Com. v. Tisdall, M. ( 2019 )

J-S74036-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARTIN TISDALL :
:
Appellant : No. 2788 EDA 2017
Appeal from the PCRA Order Entered August 8, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0308871-1998
BEFORE: LAZARUS, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED MARCH 21, 2019
Martin Tisdall appeals from the denial of his request for relief under the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Tisdall
maintains that the trial court should have granted his PCRA petition based on
the holding in Montgomery v. Louisiana, 136 S. Ct. 718 (2016). We affirm.
On November 22, 1999, Tisdall pled guilty to two counts of robbery,
criminal conspiracy, and possessing an instrument of crime. On March 1,
2000, the trial court sentenced him to 32½ to 65 years’ incarceration. Tisdall
filed a post sentence motion and moved to withdraw his guilty plea. The trial
court denied both motions. Tisdall did not seek appellate review.
Tisdall filed a pro se PCRA petition on January 22, 2013. The trial court
appointed counsel who filed a Turner/Finley1 letter maintaining that Tisdall’s
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1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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petition was meritless. The trial court dismissed the petition as untimely and
this Court affirmed. See Commonwealth v. Tisdall, 131 A.3d 105
(Pa.Super. 2015) (unpublished memorandum), appeal denied, 131 A.3d 491
(Pa. 2016). Tisdall filed the instant PCRA petition on March 25, 2016, and
supplemented the petition on May 26, 2017. However, the trial court did not
grant leave to amend the petition. The trial court issued notice of its intent to
dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907. Tisdall
responded to the Rule 907 notice and the trial court dismissed the petition.
This timely appeal followed.
Tisdall raises the following issues:
I. Did the PCRA court err under Pa.R.Crim.P. 907, with its
dismissal of [Tisdall’s] post-conviction petition, in the
absence of stating the reason for dismissal of [Tisdall’s]
issue concerning the trial court’s violation of due process
rights to hearing on competence?
II. Did the PCRA court err under Pa.R.Crim.P. 907, with its
dismissal of [Tisdall’s] two (2) separate issues that failed to
be addressed in (a) its 907 intent to dismiss, and (b) its final
order of dismissal?
III. Did the PCRA court err under Pa.R.Crim.P. 907, with its
dismissal of [Tisdall’s] post-conviction petition, in the
absence of addressing [Tisdall’s] supplemental amended
petition and [Commonwealth v.] Burton, [158 A.3d 618
(Pa. 2017)] claims thereof?
Tisdall’s Br. at 4 (suggested answers omitted).
“On appeal from the denial of PCRA relief, our standard of review calls
for us to determine whether the ruling of the PCRA court is supported by the
record and free of legal error.” Commonwealth v. Williams, 196 A.3d 1021,
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1026-27 (Pa. 2018) (quoting Commonwealth v. Washington, 927 A.2d
586, 593 (Pa. 2007)). “The PCRA court’s credibility determinations, when
supported by the record, are binding on this Court; however, we apply a de
novo standard of review to the PCRA court’s legal conclusions.”
Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013).
Tisdall’s petition is untimely and we therefore do not address the merits
of his PCRA petition. See Commonwealth v. Smith, 194 A.3d 126, 132
(Pa.Super. 2018) (“[W]e must begin by addressing the timeliness of
Appellant’s petition, because the PCRA’s time limitations implicate our
jurisdiction and may not be altered or disregarded in order to address the
merits of a petition”). A petitioner seeking post-conviction relief must file a
petition within one year of the petitioner’s judgment of sentence becoming
final. Id.; see also 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence
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). A court does not have jurisdiction to entertain a petition filed
after the one-year time-bar unless the petitioner pleads and proves one of the
time-bar exceptions. The exceptions include:
(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;
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(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.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petitioner claiming one of these
exceptions must file the petition “within 60 days of the date the claim could
have been presented.” 42 Pa.C.S.A. § 9545(b)(2).2
Here, Tisdall’s judgment of sentence became final on March 31, 2000,
when the time to file a direct appeal to this Court expired. See Pa.R.A.P.
903(a). Therefore, Tisdall had until March 31, 2001, to file a timely PCRA
petition. Thus, the instant petition filed on March 25, 2016, is patently
untimely unless Tisdall pleads and proves at least one of the time-bar
exceptions.
In his petition, Tisdall claims relief under the third exception, i.e. a
constitutional right that applies retroactively, citing to Montgomery.3 See
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2The Pennsylvania Legislature amended Section 9545(b)(2) on December 24,
2018, to extend the time of filing to one year. However, the amendment
applies only to claims raised one year prior to the amendment or thereafter.
See 42 Pa.C.S.A. § 9545(b)(2). Here, the amendment does not apply since
Tisdall filed his petition more than a year before the amendment.
3 We do not review the claims raised in Tisdall’s supplemental petition because
the PCRA court did not grant leave for him to supplement his original petition.
See Commonwealth v. Mason, 130 A.3d 601, 621 n. 19 (Pa. 2015) (stating
that amendment to PCRA petition “is permitted only by the direction or leave
of the PCRA court”) (quoting Commonwealth v. Porter, 35 A.3d 4, 12 (Pa.
2012)).
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PCRA Petition, filed 3/25/16, at 1. The Court in Montgomery held that Miller
v. Alabama, 567 U.S. 460 (2012), which held that it was unconstitutional to
sentence a juvenile to mandatory life without parole, “announced a
substantive rule that is retroactive in cases on collateral review.”
Montgomery, 136 S. Ct. at 732. Montgomery does not warrant relief for
Tisdall for two reasons. First, Tisdall was not a juvenile but in fact was 36
years old when he committed the above referenced crimes. Second, the trial
court did not sentence him to life without parole. Therefore, he fails to plead
and prove any of the time-bar exceptions. The trial court did not abuse its
discretion in denying his untimely petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/21/19
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