Com. v. Leisure, J. II

• Court: Superior Court of Pennsylvania
• Decided: June 10, 2022
• Docket: 9 MDA 2022
• Status: Unpublished

Opinion

J-A10015-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JUNIUS P. LEISURE, II : : Appellant : No. 9 MDA 2022

Appeal from the PCRA Order Entered December 13, 2021 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0006046-2015

BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.

MEMORANDUM BY PANELLA, P.J.: FILED: JUNE 10, 2022

Junius P. Leisure, II, appeals, pro se, from the order denying his petition

for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§ 9541-9546. We conclude Leisure’s PCRA petition is patently untimely, and

he failed to plead and prove an exception to the PCRA’s timeliness

requirement. We affirm.

On June 23, 2016, Leisure entered an Alford plea1 to two counts of

indecent assault – person less than 13 years of age and one count each of

corruption of minors and unlawful contact with a minor. Leisure waived his

right to delay sentencing until after the conclusion of his sexually violent

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1 See North Carolina v. Alford, 400 U.S. 25 (1970). “[A] person entering an Alford plea claims innocence, but consents to the imposition of a prison sentence.” Commonwealth v. Pasture, 107 A.3d 21, 23 n.1 (Pa. 2014). J-A10015-22

predator (“SVP”) assessment by the Sexual Offender Assessment Board, and

on the same date, the trial court sentenced Leisure to an aggregate term of 3

to 10 years in prison pursuant to the Alford plea agreement. The trial court

also imposed $1,000.00 in restitution and directed Leisure to pay the costs of

prosecution. Leisure did not file a direct appeal.

In the years that followed, Leisure filed numerous motions seeking

termination of deductions from his inmate account (often referred to as Act

84 deductions),2 and litigated the issue in the Pennsylvania Commonwealth

Court.

On February 6, 2020, Leisure filed a pro se PCRA petition. However,

“[u]nder the mistaken belief Leisure had related matters pending in the

Pennsylvania state appellate courts, the Clerk of Courts’ office did not forward

the February PCRA to the [PCRA court] ….” PCRA Court Opinion, 12/13/21, at

3-4. On October 26, 2020, Leisure filed an amended PCRA petition.

The PCRA court addressed the February and October filings in separate

orders issued on November 16, 2020. The PCRA court determined that the

February petition was properly considered another Act 84 motion, which the

court lacked subject matter jurisdiction to address. The PCRA court found that

the October petition was, in fact, filed pursuant to the PCRA and appointed

Leisure counsel. PCRA counsel did not file an amended PCRA petition on

2 See 42 Pa.C.S.A. § 9728.

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Leisure’s behalf and instead filed a motion to withdraw from representation,

along with a Turner/Finley3 “no-merit” letter. Leisure filed a pro se response.

On February 23, 2021, the PCRA court issued notice of its intent to

dismiss Leisure’s PCRA petition without a hearing pursuant to Pa.R.Crim.P.

907. In response, Leisure filed a pro se amended PCRA petition and a pro se

“supplemental pleading.” On December 13, 2021, the trial court entered an

opinion and order granting counsel leave to withdraw and denying Leisure’s

PCRA petition as untimely filed. This timely appeal followed.

Prior to reaching the merits of Leisure’s claims, we must consider the

timeliness of his PCRA petition. See Commonwealth v. Miller, 102 A.3d 988,

992 (Pa. Super. 2014).

Because the time limitations established by the PCRA are jurisdictional in nature, a court lacks jurisdiction to address the claims raised in an untimely petition. The PCRA provides that a petition for relief must be filed within one year of the date the final judgment is entered. A judgment becomes final for purposes of the PCRA at the conclusion of direct review or after the time provided for seeking direct review has lapsed, if no direct review has been taken.

Commonwealth v. Liebensperger, 904 A.2d 40, 45 (Pa. Super. 2006)

(internal citations omitted).

3 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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Here, Leisure’s judgment of sentence became final on July 25, 2016,

when the time for filing a direct appeal with this Court had expired.4 See

Pa.R.A.P. 903(a). Therefore, Leisure had until July 25, 2017 to file a timely

PCRA petition. Because Leisure did not file the instant PCRA petition until

October 26, 2020, the instant petition is patently untimely. 5 Accordingly, the

PCRA court lacked jurisdiction to review Leisure’s petition unless he was able

to plead and prove one of the statutory exceptions to the PCRA’s time-bar:

(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.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petitioner asserting one of these

exceptions must file a petition within one year of the date the claim first could

have been presented. See 42 Pa.C.S.A. § 9545(b)(2). “The PCRA squarely

4The thirtieth day following the entry of Leisure’s judgment of sentence was Saturday, July 23, 2016. See 1 Pa.C.S.A. § 1908 (providing that if the last day of a statutory time period falls on a weekend or legal holiday, that day shall be omitted from the computation of time).

5 We note that even if the February 6, 2020 petition was deemed a proper PCRA petition, rather than an Act 84 motion, the filing would still be untimely for PCRA purposes.

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places upon the petitioner the burden of proving an untimely petition fits

within one of the three exceptions.” Commonwealth v. Jones, 54 A.3d 14,

17 (Pa. 2012).

