Com. v. Ford, A. ( 2014 )

J-S47035-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY FORD
Appellant No. 3557 EDA 2013
Appeal from the PCRA Order of November 20, 2013
In the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0008216-2003
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY FORD
Appellant No. 3560 EDA 2013
Appeal from the PCRA Order of November 20, 2013
In the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0008223-2003
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY FORD
Appellant No. 3561 EDA 2013
Appeal from the PCRA Order of November 20, 2013
J-S47035-14
In the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0002831-2003
BEFORE: MUNDY, J., OLSON, J., and WECHT, J.
MEMORANDUM BY WECHT, J.: FILED AUGUST 13, 2014
Anthony Ford appeals the November 20, 2013 order dismissing his
second petition for relief pursuant to the Post-
42 Pa.C.S. §§ 9541-46, as untimely. We affirm.
petition was untimely, we need not delve deeply into the factual or
procedural history of this case. We merely reiterate the basic history of this
of his first PCRA petition:
On March 3, 2005, [Ford] entered several open guilty pleas. . . .
[T]he relevant guilty pleas were entered at 8216-03, to the
crimes of kidnapping, robbery, and criminal attempt to commit
involuntary deviate sexual intercourse (IDSI). Those pleas stem
ery, sexual
assault, and physical assault of three male victims on October 5,
2003. On May 25, 2005, the trial court imposed an aggravated
the above referenced offenses. [Ford] did not appeal the
judgment of sentence.
On February 24, 2006, [Ford], acting pro se, filed a timely PCRA
petition. Counsel was appointed and an amended petition was
filed. Thereafter, following an evidentiary hearing on August 7,
2006, the PCRA court entered an Order on August 25, 2006,
denying relief.
Commonwealth v. Ford, No. 2623 EDA 2006, slip op. at 1-2 (Pa. Super.
Apr. 9, 2007). On April 9, 2007, a panel of this Court affirmed the PCRA
-2-
J-S47035-14
Id. at 1, 12. On September 25, 2007, the
Penns
Commonwealth v. Ford, 932 A.2d 1286 (Pa. 2007) (per curiam).
On November 5, 2013, Ford filed a second PCRA petition, in which
Ford argued that, because he was a juvenile at the time of the offense and
at the time of sentencing, being sentenced as an adult rendered his sentence
without a hearing.1 On December 18, 2013, Ford filed a notice of appeal.
The PCRA court did not order Ford to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Ford did not file
a statement. Nonetheless, on January 31, 2014, the PCRA court issued an
opinion pursuant to Pa.R.A.P. 1925(a), in which the court explained that it
Ford raises two questions for our consideration:
1. Whether the lower court had jurisdiction to adjudicate
?
____________________________________________
1
Notably, the PCRA court did not issue notice of its intent to dismiss
-settled
o provide [a Rule 907]
Commonwealth v. Lawson, 90 A.3d 1, 5
(Pa. Super. 2014) (quoting Commonwealth v. Davis, 916 A.2d 1206, 1208
(Pa. Super. 2007)).
-3-
J-S47035-14
2.
claim [that] the sentencing judge lacked subject matter
jurisdiction when he imposed an adult sentence for his
juvenile case?
Brief for Ford at 5.
As in all PCRA cases, particularly those that
second PCRA petition, we begin with the questions of whether the petition
whether we have jurisdiction to resolve the substantive claims raised by
Ford. It is well-established that the PCRA time limits are jurisdictional, and
are meant to be both mandatory and applied literally by the courts to all
PCRA petitions, regardless of the potential merit of the claims asserted.
Commonwealth v. Murray, 753 A.2d 201, 202-03 (Pa. 2000);
Commonwealth v. Leggett
court may properly disregard or alter [these filing requirements] in order to
reach the merits of the claims raised in a PCRA petition that is filed in an
untimely ma Murray, 753 A.2d at 203; see Commonwealth v.
Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).
sentence becomes Commonwealth v. Breakiron, 781 A.2d 94, 97
(Pa. 2001) (citing 42 Pa.C.S. §
discretionary review in the Supreme Court of the United States and the
-4-
J-S47035-14
Supreme Court of Pennsylvania, or at the expiration of time for seeking
Commonwealth v. Wharton, 886 A.2d 1120, 1124 (Pa. 2005)
(quoting 42 Pa.C.S. § 9545(b)(3)).
Ford was sentenced on May 25, 2005. Ford did not file post-sentence
about June 25, 2005, at the expiration of the thirty-day period during which
Ford could have filed a direct appeal. See 42 Pa.C.S. § 9545(b)(3). Thus,
to be timely, any PCRA petition must have been filed within one year of that
date, on or about June 25, 2006. Id. § 9545(b)(1). Ford filed the instant
petition on November 5, 2013, over eight years after his judgment of
acially untimely.
Despite such facial untimeliness, a tardy PCRA petition nonetheless will
be considered timely if (but only if) the petitioner pleads and proves one of
the three exceptions to the one-year time limit enumerated in
§§ 9545(b)(1)(i)-(iii) of the PCRA, which provide:
(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
-5-
J-S47035-14
(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. § 9545(b).
Ford does not argue that any of these three exceptions apply to his
case. Rather, he maintains that his substantive claim, which amounts to a
challenge to the legality of his sentence, is non-waivable and, therefore, not
-settled that such
not technically waivable, a legality [of sentence] claim may nevertheless be
lost should it be raised for the first time in an untimely PCRA petition for
which no time-bar exception applies, thus depriving the court of jurisdiction
Commonwealth v. Slotcavage, 939 A.2d 901, 903 (Pa.
Super. 2007) (citing Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.
his petition was timely, or that any of the three exceptions to the timeliness
requirement applies.
Order affirmed.
-6-
J-S47035-14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/13/2014
-7-