Com. v. Smith, A.

• Court: Superior Court of Pennsylvania
• Decided: August 13, 2014
• Docket: 137 WDA 2014
• Status: Unpublished

Opinion

J-S44031-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

ANTHONY TUSWEET SMITH

Appellant No. 137 WDA 2014

Appeal from the PCRA Order December 18, 2013 In the Court of Common Pleas of Beaver County Criminal Division at No(s): CP-04-CR-0000967-2001

BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.: FILED AUGUST 13, 2014

Anthony Tusweet Smith appeals pro se from the order entered on

December 18, 2013, in the Court of Common Pleas of Beaver County, that

dismissed, without a hearing, his third petition filed pursuant to the

Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546.

Smith claims (1) all prior appellate and post conviction counsel were

ineffective with regard to a stipulation made at trial, (2) that Smith is

entitled to discovery, and (3) that the PCRA’s time limitation is

unconstitutional. Based upon the following, we affirm.

The PCRA court aptly summarized the relevant procedural history of

this case in its Preliminary Order and Notice of Court, issued pursuant to

Pa.R.Crim.P. 907(1), and therefore we do not restate it here. See PCRA

Court Preliminary Order and Notice of Court, 10/18/2013, at 1–2. J-S44031-14

In response to the court’s Rule 907 notice, Smith filed a pleading

captioned “Amended Post-Conviction Relief Act Petition” on November 20,

2013. On December 18, 2013, the PCRA court dismissed Smith’s petition as

untimely, and this appeal followed.

Preliminary, we state the principles that guide our review:

This Court’s standard of review regarding a PCRA court’s order is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have no support in the certified record.

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011), appeal

denied, 72 A.3d 600 (Pa. 2013) (citations and quotation marks omitted).

Furthermore,

A PCRA petition, including a second or subsequent one, must be filed within one year of the date the petitioner's judgment of sentence became final, unless he pleads and proves one of the three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A judgment becomes final at the conclusion of direct review by [the Pennsylvania Supreme] Court or the United States Supreme Court, or at the expiration of the time for seeking such review. 42 Pa.C.S.[A.] § 9545(b)(3). The PCRA’s timeliness requirements are jurisdictional; therefore, a court may not address the merits of the issues raised if the petition was not timely filed. The timeliness requirements apply to all PCRA petitions, regardless of the nature of the individual claims raised therein. The PCRA squarely places upon the petitioner the burden of proving an untimely petition fits within one of the three exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16–17 (Pa. 2012) (case citations

and footnote omitted).

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Instantly, Smith’s judgment of sentence became final on September

29, 2004, upon expiration of the 90-day appeal period for filing a petition for

writ of certiorari in the United States Supreme Court. See 42 Pa.C.S. §

9545(b)(3) (providing judgment is deemed 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”); U.S. Sup.Ct. Rule 13 (allowing 90 days to file a

petition for writ of certiorari). Therefore, Smith had one year from that date

to file a petition for collateral relief. See 42 Pa.C.S. § 9545(b)(1). Here,

Smith filed the current petition on August 28, 2013, nearly nine years after

his judgment of sentence became final.

Our review of the record in light of the PCRA and relevant case law

confirms that the PCRA court correctly determined Smith’s petition was

untimely and that he failed to prove a statutory exception to the PCRA’s one

year time-bar. Moreover, we adopt the discussion of the PCRA court as

dispositive of this appeal. See PCRA Court Opinion, 12/19/2013.1

____________________________________________

1 To the PCRA court’s analysis, we simply add that this Court has held that the PCRA’s time restriction is constitutionally valid. See Commonwealth v. Peterkin, 722 A.2d 638, 643 (Pa. 1998) (“the PCRA’s time limitation upon the filing of PCRA petitions does not unreasonably or unconstitutionally limit [a petitioner’s] constitutional right to habeas corpus relief.”); see also Commonwealth v. Fahy, 737 A.2d 214, 220 (Pa. 1999) (reiterating that the time-for-filing restriction of the PCRA is reasonable and does not run afoul of a petitioner’s due process rights).

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Accordingly, as neither the PCRA court, nor this Court, has jurisdiction

to address the substantive claims raised in Smith’s untimely petition, see

Jones, supra, we affirm the order of the PCRA court that dismissed, without

a hearing, this third petition seeking post-conviction relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/13/2014

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