Com. v. Russell, P. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
PAUL RUSSELL,
Appellant No. 400 EDA 2016
Appeal from the PCRA Order January 14, 2016
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0611781-1991
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED AUGUST 10, 2016
Appellant, Paul Russell, appeals, pro se, from the order of January 14,
2016, denying as untimely his second petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
We take the underlying facts and procedural history in this matter
from our independent review of the certified record.
On July 23, 1992, a jury convicted Appellant of murder in the first
degree and possession of an instrument of crime (PIC). On June 27, 1995,
the trial court sentenced Appellant to a term of incarceration of life. 1 On
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*
Retired Senior Judge assigned to the Superior Court.
1
The court also imposed a concurrent sentence of not less than one nor
more than two years’ imprisonment on the PIC conviction.
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October 28, 1996, this Court affirmed the judgment of sentence. (See
Commonwealth v. Russell, No. 2647 Philadelphia 1995, unpublished
memorandum (Pa. Super. filed Oct. 28, 1996)). Appellant did not seek
leave to appeal the Pennsylvania Supreme Court.
On October 17, 1997, Appellant filed his first PCRA petition. The PCRA
court appointed counsel, who filed an amended petition on July 28, 1998.
On October 6, 1999, the PCRA court dismissed the petition. On August 29,
2000, this Court affirmed the dismissal on appeal. (See Commonwealth v.
Russell, 764 A.2d 1128 (Pa. Super. 2000)). On May 14, 2001, the
Pennsylvania Supreme Court denied leave to appeal. (See Commonwealth
v. Russell, 781 A.2d 143 (Pa. 2001)).
On April 13, 2015, Appellant filed the instant, pro se, second PCRA
petition. On August 25, 2015, the PCRA court filed a Rule 907 notice of its
intention to dismiss Appellant’s PCRA petition without a hearing. See
Pa.R.Crim.P. 907(1). Appellant did not file a response. On January 14,
2016, the PCRA court dismissed Appellant’s second PCRA petition. Appellant
timely appealed.2
On appeal, Appellant raises five questions for this Court’s review. All
of Appellant’s claims concern alleged ineffective assistance of counsel and
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2
Appellant was not ordered to file a concise statement of errors raised on
appeal. See Pa.R.A.P. 1925(b). The PCRA court did not file any additional
opinions. See Pa.R.A.P. 1925(a).
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are identical to those raised in his first PCRA petition. (See Appellant’s Brief,
at 4; Commonwealth v. Russell, No. 3073 EDA 1999, unpublished
memorandum, at **2-3 (Pa. Super. filed Aug. 29, 2000)).
Our standard of review for an order denying PCRA relief is well-settled:
This Court’s standard of review regarding a PCRA court’s
order is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Great deference is granted to the findings of the PCRA court, and
these findings will not be disturbed unless they have no support
in the certified record.
Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations
and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a
trial court has no jurisdiction to entertain the petition.” Commonwealth v.
Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted).
Here, Appellant filed his second PCRA petition on August 13, 2015.
The PCRA provides that “[a]ny petition under this subchapter, including a
second or subsequent petition, shall be filed within one year of the date the
judgment becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1). Appellant’s
judgment of sentence became final on November 27, 1996, thirty days after
this Court affirmed the judgment of sentence and Appellant failed to seek
leave to appeal to the Pennsylvania Supreme Court. See Pa.R.A.P. 1113; 42
Pa.C.S.A. § 9545(b)(3). Therefore, Appellant had one year, until November
27, 1997, to file a timely PCRA petition. Because Appellant did not file his
current petition until August 13, 2015, the petition is facially untimely.
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Thus, he must plead and prove that he falls under one of the exceptions at
Section 9545(b) of the PCRA. See 42 Pa.C.S.A. § 9545(b)(1).
Section 9545 provides that the court can still consider an untimely
petition where the petitioner successfully 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.
Id. at § 9545(b)(1)(i)-(iii). Further, a petitioner who wishes to invoke any
of the above exceptions must file the petition “within [sixty] days of the date
the claim could have been presented.” Id. at § 9545(b)(2). The
Pennsylvania Supreme Court has repeatedly stated that it is an appellant’s
burden to plead and prove that one of the above-enumerated exceptions
applies. See, e.g., Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268
(Pa. 2008), cert. denied, 555 U.S. 916 (2008).
Here, Appellant has not invoked any of the statutory exceptions. (See
Appellant’s Brief, at 7-21). While he argued in the PCRA court that his
petition fell under the third exception of Section 9545(b)(1), (see
Appellant’s Petition for Post[-]Conviction Relief, 4/13/15, at unnumbered
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page 1; PCRA Court Opinion, 1/14/16, at unnumbered pages 2-4); see also
42 Pa.C.S.A. § 9545(b)(1)(iii) (providing relief where appellant proves
newly-recognized constitutional right), he has abandoned that claim on
appeal. (See Appellant’s Brief, at 7-21). Since Appellant’s petition is
untimely with no statutory exception to the time-bar pleaded and proven,
the PCRA court was without jurisdiction to address the merits of Appellant’s
claims.
Accordingly, because Appellant failed to plead and prove that his
petition falls within one of the enumerated exceptions to the PCRA time-bar,
it is untimely. We are without jurisdiction to consider the merits of his
appeal.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/10/2016
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