Com. v. Raye, B.

• Court: Superior Court of Pennsylvania
• Decided: July 2, 2018
• Docket: 1558 MDA 2017
• Status: Unpublished

Opinion

J-A15025-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRANDON J. RAYE : : Appellant : No. 1558 MDA 2017

Appeal from the PCRA Order September 21, 2017 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0001583-2007

BEFORE: PANELLA, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.: FILED JULY 02, 2018

Brandon J. Raye (Appellant) appeals pro se from the order dismissing

his petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§

9541-9546 (PCRA). Upon review, we affirm.

On July 11, 2007, Appellant entered an open guilty plea to two counts

of possession with intent to deliver.1 The trial court sentenced him on July

25, 2007 to a term of five to ten years in prison. On December 15, 2016,

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

(PCRA counsel), who, after reviewing the record, determined that the issues

raised by Appellant were untimely and without merit. PCRA counsel filed a

petition to withdraw as counsel pursuant to Commonwealth v. Turner, 544

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1 35 P.S. § 780-113(a)(30). J-A15025-18

A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. 1998), which the PCRA court granted.

On August 3, 2017, the PCRA court issued notice of its intention to

dismiss Appellant’s petition pursuant to Pa.R.Crim.P. 907. Appellant failed to

respond and on September 21, 2017, the PCRA court dismissed Appellant’s

petition as untimely. Appellant filed a timely pro se notice of appeal and

complied with the PCRA court’s order directing compliance with Pa.R.A.P.

1925. Thereafter, the PCRA court notified this Court of its intention to rely

upon its August 3, 2017 notice dismissing Appellant’s PCRA petition as support

for its decision on appeal.

Appellant raises the following issues for our review:

1. Is trial counsel deemed constitutional (state and federal), ineffective for failing to make sure that a bona fide sentencing order signed by a Judge was included/made part of the record for the purpose of triggering the appeal process?

2. Does absence of an appealable order in the official record make/render all appeals submitted thereafter moot and/or void ab initio because they are fruit from a “poisonous tree[?]”

3. Is [Appellant’s] confinement to a State Correctional Institution without a lawful, bona fide sentencing order signed by a Judge unlawful confinement?

4. Should [Appellant] be remanded back to Dauphin County Prison until/in light of a ‘remedy’ under Pa. Constitution Article 1, section 11?

Appellant’s Brief at i (suggested answers omitted).

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

record supports the PCRA court’s findings of fact, and whether the PCRA

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

__ A.3d __, 2018 WL 2041425, *2 (Pa. Super. 2018) (en banc) (citing

Commonwealth v. Holt, 175 A.3d 1014, 1017 (Pa. Super. 2017)). A PCRA

petitioner must establish the claim by a preponderance of the evidence.

Commonwealth v. Gibson, 925 A.2d 167, 169 (Pa. 2007).

Before reaching the merits of a petitioner’s claim, section 9545 of the

PCRA requires that “[a]ny petition under this subchapter, including a second

or subsequent petition, shall be filed within one year of the date the judgment

becomes final.” 42 Pa.C.S.A. § 9545(b)(1). 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.” 42 Pa.C.S.A. § 9545(b)(3).

This Court has held that the timeliness requirement of the PCRA is

“mandatory and jurisdictional in nature.” Commonwealth v. McKeever,

947 A.2d 782, 784-785 (Pa. Super. 2008) (citing Commonwealth v. Davis,

916 A.2d 1206, 1208 (Pa. Super. 2007)). Therefore, “no court may properly

disregard or alter them in order to reach the merits of the claims raised in a

PCRA petition that is filed in an untimely manner.” Id. at 785.

Although the timeliness requirement is mandatory and jurisdictional, “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 set forth

at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is met.” Commonwealth v.

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Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). The three 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.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). The petition invoking an exception “shall

be filed within 60 days of the date the claim could have been presented.”

Robinson, 2018 WL 2041425, *3 (quoting 42 Pa.C.S.A. § 9545(b)(2)).

In this case, the trial court sentenced Appellant on July 25, 2007.

Appellant did not file a direct appeal, and thus, his judgment of sentence

became final 30 days later, on August 24, 2007. See Pa.R.A.P. 903(a).

Appellant did not file the instant PCRA petition until December 15, 2016.

Because he did not file the petition within one year of the date the judgment

became final, we conclude that Appellant’s petition is facially untimely.

From what we are able to glean from his brief, Appellant’s first claim

alleges that counsel was ineffective. However, Appellant does not allege the

applicability of any exception to the PCRA’s time-bar. See Appellant’s Brief at

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1-7. Because Appellant does not allege any exception to the time-bar, we

conclude that he has failed to meet his burden under the PCRA. Hernandez,

79 A.3d at 651; see also Commonwealth v. Carr, 768 A.2d 1164, 1167

(Pa. Super. 2001) (holding that “claim[s] that counsel was ineffective will not

save an untimely PCRA petition”).

Appellant’s second, third and fourth issues are related and, thus, we

address them together. Appellant argues that he is entitled to a hearing on

his petition because jurisdictional defects in the procedures employed in the

underlying proceedings rendered his judgment of sentence “moot and/or void

ab initio.” Appellant’s Brief at i. Specifically, he asserts that the clerk of courts

erred by failing to formally enter an order detailing his judgment of sentence.

Id. at 1. This claim also fails due to Appellant’s failure to plead and prove an

exception to the PCRA’s time bar. See Commonwealth v. Dickerson, 900

A.2d 407, 412 (Pa. Super. 2006) (holding that a jurisdictional defect “does

not overcome the PCRA’s one year jurisdiction time-bar as it does not fall

within one of the statutory exceptions”). Further, our review of the certified

record confirms that an order imposing the judgment of sentence was entered

on July 25, 2007.

In sum, we lack jurisdiction to address the merits of Appellant’s claims.

We therefore affirm the PCRA court’s dismissal of Appellant’s PCRA petition as

untimely.

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/2/18

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