Com. v. Wilson, F.
This text of Com. v. Wilson, F. (Com. v. Wilson, F.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
J-S76029-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
FRED WILSON
Appellant No. 1373 EDA 2017
Appeal from the PCRA Order entered April 9, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0108842-1997
BEFORE: PANELLA, STABILE, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 12, 2018
Appellant, Fred Wilson, appeals pro se from the April 9, 2014 order
entered in the Court of Common Pleas of Philadelphia County, denying as
untimely Appellant’s second petition for collateral relief pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Following review,
we affirm.
The PCRA court provided the following procedural history:
Following a jury trial, before the Honorable Judge Darnell C. Jones II, [Appellant] was found guilty of first degree murder, robbery, and criminal conspiracy. On October 6, 1997, [Appellant] was sentenced to life in prison for the murder charge, ten to twenty years for the robbery charge, and five to ten years for the charge of criminal conspiracy. [Appellant] filed a direct appeal. The
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S76029-17
Superior Court affirmed the judgment of sentence on December 16, 1999, and the Pennsylvania Supreme Court denied allocatur on May 15, 2001.
[Appellant] filed his first timely PCRA petition on March 14, 2002. Counsel was appointed and an amended PCRA petition was filed on April 18, 2005. After a further pro se filing by [] Appellant, appointed counsel filed a supplemental PCRA petition on February 28, 2007. The court ultimately denied his petition on September 18, 2007. The Superior Court affirmed the denial of his petition on January 26, 2009 and the Supreme Court denied a petition for allowance of appeal on August 19, 2009.
[Appellant] filed his current post conviction petition of August 2, 2012.
PCRA Court Opinion, 4/9/14, at 1. The court explained that it conducted “a
diligent and exhaustive review of the record and applicable case law,” and
determined Appellant’s petition was “patently untimely.” Id. Therefore, the
court lacked jurisdiction to consider the petition and dismissed it. Id.
By order entered on April 10, 2017, the PCRA court granted Appellant’s
request for nunc pro tunc reinstatement of his rights to appeal the April 9,
2014 dismissal of his petition. This timely appeal followed. The PCRA court
did not direct Appellant to file a Rule 1925(b) statement of errors complained
of on appeal and the PCRA court did not issue an opinion supplementing its
April 9, 2014 opinion.
Appellant presents one issue for our consideration:
Whether Appellant suffered actual prejudice resulting from trial/appellate/PCRA counsel ineffectiveness, and, if so, whether the PCRA court’s refusal to consider Appellant’s request for nunc pro tunc reinstatement of his right to direct appeal based on the determination that his claim relating to ineffective assistance for failing to protect Appellant’s right on direct appeal to challenge
-2- J-S76029-17
the trial court’s error in admitting the videotaped confession that his non-testifying codefendant gave to police was previously litigated or waived, is supported by de facto findings in the certified record and is free of legal error?
Appellant’s Brief at 4.
As a threshold matter, we must determine whether the PCRA court erred
in dismissing Appellant’s PCRA petition as untimely. The PCRA contains the
following provisions governing the timeliness of any PCRA petition:
(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.
(2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.
(3) For purposes of this subchapter, a judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court
-3- J-S76029-17
of Pennsylvania, or at the expiration of time for seeking the review.
42 Pa.C.S.A. § 9545(b). The PCRA’s timeliness provisions are jurisdictional.
Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).
The record reflects that our Supreme Court denied Appellant’s petition
for allowance of appeal on May 15, 2001. Appellant did not seek a writ of
certiorari to the United States Supreme Court. As a result, Appellant’s
judgment of sentence became final on August 13, 2001, when the time for
Appellant to file a petition for a writ of certiorari expired. See 42 Pa.C.S.A.
§ 9545(b)(3); U.S. Sup.Ct. R. 13(1). Therefore, to be timely, Appellant was
required to file his petition by August 13, 2002. Because Appellant filed the
instant petition on August 2, 2012, it was patently untimely because it was
filed nearly ten years past the deadline.
Appellant contends that the § 9545(b)(1)(iii) after-recognized
constitutional right exception applies in this case. Specifically, Appellant avers
that the United States Supreme Court’s decision in Melendez-Diaz v.
Massachusetts, 557 U.S. 305 (2009) and this Court’s analogous case of
Commonwealth v. Barton-Martin, 5 A.3d 363 (Pa. Super. 2010), apply
retroactively and save his case from the PCRA’s time bar.
Appellant’s contention fails. First, as the PCRA court correctly observed,
a petitioner raising the after-recognized constitutional right exception has
sixty days to raise the issue. 42 Pa.C.S.A. § 9545(b)(2). PCRA Court Opinion,
4/9/14, at 3 (unnumbered). However, Appellant’s petition was filed more than
-4- J-S76029-17
sixty days after both decisions. Therefore, Appellant’s attempt to invoke the
after-recognized constitutional right exception fails. See Commonwealth v.
Boyd, 923 A.2d 513, 517 (Pa. Super. 2007).
Further, as the PCRA court recognized, Melendez-Diaz does not apply
to Appellant’s case. While Melendez-Diaz applies retroactively to cases on
direct appeal, this Court determined that the case does not apply retroactively
to cases on collateral review. Id. (citing Commonwealth v. Brandon, 51
A.3d 231, 236 (Pa. Super. 2012) and Commonwealth v. Leggett, 16 A.3d
1144, 1147 n.8 (Pa. Super. 2011)). Therefore, even if Appellant filed his
Free access — add to your briefcase to read the full text and ask questions with AI
Related
Cite This Page — Counsel Stack
Com. v. Wilson, F., Counsel Stack Legal Research, https://law.counselstack.com/opinion/com-v-wilson-f-pasuperct-2018.