Com. v. Nicholas, L. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
LARRY DONNELL NICHOLAS :
:
Appellant : No. 2380 EDA 2017
Appeal from the PCRA Order July 5, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1207101-1998
BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY LAZARUS, J.: FILED JUNE 05, 2018
Larry Donnell Nicholas appeals, pro se, from the trial court’s order
dismissing as untimely his petition filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S §§ 9541-9546. After careful review, we affirm.
On January 11, 2001, a jury convicted Nicholas of first-degree murder
and related firearms offenses. The charges stemmed from the 1998 shooting
death of Victor Garrett. On March 7, 2001, the trial court sentenced Nicholas
to a mandatory term of life imprisonment for murder and consecutive
sentences of 12-24 months’ incarceration for the remaining offenses. Nicholas
filed a timely direct appeal; our Court affirmed his judgment of sentence on
December 13, 2002. Nicholas did not file an appeal to the Pennsylvania
Supreme Court or the United States Supreme Court.
Nicholas filed three PCRA petitions on December 17, 2003, January 17,
2008, and August 5, 2008. They were all dismissed. The current petition,
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filed on May 2, 2017, is his fourth. The court dismissed this latest petition on
July 5, 2017. Nicholas filed a timely notice of appeal. He raises the following
issues for our consideration:
(1) Whether the court erred by dismissing [Nicholas’] May 2,
2017, PCRA petition in which [Nicholas] asserts that he
qualifies for timeliness exception under 42 Pa.C.S. §
9545(b)(1)(iii) based on a newly-recognized constitutional
right that should be applied retroactively to his case on
collateral review.
(2) Whether retrospectively [sic] utilizing post-Burton [sic]
judicial opinion PCRA petitioner qualified for the exception
under subsection 9545(b)(1)(ii).
(3) Whether retrospectively [sic] utilizing post-Burton [sic]
judicial opinion PCRA petitioner meritoriously met the 60-
day timeliness requirement.
(4) Whether retrospectively [sic] utilizing post-Burton [sic]
judicial opinion PCRA petitioner was denied an opportunity
to present Mr. Willie Singletary as a witness; the PCRA judge
did not have an opportunity to view Mr. Singletary’s
demeanor and properly evaluate his credibility.
Appellant’s Pro Se Brief, at 4.
Nicholas admits that his petition is patently untimely under the PCRA.
Generally, a petition for PCRA relief, including a second or subsequent petition,
must be filed within one year of the date the judgment is final. See 42
Pa.C.S.A. § 9545(b)(3); see also Commonwealth v. Alcorn, 703 A.2d 1054(Pa. Super. 1997). Here, Nicholas’ judgment of sentence became final under
the PCRA on January 13, 2003 when the time expired for him to file a petition
for allowance of appeal with the Pennsylvania Supreme Court. See Pa.R.A.P.
1113. Thus, Nicholas had until January 13, 2004, to file a timely petition.
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Because his petition was filed more than thirteen years later, his petition is
patently untimely.
There are, however, exceptions to the time requirement. Where the
petition alleges, and the petitioner proves, that an exception to the time for
filing the petition is met, the petition will be considered timely. These
exceptions include interference by government officials in the presentation of
the claim, newly-discovered facts or evidence, and an after-recognized
constitutional right. 42 Pa.C.S.A. § 9545(b)(1)(i),(ii), and (iii). A PCRA
petition invoking one of these exceptions must “be filed within 60 days of the
date the claims could have been presented.” 42 Pa.C.S.A. § 9545(b)(2). The
timeliness requirements of the PCRA are jurisdictional in nature and,
accordingly, a PCRA court cannot hear untimely petitions. Commonwealth
v. Robinson, 837 A.2d 1157 (Pa. 2003).
Invoking section 9545(b)(1)(iii) under the PCRA, the after-recognized
constitutional right exception, Nicholas argues that Commonwealth v.
Burton, 158 A.3d 618 (Pa. 2017), applies retroactively to his case and gives
the PCRA court jurisdiction to consider the merits of his petition. In
Commonwealth v. Burton, 158 A.3d 618, 638 (Pa. 2017), our Supreme
Court recently held that “the presumption that information which is of public
record cannot be deemed ‘unknown’ for purposes of subsection
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9545(b)(1)(ii)[, the newly-discovered fact exception,1] does not apply to pro
se prisoner petitioners. Id. (emphasis added). Nicholas claims that an
affidavit, signed on June 26, 2008, from fellow inmate Willie Singletary
(otherwise known as “Ski”), avers that Singletary was a witness to the murder
and that Nicholas was not the shooter are newly-discovered facts.2
As the trial court notes, Nicholas’ claim does not involve information
which is of public record; thus, Burton is not applicable to his situation.
Moreover, Nicholas failed to plead and prove how he could not have discovered
“Ski’s” identity and the alleged alibi information earlier through the exercise
of due diligence, especially when a trial witness testified that Ski was present
____________________________________________
1 Pursuant to the newly-discovered fact exception:
(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:
* * *
(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[.]
42 Pa.C.S. § 9545.
2Nicholas first presented this affidavit in his unsuccessful August 2009 PCRA
petition. On appeal, our Court affirmed the dismissal of the petition, noting
“Nicholas has failed to demonstrate why these ‘facts’ could not have been
ascertained earlier by the exercise of due diligence.” Commonwealth v.
Nicholas, 2845 EDA 2009, at 5 (Pa. Super. filed May 25, 2010) (unpublished
memorandum) (emphasis in original).
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at the crime scene. Accordingly, he has failed to plead and prove an exception
to the PCRA’s timeliness requirements. Thus, the trial court properly
dismissed Nicholas’ untimely petition because the court lacked jurisdiction in
the matter. Robinson, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/5/18
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