source for previously known facts." Commonwealth v. Marshall, 596 Pa. 587, 596, 947 A.2d 714, 720 (2008) (emphasis in original).

The timeliness exception set forth at Section 9545(b)(l)(ii) has often mistakenly been referred to as the "after-discovered evidence" exception. Bennett, supra at 393, 930 A.2d at 1270. "This shorthand reference was a misnomer, since the plain language of subsection (b)(l)(ii) does not require the petitioner to allege and prove a claim of 'after-discovered evidence."' Id. Rather, as an initial jurisdictional threshold, Section 9545(b)(l)(ii) requires a petitioner to allege and prove that there were facts unknown to him and that he exercised due diligence in discovering those facts. See42 Pa.C.S.A. § 9545(b)(l)(ii); Bennett, supra. Once jurisdiction is established, a PCRA petitioner can present a substantive after-discovered- evidence claim. See42 Pa.C.S.A. § 9543(a)(2)(vi) (explaining that to be eligible for relief under PCRA, petitioner must plead and prove by preponderance of evidence that conviction or sentence resulted from, inter alia, unavailability at time of trial of exculpatory

7 ...

evidence that has subsequently become available and would have changed outcome of trial if it had been introduced). In other words, the "new facts" exception at::

[S]ubsection (b)(l)(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. If the petitioner alleges and proves these two components, then the PCRA court has jurisdiction over the claim under this subsection. Thus, the "new facts" exception at Section 9545(b)(l)(ii) does not require any merits analysis of an underlying after-discovered-evidence claim.' Id. at 395, 930 A.2d at 1271. Brown, 111 A.3d at 176-77 (emphasis in original).

Applying the law to the facts of this case, Langerston has not

established that the facts that he asserted as newly discovered, namely the

information contained in the Sentencing Guideline form, and he has not

established that these facts were unknown to him or that they could not have

been ascertained earlier by the exercise of due diligence. The crux of

Langerston's newly-discovered evidence exception argument is that he was

allegedly improperly sentenced and he did not know this until he uncovered the

Sentencing Guideline form. In support of this allegedly improper sentence

Langerston asserted that he was sentenced to "a sentence greater than the

lawful maximum for a standard range sentence." See, PCRA petition 11/12/15, p. II. However he bases this argument on events that occurred at his November

14, 2006, sentencing hearing at which Langerston was present. See, PCRA petition 11/12/15, attached memorandum of law, claim 1 p. 1. He was present

8 for the entire hearing, and supports his claim in part on the sentencing

transcripts and the following. He heard the Commonwealth request this Court

to "sentence the, defendant to the maximum possible punishment: 20 - 40 years

incarceration on the murder ... " (Sentencing 11/14/06 pp. 23 - 24). He also was

present when this Court in announcing his sentence stated, " ... and the

sentence I will impose will be in the standard range for third degree

, murder ... [o)n the crime of third-degree murder, he will undergo imprisonment

for not less than 20 nor more than 40 years." Id. at 27. Langerston does not

explain what information was newly discovered from the Sentencing Guideline

form that he had not heard at the sentencing hearing itself. The Sentencing

Guideline form is nothing more than a new source of information that

Langerston heard first hand at his sentencing hearing.

Assuming that somehow Langerston was able to establish that the

Sentencing Guideline form provided facts that he was previously unaware of,

Langerston would not be able to establish due diligence in uncovering the

Sentencing Guideline form. In his petition and in his response, Langerston

baldly asserts due diligence, but does not account for any actions he has taken

before his September 16, 2015, Sentencing Guideline form request to retrieve

that form. Nor can he explain his inaction in failing to previously request the

Sentencing Guideline form. He simply provides no further explanation. Additionally, Langerston also stated in his response to the pre-

dismissal notice that the form wasn't a part of the record until the time he

requested it on September 16, 2015. However, he provides no evidence to

9 f ; ... ~

support that assertion, e.g., what previous attempts he made at securing the

Sentencing Guideline form to no avail or provide copies of previous docket

reports. In fact, a review of the docket belies his contention. The docket shows

that the Sentencing Guideline form was entered onto the docket on the day of

sentencing, November 14, 2006. Langerston does not explain why it took him

almost nine years to request the Sentencing Guideline form. Accordingly,

Langerston was unable to establish due diligence; therefore, he was unable to

avail himself o( the newly-discovered evidence timeliness exception.

CONCLUSION

Based on the forgoing analysis, the final order of dismissal dated

December 15, 2015, dismissing Langerston's untimely fifth PCRA petition

should be affirmed.

BY THE COURT:

WIL~~se~.· L COURT OF COMMON PLEAS MONTGOMERY COUNTY PENNSYLVANIA 38rn JUDICIAL DISTRICT Copies sent onFebruary 16, 2016 By Interoffice Mail to: Court Administration

By First Class Mail to: Darryl Langerston #GW2381 SCI Greene 1 75 Progress Drive Wayneburg, PA 15370