Com. v. Smith, C. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CURTIS SMITH :
:
Appellant : No. 1114 EDA 2017
Appeal from the PCRA Order March 20, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013205-2009
BEFORE: PANELLA, J., STABILE, J., and PLATT*, J.
MEMORANDUM BY PANELLA, J. FILED MARCH 09, 2018
Appellant, Curtis Smith, contends that he is entitled to have his right
to file a post-sentence motion reinstated pursuant to the Post Conviction
Relief Act (“PCRA”), as his trial counsel abandoned him. After careful review,
we conclude Smith failed to establish any time-bar exceptions in his facially
untimely PCRA petition. We therefore affirm.
In 2010, Smith pled guilty to one count of possession of oxycodone
with intent to deliver (“PWID”). Smith was subsequently found to have
violated the conditions of his parole due to being charged with a new crime.
The court revoked Smith’s parole, and imposed a statutory maximum
sentence of 5 to 10 years’ imprisonment.
Smith’s attorney filed a post-sentence motion seeking a modification of
the sentence. For reasons not clear from the record, the court never
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* Retired Senior Judge assigned to the Superior Court.
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explicitly addressed the motion. Thus, the motion was denied by operation of
law on June 19, 2013. See Pa.R.Crim.P. 708(E).
On October 31, 2014, Smith requested a copy of his docket sheets.
Over two years later, Smith filed his pro se PCRA petition. He subsequently
amended it, again pro se, and the court appointed counsel to represent him.
Counsel filed another amended petition. In his amended PCRA petition,
Smith acknowledges that a copy of his docket sheets was mailed to him on
the same day it was received by the court. After several continuances, the
PCRA court issued a notice of intent to dismiss. The court subsequently
dismissed Smith’s petition, despite his response to the notice. This timely
appeal followed.
Smith argues the PCRA court erred in dismissing his petition as
untimely. We review an order dismissing a petition under the PCRA by
examining whether the court’s determination is supported by the evidence of
record and is free of legal error. See Commonwealth v. Halley, 870 A.2d
795, 799 n.2 (Pa. 2005). We will not disturb the court’s factual findings
unless there is no support for them in the certified record. See
Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
Moreover, a court may decline to hold a hearing on a petition if it determines
the petitioner’s claim is patently frivolous and is without a trace of support
either in the record or from other evidence. See Commonwealth v.
Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001).
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The timeliness of a post-conviction petition is jurisdictional. See
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
is final unless the petition alleges, and the petitioner proves, an exception to
the timeliness requirement. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A PCRA
petition invoking one of these statutory “exceptions must be filed within
sixty days of the date the claims could have been presented.” Hernandez,
79 A.3d at 652 (citing 42 Pa.C.S.A. § 9545(b)(2)). Finally, exceptions to the
PCRA’s time bar must be pled in the petition. See Commonwealth v.
Burton, 936 A.2d 521, 525 (Pa. Super. 2007). See also Pa.R.A.P. 302(a).
Smith concedes his petition is facially untimely. See Appellant’s Brief,
at 13. He further concedes he did not plead any exceptions to the PCRA’s
time-bar. See id. The PCRA court’s order is justified on this basis alone.
Even if Smith had pled the exceptions he argues on appeal, he would
be due no relief. He first argues the court’s failure to explicitly rule on his
post-sentence motion constitutes interference by a government official and
therefore qualifies for the timeliness exception contained in 42 Pa.C.S.A. §
9545(b)(1)(i). Unlike the procedure after the original imposition of sentence,
the filing of motion to modify sentence after a revocation of probation or
parole does not automatically toll the 30-day deadline for filing an appeal.
See Commonwealth v. Coleman, 721 A.2d 798, 799 (Pa. Super. 1998).
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Thus, the court had no duty to explicitly address Smith’s motion for
modification, and cannot be said to have interfered with Smith’s rights.
In the alternative, Smith argues his discovery that trial counsel
abandoned him entitles him to application of the time-bar exception
contained in 42 Pa.C.S.A. 9545(b)(1)(ii), the unknown facts exception.
However, as noted above, to qualify for this exception, Smith must have
filed his petition within 60 days of learning trial counsel abandoned him.
Smith concedes the docket sheets revealing trial counsel’s failures were
mailed to him on October 31, 2014. Yet he did not file his petition until
January 20, 2016, well past 60 days from any reasonable implication that he
received the docket sheets. He therefore cannot qualify for the exception
contained in § 9545(b)(1)(ii).
As we conclude Smith has failed to plead or establish his facially
untimely petition qualified for an exception to the PCRA’s time-bar, we affirm
the PCRA court’s order dismissing his petition.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/18
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