Com. v. Allen, J. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JACK EDWARD ALLEN,
Appellant No. 153 WDA 2014
Appeal from the PCRA Order Entered January 16, 2014
In the Court of Common Pleas of Clearfield County
Criminal Division at No(s): CP-17-CR-0000738-1995
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 05, 2014
Appellant, Jack Edward Allen, appeals pro se
January 16, 2014 order denying, as untimely, his petition for relief filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
We affirm.
The PCRA court summarized the facts and procedural history of this
case as follows:
inter alia, first degree murder
and was sentenced to an aggregate term of life imprisonment in
1996, after shooting his wife, Teresa Allen, in the back of her
head in the presence of several witnesses on July 19, 1995.
Mrs. Allen later passed away as a result of her ghastly injuries.
[Appellant] subsequently filed a petit
after which he received relief in the form of [the] reinstatement
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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of his appellate rights nunc pro tunc. As a result [of his
judgment of sentence. Commonwealth v. Allen, 895 A.2d 644
(Pa. Super. Ct. 2006) (unpublished memorandum), appeal
denied, 906 A.2d 537 (Pa. 2006).
[Appellant] was again convicted of first degree murder, along
with other charges. On December 20, 2006, [Appellant] was, for
a second time, sentenced to an aggregate term of life
imprisonment. [Appellant] appealed his conviction, and the
Superior Court affirmed the judgment of sentence on June 3,
2008. Commonwealth v. Allen, 959 A.2d 456 (Pa. Super. Ct.
2008) (unpublished memorandum), appeal denied, 959 A.2d 927
(Pa. 2008). During the pendency of the direct appeal process,
[Appellant] filed numerous PCRA petitions that were dismissed
by this [c]ourt without prejudice due to the pendency of other
actions on direct appeal.
This Opinion stems from a pro se PCRA petition, which was
filed on July 25, 2011, and a pro se Motion for New Trial that
was filed on September 15, 2011. The [c]ourt originally
ice of Intent to
Dismiss, the [c]ourt characterized these petitions as untimely
and determined that [Appellant] was not entitled to an attorney.
order dismissing
the petitions and remanded for the appointment of counsel in
order for [Appellant] to file an amended petition or take other
Commonwealth v. Allen, 60 A.3d 851 (Pa. Super. Ct. 2012)
(unpublished memorandum).
On remand, this [c]ourt appointed Attorney Patrick Lavelle
as counsel for [Appellant]. On January 30, 2013, the [c]ourt
granted Attorney Lavelle thirty (30) days to file an Amended
PCRA petition or other pleading. In lieu of proceeding with
petition to withdraw as counsel and a no-merit letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. Ct. 1988).
On March 25, 2013, the [c]ourt, upon review of the record and
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withdraw and dismissed the PCRA petition. [Appellant] once
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The Superior Court, on November 14, 2013, vacated this
remanded this case back to this [c]ourt. Commonwealth v.
Allen, [91 A.3d 1285] (Pa. Super. Ct. 2013) (unpublished
memorandum). The Superior Court found that this [c]ourt erred
in not allowing [Appellant] an opportunity to respond to Attorney
-merit letter. In addition, the Superior Court
expressed that it was improper for this [c]ourt to adopt the no-
merit letter in lieu of writing an Opinion on the matter. The
Superior Court lastly dictated that this [c]ourt should allow
and evaluate any response by [Appellant].
d written
-merit letter on November 26,
2013. The [c]ourt, on December 11, 2013, abiding by the
its Notice of Intent to Dismiss, written pursuant to Pa.R.Crim.P.
907. In the interests of justice, the [c]ourt clearly outlined what
procedural steps [Appellant] needed to take in filing a proper
PCRA petition. The [c]ourt, in its Notice of Intent to Dismiss,
allowed [Appellant] to file an amended PCRA petition that would
indicate which of the three (3) statutory exceptions to the
timeliness provisions, permitted by the PCRA statute, would
entitle [Appellant] to relief. The [c]ourt further instructed
[Appellant] that, only after a showing that he met an exception
claim, or claims, which were cognizable under the PCRA and that
have merit. [Appellant] filed said document, pro se, on
December 23, 2013. However, [Appellant] did not state an
exception to the timeliness requirement as requested by the
[c]ourt and 42 Pa.C.S.A. § 9545. [Appellant] stated that he was
entitled to relief under two (2) of the exceptions, but failed to
state what those exceptions were or proffer facts in support of
those exceptions.
