Com. v. Haynes, S. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SHAWN HAYNES :
:
Appellant : No. 3141 EDA 2017
:
Appeal from the PCRA Order September 5, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008924-2009
BEFORE: SHOGAN, J., NICHOLS, J., and PLATT*, J.
MEMORANDUM BY SHOGAN, J.: FILED MAY 07, 2018
Appellant, Shawn Haynes, appeals from the order denying his second
petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541–9546. We affirm.
While incarcerated on other charges, Appellant was involved in an
assault of a prison guard on August 17, 2007. N.T., 11/29/10, at 7–13.
Appellant was charged on May 1, 2009, in connection with the assault. Id. at
14. On January 7, 2013, Appellant pled guilty to two counts of aggravated
assault, 18 Pa.C.S. § 2702, and one count each of possessing an instrument
of crime (“PIC”), 18 Pa.C.S. § 907, and conspiracy, 18 Pa.C.S. § 903. In
exchange for the plea, the court sentenced him to consecutive terms of
imprisonment of ten to twenty years for aggravated assault, aggregated to
twenty to forty years, to be served concurrently “to any and all other
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* Retired Senior Judge assigned to the Superior Court.
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sentences which are now being served.” N.T. (Sentencing), 1/7/13, at 17–
18. The court did not impose further penalty for the PIC or conspiracy
charges. Id. at 18. The court nol prossed all other charges.1 Appellant did
not file an appeal.
Appellant filed a pro se PCRA petition on August 26, 2015.2 Counsel
was appointed, who filed a no-merit letter pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc), on March 5, 2017. The PCRA court issued
a notice of intent to dismiss the petition without a hearing on April 6, 2017,
and an amended notice on May 18, 2017. Appellant filed a response on June
2, 2017, to which he attached numerous documents. See Note 2, supra
(describing documents). On June 27, 2017, the PCRA court dismissed the
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1 The following charges were nol prossed: two counts each of assault by a
prisoner, riot-intent to commit a felony, terroristic threats with intent to
terrorize another, simple assault, reckless endangerment, and one count of
conspiracy. Order, 1/7/13.
2 Appellant allegedly wrote a letter to his plea counsel in October of 2013,
that was returned because Appellant utilized an incorrect address. The letter
inquired about the appeal in Appellant’s prior rape conviction in Philadelphia
County from 2008, committed while he was a suspect in a prior Delaware
County rape, to which he pled guilty in 2005. See Commonwealth v.
Haynes, 23 A.3d 1081, 1788 EDA 2009 (Pa. Super. 2011) (unpublished
memorandum), petition for allowance of appeal denied, 23 A.3d 540 (Pa.
2011). The letter allegedly also indicated Appellant’s dissatisfaction with the
sentence imposed in the instant case and intimated Appellant’s desire to
withdraw his guilty plea. Appellant’s pro se response to PCRA court’s
Pa.R.Crim.P. 907 notice (Attachment), 6/2/17. A second letter dated January
8, 2014, did reach plea counsel, who responded to Appellant by letter dated
February 6, 2014. Id.-2-
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PCRA petition, noting it “carefully reviewed the entire record and determined
[Appellant] had not timely filed his pro se PCRA petition,” and permitted PCRA
counsel to withdraw. PCRA Court Opinion, 10/3/17, at 1; Order, 6/27/17.
The PCRA court summarized the ensuing procedural history as follows:
On July 10, 2017, petitioner filed his second PCRA petition.1
Upon carefully reviewing the petition, this [c]ourt determined that
this second petition had been untimely filed so on July 31, 2017,
this [c]ourt sent [Appellant] a Pa.R.Crim.P. 907 Notice of Intent
to Dismiss. Although [Appellant] did not file a formal response to
the notice, on August 9, 2017, [Appellant] filed an amended PCRA
petition. Upon reviewing [Appellant’s] filings, this [c]ourt, on
September 5, 2017, issued an order dismissing [Appellant’s]
second PCRA petition on timeliness grounds. [Appellant]
thereafter timely filed a notice of appeal.
