Com. v. Reed, L.

• Court: Superior Court of Pennsylvania
• Decided: March 6, 2018
• Docket: 682 EDA 2017
• Status: Unpublished

Opinion

J-S79009-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

v.

LEROY REED

Appellant No. 682 EDA 2017

Appeal from the PCRA Order January 18, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-1130761-1988

BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.: FILED MARCH 06, 2018

Appellant, Leroy Reed, appeals pro se from the January 18, 2017 order

entered in the Court of Common Pleas of Philadelphia County (“PCRA court”)

dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-46, as untimely. Upon review, we affirm.

The instant PCRA petition filed by Appellant is his third PCRA petition.

This Court affirmed the denial of Appellant’s first PCRA petition on September

16, 1998, and our Supreme Court denied allocator on January 25, 1999. See

Commonwealth v. Reed, 735 A.2d 1269 (Pa. 1999); Commonwealth v.

Reed, 726 A.2d 1082 (Pa. Super. 1998). On November 8, 2010, this Court

affirmed the dismissal of Appellant’s second PCRA petition as untimely. See

Commonwealth v. Reed, 3553 EDA 2009 (Pa. Super. November 8, 2010) J-S79009-17

(unpublished memorandum). Appellant filed the instant PCRA petition, his

third, on August 7, 2012, raising a claim based upon Miller v. Alabama, 567

U.S. 460 (2012).1

On February 7, 2014, Appellant filed a supplemental petition challenging

his arrest and the lack of sentencing order. The PCRA court issued a

Pa.R.Crim. P. 907 notice on November 28, 2016. Appellant failed to respond

to this notice and the PCRA court dismissed Appellant’s petition on January

18, 2017. Appellant filed a timely notice of appeal on February 14, 2017. The

PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) statement.

Nevertheless, the PCRA court issued a Pa.R.A.P. 1925(a) opinion on March 10,

2016.

Appellant raises two issues on appeal, which we repeat verbatim.

[I.] Did the [PCRA court] err in it’s factual findings and conclusions of law when it rejected Appellant’s petition when he clearly met one of the exceptions to the time-bar under Pennsylvania Statute 42 Pa.C.S.A. § 9545(B)(1)(ii), which is the new/after discovered evidence exception?

[II.] Did the [PCRA court] err in it’s factual findings and conclusion of law when it ruled on an issue that sounds in habeas corpus relief instead of in a [PCRA] setting, when Appellant was challenging not his sentence but his confinement when raising the claim of a sentencing order?

Appellant’s Brief at iii (sic).

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1 Appellant does not address the Miller issue in his brief; therefore, the claim is waived. See Pa.R.A.P. 2119; see also Commonwealth v. Cole, 167 A.3d 49, 73 (Pa. Super. 2017) (“Appellant’s failure to adequately develop his argument results in waiver of this issue) (additional citations omitted).

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All PCRA petitions, “including a second or subsequent petition, shall be

filed within one year of the date the judgment becomes final” unless an

exception to timeliness applies. 42 Pa.C.S.A. § 9545(b)(1). These

“restrictions are jurisdictional in nature. Thus, [i]f a PCRA petition is untimely,

neither this Court nor the [PCRA] court has jurisdiction over the petition.

Without jurisdiction, we simply do not have the legal authority to address the

substantive claims.” Commonwealth v. Chester, 895 A.2d 520, 522 (Pa.

2006) (first alteration in original) (internal citations and quotation marks

omitted). Further, “an appellate court reviews the PCRA court’s findings of

fact to determine whether they are supported by the record, and reviews its

conclusions of law to determine whether they are free from legal error.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (quoting

Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa. 2010)).

There are only three exceptions to the timeliness requirement of the

PCRA. These exceptions 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).

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In his brief, Appellant claims that the newly discovered fact exception,

42 Pa.C.S.A. § 9545(b)(1)(ii), applies to his third PCRA petition. Appellant

alleges that he did not discover until July 20, 2012, after receiving a letter

following a Right-to-Know records request for his sentencing order, that the

Right-to-Know office could not locate his sentencing order or affidavit of

probable cause. Therefore, Appellant claims that he is being unlawfully

imprisoned. In order for the newly discovered fact exception to apply, the

information must not have been obtainable through due diligence. “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.”

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015) (internal

citations omitted). Appellant argues that he exercised due diligence; however,

the record belies that assertion because Appellant was sentenced on January

30, 1990. Appellant’s petition and brief fail to discuss the 22-year period

wherein he failed to obtain this information. Therefore, the PCRA court

properly found that Appellant failed to exercise due diligence and the PCRA

court was without jurisdiction to hear Appellant’s petition.

Next, Appellant asserts that the PCRA court erred because it ruled on an

issue sounding in habeas corpus rather than under the PCRA. Appellant’s

claim fails, as the PCRA is “the sole mean of obtaining collateral relief and

encompasses all other common law and statutory remedies for the same

purpose that exist when this subchapter takes effect, including habeas

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corpus and coram nobis.” 42 Pa.C.S.A. § 9542 (emphasis added). Therefore,

Appellant’s claim fails.

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date:3/6/18

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