Com. v. Sherrill, D., Jr. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONALD JAMES SHERRILL, JR. :
:
Appellant : No. 761 MDA 2016
Appeal from the PCRA Order March 23, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0000006-2005
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY RANSOM, J.: FILED FEBRUARY 21, 2017
Appellant, Donald James Sherrill, Jr., appeals from the order entered
March 23, 2016,1 denying as untimely his second petition filed under the
Post-Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. We affirm.
Following a jury trial, Appellant was convicted of attempted homicide,
aggravated assault, conspiracy to commit aggravated assault, and escape.2
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1
Appellant erroneously appealed from the order entered on February 23,
2016, which was merely notice of the PCRA court’s intent to dismiss his
petition without a hearing pursuant to Pa.R.Crim.P. 907. See Pa.Crim.P.
907(4). Nevertheless, the court entered a final order on March 23, 2016.
Accordingly, we shall regard as done that which should have been done and
proceed to consider the issues raised by Appellant. See Pa.R.A.P.
905(a)(5); cf. Johnston the Florist, Inc. v. TEDCO Const. Corp., 657
A.2d 511, 514–15 (Pa. Super. 1995) (en banc).
2
18 Pa.C.S. §§ 901(a), 2702(a)(1), 903(a)(2), and 5121(a), respectively.
*
Former Justice specially assigned to the Superior Court.
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In April 2006, Appellant was sentenced to an aggregated term of
incarceration of eleven to twenty-two years. Appellant timely appealed; this
Court affirmed the judgment of sentence; and the Pennsylvania Supreme
Court denied Appellant’s petition for allowance of appeal. Commonwealth
v. Sherrill, 924 A.2d 698 (Pa. Super. 2007) (unpublished memorandum),
appeal denied, 929 A.2d 1162 (Pa. 2007).
In April 2008, Appellant timely filed a petition for collateral relief.
Ultimately, the court dismissed this petition in March 2011. Following
several procedural delays and extensions granted Appellant, Appellant filed
an appeal, which was dismissed for failure to file a brief. See
Commonwealth v. Sherrill, 1148 MDA 2012 (Pa. Super. 2013).
In February 2016, Appellant pro se filed the instant petition, asserting
inter alia that government officials had interfered with his appeal from the
order denying his first PCRA petition. See PCRA Petition, 02/08/2016, at 4.
The PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss, and
Appellant filed a response. Thereafter, in March 2016, the court dismissed
Appellant’s petition without a hearing. Appellant timely appealed, and the
PCRA court issued an opinion explaining its decision.3
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3
There are two, related procedural issues that require a brief explanation.
First, Appellant has attached to his appellate brief what is purportedly a Rule
1925(b) statement. See Appellant’s Brief, Attachment (dated, by Appellant,
07/18/2016). This document does not appear in the certified record, nor
was it entered on the Dauphin County docket. Accordingly, we may not
(Footnote Continued Next Page)
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Appellant raises the following issues for review:
1. [Whether] Appellant [was] denied his rights under Article 1 §
9, of the Pennsylvania Constitution and the Sixth Amendment of
the Constitution of the United States, of effective assistance of
counsel, where he failed to properly investigate the mental
health history of Appellant, prior to trial[; and]
2. [Whether] Appellant [was] denied his rights under Article 1 §
9, of the Pennsylvania Constitution and the Sixth Amendment of
the Constitution of the United States, where due to
governmental interference, Appellant could not properly file[] his
petition timely since the legal materials necessary to file it
[were] either misplaced, destroyed or concealed by prison
officials during his transfer from several prisons.
Appellant’s Brief at 3.
The standard of review regarding an order denying a petition under
the PCRA is whether the determination of the PCRA court is supported by the
evidence of record and is free of legal error. Commonwealth v. Ragan,
923 A.2d 1169, 1170 (Pa. 2007). We afford the court’s factual findings
_______________________
(Footnote Continued)
consider it. See Commonwealth v. Preston, 904 A.2d 1, 6-7 (Pa. Super.
2006).
Second, on June 23, 2016, the court issued an order directing Appellant to
file a Pa.R.A.P. 1925(b) statement within twenty-one days, i.e., July 14,
2016. Appellant did not comply with this order. On July 19, 2016, the court
transmitted the certified record to this Court, and, as of that date, no
statement had been filed. However, the certified docket entries do not
reveal whether the Dauphin County Prothonotary provided Appellant with
proper notice of the court’s order. See Commonwealth v. Davis, 867 A.2d
585, (Pa. Super. 2005) (en banc) (observing that the notice requirements of
Pa.R.Crim.P. 114 are mandatory). Accordingly, Appellant was not required
to file a Rule 1925(b) statement, and we decline to find waiver of the issues
raised on appeal. Id.-3-
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deference unless there is no support for them in the certified record.
Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) (citing
Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)).
Before considering Appellant’s claims, we address the timeliness of his
petition, as it implicates our jurisdiction and may not be altered or
disregarded in order to address the merits of his claim. Commonwealth v.
Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the PCRA, all petitions
seeking collateral relief must be filed within one year of the date the
judgment of sentence becomes final. Id. There are three statutory
exceptions:
(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 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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, any petition attempting to
invoke one of these exceptions “shall be filed within 60 days of the date the
claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).
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Appellant’s petition is untimely.4 Thus, Appellant was required to
plead and prove an exception to the PCRA timeliness requirements.
Appellant does not dispute that his petition is untimely; rather, Appellant
acknowledges that he must avail himself of one of the exceptions set forth in
section 9545(b)(1)(i)-(iii) in order for this Court to have jurisdiction to reach
the merits of his claims. Bennett, 930 A.2d at 1267 (stating PCRA time
limitations implicate our jurisdiction and may not be altered or disregarded
to address the merits of the petition).
Appellant asserts that his petition meets the timeliness exception
found in 42 Pa.C.S. § 9545(b)(1)(i). According to Appellant, prison officials
lost, destroyed, or concealed legal materials necessary to appeal the
dismissal of his first PCRA petition. See Appellant’s Brief at 9-10.
Appellant’s assertion is unsubstantiated. As noted by the PCRA court,
Appellant’s petition does not explain how or when prison officials interfered
with his prior appeal. See PCRA Court Opinion, 07/13/2016, at 4; see also
PCRA Petition at 4 (baldly asserting that his “legal property was mis-placed
[sic] and/or destroyed”). Moreover, Appellant’s prior appeal was dismissed
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4
Appellant’s petition, filed February 8, 2016, is patently untimely.
Appellant’s judgment of sentence became final on November 14, 2007;
ninety days after the Pennsylvania Supreme Court denied his petition for
appeal. See § 9545(b)(3) (a judgment of sentence becomes final at the
conclusion of direct review or the expiration of the time for seeking review);
Sup.Ct.R. 13(1) (providing that a petition for writ of certiorari shall be filed
within ninety days). Thus, Appellant’s current petition is more than eight
years late.
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in January 2013, but Appellant did not assert governmental interference
until February 2016. Thus, Appellant has failed to establish that he filed his
current petition within sixty days of the date this claim could have been
presented. See 42 Pa.C.S. § 9545(b)(2).
In summary, Appellant’s petition was patently untimely, and he has
failed to establish an exception to the timeliness requirements of the PCRA.
Accordingly, the PCRA court did not have jurisdiction to review the merits of
Appellant’s underlying claim and properly dismissed his petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/21/2017
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