Com. v. Morton, G.

• Court: Superior Court of Pennsylvania
• Decided: January 6, 2023
• Docket: 614 WDA 2022
• Status: Unpublished

Opinion

J-S36021-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : GARY EDWARD MORTON, SR. : : Appellant : No. 614 WDA 2022

Appeal from the PCRA Order Entered May 3, 2022 In the Court of Common Pleas of Mercer County Criminal Division at No(s): CP-43-CR-0000855-2018

BEFORE: STABILE, J., KING, J., and COLINS, J.*

JUDGMENT ORDER BY KING, J.: FILED: January 6, 2023

Appellant, Gary Edward Morton, Sr., appeals pro se from the order

entered in the Mercer County Court of Common Pleas, denying as untimely

his second petition for relief filed under the Post Conviction Relief Act

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

The relevant facts and procedural history of this case are as follows. On

October 8, 2019, Appellant entered an Alford1 plea to one count of robbery.

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* Retired Senior Judge assigned to the Superior Court.

1 See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). “An Alford plea is a nolo contendere plea in which the defendant does not admit guilt but waives trial and voluntarily, knowingly and understandingly consents to the imposition of punishment by the trial court. Provided the record reflects a factual basis for guilt, the trial court may accept the plea notwithstanding the defendant’s protestation of innocence.” Commonwealth v. Snavely, 982 A.2d 1244, 1244 n.1 (Pa.Super. 2009) (internal citations omitted). J-S36021-22

The court sentenced Appellant on January 9, 2020, to 84 months to 18 years’

imprisonment. Appellant did not file a direct appeal. On August 4, 2020,

Appellant timely filed a pro se PCRA petition. The court appointed counsel,

who subsequently filed a motion to withdraw and no-merit letter. On

December 7, 2020, the court issued notice of its intent to dismiss the petition

per Pa.R.Crim.P. 907. On August 30, 2021, the court denied PCRA relief.

On April 26, 2022, Appellant filed the current pro se PCRA petition. The

court denied PCRA relief on May 3, 2022. Appellant timely filed a pro se notice

of appeal on May 20, 2022. The next day, the court ordered Appellant to file

a concise statement of errors, which Appellant filed on June 9, 2022.

Preliminarily, the timeliness of a PCRA petition is a jurisdictional

requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A

PCRA petition, including a second or subsequent petition, shall be filed within

one year of the date the underlying judgment of sentence becomes final. 42

Pa.C.S.A. § 9545(b)(1). A judgment of sentence is 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.A. § 9545(b)(3). The statutory

exceptions to the PCRA time-bar allow very limited circumstances to excuse

the late filing of a petition. 42 Pa.C.S.A. § 9545(b)(1).

Instantly, Appellant’s judgment of sentence became final on February

8, 2020, 30 days after the court imposed sentence and the deadline by which

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Appellant had to file a notice of appeal. See Pa.R.A.P. 903(a) (allowing 30

days to file notice of appeal); 42 Pa.C.S.A. § 9545(b)(3). Appellant did not

file the current pro se PCRA petition until April 26, 2022, which is facially

untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant claims prior PCRA

counsel was ineffective and attempts to invoke the “new constitutional right”

exception at Section 9545(b)(1)(iii), relying on our Supreme Court’s decision

in Commonwealth v. Bradley, ___ Pa. ___, 261 A.3d 381 (2021).

In Bradley, the Court held “that 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.” Bradley, supra at ___, 261 A.3d at 401. Nevertheless,

Bradley involved ineffectiveness claims that the petitioner raised on direct

appeal following the dismissal of a timely, first PCRA petition. The Bradley

Court noted “an approach favoring the consideration of ineffectiveness claims

of PCRA counsel on appeal (if the first opportunity to do so) does not sanction

extra-statutory serial petitions.” Id. at ___, 261 A.3d at 403.

Consequently, this Court has declined to extend the holding of Bradley

to cases involving untimely or serial petitions. See Commonwealth v.

Dixon, No. 1145 EDA 2022 (Pa.Super. filed Dec. 28, 2022) (unpublished

memorandum) (holding Bradley does not trigger timeliness exception at

Section 9545(b)(1)(iii)); Commonwealth v. Mead, No. 646 MDA 2021

(Pa.Super. filed Apr. 1, 2022) (unpublished memorandum), appeal denied,

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2022 WL 4139124 (Pa. Sep. 13, 2022) (emphasizing that Bradley involved a

timely first PCRA petition and did not apply to appellant’s appeal from order

denying his untimely petition).2 Thus, Appellant’s reliance on Bradley does

not afford relief. See Bradley, supra; Dixon, supra; Mead, supra.

Accordingly, we affirm the order dismissing Appellant’s current PCRA petition.3

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/6/2023

2 See Pa.R.A.P. 126(b) (stating this Court may cite to and rely on for persuasive value unpublished decisions of this Court filed after May 1, 2019).

3The court’s failure to issue Rule 907 notice prior to denying PCRA relief is not reversible error where the petition is untimely. See Zeigler, supra at 851 n.2.

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