Com. v. Green, C. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CLYDE GREEN
Appellant No. 3587 EDA 2014
Appeal from the PCRA Order entered November 14, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0908451-2003
BEFORE: MUNDY, OTT, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 20, 2015
Appellant, Clyde Green, appeals from the November 14, 2014 order
entered in the Court of Common Pleas of Philadelphia County, denying as
untimely his petition for collateral relief pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Following review, we affirm.
The PCRA court provided the following procedural background:
On April 22, 2005, following a trial by jury, Appellant was
convicted of Involuntary Deviate Sexual Intercourse[] and
Aggravated Indecent Assault. Appellant was sentenced by this
[c]ourt to a total term of ten to twenty (10-20) years[’]
imprisonment and was given credit for time served, as he had
been incarcerated since July 2003. On November 30, 2006, the
decision of this [c]ourt was affirmed [] by the Superior Court of
Pennsylvania. On January 16, 2007, the Appellant filed his first
PCRA petition, which was denied on February 12, 2008. On July
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7, 2010, the Supreme Court of Pennsylvania denied Appellant’s
petition for allowance of appeal.
PCRA Court Opinion, 10/30/14, at 1.1
On April 7, 2014, Appellant filed the PCRA petition that is the subject
of this appeal. In his petition, Appellant asserted his sentence was illegal
and that his petition satisfied the PCRA’s timeliness requirements because he
filed it “within sixty (60) days of becoming aware of the decision of the
United States Supreme Court in Alleyne v. United States, 133 S. Ct. 2151
(2013).” Appellant’s Brief at 2. Appellant asserts he “became aware of the
Alleyne decision on or about March 15, 2014, when it became available on
the institution’s law library computers.” Id.
On November 14, 2014, the PCRA court dismissed the petition as
time-barred. This appeal followed.
We first note that Appellant’s brief does not include a Statement of
Questions Involved as required by Pa.R.A.P. 2111(a)(4) and Pa.R.A.P.
2116(a). Rule 2116(a) provides, in relevant part:
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1
Our review of the record reveals an error in the trial court’s procedural
summary. This Court affirmed Appellant’s judgment of sentence on July 5,
2006, not November 30, 2006. Our Supreme Court denied Appellant’s
petition for allowance of appeal on November 30, 2006. He did not file a
writ of certiorari to the United States Supreme Court. Therefore, his
judgment of sentence was final on February 28, 2007, ninety days after our
Supreme Court denied his petition for allowance of appeal, when the time for
seeking review from the United States Supreme Court expired. Although it
does not change the ultimate disposition of the case, it does change the date
on which Appellant’s judgment of sentence became final and, consequently,
the deadline for filing his PCRA petition.
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The statement of the questions involved must state concisely the
issues to be resolved, expressed in the terms and circumstances
of the case but without unnecessary detail. The statement will
be deemed to include every subsidiary question fairly comprised
therein. 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) (emphasis added). “[A]lthough this Court is willing to
construe liberally materials filed by a pro se litigant, pro se status generally
confers no special benefit upon an appellant. Accordingly, a pro se litigant
must comply with the procedural rules set forth in the Pennsylvania Rules of
the Court.” Commonwealth v. Lyons, 833 A.2d 245, 251–52 (Pa. Super.
2003) (citation omitted).
Despite his failure to include a Statement of Questions Involved,
Appellant does offer the following proposition at the beginning of the
Argument section of his brief:
A. Petitioner asserts that the trial court’s imposition of the ten (10) to
twenty (20) year sentence, imposed in accordance with 42
Pa.C.S.A. § 9714 was not charged, found beyond a reasonable
doubt, admitted to by Appellant, or given notice of, and was
therefore illegal and unconstitutional under the decision of the
United States Supreme Court in Alleyne.
Appellant’s Brief at 3. Although Appellant’s failure to include a Statement of
Questions Involved essentially leaves us without any issue to consider, we
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conclude the statement in the Argument section of Appellant’s brief provides
an alternative foundation for Appellant’s claims.2
“Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination, and whether the PCRA
court’s determination is free of legal error. The PCRA court’s findings will
not be disturbed unless there is no support for the findings in the certified
record.” Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super.
