Com. v. Taylor, Q.

• Court: Superior Court of Pennsylvania
• Decided: January 17, 2018
• Docket: 1541 EDA 2016
• Status: Unpublished

Opinion

J-S83034-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : QUAY TAYLOR : : Appellant : No. 1541 EDA 2016

Appeal from the PCRA Order May 16, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004214-2010

BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J.

JUDGMENT ORDER BY GANTMAN, P.J.: FILED JANUARY 17, 2018

Appellant, Quay Taylor, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which denied his first petition

under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-

9546. On April 13, 2012, the court convicted Appellant of possessing

instruments of crime (“PIC”), simple assault, and recklessly endangering

another person (“REAP”). The court sentenced Appellant on July 12, 2012,

to an aggregate term of 2½ to 5 years’ imprisonment.1 Appellant did not file

a direct appeal. On October 20, 2014, Appellant filed his first PCRA petition,

pro se, complaining, inter alia, trial counsel failed to file a requested direct ____________________________________________

1 Specifically, the court sentenced Appellant to 2½ to 5 years’ imprisonment for the PIC conviction, a concurrent 1 to 2 years’ imprisonment for the simple assault conviction, and no further penalty for the REAP conviction. J-S83034-17

appeal on Appellant’s behalf. The court appointed counsel, who filed an

amended PCRA petition on June 24, 2015. On April 11, 2016, the court

issued appropriate notice per Pa.R.Crim.P. 907; Appellant did not respond.

On May 16, 2016, the court denied PCRA relief. Appellant timely filed a

notice of appeal on May 18, 2016. On June 8, 2016, the court ordered

Appellant to file a concise statement of errors per Pa.R.A.P. 1925(b).

Appellant timely complied on June 15, 2016.

Preliminarily, a PCRA petitioner must be currently serving a sentence

of imprisonment, probation or parole for the conviction at issue to be eligible

for PCRA relief. 42 Pa.C.S.A. § 9543(a)(1)(i). See also Commonwealth

v. Williams, 977 A.2d 1174 (Pa.Super. 2009), appeal denied, 605 Pa. 700,

990 A.2d 730 (2010) (explaining petitioner must be serving sentence of

imprisonment, probation, or parole for crime at issue to be eligible for PCRA

relief; once sentence is completed, petitioner is ineligible for PCRA relief,

regardless of whether he was serving his sentence when he filed petition).

As well, the timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Robinson, 12 A.3d 477 (Pa.Super. 2011). A PCRA

petition must be filed within one year of the date the underlying judgment

becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed final at

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

review. 42 Pa.C.S.A. § 9545(b)(3). The statutory exceptions to the

timeliness provisions in the PCRA allow for very limited circumstances under

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which the late filing of a petition will be excused; a petitioner asserting an

exception must file a petition within 60 days of the date the claim could have

been presented. See 42 Pa.C.S.A. § 9545(b)(1-2). The timeliness

exception at Section 9545(b)(1)(ii) requires a petitioner to demonstrate he

did not know the facts upon which he based his petition and could not have

learned those facts earlier by the exercise of due diligence.

Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264 (2007). Due

diligence demands that the petitioner take reasonable steps to protect his

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

Instantly, the court sentenced Appellant on July 12, 2012, to an

aggregate term of 2½ to 5 years’ imprisonment. Nothing in the record

indicates that Appellant is still serving a sentence for the convictions at

issue. Thus, Appellant appears to be ineligible for PCRA relief. See 42

Pa.C.S.A. § 9543(a)(1)(i); Williams, supra. Also, Appellant’s judgment of

sentence became final on August 11, 2012, upon expiration of the time to

file a direct appeal. See Pa.R.A.P. 903(a) (explaining notice of appeal shall

be filed within 30 days after entry of order or judgment from which appeal is

taken). Appellant filed the current PCRA petition on October 20, 2014,

which is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant now

attempts to invoke the “newly-discovered facts” exception at Section

9545(b)(1)(ii), claiming trial counsel failed to file a requested direct appeal

on his behalf and Appellant was unaware of this “new fact” until October

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2014. Nevertheless, Appellant failed to explain why he could not have

discovered this “new fact” sooner with the exercise of due diligence. See

Carr, supra (holding appellant failed to establish Section 9545(b)(1)(ii)

exception to PCRA time-bar where trial counsel’s failure to file direct appeal

was discoverable during appellant’s one-year window to file timely PCRA

petition; appellant had full year to learn if counsel had filed direct appeal on

his behalf; mere fact that appellant alleges counsel was ineffective for failing

to file direct appeal does not save appellant’s untimely PCRA petition).

Therefore, Appellant is not entitled to PCRA relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/17/18

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