Leisure cites to Commonwealth v. Harris and urges us to find his

judgment of sentence became final after the October 12, 2016 SVP hearing.

See Appellant’s Brief at 3-4 (citing 972 A.2d 1196, 1202 (Pa. Super. 2009)).

However, even from this date, Leisure’s PCRA petition would be patently

untimely.6

In a separate claim, Leisure contends the trial court erred by denying

his motion for transcripts of the SVP hearing, which he claims were necessary

to pursue a timely PCRA petition. See Appellant’s Brief at 7-8. From the

record, it appears this claim refers to the petition for transcripts Leisure filed

on September 21, 2017.

The trial court denied Leisure’s petition for transcripts because there

was no action pending at that time, and we conclude the trial court did not err

in its disposition of the petition. See Trial Court Order, 9/26/17;

Commonwealth v. Crider, 735 A.2d 730, 733 (Pa. Super. 1999) (“a court is

6 Harris involved a substantially different procedural history. In Harris, this Court affirmed the appellant’s judgment of sentence on direct appeal; later, the Pennsylvania Supreme Court “reversed the trial court’s order insofar as it found specified provisions of Megan’s Law unconstitutional[.]” 972 A.2d at 1199. On PCRA review, this Court concluded that for timeliness purposes under the PCRA, “judgment” was not limited to the imposition of sentence and included the Supreme Court’s decision. See id. at 1202.

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not required to comply with a defendant’s request for transcripts in order to

pursue relief in a PCRA proceeding where no such action is pending.”). Further,

the September 21, 2017 petition for transcripts was filed after the deadline

for filing a timely PCRA petition in this case and therefore could not aid Leisure

in pursuing a timely petition.7

Next, Leisure argues his trial counsel was ineffective and abandoned him

following the SVP hearing. See Appellant’s Brief at 5-6. Leisure cites the

newly-discovered evidence and newly-recognized constitutional right

exceptions set forth at 42 Pa.C.S.A. § 9545(b)(1)(ii) and (iii). However, his

argument on this issue ends there. Leisure fails to identify any “facts” that

were unknown to him at the time or to explain why he could not ascertain

counsel’s alleged deficiencies through the exercise of due diligence. See

Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017) (stating that the

newly-discovered fact exception “requires the petitioner to allege and prove

that there were facts that were unknown to him and that he could not have

ascertained those facts by the exercise of due diligence.”) (citation and

quotation marks omitted); see also PCRA Court Opinion, 12/13/21, at 9-10

7 We also note that the certified record before us includes the transcript of the SVP hearing. Nevertheless, as stated above, the date of the SVP hearing does not affect the timeliness of Leisure’s PCRA petition. Leisure additionally attempts to raise the governmental interference exception at 42 Pa.C.S.A. § 9545(b)(1)(ii), by again asserting the trial court erred by denying his motion for transcripts. See Appellant’s Brief at 9-10. For the reasons previously stated, this claim also fails.

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(“Any facts underlying an ineffective assistance of counsel claim based on the

alleged failure of trial counsel to file an appeal or to discuss appellate rights

with Leisure would have been immediately known to Leisure, or at the very

least would have been apparent within one year from the date the judgment

of sentence was finalized.”). Nor does Leisure identify a particular

constitutional right that has been held to apply retroactively. “Further, it is

well-settled that couching a petitioner’s claims in terms of ineffectiveness will

not save an otherwise untimely filed petition from the application of the time

restrictions of the PCRA.” Commonwealth v. Robinson, 139 A.3d 178, 186

(Pa. 2016). Accordingly, this claim fails.

Finally, Leisure claims his PCRA counsel was ineffective for failing to

present claims on his behalf. See Appellant’s Brief at 10-11. He argues he

should be appointed new counsel to file a second PCRA petition challenging

counsel’s effectiveness. See id.

In support of his claim, Leisure cites our Supreme Court’s recent

decision in Commonwealth v. Bradley, issued during these PCRA

proceedings. In Bradley, the Court held “a PCRA petitioner may, after a PCRA

court denies relief and after obtaining new counsel or acting pro se, raise

claims of PCRA counsel’s ineffectiveness at the first opportunity to do so, even

if on appeal.” 261 A.3d 381, 401 (Pa. 2021) (footnote omitted). However,

Bradley, unlike the instant case, involved a timely first PCRA petition.

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We also recognize the Bradley Court’s conclusion that an

ineffectiveness claim raised for the first time on appeal may require an

appellate court to remand for development of the record. See id. at 402.

However, the Court clarified, “to advance a request for remand, a petition

would be required to provide more than mere boilerplate assertions of PCRA

counsel’s ineffectiveness.” Id. (citation and quotation marks omitted).

Instantly, Leisure provides only the bare allegation that PCRA counsel failed

to present meritorious claims. Leisure has failed to identify any material facts

at issue concerning the effectiveness of his PCRA counsel’s representation;

therefore, his final claim entitles him to no relief.

Accordingly, as Leisure has failed to plead and prove an exception to the

PCRA’s time-bar, we affirm the PCRA court’s order denying his untimely

petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 06/10/2022

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