Com. v. Ford, J. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JUNIUS MAURICE FORD :
:
Appellant : No. 723 MDA 2020
Appeal from the PCRA Order Entered May 5, 2020,
in the Court of Common Pleas of Dauphin County,
Criminal Division at No(s): CP-22-CR-0005172-2007.
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STRASSBURGER, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED NOVEMBER 25, 2020
Junius Maurice Ford appeals pro se from the order denying his most
recent petition for relief filed pursuant to the Post Conviction Relief Act. 42
Pa.C.S.A. §§ 9541-46. We affirm.
The PCRA court summarized the pertinent facts and procedural history
as follows: On or about May 19, 2008, the trial court found Ford guilty of
robbery. Because this conviction constituted Ford’s “third strike,” that same
day the trial court sentenced him to 25 to 50 years of incarceration pursuant
to 42 Pa.C.S.A. Section 9714(a)(2). Following the filing of a PCRA petition,
Ford’s direct appeal rights were reinstated nunc pro tunc. Contemporaneously
with Ford’s timely-filed appeal, appellate counsel filed a motion to withdraw
pursuant to Anders v. California, 386 U.S. 738 (1967). In an unpublished
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* Retired Senior Judge assigned to the Superior Court.
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memorandum filed on October 5, 2009, a panel majority of this Court granted
counsel leave to withdraw and affirmed Ford’s judgment of sentence. See
Commonwealth v. Ford, 987 A.2d 813 (Pa. Super. 2009). The dissenting
panel member opined that there was “a legitimate question as to whether
[Ford’s] actions warranted a first-degree felony conviction, and therefore
whether [Ford] should have been subject to a ‘third strike’ sentence.” Id.Ford did not seek further review.
Ford filed a timely PCRA petition and the PCRA court appointed counsel.
Following an evidentiary hearing, the PCRA court denied relief. PCRA counsel
filed an appeal that this Court quashed as untimely. Thereafter, Ford filed a
pro se petition for allowance of appeal to the Pennsylvania Supreme Court in
which he asserted that PCRA counsel was ineffective for failing to file a timely
appeal. Our Supreme Court remanded the matter, and ultimately new counsel
was granted leave to file a nunc pro tunc PCRA appeal. In a published opinion
filed on May 8, 2012, we rejected Ford’s claims and affirmed the PCRA court’s
denial of relief. Commonwealth v. Ford, 44 A.3d 1190 (Pa. Super. 2012).
Ford filed another PCRA petition on November 13, 2012. On November 29,
2012, the PCRA court issued Pa.R.Crim.P. 907 notice of its intent to dismiss
Ford’s petition as untimely. Ford did not file a response. By order entered on
December 20, 2012, the PCRA court dismissed the petition. Ford did not file
an appeal.
Ford filed the PCRA petition at issue, his third, on March 9, 2020. On March
24, 2020, the PCRA court issued Rule 907 notice of its intent to dismiss this
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petition as untimely. Ford filed a response. By order entered May 4, 2020,
the PCRA court denied Ford’s petition as untimely. This appeal followed. Both
Ford and the PCRA court have complied with Pa.R.A.P. 1925.
Ford now presents the following issues:
1. Did the [PCRA court] err when dismissing [Ford’s] PCRA
petition as untimely when [Ford] noted the required
exception to [the] statutory limitation in [his] response
pursuant to 42 Pa.C.S. § 9545(b)(1)(ii) and [Ford] was
presenting a challenge to the legality of [the] sentence
imposed?
2. Was [Ford’s] mandatory minimum sentence under 42
Pa.C.S.A. § 9714 legally imposed when such third-strike
sentence used prior convictions over 15 years old and
effectively stale?
Ford’s Brief at 6 (excessive capitalization and emphasis omitted).
This Court’s standard of review regarding an order dismissing a petition
under the PCRA is to ascertain whether “the determination of the PCRA court
is supported by the evidence of record and is free of legal error. The PCRA
court’s findings will not be disturbed unless there is no support for the findings
in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92
(Pa. Super. 2013) (citations omitted).
