Com. v. Futrell, L. ( 2018 )


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  • J. S04039/18
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
    :          PENNSYLVANIA
    v.                   :
    :
    LARRY E. FUTRELL,                       :         No. 1182 MDA 2017
    :
    Appellant       :
    Appeal from the PCRA Order, July 5, 2017,
    in the Court of Common Pleas of Dauphin County
    Criminal Division at No. CP-22-CR-0000615-1997
    BEFORE: SHOGAN, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
    MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED FEBRUARY 22, 2018
    Appellant, Larry E. Futrell, appeals from the July 5, 2017 order of the
    Court of Common Pleas of Dauphin County dismissing without a hearing his
    fourth pro se petition filed pursuant to the Post-Conviction Relief Act
    (hereinafter, “PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we
    affirm.
    The PCRA court provided the following procedural history:
    On January 3, 1997, [appellant] was charged with
    one (1) count Rape, one (1) count Involuntary
    Deviate    Sexual   intercourse,   one   (1)   count
    Aggravated Indecent Assault, one (1) count Indecent
    Assault, one (1) count Statutory Sexual Assault, and
    one (1) count Corruption of Minors.[1 Appellant] was
    arrested by the Swatara Township Police on that
    date.     A jury trial was conducted between
    1 18 Pa.C.S.A. §§ 3121(a), 3123(a), 3125(a), 3126(a), 3122.1, and
    6301(a), respectively.
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    November 18 and November 20, 1997 before the
    Honorable Lawrence F. Clark Jr., now retired.
    [Appellant] was represented by John M. Shugars,
    Esquire. [Appellant] was found guilty by the jury on
    all counts and sentenced to an aggregate term of
    fifteen (15) years to life incarceration at a State
    Correctional Institute.    On February 17, 1998,
    [appellant] filed a post sentence motion which was
    denied on March 2, 1998.
    On June 22, 1998, [appellant] filed a pro se PCRA
    petition.   On October 11, 199[9], Judge Clark
    granted a resentencing in light of the Pennsylvania
    Supreme Court holding in Commonwealth v.
    Williams, 
    733 A.2d 593
     (Pa. 1999). All other issues
    raised in [appellant’s] PCRA petition were denied.
    On November 15, 1999, [appellant] was resentenced
    to an aggregate term of fifteen (15) to sixty (60)
    years[’] incarceration in a State Correctional
    Institute. [Appellant] appealed to the Superior Court
    who affirmed the judgment of sentence on July 28,
    2000,[2] and the Supreme Court of Pennsylvania
    denied his petition for allowance of appeal on
    December 20, 2000.[3]
    On December 26, 2003, [appellant] filed a second
    pro se PCRA petition.          After conducting an
    independent review the court found [appellant’s]
    claims [to be] without merit and accordingly
    dismissed his petition on June 28, 2004.
    On April 25, 2011, [appellant] filed a third pro se
    PCRA petition.     Attorney Jonathan W. Crisp was
    appointed as PCRA counsel for [appellant].
    Attorney Crisp filed a Petition to Withdraw, along
    with a letter of “no merit” pursuant to
    Commonwealth v. Turner, 
    544 A.2d 927
     (Pa.
    1988), and Commonwealth v. Finley, 
    550 A.2d 213
     (Pa.Super. 1988). On December 28, 2011, the
    2 Commonwealth v. Futrell, No. 90 MDA 2000, unpublished memorandum
    (Pa.Super. filed July 28, 2000).
    3   Commonwealth v. Futrell, 
    764 A.2d 49
