Com. v. McKeiver, S.

Opinion

J-S62038-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

SHANNON MCKEIVER

Appellant No. 64 EDA 2014

Appeal from the PCRA Order December 10, 2013 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0002863-2008

BEFORE: ALLEN, J., OLSON, J., and OTT, J.

MEMORANDUM BY OTT, J.: FILED MARCH 10, 2015

Shannon McKeiver appeals, pro se, from the order entered December

10, 2013, in the Montgomery County Court of Common Pleas, dismissing his

second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. § 9541 et seq. McKeiver seeks relief from the judgment of sentence

of an aggregate 25 to 50 years’ imprisonment imposed on June 16, 2009,

following his jury conviction of 39 crimes resulting from his participation in a

drug-selling operation. On appeal, he argues (1) prior PCRA counsel

abandoned him by failing to appeal the denial of his first PCRA petition to the

Pennsylvania Supreme Court; and (2) his sentence is illegal pursuant to the

United States Supreme Court’s decision in Alleyne v. United States, 133

S.Ct. 2151 (U.S. 2013). For the reasons set forth below, we affirm. J-S62038-14

“McKeiver’s convictions ar[o]se out of his orchestration of a conspiracy

with co-defendant Kevin Jordan to distribute cocaine to lower level dealers

between January and April 2007, and to rob and/or kidnap another alleged

drug dealer to obtain both money and drugs to supply his own operation.”

Commonwealth v. McKeiver, 22 A.3d 1077 (Pa. Super. 2010)

(unpublished memorandum at 2). On March 26, 2009, a jury found

McKeiver guilty of numerous charges, including possession with intent to

deliver controlled substances (PWID), corrupt organizations, criminal

conspiracy, and criminal solicitation.1 On June 16, 2009, the court

sentenced McKeiver to an aggregate term of 25 to 50 years’ imprisonment.

His judgment of sentence was affirmed by a panel of this Court on direct

appeal on November 23, 2010. Id. McKeiver did not petition the

Pennsylvania Supreme Court for allowance of appeal.

Thereafter, on February 7, 2011, McKeiver filed a pro se PCRA petition.

Counsel was appointed and filed an amended petition on January 31, 2012.

The PCRA court denied the petition on May 25, 2012, and this Court affirmed

the order on appeal. Commonwealth v. McKeiver, 68 A.3d 367 (Pa.

Super. 2013) (unpublished memorandum). Again, McKeiver did not seek

review in the Pennsylvania Supreme Court.

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1 35 P.S. § 780-113(a)(30), and 18 Pa.C.S. §§ 911, 903, and 902, respectively. In total, McKeiver was convicted of 39 charges.

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On August 6, 2013, McKeiver filed the instant pro se PCRA petition, his

second. On September 26, 2013, the PCRA court sent McKeiver notice,

pursuant to Pa.R.Crim.P. 907, of its intent to dismiss the petition without

first conducting an evidentiary hearing. McKeiver filed a timely response on

October 10, 2013. However, two months later, the PCRA court dismissed

McKeiver’s petition as untimely. This appeal followed.2

In his first issue, McKeiver challenges the PCRA court’s determination

that his petition was untimely. Specifically, McKeiver contends PCRA counsel

abandoned him by failing to file a requested petition for allowance of appeal

with the Pennsylvania Supreme Court.

When reviewing an order dismissing a PCRA petition, we must

determine whether the ruling of the PCRA court is supported by record

evidence and is free of legal error. Commonwealth v. Burkett, 5 A.3d

1260, 1267 (Pa. Super. 2010). “Great deference is granted to the findings

of the PCRA court, and these findings will not be disturbed unless they have

no support in the certified record.” Commonwealth v. Carter, 21 A.3d

680, 682 (Pa. Super. 2011) (citation omitted).

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2 On January 2, 2014, the PCRA court ordered McKeiver to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). McKeiver complied with the court’s directive, and filed a concise statement on January 17, 2014.

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In the present case, the PCRA court determined that McKeiver’s

petition was untimely. The PCRA mandates that any request for relief,

“including a second or subsequent petition, shall be filed within one year of

the date the judgment becomes final[.]” 42 Pa.C.S. §9545(b)(1).

The 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. The timeliness requirements apply to all PCRA petitions, regardless of the nature of the individual claims raised therein.

Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012) (internal citations

omitted and emphasis supplied).

McKeiver’s judgment of sentence became final on December 23, 2010,

30 days after this Court affirmed the conviction on direct appeal, and

McKeiver failed to petition the Pennsylvania Supreme Court for review. See

42 Pa.C.S. § 9545(b)(3). Accordingly, McKeiver had until December 23,

2011, to file a timely PCRA petition.3 The present petition, filed one and

one-half years later on August 13, 2013, is patently untimely.

However, pursuant to 42 Pa.C.S. § 9545, an otherwise untimely

petition is not time-barred if a petitioner pleads and proves that a time-for-

filing exception applies, such as the “newly discovered facts” exception set

forth in Subsection (b)(1)(ii). This exception provides that an otherwise

untimely petition may be cognizable if “the petition alleges and the petitioner ____________________________________________

3 We note McKeiver did file a timely petition on February 7, 2011.

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proves that … 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[.]” 42 Pa.C.S. § 9545(b)(1)(ii). Further, any petition invoking one

of the timeliness exceptions must be filed “within 60 days of the date the

claim could have been presented.” Id. at § 9545(b)(2).

