Com. v. Sirmons, C.

• Court: Superior Court of Pennsylvania
• Decided: March 27, 2019
• Docket: 1832 MDA 2018
• Status: Unpublished

Opinion

J-S12004-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHRISTOPHER LEE SIRMONS : : Appellant : No. 1832 MDA 2018

Appeal from the PCRA Order Entered October 24, 2018 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0005197-2012

BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.: FILED: MARCH 27, 2019

Christopher Lee Sirmons appeals pro se from the order dismissing his

third petition filed pursuant to the Post Conviction Relief Act (“PCRA”). We

affirm.

In 2013, a jury convicted Appellant of possession with intent to deliver

a controlled substance and related offenses. The trial court sentenced him to

an aggregate prison term of four to ten years.1 This Court affirmed the

judgment of sentence. See Commonwealth v. Sirmons, 104 A.3d 46

(Pa.Super. 2014) (unpublished memorandum). Appellant did not seek further

direct review. Appellant filed a timely PCRA petition, which was dismissed in

2015. He did not appeal the dismissal. In 2017, Appellant filed his second

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1 This was a standard range sentence with a youth/school enhancement under the sentencing code in effect at the time Appellant was sentenced. J-S12004-19

PCRA petition, which was dismissed in 2018. This Court affirmed the dismissal

of his second petition. See Commonwealth v. Sirmons, 198 A.3d 437

(Pa.Super. 2018) (unpublished memorandum).

On September 27, 2018, Appellant filed the instant pro se petition, his

third. The PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss

the petition without a hearing, and Appellant filed a response thereto. On

October 24, 2018, the PCRA court entered an order dismissing Appellant’s

petition on the basis that it was filed beyond the PCRA’s one-year time bar,

and Appellant had failed to prove that the untimeliness was excused under

any of the exceptions provided by 42 Pa.C.S. § 9545(b)(1).2 Appellant filed a

timely notice of appeal and a court-ordered Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal.3

In reviewing the dismissal of a PCRA petition, we examine whether the

PCRA court’s determination “is supported by the record and free of legal

error.” Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007) (citations

2 Section 9545(b)(1) provides three exceptions to the PCRA’s timeliness requirements if the petitioner can plead and prove (i) the failure to raise the claim previously was the result of interference; or (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 recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania, and held to apply retroactively. 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Appellant invoked the timeliness exceptions at § 9545(b)(1)(i) and (ii).

3 The PCRA court described Appellant’s concise statement as “extensive and incoherent.” PCRA Court Opinion, 1/2/19, at unnumbered 2.

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omitted). Additionally, under the PCRA, any petition “shall be filed within one

year of the date the judgment becomes final[.]” 42 Pa.C.S. § 9545(b)(1). 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.” Id. at § 9545(b)(3). The PCRA’s timeliness requirements are

jurisdictional in nature, and a court may not address the merits of the issues

raised if the PCRA petition was not timely filed. Commonwealth v. Albrecht,

994 A.2d 1091, 1093 (Pa. 2010).

Here, Appellant’s judgment of sentence became final on June 12, 2014,

when the period of time to file a petition for allowance of appeal with our

Supreme Court expired. See 42 Pa.C.S. § 9545(b)(3). Appellant had until

June 12, 2015, to file the instant PCRA petition, but did not do so until

September 27, 2018. Thus, Appellant’s petition is facially untimely under the

PCRA. Nevertheless, Pennsylvania courts may consider an untimely PCRA

petition if the appellant can plead and prove one of three exceptions set forth

under § 9545(b)(1). Any PCRA petition invoking a timeliness exception must

be filed within one year of when the petition could have first been presented.

Id. at § 9545(b)(2).

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From what we are able to discern,4 Appellant is attempting to invoke the

timeliness exceptions set forth at § 9545(b)(1)(i) and (ii). With respect to his

claim that his filing delay was caused by governmental interference under

subsection (b)(1)(i), he references evidence “illegally” handled “outside of its

region” in 2012. Appellant’s brief at unnumbered 1-2. As to his claim that

his filing delay was caused by unknown facts under subsection (b)(1)(ii),

Appellant claims that he is unable to read or write, and suffers from mental

illness. Id. at unnumbered 3-4. Appellant, however, provides no meaningful

discussion as to how either of the exceptions applies to the instant petition.

See Commonwealth v. Hawkins, 953 A.2d 1248, 1253 (Pa. 2008) (holding

that it is the petitioner’s burden to allege and prove the applicability of a

timeliness exception). Thus, he has failed to meet his burden of proving the

applicability of either of the timeliness exceptions.

As Appellant has not offered the proof required to satisfy any timeliness

exception, we find ample support for the PCRA court’s determination that

Appellant’s petition is untimely, and that it lacked jurisdiction to address it.

Order affirmed.

4 Appellant’s brief fails to conform to our appellate rules. See Pa.R.A.P. 2101. It lacks a statement of jurisdiction. See Pa.R.A.P. 2114. It does not identify the order appealed from. See Pa.R.A.P. 2115. It contains no statement of the questions involved. See Pa.R.A.P. 2116. There is no statement of the case, see Pa.R.A.P. 2117, nor summary of the argument, see Pa.R.A.P. 2118. While Appellant’s brief includes an “argument,” see Pa.R.A.P. 2119, it consists of five pages of bullet points which are disjointed and incoherent. We decline, however, to dismiss the appeal on these bases. See Pa.R.A.P. 2101.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 03/27/2019

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