     (Pa. 2000).
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    Court granted Attorney Crisp’s Motion to Withdraw,
    and gave its notice of intent to dismiss the PCRA
    petition.  On April 10, 2012, [appellant’s] PCRA
    petition was dismissed.
    On December 1, 2016, [appellant] filed a fourth
    pro se PCRA petition. In his petition, [appellant]
    challenges the legality of his sentence. [Appellant]
    alleges the trial court imposed a mandatory sentence
    under 18 Pa.C.S.A. § 7508 which was facially void
    pursuant to Alleyne v. United States, 
    133 S.Ct. 2151
     (2013), and Commonwealth v. Newman,
    [
    99 A.3d 86
     (Pa.Super. 2014) (en banc)].
    PCRA court opinion, 3/3/17 at 1-2.
    On March 3, 2017, the PCRA court filed a notice of intent to dismiss
    appellant’s PCRA petition without a hearing pursuant to Pennsylvania Rule of
    Criminal Procedure 907(1).     On July 5, 2017, the PCRA court dismissed
    appellant’s petition.   Appellant filed a notice of appeal to this court on
    July 27, 2017. The PCRA court ordered appellant to file a concise statement
    of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) and
    appellant timely complied.   The PCRA court filed a statement in lieu of an
    opinion pursuant to Pa.R.A.P. 1925(a) in which it incorporated the language
    of its March 3, 2017 opinion filed with its notice of intent to dismiss
    appellant’s PCRA petition.
    Appellant raises the following issues for our review:
    1.    Was the appellant sentenced to a harsher
    sentence due to his mental illness a sentence
    that would not of been given to a normal
    person? [sic]
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    2.     Did the sentence given by the Dauphin County
    Court of Common Please [sic] contain the
    same format as multiple other statutes that
    were struck down as unconstitutional?
    Appellant’s brief at 5.
    Subsequent PCRA petitions beyond a petitioner’s first petition are
    subject to the following standard:
    A second or subsequent petition for post-conviction
    relief will not be entertained unless a strong
    prima facie showing is offered to demonstrate that
    a miscarriage of justice may have occurred.
    Commonwealth v. Allen, 
    732 A.2d 582
    , 586 (Pa.
    1999). A prima facie showing of entitlement to
    relief is made only by demonstrating either that the
    proceedings which resulted in conviction were so
    unfair that a miscarriage of justice occurred which no
    civilized society could tolerate, or the defendant’s
    innocence of the crimes for which he was charged.
    Id. at 586. Our standard of review for an order
    denying post-conviction relief is limited to whether
    the trial court’s determination is supported by
    evidence of record and whether it is free of legal
    error. Commonwealth v. Jermyn, 
    709 A.2d 849
    ,
    856 (Pa. 1998).
    A PCRA petition, including a second or subsequent
    petition, must be filed within one year of the date
    that judgment of sentence becomes final. 42 Pa.C.S.
    § 9545(b)(1).      A judgment becomes final for
    purposes of the PCRA “at the conclusion of direct
    review, including discretionary review in the
    Supreme Court of the United States and the
    Supreme Court of Pennsylvania, or the expiration of
    time for seeking the review.”            42 Pa.C.S.
    § 9543(b)(3). PCRA time limits are jurisdictional in
    nature, implicating a court’s very power to
    adjudicate a controversy. Commonwealth v. Fahy,
    