McKeiver contends his petition was timely filed pursuant to the “newly

discovered facts” exception. In his brief before this Court, McKeiver asserts

PCRA counsel abandoned him by failing to file, as he requested, a petition

for allowance of appeal with the Pennsylvania Supreme Court. See

McKeiver’s Brief at 8. Further, McKeiver contends PCRA counsel never

informed him that the Superior Court had affirmed the denial of PCRA relief

on appeal, and that he did not learn of this Court’s decision until he

requested and received a docket sheet from the Montgomery County Clerk

of Court on July 20, 2014. Id. He claims he “did not have any other means

of finding out, what or when his appeal was denied, since counsel failed to

keep him properly advised,” and after learning the order was affirmed, he

“wrote to counsel and requested that he file[] his Allowance of Appeal.” Id.

at 10. Accordingly, McKeiver asserts his petition filed on August 6, 2013,

less than 60 days after he learned of this Court’s decision, was timely. Id.

These facts alleged in McKeiver’s brief, however, are much more

detailed than those he averred in his PCRA petition and response to the

PCRA court’s Rule 907 notice. Indeed, in his petition, McKeiver summarized

the basis for his claim as follows:

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I am asserting that I requested [] my counsel file my appeal to the Supreme Court but he abandoned me and did not file my appeal due to his feeling that it would be pointless. Counsel did not inform me of the denial of the Superior Court until the 30 days elapsed.

Motion for Post Conviction Collateral Relief, 8/6/2013 (“PCRA Petition”), at 3.

He further asserted: “[t]he Court informed me that my appeal was denied

when I asked for a current docket sheet after speaking to a law clinic clerk.”

Id. Importantly, McKeiver did not indicate which appeal he wanted to

pursue in the Supreme Court, his direct appeal or his first PCRA appeal.

Moreover, he did not indicate when or under what circumstances he had

informed counsel of his desire to file an appeal to the Supreme Court, nor

did he indicate when he first learned of counsel’s failure to do so. Indeed, in

his petition, McKeiver did not even specifically acknowledge that his request

for relief was untimely.

In his response to the PCRA court’s Rule 907 notice, McKeiver, for the

first time, asserted that his petition was timely filed pursuant to the “newly

discovered” facts exception in Section 9545(b)(1)(ii). However, McKeiver,

once again, failed to allege sufficient facts to assert a cognizable claim.

Indeed, he averred (1) he “was abandoned by counsel during the appeal to

the Supreme Court, after he requested counsel to file the Allowance of

Appeal in his behalf[;]” (2) he “did not know [] the situation concerning []

counsel’s abandonment until he received a current docket sheet reflecting

counsel’s failure to file his appeal to the Supreme Court[;]” and (3) he “did

in fact through diligent efforts attempt to avail himself of the opportunities of

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the PCRA … and filed his ‘second’ PCRA petition within the 60 days that he

discovered the abandonment.” Reply to Notice of Intent to Dismiss PCRA

Motion Without a Hearing Pursuant to Pa.R.Crim.P. 907, 10/10//2013, at ¶¶

2-4. Significantly, McKeiver, once again, did not state when he informed

counsel of his desire to appeal to the Supreme Court, nor did he specify

when he first learned of counsel’s abandonment in order to establish that his

petition was filed within the requisite 60-day period pursuant to Section

9545(b)(2). It is incumbent upon a petitioner to plead and prove the

applicability of one of the time for filing exceptions. See Commonwealth

v. Marshall, 947 A.2d 714, 719 (Pa. 2008).

Here, the PCRA court found the following: (1) McKeiver failed to

“explain the circumstances of his discussion with counsel or when this

occurred[;]” (2) he failed to specify “whether he spoke to his counsel before

or after he asked the Clerk of Court for an updated docket sheet, making it

difficult to ascertain whether [McKeiver] filed the instant PCRA Petition within

60 days of learning of his right to appeal[;]” and (3) he failed “to provide a

description of the steps he took in order to ascertain the status of his case

before July[.]” PCRA Court Opinion, 3/25/2014, at 6-7. Because we find the

PCRA court’s conclusions are supported by the record, we find no basis to

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disturb its determination that McKeiver’s PCRA petition was untimely filed.4

Carter, supra.

In his second claim, McKeiver contends that his sentence is illegal

pursuant to the dictates of Alleyne, supra. However, “[t]hough not

technically waivable, a legality [of sentence] claim may nevertheless be lost

should it be raised ... in an untimely PCRA petition for which no time-bar

exception applies, thus depriving the court of jurisdiction over the claim.”

Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (citation

omitted). Because we have determined that McKeiver’s PCRA petition was

untimely filed, and that McKeiver failed to sufficiently plead one of the

exceptions to the timeliness requirements, we may not address his challenge

to the legality of his sentence.5

Therefore, because we agree with the determination of the PCRA court

that McKeiver’s petition was untimely filed, and McKeiver failed to sufficiently

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4 We note that McKeiver does not raise the claim that PCRA counsel failed to consult with him regarding whether to file a petition for allowance of appeal to the Supreme Court. See Commonwealth v. Bath, 907 A.2d 619 (Pa. Super. 2006), appeal denied, 918 A.2d 741 (Pa. 2007). 5 Furthermore, we note that “neither our Supreme Court, nor the United States Supreme Court has held that Alleyne is to be applied retroactively to cases in which the judgment of sentence had become final.” Miller, supra, 102 A.3d at 995. Therefore, even if McKeiver had properly pled the “newly recognized constitutional right” exception to the time bar – which he did not - he would still be entitled to no relief. See 42 Pa.C.S. § 9545(b)(1)(iii).

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plead the applicability of one of the time-for-filing exceptions, we affirm the

order dismissing his second PCRA petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/10/2015

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