Before addressing the merit of Ford’s issues, we must first determine
whether the PCRA court correctly determined that Ford’s most recent petition
was untimely filed.
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
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is final unless the petition alleges, and the petitioner proves, that an exception
to the time limitation for filing the petition, set forth at 42 Pa.C.S.A. sections
9545(b)(1)(i), (ii), and (iii), is met.1 A PCRA petition invoking one of these
statutory exceptions must be filed within one year of the date the claims could
have been presented. 42 Pa.C.S.A. § 9545(b)(2). Asserted exceptions to the
time restrictions for a PCRA petition must be included in the petition, and may
not be raised for the first time on appeal. Commonwealth v. Furgess, 149
A.3d 90 (Pa. Super. 2016).
Here, this Court affirmed Ford’s judgment of sentence on October 5,
2009, and Ford did not seek further review. For PCRA timeliness purposes,
Ford’s judgment of sentence became final thirty days thereafter, or on
November 4, 2009. See 42 Pa.C.S.A. § 9545(b)(3). Thus, in order to be
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1 The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference of 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.A. §§ 9545(b)(1)(i), (ii), and (iii).
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timely, Ford had to file his PCRA petition by November 4, 2010. Because Ford
filed the petition at issue almost a decade later, it is patently untimely, unless
Ford has satisfied his burden of pleading and proving that one of the
enumerated exceptions applies.
Ford has failed to plead and prove an exception to the PCRA’s time bar. In
his petition and brief, Ford first suggests that we can consider the substantive
issue he raised in his petition because, despite its untimeliness, he is
challenging the legality of sentence. We disagree.
As long as this Court has jurisdiction over the matter, a legality of
sentencing issue is reviewable and cannot be waived. Commonwealth v.
Jones, 932 A.2d 179, 182 (Pa. Super. 2007). However, a legality of
sentencing issue must be raised in a timely filed PCRA petition. See 42
Pa.C.S.A. § 9545(b)(1); Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.
1999) (explaining that, “[a]lthough legality of sentence is always subject to
review within the PCRA, claims must first satisfy the PCRA’s time limits or one
of the exceptions thereto”). Stated differently, a petitioner must present an
illegal sentencing claim in a timely PCRA petition, otherwise we do not have
jurisdiction. See Fahy, 737 A.2d at 223; Commonwealth v. Miller, 102
A.3d 988, 995-96 (Pa. Super. 2014).
In his petition and brief, Ford also claims that he satisfied the newly-
discovered facts exception under Section 9545(b)(1)(ii) “due to the numerous
cases in which the SCOTUS and the Supreme Court of this Commonwealth
have determined that the application of mandatory minimum sentences
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without the facts being fully determined are not consistent with constitutional
provisions of liberty.” Ford’s Brief at 14. This claim fails for several reasons.
Initially, because Ford has failed to cite any relevant case law in his brief
to support this claim, it is undeveloped. See Commonwealth v. Tielsch,
934 A.2d 81, 93 (Pa. Super. 2007) (holding that undeveloped claims will not
be considered on appeal). Moreover, judicial decisions are not newly-
discovered facts within the exception to the PCRA’s time bar based upon
newly-discovered facts. Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa.
Super. 2013). Finally, “this Court has specifically found that Section 9714 is
not unconstitutional under [Alleyne v. United States, 133 S.Ct. 2151(2013),] as it provides for mandatory minimum sentences based on prior
convictions.” Commonwealth v. Bragg, 133 A.3d 328, 333 (Pa. Super.
2016) (citation omitted).
In sum, because Ford’s latest PCRA petition is patently untimely, and he
cannot avail himself of any of the PCRA’s time-bar exceptions, the PCRA court
correctly determined that it lacked jurisdiction to address Ford’s substantive
claims. We therefore affirm its order denying Ford post-conviction relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/25/2020
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