Com. v. Brown, K. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KAREEN BROWN
Appellant No. 3110 EDA 2015
Appeal from the PCRA Order September 1, 2015
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0000837-2007
BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED AUGUST 18, 2016
Kareen1 Brown appeals, pro se, from the order entered in the Court of
Common Pleas of Chester County, on September 1, 2015, denying him relief
on his pro se second petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. § 9541 et seq. The PCRA court determined Brown’s
PCRA petition was untimely. In this appeal, Brown claims the PCRA court
erred in determining this was Brown’s second PCRA petition and in failing to
recognize he is serving an illegal sentence pursuant to Alleyne v. United
States, ___ U.S. ___, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013). After a
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*
Retired Senior Judge assigned to the Superior Court.
1
This name is spelled “Kareen” or “Kareem” throughout the certified record.
However, in documents that appear to have been filled out by the appellant,
it is spelled “Kareen”. Accordingly, we use that spelling.
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thorough review of the submissions by the parties, relevant law, and the
certified record, we affirm.
Before we can address any of Brown’s substantive claims, we must
address the timeliness of his petition.
[T]he timeliness of a PCRA petition implicates the jurisdiction of
this Court and the PCRA court. Commonwealth v. Williams,
35 A.3d 44, 52 (Pa. Super. 2011)(citation omitted), appeal
denied, 616 Pa. 467, 50 A.3d 121 (2012). “Pennsylvania law
makes clear no court has jurisdiction to hear an untimely PCRA
petition.” Id. The PCRA “confers no authority upon this Court to
fashion ad hoc equitable exceptions to the PCRA time-bar [.]”
Commonwealth v. Watts, 611 Pa. 80, 23 A.3d 980, 983
(2011) (citation omitted). This is to “accord finality to the
collateral review process.” Id. “A petition for relief under the
PCRA, including a second or subsequent petition, must be filed
within one year of the date the judgment becomes final unless
the petition alleges, and the petitioner proves, that an exception
to the time for filing the petition, set forth at 42 Pa.C.S.A. §
9545(b)(1)(i), (ii), and (iii), is met.” The act provides, in
relevant part, as follows.
§ 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
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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.
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the
date the claim could have been presented.
...
42 Pa.C.S.A. § 9545(b).
Commonwealth v. Medina, 92 A.3d 1210, 1215 (Pa. Super. 2014).
Brown’s underlying claims implicate the legality of his sentence. Such
claims are, generally, not subject to waiver. However,
“[A] court may entertain a challenge to the legality of the
sentence so long as the court has jurisdiction to hear the claim.
In the PCRA context, jurisdiction is tied to the filing of a timely
PCRA petition.” [Commonwealth v. Fowler, 930 A.2d 586, 592
(Pa. Super. 2007)] (quoting Commonwealth v. Berry, 877
A.2d 479, 482 (Pa. Super. 2005) (en banc), appeal denied, 591
Pa. 688, 917 A.2d 844 (2007)). “Although legality of sentence is
always subject to review within the PCRA, claims must still first
satisfy the PCRA's time limits or one of the exceptions thereto.”
Fowler, supra, Pennsylvania law makes clear no court has
jurisdiction to hear an untimely PCRA petition. Commonwealth
v. Robinson, 575 Pa. 500, 837 A.2d 1157 (2003). Thus, a
collateral claim regarding the legality of a sentence can be lost
for failure to raise it in a timely manner under the PCRA.
Commonwealth v. Wojtaszek, 951 A.2d 1169, 1173 n. 9 (Pa.
Super. 2008), appeal denied, 600 Pa. 733, 963 A.2d 470 (2009).
Commonwealth v. Infante, 63 A.3d 358, 375 (Pa. Super. 2013).
Accordingly, we need not examine the merits of Brown’s claim of
illegal sentence if the claim itself has not been raised in a timely manner.
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Here, the PCRA court determined, and the certified record confirms, that
Brown’s judgment of sentence became final on March 7, 2011 when the
United States Supreme Court denied Brown’s Petition for Writ of Certiorari
on direct appeal. Pursuant to statute, Brown had one year from that date,
or until March 7, 2012, to file his PCRA petition. On June 15, 2015, Brown
2
filed this petition, his second. It is facially untimely by greater than three
years. Nonetheless, Brown claims the petition is timely based upon the
newly recognized constitutional right announced by the United States
Supreme Court in Alleyne, supra. See 42 Pa.C.S. § 9545(b)(1)(iii). This
argument is unavailing.
In order to qualify for any of the three exceptions to the one-year
timeliness limit, the petitioner must file the claim within 60 days of the date
the claim could have been presented. 42 Pa.C.S. § 9545(b)(2). In that
regard, the PCRA court found that Alleyne was filed on June 17, 2013,
which meant Brown had until Friday, August 16, 2013 in which to file his
petition. See Notice of Intent to Dismiss PCRA Petition, at 3-5 (7/28/2015).
The certified record confirms Brown did not file the instant petition until June
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2
Brown filed a prior petition, seeking permission to file a PCRA petition nunc
pro tunc. That petition was denied by the PCRA court, which decision was
affirmed by a panel of our Court. See Commonwealth v. Brown, 106
A.3d 181 (Pa. Super. 2014) (unpublished memorandum), allowance of
appeal denied, 109 A.3d 677 (Pa. 2015).
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15, 2015. Accordingly, he is not entitled to the benefit of the newly
recognized constitutional right exception.3
Because the petition was untimely, the PCRA court correctly
determined it did not have jurisdiction to address the merits of Brown’s
petition. Accordingly, the PCRA court did not err in dismissing the petition. 4
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2016
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3
Because the petition does not satisfy the requirements of Section
9545(b)(2), we need not discuss the fact that Alleyne is not subject to
retroactive application, which would be another reason why Brown is not
entitled to relief. See Commonwealth v. Washington, ___ A.3d ___,
2016 WL 3900988 (Pa. 2016) (7/19/2016)
4
The PCRA court also asserted that Brown’s appeal of the denial of his PCRA
petition was untimely filed. We recognize our prerogative to remand this
matter for a hearing to determine Brown’s compliance with the prisoner
mailbox rule. See Smith v. Pennsylvania Board of Probation and
Parole, 683 A.2d 278, 282-83 (Pa. 1996). However, given our disposition,
we decline as it “would be futile to do so.” See Commonwealth v.
Chambers, 35 A.3d 34, 40 (Pa. Super. 2011).
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