Com. v. Gregory, R. ( 2020 )

J-S49038-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RODERICK JOE GREGORY, JR. :
:
Appellant : No. 610 WDA 2020
Appeal from the PCRA Order Entered May 1, 2020
In the Court of Common Pleas of Jefferson County Criminal Division at
No(s): CP-33-CR-0000015-2013,
CP-33-CR-0000048-2013
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 24, 2020
Appellant Roderick Joe Gregory, Jr. appeals the order of the Court of
Common Pleas of Jefferson County denying his PCRA petition as untimely filed.
After careful review, we affirm the PCRA court’s order.
On February 4, 2013, Appellant pled guilty to two counts of aggravated
harassment by prisoner (18 Pa.C.S.A. § 2703.1) on two separate dockets (CP-
33-CR-0000015-2013 and CP-33-CR-0000048-2013). On the same day, the
trial court sentenced Appellant to concurrent terms of four years’ probation.
On December 22, 2015, Appellant’s probation was revoked on each
docket and he was resentenced to two consecutive terms of 1½ - 7 years’
imprisonment. As such, Appellant was sentenced to an aggregate term of 3
– 14 years’ imprisonment. Appellant did not appeal.
____________________________________________
* Former Justice specially assigned to the Superior Court.
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On March 13, 2020, Appellant filed a pro se “PCRA/Habeas Corpus
Petition” in which he raised various challenges to the legality of his December
22, 2015 sentences and listed both docket numbers in the petition. The lower
court appointed Appellant counsel, who subsequently filed a petition to
withdraw and a no-merit letter, contending that Appellant’s petition was
untimely filed and did not meet any of the PCRA timeliness exceptions.
On March 30, 2020, the PCRA court granted counsel’s request to
withdraw and issued notice of its intent to dismiss Appellant’s petition without
a hearing pursuant to Pa.R.A.P. 907. On April 6, 2020, Appellant filed a pro
se response to the PCRA court’s Rule 907 notice. On May 1, 2020, the PCRA
court entered an order denying Appellant’s petition at both dockets.
On June 1, 2020, Appellant filed one notice of appeal listing both docket
numbers.1 On July 2, 2020, this Court filed an Order to Show Cause, directing
Appellant to demonstrate why this appeal should not be quashed in light of
the Supreme Court’s decision in Commonwealth v. Walker, 185 A.3d 969(Pa. 2018). On July 24, 2020, Appellant filed a response to the Rule to Show
Cause, arguing that the two cases were necessarily intertwined, and in the
alternative, asking this Court to remand the case so that he could file separate
notices of appeal.
____________________________________________
1 Appellant timely filed his notice of appeal on Monday, June 1, 2020. See 1
Pa.C.S.A. § 1908 (excluding weekend days and legal holidays from the
computation of the time period for a filing when the last day of the time period
falls on a weekend or a legal holiday).
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As a preliminary matter, we must determine whether this appeal must
be quashed due to Appellant’s failure to comply with Walker. The Official
Note to Pennsylvania Rule of Appellate Procedure 341 provides as follows:
Where ... one or more orders resolves issues arising on more than
one docket or relating to more than one judgment, separate
notices of appeals must be filed. Commonwealth v. C.M.K., 932
A.2d 111, 113 & n.3 (Pa.Super. 2007) (quashing appeal taken by
single notice of appeal from order on remand for consideration
under Pa.R.Crim.P. 607 of two persons' judgments of sentence).
Pa.R.A.P. 341, Official Note.
Recently, in Walker, our Supreme Court construed the above language
in Rule 341 to constitute “a bright-line mandatory instruction to practitioners
to file separate notices of appeal.” Walker, 185 A.3d at 976-77. Therefore,
the Walker Court held that “the proper practice under Rule 341(a) is to file
separate appeals from an order that resolves issues arising on more than one
docket. The failure to do so requires the appellate court to quash the appeal.”
Id. at 977. The Walker Court made its holding prospective to any notice of
appeal filed after June 1, 2018. Id. at 971.
As noted above, Appellant’s notice of appeal, filed on June 1, 2020,
referenced the lower court’s order that resolved Appellant’s petition filed at
two separate dockets. As such, the Walker mandate applies.
