Com. v. Richardson, K.

Opinion

J-S46009-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

KENDALL C. RICHARDSON,

Appellant No. 3073 EDA 2015

Appeal from the PCRA Order Entered September 21, 2015 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0000217-2008

BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 02, 2016

Appellant, Kendall C. Richardson, appeals pro se from the September

21, 2015 order denying, as untimely, his second petition filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful

review, we affirm.

The facts underlying Appellant’s convictions are unnecessary to our

disposition of his appeal. We briefly summarize the pertinent procedural

history, as follows. On June 1, 2009, following a multi-day jury trial,

Appellant was convicted of first-degree murder, attempted murder, robbery,

and recklessly endangering another person (REAP). On July 14, 2009, the

court sentenced Appellant to a term of life imprisonment, without the

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* Retired Senior Judge assigned to the Superior Court. J-S46009-16

possibility of parole, for first-degree murder. The court also imposed a

consecutive term of 10 to 20 years’ incarceration for attempted murder, a

concurrent term of 90 to 180 months’ incarceration for robbery, and a term

of 6 months’ to 2 years’ imprisonment for REAP, imposed to run

consecutively to Appellant’s robbery sentence. Appellant filed a timely

appeal from his judgment of sentence, and after this Court affirmed on April

18, 2011, our Supreme Court denied Appellant’s subsequent petition for

allowance of appeal on October 17, 2011. Commonwealth v. Richardson,

29 A.3d 835 (Pa. Super. 2011) (unpublished memorandum), appeal denied,

30 A.3d 488 (Pa. 2011). Thus, Appellant’s judgment of sentence became

final on January 15, 2012, at the expiration of the 90 day time-period for

seeking review with the United States Supreme Court. See 42 Pa.C.S. §

9545(b)(3) (stating that a judgment of sentence becomes final at the

conclusion of direct review or the expiration of the time for seeking the

review); Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super. 1998)

(directing that under the PCRA, petitioner’s judgment of sentence becomes

final ninety days after our Supreme Court rejects his or her petition for

allowance of appeal since petitioner had ninety additional days to seek

review with the United States Supreme Court).

Appellant filed a timely, pro se PCRA petition on March 22, 2012, and

counsel was appointed. After counsel filed an amended petition on

Appellant’s behalf, the PCRA court denied the petition on July 13, 2012.

Appellant filed a timely appeal with this Court, and we affirmed on

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September 26, 2014. Commonwealth v. Richardson, 107 A.3d 236 (Pa.

Super. 2014) (unpublished memorandum).

On August 21, 2015, Appellant filed a second, pro se PCRA petition,

which underlies the present appeal. On August 28, 2015, the PCRA court

issued a Pa.R.Crim.P. 907 notice of its intent to dismiss. Appellant filed a

pro se response, but on September 22, 2015, the court issued an order

denying his petition. Appellant filed a timely notice of appeal, and also

timely complied with the court’s order to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. The PCRA court subsequently

filed a Rule 1925(a) opinion.

Before reviewing the claims Appellant raises herein, we note that this

Court’s standard of review regarding an order denying a petition under the

PCRA is whether the determination of the PCRA court is supported by the

evidence of record and is free of legal error. Commonwealth v. Ragan,

923 A.2d 1169, 1170 (Pa. 2007).

Herein, Appellant presents three issues for our review, beginning with

a challenge to the PCRA court’s conclusion that his petition was untimely

filed. The PCRA time limitations implicate our jurisdiction and may not be

altered or disregarded in order to address the merits of a petition.

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

PCRA, any petition for post-conviction relief, including a second or

subsequent one, must be filed within one year of the date the judgment of

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sentence becomes final, unless one of the following exceptions set forth in

42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

(b) Time for filing petition.--

(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:

(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. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

Here, Appellant’s judgment of sentence became final on January 15,

2012, and thus, his current petition, filed on August 21, 2015, is patently

untimely under section 9545(b)(1). Consequently, for this Court to have

jurisdiction to review the merits of Appellant’s underlying claims, he must

prove that he meets one of the exceptions to the timeliness requirements

set forth in 42 Pa.C.S. § 9545(b).

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In this regard, Appellant avers that he meets the after-discovered fact

exception of section 9545(b)(1)(ii), based on his discovery of the written

policy of the Lehigh County Sheriff’s Office on requiring criminal defendants

to wear a “R-E-A-C-T Control System.” Appellant’s Brief at 9. According to

Appellant, the ‘R-E-A-C-T System’ is a “50,000 volt device” (referred to by

Appellant as a “stun-belt” or “shock-belt”) that was “strapped” underneath

his shirt on his “right side in the area of his kidney” throughout jury selection

and his trial. Id. 16, 24. Appellant claims that the written policy of the

Sheriff’s Office states that the ‘R-E-A-C-T System’ should be used when

transporting prisoners facing homicide charges. Id. at 10, 17. Appellant

states that because he was forced to wear the ‘shock-belt’ during jury

selection and trial, the policy was violated. He then presents a more

detailed argument regarding why his being forced to wear the ‘shock-belt’

violated his constitutional rights and caused him prejudice warranting a new

trial.

