Com. v. Harris, L. ( 2016 )

J-S44018-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LANNY B. HARRIS
Appellant No. 1901 EDA 2015
Appeal from the PCRA Order entered October 23, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0903241-2002
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 24, 2016
Appellant, Lanny B. Harris, appeals pro se from the order the Court of
Common Pleas of Philadelphia County entered on October 23, 2013
dismissing his petition pursuant to the Post-Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.
The PCRA court summarized the relevant background in its July 28,
2015 opinion, which we adopt here by reference. Briefly, on March 17,
2005, following a probation revocation hearing, Appellant was sentenced to
five to ten years’ imprisonment in connection with his guilty plea to
possession of a controlled substance (cocaine) with intent to deliver.
Appellant filed a PCRA petition on August 29, 2006, which the PCRA
court dismissed on May 22, 2009. On January 28, 2013, Appellant filed the
instant PCRA petition, his second, which the PCRA court dismissed on
J-S44018-16
October 23, 2013, as untimely. On November 26, 2013, Appellant filed
another PCRA petition, his third. The PCRA court appointed counsel, and on
August 14, 2014 an amended PCRA petition was filed. On May 29, 2015, the
PCRA court granted nunc pro tunc reinstatement of Appellant’s right to
appeal from the dismissal of the January 2013 PCRA petition. Upon request,
Appellant’s counsel was allowed to withdraw from the representation.
Appellant pro se timely appealed the order dismissing his second PCRA
petition. The PCRA court ordered Appellant to file Pa.R.A.P. a 1925(b)
statement within 21 days of the order. Appellant, however, failed to do so.
The PCRA court order denying as untimely Appellant’s January 28, 2013
PCRA petition is now before us for disposition.
Appellant argues the trial court erred in several instances with regard
to his prior filings.1 Nowhere, however, does Appellant explain whether we
can entertain the merits of his challenges. In fact, we cannot.
“[A]n appellate court reviews the PCRA court’s findings of fact to
determine whether they are supported by the record, and reviews its
____________________________________________
1
Appellant alleges he filed an untimely motion for reconsideration on
October 21, 2005, which the trial court failed to treat as a PCRA petition.
There is no record of a motion filed on that day. The trial court’s docket
sheet shows an entry on October 31, 2005 stating: “PETITION FILE
MAINTENANCE ADMINISTRATIVE DELETION”. The entry following the
October 31, 2005 notation concerns the filing, on August 29, 2006, of
Appellant’s PCRA petition.
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conclusions of law to determine whether they are free from legal error.”
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).
A PCRA petition, including a second or a subsequent petition, must be
filed within one year of the judgment becoming final. See 42 Pa.C.S.A.
§ 9545(b)(1). A judgment is deemed 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). There are some
exceptions to this general rule. It is Appellant’s duty, however, to allege and
prove the applicability of the exceptions, and that the petition was filed
within 60 days of the date the claim could have been presented. See
42 Pa.C.S.A § 9545(b)(2). Failure to do so precludes further review of the
petition. See, e.g., Commonwealth v. Beasley, 741 A.2d 1258, 1261
(Pa. 1999).
Here, Appellant’s judgment became final on April 18, 2005, at the
expiration of 30 days for filing a direct appeal. See Pa.R.A.P. 903;
42 Pa.C.S.A. § 9545(b)(3). Appellant had one year from that date to file a
timely PCRA petition. The instant petition was filed on January 28, 2013,
more than seven years after the expiration of the above deadline. The
petition is, therefore, facially untimely. Thus, Appellant had to allege and
prove he met one of the exceptions to the time-bar. Appellant did not do
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J-S44018-16
so.2 Accordingly, we affirm the order of the PCRA court dismissing
Appellant’s instant petition as untimely.3 We direct that a copy of the trial
court’s July 28, 2015 opinion be attached to any future filings in this case.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/24/2016
____________________________________________
2
On appeal, for the first time, Appellant alleges that he met the
“governmental interference” exception because the trial court failed to
appoint counsel in connection with his October 21, 2005 motion. Appellant’s
Brief at 15. The argument is waived. See Pa.R.A.P. 302(a) (“Issues not
raised in the lower court are waived and cannot be raised for the first time
on appeal.”). In any event, it is well-settled that the timeliness exceptions
must be pled in the PCRA petition. Commonwealth v. Burton, 936 A.2d
521, 525 (Pa. Super. 2007) (“[E]xceptions to the time bar must be pled in
the PCRA petition, and may not be raised for the first time on appeal.”).
Here, Appellant did not even acknowledge a timeliness issue, let alone
address the applicability of any exception in his petition. Additionally, we do
not see any connection between the trial court’s alleged “error” in 2005 and
the untimeliness of the instant petition. Finally, nowhere did Appellant state
when he first learned of the “governmental interference” and what
prevented him from filing a petition within 60 days from the discovery of the
interference. See 42 Pa.C.S.A. § 9545(b)(2).