However, in a recent decision, Commonwealth v. Larkin, 235 A.3d
350 (Pa.Super. 2020) (en banc), this Court established that we may overlook
the requirements set forth in Walker in cases where a breakdown in the court
system occurs. See also Commonwealth v. Stansbury, 219 A.3d 157-3-
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(Pa.Super. 2019). The panels in both Larkin and Stansbury held that a
breakdown in the court system includes instances in which “a defendant is
misinformed or misled regarding his appellate rights.” Larkin, 235 A.3d at
354. In Larkin, this Court found that a breakdown in court processes occurred
and quashal was not necessary when the PCRA court’s order informed Larkin
that his appellate rights provided that “Petitioner has thirty (30) days from
the date of this order to file an appeal.” Id. (emphasis in original).
In the order dismissing Appellant’s petition, the lower court notified
Appellant that if he wished to appeal to the Superior Court that he was
required to “file a notice of appeal as set forth in Rules 901-906 of the
Pennsylvania Rules of Appellate Procedure.” Order, 5/1/20, at 2.
As we are bound by the decision in Larkin, we conclude a breakdown
in the court system occurred that allows us to overlook Appellant’s failure to
comply with the requirements of Walker.
Before reaching the merits of this appeal, we must first determine
whether Appellant’s petition was timely filed. It is well-established that “the
PCRA's timeliness requirements are jurisdictional in nature and must be
strictly construed; courts may not address the merits of the issues raised in a
petition if it is not timely filed.” Commonwealth v. Walters, 135 A.3d 589,
591 (Pa.Super. 2016) (citations omitted). Generally, a PCRA petition
“including a second or subsequent petition, shall be filed within one year of
the date the judgment of sentence becomes final.” 42 Pa.C.S.A. § 9545(b)(1).
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A judgment of sentence becomes final at the conclusion of direct review or the
expiration of the time for seeking the review. 42 Pa.C.S.A. § 9545(b)(3).
However, Pennsylvania courts may consider an untimely PCRA petition
if the petitioner explicitly pleads and proves one of the three exceptions
enumerated in Section 9545(b)(1), which include: (1) the petitioner's inability
to raise a claim as a result of governmental interference; (2) the discovery of
previously unknown facts or evidence that would have supported a claim; or
(3) a newly-recognized constitutional right that has been held to apply
retroactively by the Supreme Court of the United States or the Supreme Court
of Pennsylvania. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
In this case, after Appellant was sentenced on December 22, 2015, he
did not appeal the sentences entered at either docket. Appellant’s judgment
of sentence became final on January 21, 2016, when the thirty-day time
period for filing an appeal to this Court expired. As a result, Appellant had
until January 21, 2017 to file a timely PCRA petition. Appellant’s petition filed
on March 13, 2020 is facially untimely.
In his response to the PCRA court’s Rule 907 notice, Appellant claimed
the untimeliness of his PCRA petition should be excused due to the
ineffectiveness of his PCRA counsel in failing to research and find case law to
satisfy the PCRA timeliness exceptions. Appellant also claims that PCRA
counsel was ineffective in failing to raise a claim of ineffectiveness against
Appellant’s plea counsel. Lastly, Appellant asserts that his constitutional
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rights were violated when the trial court allegedly sentenced him without the
benefit of a pre-sentence report.
Appellant’s allegations of ineffectiveness of counsel and trial court error
do not save Appellant’s untimely petition for review on the merits. In addition,
we note that to the extent that Appellant’s petition raises challenges to the
legality of his sentence, such claims do not excuse the untimeliness of
Appellant’s petition. Commonwealth v. Whitehawk, 146 A.3d 266, 270
(Pa.Super. 2016) (quoting Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.
1999) (holding that “[a]lthough a 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”)).
Our courts have emphasized that a petitioner must specifically plead
and prove that one of the PCRA timeliness exceptions applies to the untimely
petition in order to avoid the PCRA time bar. Commonwealth v. Beasley,
741 A.2d 1258, 1261 (Pa. 1999). Accordingly, as Appellant has not plead or
proved that one of the PCRA timeliness exceptions applies to his petition, we
conclude that the PCRA court did not err in dismissing his petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/24/2020
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