Initially, Appellant has not demonstrated that he exercised due

diligence in discovering the ‘R-E-A-C-T System’ policy of the Lehigh County

Sheriff’s Office. In this vein, Appellant states that he first attempted to

obtain a copy of the policy in December of 2014 by filing a request through

the Right to Know Act, 65 P.S. §§ 67.101 - 67.3104. Appellant’s Brief at 10.

According to Appellant, he did not receive a copy of the policy, nor any

response from the Sheriff’s Office. In June of 2015, he filed a second

request for “a copy of the redacted version of the policy.” Id. Appellant

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maintains that on June 24, 2015, he received the policy, and he filed his

petition within 60 days thereof, on August 21, 2015. Id. at 10.

Notably, Appellant does not explain what prompted him to begin his

attempts to obtain a copy of the ‘R-E-A-C-T System’ policy in December of

2014, or discuss why he could not have done so earlier. This utter lack of

explanation fails to meet Appellant’s burden of proving that he exercised due

diligence in discovering the purported violation of the ‘R-E-A-C-T System’

policy, on which his after-discovered-fact claim is based.

In any event, Appellant’s underlying arguments - that the wearing the

‘shock-belt’ during trial violated his constitutional rights and caused him

significant prejudice - are not necessarily premised on the violation of the

‘R-E-A-C-T System’ policy but, instead, on the simple fact that Appellant was

forced to wear the ‘shock-belt’ at his trial. Appellant admits that he knew he

was wearing the ‘shock-belt’ at that time, and concedes that his underlying

arguments could have been raised at trial, on direct appeal, or in his first

PCRA petition. See Appellant’s Brief at 11. He argues, however, that his

counsel at those stages of the proceedings acted ineffectively by failing to

present these claims. Unfortunately for Appellant, “[i]t is well settled that

allegations of ineffective assistance of counsel will not overcome the

jurisdictional timeliness requirements of the PCRA.” Commonwealth v.

Wharton, 886 A.2d 1120, 1127 (Pa. 2005) (citations omitted).

We also address Appellant’s brief mention of the governmental

interference exception of section 9545(b)(1)(i). It seems that Appellant is

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asserting that his first, timely-filed, pro se PCRA petition was defective, and

his appointed PCRA counsel failed to correct those defects in her amended

petition. According to Appellant, under Pa.R.Cim.P. 905, the court was

required to order PCRA counsel to file another amended petition to remedy

the defects in her first amendment. See Appellant’s Brief at 13; see also

Pa.R.Crim.P. 905(B) (“When a petition for post-conviction collateral relief is

defective as originally filed, the judge shall order amendment of the petition,

indicate the nature of the defects, and specify the time within which an

amended petition shall be filed.”). Appellant argues that the court’s failure

to issue such an order constituted governmental interference under section

9545(b)(1)(i).

Even if the court’s conduct amounted to ‘governmental interference’

encompassed by the timeliness exception, the record demonstrates that, at

the latest, Appellant became aware of the ‘governmental interference’ he

alleges herein on July 13, 2012, when the PCRA court issued the order

denying his first petition, rather than an order directing his PCRA counsel to

file an amendment thereof. Given that Appellant appealed from the PCRA

court’s order denying his first petition, he could not have filed a second

petition asserting his governmental interference claim until the resolution of

that appeal. See Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000)

(holding “that when an appellant’s PCRA appeal is pending before a court, a

subsequent PCRA petition cannot be filed until the resolution of review of the

pending PCRA petition by the highest state court in which review is sought,

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or upon expiration of the time for seeking such review.”). This Court

affirmed the PCRA court’s order on September 26, 2014, and, therefore,

Appellant’s appeal concluded on October 26, 2014, at the expiration of his

time for seeking review with our Supreme Court. Appellant then had 60

days from October 26, 2014, to file a petition raising his governmental

interference claim. See Lark, 746 A.2d at 588 (“The subsequent petition

must also be filed within sixty days of the date of the order which finally

resolves the previous PCRA petition, because this is the first “date the claim

could have been presented.”) (citing 42 Pa.C.S.§ 9545(b)(2)). Because

Appellant did not file his petition until August 21, 2015, he clearly did not

meet the 60-day time requirement for raising this governmental interference

claim.

In sum, Appellant has failed to prove that either of the exceptions in

section 9545(b)(1)(i) or (ii) applies in this case. Accordingly, the PCRA court

did not err in denying his petition as untimely.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/2/2016

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