Com. v. Smith, C.

• Court: Superior Court of Pennsylvania
• Decided: March 9, 2018
• Docket: 1114 EDA 2017
• Status: Unpublished

Opinion

J-S71009-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CURTIS SMITH : : Appellant : No. 1114 EDA 2017

Appeal from the PCRA Order March 20, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0013205-2009

BEFORE: PANELLA, J., STABILE, J., and PLATT*, J.

MEMORANDUM BY PANELLA, J. FILED MARCH 09, 2018

Appellant, Curtis Smith, contends that he is entitled to have his right

to file a post-sentence motion reinstated pursuant to the Post Conviction

Relief Act (“PCRA”), as his trial counsel abandoned him. After careful review,

we conclude Smith failed to establish any time-bar exceptions in his facially

untimely PCRA petition. We therefore affirm.

In 2010, Smith pled guilty to one count of possession of oxycodone

with intent to deliver (“PWID”). Smith was subsequently found to have

violated the conditions of his parole due to being charged with a new crime.

The court revoked Smith’s parole, and imposed a statutory maximum

sentence of 5 to 10 years’ imprisonment.

Smith’s attorney filed a post-sentence motion seeking a modification of

the sentence. For reasons not clear from the record, the court never

____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S71009-17

explicitly addressed the motion. Thus, the motion was denied by operation of

law on June 19, 2013. See Pa.R.Crim.P. 708(E).

On October 31, 2014, Smith requested a copy of his docket sheets.

Over two years later, Smith filed his pro se PCRA petition. He subsequently

amended it, again pro se, and the court appointed counsel to represent him.

Counsel filed another amended petition. In his amended PCRA petition,

Smith acknowledges that a copy of his docket sheets was mailed to him on

the same day it was received by the court. After several continuances, the

PCRA court issued a notice of intent to dismiss. The court subsequently

dismissed Smith’s petition, despite his response to the notice. This timely

appeal followed.

Smith argues the PCRA court erred in dismissing his petition as

untimely. We review an order dismissing a petition under the PCRA by

examining whether the court’s determination is supported by the evidence of

record and is free of legal error. See Commonwealth v. Halley, 870 A.2d

795, 799 n.2 (Pa. 2005). We will not disturb the court’s factual findings

unless there is no support for them in the certified record. See

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

Moreover, a court may decline to hold a hearing on a petition if it determines

the petitioner’s claim is patently frivolous and is without a trace of support

either in the record or from other evidence. See Commonwealth v.

Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001).

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The timeliness of a post-conviction petition is jurisdictional. See

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

Generally, a petition for relief under the PCRA, including a second or

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

is final unless the petition alleges, and the petitioner proves, an exception to

the timeliness requirement. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A PCRA

petition invoking one of these statutory “exceptions must be filed within

sixty days of the date the claims could have been presented.” Hernandez,

79 A.3d at 652 (citing 42 Pa.C.S.A. § 9545(b)(2)). Finally, exceptions to the

PCRA’s time bar must be pled in the petition. See Commonwealth v.

Burton, 936 A.2d 521, 525 (Pa. Super. 2007). See also Pa.R.A.P. 302(a).

Smith concedes his petition is facially untimely. See Appellant’s Brief,

at 13. He further concedes he did not plead any exceptions to the PCRA’s

time-bar. See id. The PCRA court’s order is justified on this basis alone.

Even if Smith had pled the exceptions he argues on appeal, he would

be due no relief. He first argues the court’s failure to explicitly rule on his

post-sentence motion constitutes interference by a government official and

therefore qualifies for the timeliness exception contained in 42 Pa.C.S.A. §

9545(b)(1)(i). Unlike the procedure after the original imposition of sentence,

the filing of motion to modify sentence after a revocation of probation or

parole does not automatically toll the 30-day deadline for filing an appeal.

See Commonwealth v. Coleman, 721 A.2d 798, 799 (Pa. Super. 1998).

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Thus, the court had no duty to explicitly address Smith’s motion for

modification, and cannot be said to have interfered with Smith’s rights.

In the alternative, Smith argues his discovery that trial counsel

abandoned him entitles him to application of the time-bar exception

contained in 42 Pa.C.S.A. 9545(b)(1)(ii), the unknown facts exception.

However, as noted above, to qualify for this exception, Smith must have

filed his petition within 60 days of learning trial counsel abandoned him.

Smith concedes the docket sheets revealing trial counsel’s failures were

mailed to him on October 31, 2014. Yet he did not file his petition until

January 20, 2016, well past 60 days from any reasonable implication that he

received the docket sheets. He therefore cannot qualify for the exception

contained in § 9545(b)(1)(ii).

As we conclude Smith has failed to plead or establish his facially

untimely petition qualified for an exception to the PCRA’s time-bar, we affirm

the PCRA court’s order dismissing his petition.

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/9/18

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