Com. v. Minor, T.

• Court: Superior Court of Pennsylvania
• Decided: October 14, 2016
• Docket: 2555 EDA 2015
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

TAMARR MINOR,

Appellant No. 2555 EDA 2015

Appeal from the PCRA Order August 12, 2015 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0002675-2008

BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 14, 2016

Appellant, Tamarr Minor, appeals pro se from the order denying his

second petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

A prior panel of this Court summarized the history of this case as

follows:

On October 10, 2008, Appellant entered an open guilty plea to two counts of attempted homicide in connection with the April 23, 2008 shooting of Carmen Damiani, who was working in his capacity as a Pennsylvania State Constable, and Ted Hicks, who was working in his capacity as an apartment manager at the Parkview Court Apartments. Specifically, at Appellant’s guilty plea colloquy, the Commonwealth presented evidence that, on April 23, 2008, the two men attempted to evict Appellant from his apartment due to his failure to pay rent, and in response, ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

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Appellant shot the uniformed constable in the head and the apartment manager in the abdomen.

On December 23, 2008, Appellant proceeded to a sentencing hearing at which ADA Daniel McDevitt indicated Appellant’s crimes were graded as felonies of the first degree with a maximum sentence of up to 20 years and up to $50,000 in fines for each count. ADA McDevitt then submitted the sentencing guidelines and victim impact statements, while Appellant’s counsel submitted a doctor’s report and Appellant’s resume. The trial court indicated it was considering all of the documents submitted by ADA McDevitt and Appellant’s counsel, as well as the Commonwealth’s sentencing memorandum, Appellant’s psychological and drug/alcohol evaluations performed on October 31, 2008 by Empowered Youth, a pre- sentence investigation report, the complaint, and the affidavit. Additionally, at the sentencing hearing, the trial court heard testimony from Appellant’s mother, Appellant’s sister, Appellant’s aunt, Appellant’s brother, Appellant’s father, Constable Damiani’s wife, Constable Damiani, Mr. Hicks, and Appellant. Ultimately, the trial court sentenced Appellant to eight years to sixteen years in prison, to be followed by four years of probation, for the first count of attempted homicide, and a consecutive five years to ten years in prison, to be followed by ten years of probation, for the second count of attempted homicide.

On Tuesday, January 6, 2009, Appellant filed an untimely, counseled post-sentence motion seeking the reconsideration of his sentence. On January 16, 2009, the matter proceeded to an evidentiary hearing, and by order filed on January 21, 2009, the trial court denied the post-sentence motion. In the order, the trial court acknowledged that Appellant’s post-sentence motion was untimely filed.

Thereafter, Appellant did not file a notice of appeal to this Court; however, on November 22, 2010, Appellant filed a pro se document entitled “Application for Appeal Nunc Pro Tunc.” In his document, Appellant alleged that he asked counsel to file a timely direct appeal following the imposition of his sentence; however, counsel failed to do so. Treating the document as a PCRA petition, the PCRA court appointed counsel and held an evidentiary hearing on July 26, 2011. By order entered on August 25, 2011, the PCRA court purported to grant Appellant’s

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PCRA petition and reinstate his direct appeal rights nunc pro tunc. This counseled notice of appeal followed on September 22, 2011. On June 26, 2012, the PCRA court filed a Pa.R.A.P. 1925(a) opinion suggesting, inter alia, that it had erred in reinstating Appellant’s direct appeal rights nunc pro tunc since Appellant failed to file a timely PCRA petition.

Commonwealth v. Minor, 2593 EDA 2011, 64 A.3d 25 (Pa. Super. filed

December 18, 2012) (unpublished memorandum at 2-4) (internal citations

and footnotes omitted).

On appeal, this Court concluded that the petition Appellant filed

pursuant to the PCRA was untimely, and thus, the PCRA court was without

jurisdiction to grant nunc pro tunc relief. Minor, 2593 EDA 2011, 64 A.3d

25 (Pa. Super. 2012). As a result, we vacated the PCRA court’s August 25,

2011 order and quashed the appeal. Id. Appellant filed a petition for

allowance of appeal with our Supreme Court, which was denied on May 14,

2013. Commonwealth v. Minor, 34 MAL 2013, 67 A.3d 795 (Pa. May 14,

2013).

On May 14, 2014, Appellant, pro se, filed a subsequent PCRA petition.

Counsel was appointed but later petitioned to withdraw pursuant to

Turner/Finley.1 By order entered March 13, 2015, counsel was permitted

to withdraw, and the PCRA court issued its notice of intent to dismiss. By

order entered August 12, 2015, the PCRA court dismissed Appellant’s PCRA

____________________________________________

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

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petition. Appellant, pro se, timely appealed. Appellant and the trial court

complied with Pa.R.A.P. 1925.