    737 A.2d 214
     (Pa. 1999). Accordingly, the “period
    for filing a PCRA petition can be extended only if the
    PCRA permits it to be extended, i.e., by operation of
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    one of the statutorily enumerated exceptions to the
    PCRA time-bar. Id. at 222.
    Commonwealth v. Ali, 
    86 A.3d 173
    , 176-177 (Pa. 2014), cert. denied,
    
    135 S.Ct. 707
     (2014). Before addressing appellant’s issues on the merits,
    we must first determine if we have jurisdiction to do so.
    As noted above, a PCRA petitioner has one year from the date his or
    her judgment of sentence becomes final in which to file a PCRA petition.
    This court has held the following regarding when a judgment becomes final:
    The plain language of the PCRA provides that a
    judgment of sentence becomes final at the
    conclusion of direct review or when the time seeking
    direct review expires.            See 42 Pa.C.S.A.
    § 9545(b)(3).     In fixing the date upon which a
    judgment of sentence becomes final, the PCRA does
    not refer to the conclusion of collateral review or the
    time for appealing a collateral review determination.
    Thus, the plain language of the PCRA statute shows
    that a judgment of sentence becomes final
    immediately upon expiration of the time for seeking
    direct review, even if other collateral proceedings are
    still ongoing.     As this result is not absurd or
    unreasonable, we may not look for further
    manifestations     of   legislative   intent.      See
    Commonwealth v. Hall, 
    80 A.3d 1204
    , 1211 (Pa.
    2013) (internal quotation marks omitted) (We may
    “look beyond the plain language of the statute only
    when words are unclear or ambiguous, or the plain
    meaning would lead to a result that is absurd,
    impossible of execution, or unreasonable.”).
    Commonwealth v. Callahan, 
    101 A.3d 118
    , 122 (Pa.Super. 2014).
    In the instant case, the trial court denied appellant’s post-sentence
    motion on March 2, 1998.       Appellant did not file a direct appeal with this
    court.     Accordingly, appellant’s judgment of sentence became final on
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    April 1, 1998.4     Appellant filed the instant petition on December 1, 2016—
    more than 17 years after his judgment became final and more than 16 years
    after a PCRA petition could be considered timely.            See 42 Pa.C.S.A.
    § 9545(b)(1).
    As noted above, the PCRA does enumerate exceptions to the one-year
    requirement. A petitioner may file a petition under the PCRA after one year
    has passed from the final judgment of sentence for any of the following
    reasons:
    (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.
    4 The fact that appellant’s first PCRA petition was successful, resulting in a
    resentencing is inapposite here. “[A] successful first PCRA petition does not
    ‘reset the clock’ for the calculation of the finality of the judgment of sentence
    for purposes of the PCRA where the relief granted in the first petition . . .
    affected [the petitioner’s] sentence only.” Commonwealth v. McKeever,
    
    947 A.2d 782
    , 785 (Pa.Super. 2008), citing Commonwealth v. Dehard,
    
    730 A.2d 991
    , 994 n.2 (Pa.Super. 1999), appeal denied, 
    745 A.2d 1218
    (Pa. 1999).
    -6-
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    42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).   Section 9545 also mandates that any
    petition filed under these exceptions must be filed within 60 days of the date
    the claim could have been presented. Id. at § 9545(b)(2).
    In the instant appeal, appellant fails to demonstrate any of the
    exceptions to the PCRA time-bar. For his first issue, appellant appears to be
    challenging the discretionary aspects of his sentence while also alleging
    “interference by government officials with the presentation of the claim.”
    (Appellant’s brief at 6.)   Appellant fails to provide any information as to
    when the alleged interference by government officials ceased to exist.
    Moreover, this allegation is belied by the certified record before us, which
    reflects that appellant filed three PCRA petitions prior to the instant appeal.
    Accordingly, we do not have jurisdiction to consider this issue on its merits.
    For his second issue, appellant appears to be averring that his
    sentence was based on a finding-of-fact by the sentencing court that
    appellant suffered from mental illness. Appellant specifically cites two cases
    from the Supreme Court of the United States, Apprendi v. New Jersey,
    
    530 U.S. 466
     (2000), and Harris v. United States, 
    536 U.S. 545
     (2002).
    Assuming, arguendo, that the Supreme Court did recognize a new
    constitutional right that it held to be retroactive, appellant had 60 days from
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    the date of the Court’s decision in Harris to file a PCRA petition.5     See
    42 Pa.C.S.A. § 9545(b)(2).    The Supreme Court announced its decision in
    Harris on June 24, 2002.      Accordingly, in order to successfully plead an
    exception to the PCRA time-bar, appellant would have had to file his petition
    by August 23, 2002. Therefore, we find that we do not have jurisdiction to
    consider appellant’s second issue on its merits.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/22/2018
    5 We note that the holding in Harris was overruled by the Supreme Court in
    Alleyne v. United States, 
    570 U.S. 99
     (2013), on June 17, 2013. Even if
    appellant had framed his issue as an Alleyne argument, he would have
    been required to file his PCRA petition by August 16, 2013, to successfully
    plead an exception to the PCRA time-bar.
    -8-