The [c]ourt, in an Order dated January 16, 2014,
dismissed the pro se PCRA petition filed by [Appellant] for the
dated December 11, 2013. [Appellant] filed a Notice of Appeal
on January 22, 2014, appealing the aforementioned Order of this
[c]ourt to the Superior Court. The [c]ourt, on January 24, 2014,
instructed [Appellant] to file a concise statement of the matters
complained of on appeal, per Rule of Appellate Procedure
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1925(b). [Appellant] filed said document on February 28,
[1]
PCRA Court Opinion (PCO), 4/2/14, at 1-4.
On appeal, Appellant lists 12 issues for our review in the Statement of
the Questions Involved section of his brief.2 However, before we may
petition, because the PCRA time limitations implicate our jurisdiction and
may not be altered or disregarded in order to address the merits of a
petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007)
(stating PCRA time limitations implicate our jurisdiction and may not be
altered or disregarded to address the merits of the petition);
Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002)
(holding the Superior Court lacks jurisdiction to reach merits of an appeal
from an untimely PCRA petition).
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1
was dated January 24, 2014, it was not filed until February 24, 2014. Thus,
2
-page, single spaced Argument section is not
is one uninterrupted discussion without any headings indicating what issue
Appellant is addressing. See Pa.R.A.P. 2119(a).
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Under the PCRA, any petition for post-conviction relief, including a
second or subsequent one, must be filed within one year of the date the
judgment of sentence becomes final, unless one of the exceptions set forth
in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies. That section states, in relevant
part:
(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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke one of
Here, this Court affirme
2008, and our Supreme Court denied his subsequent petition for allowance
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became final 90 day thereafter, or on January 12, 2009. See 42 Pa.C.S. §
9545(b)(3) (stating that a judgment of sentence becomes final at the
conclusion of direct review or the expiration of the time for seeking the
review); Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super. 1998)
(directing that under the PCRA, petit
final ninety days after our Supreme Court rejects his or her petition for
allowance of appeal since petitioner had ninety additional days to seek
review with the United States Supreme Court). Consequently, Appellant had
until January 12, 2010, to file a timely PCRA petition. He did not file the
instant pro se petition until July 25, 2011. Accordingly, for this Court to
have jurisdiction to review the merits thereof, Appellant must prove that he
meets one of the exceptions to the timeliness requirements set forth in 42
Pa.C.S. § 9545(b).
ascertain, his principal contention is that he received ineffective assistance
from all prior counsel and, in particular, from Attorney Lavelle. See
previously and
repeatedly explained, a claim of ineffective assistance of counsel does not
Commonwealth v. Morris, 822 A.2d 684, 694-695 (Pa. 2003) (citing
Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999)). Thus,
-year time-bar.
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Appellant also avers that his petition is timely because it was filed
within one year of the judgment becoming final on a federal petition for writ
of habeas corpus filed by Appellant. On December 13, 2010, the United
certiorari in that
case. See Allen v. Britton, 131 S. Ct. 823 (US 2010). Appellant maintains
that, as such, he had until December 13, 2011, to file a timely PCRA
petition. However, in Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999),
our Supreme Court rejected a similar claim that filing a federal habeas
habeas
relief has been filed would undermine the federal policy of initial state
Id. at 223. In light of Fahy habeas
petition in federal court has no bearing on the timeliness of his PCRA
petition. U
January 12, 2009, making his pro se PCRA petition facially untimely.
Appellant proffers one other argument that could be construed as an
attempt to invoke a timeliness exception. He maintains that he has
capitalization omitted). Appellant also claims that he has documents that
were handw
demonstrate that she is not deceased. Id.
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Appellant indicates that he raised these claims before the PCRA court
in his pro se amended petition filed on December 23, 2013. Our review of
that do
Pro Se Amended Petition, 12/23/13, at 7.
unknown to petitioner, needs to be investigated and searched out for these
Id.
documents purportedly drafted by the victim after her death, Appellant
Id. Consequently, Appellant did not attach any proof of these
handwritten documents.
mpt to invoke the after-
unverified claim that he has proof that the victim is still alive is insufficient to
meet his burden of pleading and proving the applicability of that exception.
requirement. On appeal, Appellant offers no argument to convince us
otherwise. Consequently, we ascertain n
deny his petition without a hearing. See Commonwealth v. Ragan, 923
regarding an order denying a petition under the PCRA is whether the
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determination of the PCRA court is supported by the evidence of record and
is free of legal error).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/5/2014
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