On appeal, Appellant presents the following issues for our review:

I. Whether the Court committed an error of law when it dismissed Appellant’s PCRA Petition?

II. Whether PCRA Counsel was ineffective for failing to call Trial Counsel as a witness to question the erroneous advice he provided the Appellant in the context of plea bargaining in regards to the duration of the Appellant’s sentence?

III. Whether PCRA Counsel was ineffective for failing to amend PCRA petition to include victim statements, witness affidavits, and for failing to call said witnesses to court in the Appellant’s defense?

IV. Whether PCRA Counsel was ineffective for failing to raise ineffectiveness of Appeal Counsel for conflict of interest; ties to victims [sic] involved in case?

Appellant’s Brief at 4.

Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time

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requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition. Commonwealth v.

Cintora, 69 A.3d 759, 762 (Pa. Super. 2013). A judgment of sentence

“becomes 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 the review.” 42

Pa.C.S. § 9545(b)(3).

However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), is met.2 A petition invoking one of these exceptions must be filed

within sixty days of the date the claim could first have been presented. 42

2 The exceptions to the timeliness requirement are:

(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.

(Footnote Continued Next Page)

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Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.

Our review of the record reflects that Appellant was sentenced on

December 23, 2008. Appellant did not file a direct appeal. Accordingly,

Appellant’s judgment of sentence became final thirty days after the

imposition of sentence, when the time allowed for filing a direct appeal

expired. See 42 Pa.C.S. § 9545(b)(3) (providing that “a judgment becomes

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 the review.”); Pa.R.A.P. 903 (“the

notice of appeal . . . shall be filed within 30 days after the entry of the order

from which the appeal is taken.”). Thus, for purposes of section 9545,

Appellant’s judgment of sentence became final on January 22, 2009. See

Commonwealth v. Zuniga, 772 A.2d 1028, 1030 (Pa. Super. 2001) (the

appellant’s judgment of sentence became final thirty days after the

imposition of sentence). Therefore, Appellant had to file the current PCRA

petition by January 22, 2010, in order for it to be timely. Appellant did not

_______________________ (Footnote Continued)

42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).

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file the instant PCRA petition, his second, until May 14, 2014. Thus,

Appellant’s instant PCRA petition is patently untimely.

As previously stated, if a petitioner does not file a timely PCRA

petition, his petition may nevertheless be received under any of the three

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.

§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file

his petition within sixty days of the date that the exception could be

asserted. 42 Pa.C.S. § 9545(b)(2).

Appellant does not address the timeliness of his PCRA petition in his

brief, and accordingly, does not allege any exceptions to the time-bar. We

note that in his PCRA petition, Appellant asserts that he has “newly

discovered evidence,” explaining that: “I also went to the law library &

found out what my rights are & that they were violated & now I’m filing this

P.C.R.A.” Motion for Post Conviction Relief, 5/14/14, at 3. Generously

construing this representation, we characterize Appellant’s statement as an

attempt to assert the newly-discovered-facts exception to the PCRA time-bar

pursuant to section 9545(b)(1)(ii).

“The timeliness exception set forth in Section 9545(b)(1)(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.” Commnowealth v. Brown, 111 A.3d 171, 176 (Pa. Super.

2015).

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Due diligence demands that the petitioner take reasonable steps to protect his own interests. A petitioner must explain why he could not have learned the new fact(s) earlier with the exercise of due diligence. This rule is strictly enforced. 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.”

Id.

Appellant has failed to explain why he could not have learned of these

alleged new facts earlier with the exercise of due diligence. Additionally,

none of the facts have changed; instead, Appellant’s purported newly

discovered information resulted simply from a newly discovered source, the

law library. Moreover, Appellant has failed to establish that he raised this

exception within sixty days of his purported discovery. 42 Pa.C.S. §

9545(b)(2). Accordingly, Appellant has failed to establish the application of

the newly discovered facts exception to the PCRA time-bar in this case.

Consequently, because the instant PCRA petition was untimely and no

exceptions apply, the PCRA court lacked jurisdiction to address the claims

presented and grant relief.3 See Commonwealth v. Fairiror, 809 A.2d

396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to

hear untimely petition). Likewise, we lack the authority to address the

merits of any substantive claims raised in the PCRA petition. See

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007) ____________________________________________

3 The PCRA court did not address the timeliness of Appellant’s petition, but instead addressed the merits of the claims raised therein.

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(“[J]urisdictional time limits go to a court’s right or competency to adjudicate

a controversy.”).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/14/2016

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