3
We also note that Appellant failed to file a Rule 1925(b) statement, despite
the PCRA court’s order to do so. Failure to file said statement generally
results in a waiver of the issues raised on appeal. See Pa.R.A.P.
1925(b)(4)(vii); Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011).
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Circulated 07/28/2016 09:46 AM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
COMMONWEALTH OF
PENNSYLVANIA CP-51-CR-0903241-2002
v.
SUPERIOR COURT
1901 EDA 2015
LANNY B. HARRIS
FILED
JUL 2 8 2015
OPINION . Crimin~! Appeals Unit
F,rst Jud1c1a1 District of PA
CHRIS R. WOGAN, J.
Procedural Posture
On December 5, 2002, defendant entered into a negotiated guilty plea to
PWID (possessing cocaine with the intent to deliver) and was sentenced to 36
months reporting probation, 35 P.S. §780-113(a)(30). At a violation of probation
(VOP) hearing on March 17, 2005, defendant was found in direct violation of this
probation by committing a murder six months after being placed on probation by
this court (N.T. 3/17/05, p. 8). He was sentenced to five to ten years incarceration.
CP-51-CR-0903241-2002 Comm. v. Harris. LannY
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Defendant filed a "Petition To Reconsider VOP Sentence" on March 24, 2005,
which was denied on April 21, 2005.1
On August 29, 2006, defendant filed a "Writ of Habeas Corpus
Relief/Dismissal Correction of Sentence ... " This "writ" was classified by the court
system as a Petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§9541, et seq. PCRA counsel, Emily Beth Cherniack, Esquire, entered her
appearance on January 18, 2007, and filed a Finley letter and Petition To Withdraw
As Counsel on April 24, 2009.2 On April 24, 2009, this court filed a dismissal
Notice under Pa.R.Crim.P. 907, writing that the issues raised in defendant's
petition were without merit, and his attorney also determined that the issues raised
were without merit. The PCRA Petition was formally dismissed on May 22, 2009.
On January 28, 2013, defendant filed a prose second PCRA Petition. After a
hearing on September 23, 2013, this court sent defendant a 907 Notice that it was
going to dismiss his second PCRA Petition as untimely; on October 7, 2013, the
These dates are according to the Secure Docket in this case. Defendant states that he
filed the reconsideration of sentence on March 17, 2005, and it was denied on March 24, 2005.
PCRA counsel Emily Beth Cherniack, Esquire, also wrote those dates in her Finley Letter.
Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988).
On October 21, 2005, defendant filed an untimely prose "Motion For Modification Of
Sentence Nunc Pro Tune."
2
In her Finley letter, counsel wrote that petitioner did not file his claim until August, 2006,
over a year after the trial court denied his Petition for Reconsideration of Sentence. "Therefore,
this [petition] was not timely."
2
907 Notice was filed. On October 23, 2013, the second PCRA Petition was
formally dismissed.
On November 26, 2013, a third pro se PCRA Petition was filed. On May
20, 2014, Sandjai Weaver, Esquire, entered her appearance. On August 14, 2014,
a counseled Amended PCRA Petition was filed. On April 28, 2015, the
Commonwealth agreed to nunc pro tune reinstatement of defendant's appellate
rights; on May 29, 2015, defendant's appellate rights were reinstated. On June 21,
2015, attorney Weaver filed a Motion to Withdraw as counsel.
On June 22, 2015, defendant filed a prose Notice of Appeal. On July l,
2015, and re-sent July 15, 2015, this court ordered pro se defendant to file a
Statement Of Errors Complained Of On Appeal within 21 days of the date of the
Order. The Superior Court Docket lists that defendant is being represented on
appeal by Sandjai Weaver, Esquire. In the interest of time, this court will address
the only issue that can be raised on appeal, the timeliness of the PCRA Petition.
Discussion
Defendant sought reinstatement of his right to appeal this court's October
23, 2013, Order denying his second filed PCRA Petition. See Amended Petition
Under The Post Conviction Relief Act, Aug. 14, 2014, ~15. His second PCRA
Petition was untimely filed because it was not filed within one year of the date his
3
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judgment became final and defendant did not even plead any of the three
exceptions to excuse the late filing. See 42 Pa.C.S. §9545(b ).3
Conclusion
Defendant's second PCRA Petition was untimely and did not plead any
exceptions to the late filing. Defendant's PCRA Petition was properly dismissed
and defendant's sentence should stand.
3
See 42 Pa.C.S. §9545, Jurisdiction and Proceedings
(b) Time for filing petition.>-
(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:
(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.
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