1 [Appellant] alleged in his petition that he was
entitled to relief in the form of an order permitting him
to file a notice of appeal nunc pro tunc from the order
imposing judgment of sentence.
PCRA Court Opinion, 10/3/17, at 2. The PCRA court did not order Appellant
to comply with Pa.R.A.P. 1925.
Appellant has filed a pro se brief that is noncompliant with numerous
rules of appellate procedure, not the least of which is the failure to include the
Statement of Questions Involved pursuant to Pa.R.A.P. 2116. Rule 2116
states, “No question will be considered unless it is stated in the statement of
questions involved or is fairly suggested thereby.” Pa.R.A.P. 2116 (a). Our
review of Appellant’s brief suggests that he is asserting plea counsel’s
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ineffectiveness for failing to file a “requested” direct appeal.3 Appellant’s Brief
at 3.
Initially, however, we must determine whether the PCRA court had
jurisdiction to review the merits of Appellant’s issue based on the timing of
Appellant’s petition. The timeliness of a PCRA petition is a jurisdictional
threshold that may not be disregarded in order to reach the merits of the
claims raised in a PCRA petition that is untimely. Commonwealth v.
Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citing Commonwealth v. Murray,
753 A.2d 201, 203 (Pa. 2000)). As noted, the trial court imposed the
judgment of sentence on January 7, 2013. Appellant did not file a direct
appeal. Thus, his judgment of sentence became final thirty days later on
February 6, 2013. See 42 Pa.C.S. § 9545(b)(3) (stating that, for purposes of
calculating the timeliness of a petition, 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 of Pennsylvania, or at the
expiration of time for seeking the review”). Therefore, Appellant had until
February 6, 2014, to file a timely PCRA petition. See 42 Pa.C.S. § 9545(b)(1)
(A PCRA petition, “including a second or subsequent petition, shall be filed
within one year of the date the judgment becomes final. . . .”). Appellant filed
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3 The record does not support such a claim. At the earliest, Appellant
attempted to contact counsel in October of 2013, eight months after the
relevant direct-appeal period and nine months after the imposition of
sentence.
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his PCRA petition on July 10, 2017, over four years after his judgment of
sentence became final. Hence, the petition is facially untimely.
The jurisdictional time bar can be overcome only by satisfaction of one
of the three statutory exceptions codified at 42 Pa.C.S. § 9545(b)(1)(i)–(iii).4
Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017). Further, “[a]ny
petition invoking an exception . . . shall be filed within 60 days of the date the
claim could have been presented.” 42 Pa.C.S. § 9545(b)(2). The PCRA
petitioner bears the burden of proving the applicability of one of the
exceptions. Commonwealth v. Edmiston, 65 A.3d 339, 346 (Pa. 2013).
Appellant failed to prove any exception to the PCRA’s timeliness
requirement.5 The instant PCRA petition was untimely, and no exceptions
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4 The exceptions to the timeliness requirement are:
(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.
42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).
5 While Appellant asserted a violation of the United States Constitution in his
PCRA petition, PCRA Petition, 6/27/17, at ¶ 9, he neither mentioned nor
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apply. Therefore, the PCRA court lacked jurisdiction to address the claims
presented. See Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super.
2002) (holding that PCRA court lacks jurisdiction to hear untimely petition).
Likewise, we lack the authority to address the merits of any substantive claim
raised in the PCRA petition. See Commonwealth v. Bennett, 930 A.2d
1264, 1267 (Pa. 2007) (“[J]urisdictional time limits go to a court’s right or
competency to adjudicate a controversy.”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/7/18
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explained this claim, and instead focused upon plea counsel’s alleged
ineffectiveness. A claim of ineffective assistance of counsel, however, does
not save an otherwise untimely petition for review on the merits.
Commonwealth v. Perrin, 947 A.2d 1284, 1287 (Pa. Super. 2008).
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