2013) (citations omitted).
The PCRA statute directs that any PCRA petition, including a second or
subsequent petition, must be filed within one year of the date the underlying
judgment becomes final unless the petitioner proves an exception. 42
Pa.C.S.A. § 9545(b)(1). “[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.” 42 Pa.C.S.A. § 9545(b)(3). Further, any
petition claiming an exception under § 9545(b)(1) must be filed within 60
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2
We also note that Appellant’s brief lacks a summary of the argument in
violation of Pa.R.A.P. 2111(a)(6) and Pa.R.A.P. 2118. We read the
statement set forth above as constituting a summary of Appellant’s
argument. Although the inclusion of the statement does not excuse
Appellant’s rule violations, we shall proceed with our review of his appeal.
It merits mention that the Commonwealth, after requesting and securing an
extension for filing a brief, did not file an appellee’s brief in this case.
Therefore, the Commonwealth did not maintain it was in any way adversely
affected by the deficiencies in Appellant’s brief.
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days of the date the claim could have been presented. 42 Pa.C.S.A. § 9545
(b)(2). “[T]he PCRA’s timeliness requirements are jurisdictional in nature
and, accordingly, a PCRA court cannot hear untimely PCRA petitions.”
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (quoting
Commonwealth v. Rienzi, 827 A.2d 369, 371 (Pa. 2003)).
Appellant’s judgment of sentence became final on February 28, 2007.3
Therefore, absent an exception, his petition filed on July 10, 2014 is
untimely.
Appellant asserts his petition is saved from the PCRA’s time bar by a
retroactive constitutional right recognized in Alleyne under Section
9545(b)(1)(iii). However, before this Court can entertain his claim of a
retroactive constitutional right, Appellant must demonstrate he filed his
petition within 60 days of the date his claim could have been presented, as
required by Section 9545(b)(2).
As noted above, Appellant argues he satisfied the PCRA’s timeliness
requirements by filing his petition within 60 days of “becoming aware of”
Alleyne, i.e., “on or about March 15, 2014, when it became available on the
institution’s library computers.” Appellant’s Brief at 2. However, Alleyne
was decided on June 17, 2013, more than nine months before Appellant filed
the instant petition.
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3
See supra footnote 1.
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In Commonwealth v. Boyd, 923 A.2d 513 (Pa. Super. 2007), this
Court explained:
[A]ny petition invoking an exception to the PCRA’s timing
provisions must be filed within sixty days of the date the claim
first could have been presented. 42 Pa.C.S.A. § 9545(b)(2);
see also Commonwealth v. Lark, 560 Pa. 487, 494, 746 A.2d
585, 588 (2000) (a petitioner must plead and prove specific
facts that demonstrate his claim was raised within the sixty-day
timeframe). With regard to an after-recognized constitutional
right, this Court has held that the sixty-day period begins to run
upon the date of the underlying judicial decision.
Commonwealth v. Baldwin, 789 A.2d 728 (Pa. Super. 2001).
Id. at 517. Further, in Commonwealth v. Brandon, 51 A.3d 231 (Pa.
Super. 2012), this Court rejected a similar claim, noting that ignorance of
the law does not excuse the failure to file a petition within 60 days of the
date a decision is announced, and stating, “Neither the court system nor the
correctional system is obliged to educate or update prisoners concerning
changes in case law.” Id. at 235 (quoting Baldwin, 789 A.2d at 731).
Appellant clearly failed to file his petition within 60 days of the
Alleyne decision. “[W]hen a PCRA petition [is] entitled to one of the
[§ 9545(b)(1)] exceptions, but [is] not filed within 60 days of the date that
the claim could have been first brought, the trial court has no power to
address the substantive merits of a petitioner’s PCRA claim.”
Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).
Appellant’s petition was untimely filed. Therefore, this Court, as well
as the PCRA court, lacks jurisdiction to address the substantive issue of
Appellant’s PCRA claim.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2015
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