Com. v. Clark, T. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TITUS L. CLARK :
:
Appellant : No. 1107 MDA 2022
Appeal from the PCRA Order Entered June 15, 2022
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0000746-2019
BEFORE: OLSON, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY OLSON, J.: FILED: JULY 24, 2023
Appellant, Titus L. Clark, appeals pro se from the order entered on June
15, 2022, which dismissed his second petition filed under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On April 16, 2019, Appellant entered a negotiated guilty plea to one
count of persons not to possess firearms.1 During the plea colloquy, the
Commonwealth summarized the factual basis for Appellant’s plea:
[At the time of the offense, Appellant was on parole.] On
October [22, 2018, at approximately 2:40 p.m.], state parole
did a check of 225 North Newberry Street in York City, where
[Appellant] was residing at the time.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 6105(a)(1).
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During a search of the residence, officers discovered a
firearm located inside of a trash can within that residence, as
well as other items of evidentiary value.
A subsequent search of a cellular telephone possessed by
[Appellant] showed a picture of that same gun in his
possession. That gun was checked and determined to be an
operable firearm. . . .
Additionally, at the time that [Appellant] was discovered with
the firearm, he had been previously convicted of four felony
drug offenses, as well as a felony aggravated assault, which
made him a person not to possess a firearm in the
Commonwealth. . . .
N.T. Guilty Plea, 4/16/19, at 6-7.
The trial court accepted Appellant’s guilty plea and, that day, the trial
court sentenced Appellant to serve the negotiated term of four to ten years in
prison for his conviction. Id. at 8. Appellant did not file a direct appeal to
this Court.
On January 22, 2020, Appellant filed a timely, pro se PCRA petition and
the PCRA court appointed counsel to represent Appellant during the
proceedings. See PCRA Court Order, 1/27/20, at 1. However, on May 7,
2020, appointed counsel filed a motion 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. 1988) (en banc).
On September 18, 2020, the PCRA court granted counsel leave to
withdraw and issued Appellant notice that it intended to dismiss his petition
in 20 days without holding a hearing. PCRA Court Order, 9/18/20, at 1; see
also Pa.R.Crim.P. 907(1). The PCRA court finally dismissed Appellant’s first
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petition on November 2, 2020. PCRA Court Order, 11/2/20, at 1. Appellant
did not file a notice of appeal from this order.
On May 11, 2022, Appellant filed the current, pro se PCRA petition.
Within this petition, Appellant acknowledged that it was facially untimely
under the PCRA’s one-year time-bar. See Appellant’s Second PCRA Petition,
5/11/22, at 3. However, Appellant claimed that his petition was timely under
either the newly discovered facts or governmental interference exception to
the time-bar. Id. Specifically, Appellant claimed:
1. On March 3, 2016 [Appellant] was released from SCI Coal
Township on parole. . . .
...
3. [Eventually, Appellant moved into a rental property located
at] 225 North Newberry Street, York, PA.
4. On August 31, 2017, Angel K. Johnson, a lessee at the 225
North Newberry Street residence signed a Home Provider
Agreement Letter (“Agreement Letter”) [that was drafted by
the Pennsylvania Board of Probation and Parole,] authorizing
[Appellant] to live at that location. This Agreement Letter
also authorized [Appellant’s] parole agent or employees of
the [Pennsylvania] Board of Probation and Parole to “search
the subject residence for the offender or for violations of the
conditions of supervision.” Lastly, the Agreement Letter
stated that “if this is a rental property[,] the landlord must
agree to allow the offender to reside at the proposed
residence.”
5. On October 22, 2018, after receiving information indicating
that [Appellant] threatened an individual, parole agents
searched the 225 North Newberry Street residence without a
search warrant, and discovered suspected drugs and a
firearm. [Appellant] was immediately detained by parole
agents and held at SCI Camp Hill.
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...
7. [On April 16, 2019, as a result of the search, Appellant
pleaded guilty to persons not to possess firearms and was
sentenced to serve four to ten years in prison].
...
9. In early fall of 2021, a clerk who works in the SCI Coal
Township law library advised [Appellant] to try and obtain a
copy of the Agreement Letter that authorized [Appellant] to
live at the 225 North Newberry Street residence.
10. On or about September 15, 2021, [Appellant] received a
copy of the Agreement Letter. . . .
11. On or about October 7, 2021, [Appellant] received an
affidavit from the owner of the property, Jeremiah Lynn
Clark, explaining that he was “serving overseas” at the time
[Appellant] resided at 225 North Newberry Street, and
further that he did not give “permission” for [Appellant] to
live at the residence, “nor did he authorize anyone” to grant
such permission on his behalf.
Id. at 1-3 (citations, corrections, and some capitalization omitted).
Appellant argued that since he recently discovered the Agreement
Letter, his petition was timely under either the newly discovered facts or
governmental interference exception to the PCRA’s time-bar. Id. at 3.
Further, Appellant argued that he was entitled to substantive relief because
the Agreement Letter provides: “[i]f this is a rental property, I also
understand that the landlord must agree to allow the offender to reside at the
proposed residence.” Id.; see also Agreement Letter, dated 8/31/17, at 1.
According to Appellant, since his landlord never agreed to allow him to reside
at the property, the entire Agreement Letter was “defective” and the
underlying search unconstitutional. Appellant’s Second PCRA Petition,
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5/11/22, at 3. Thus, Appellant claimed, he was entitled to have “the illegally
obtained evidence . . . suppressed.” Id.
On June 15, 2022, the PCRA court dismissed Appellant’s petition on the
basis of untimeliness and Appellant filed a timely notice of appeal.2 We now
affirm the dismissal of Appellant’s untimely, serial PCRA petition.
____________________________________________
2 The PCRA court’s final dismissal order was docketed on June 15, 2022 and
the York County Clerk of Courts noted on the docket that Appellant was served
with the order on June 22, 2022 by first class mail. Although Appellant’s notice
of appeal was not docketed until August 1, 2022, Appellant avers that he did
not receive the PCRA court’s dismissal order until late-July 2022 and Appellant
has submitted proof that the York County Clerk of Courts did not mail the
PCRA court’s final order to him until July 15, 2022. See Appellant’s Response
to Rule to Show Cause, 9/22/22, at Exhibit 1 (reflecting a first-class mail
envelope from the York County Clerk of Courts to Appellant, with a postmark
of July 15, 2022). Further, the Commonwealth has not challenged the
timeliness of this appeal. See Commonwealth’s Brief at 1-18.
Pennsylvania Rule of Appellate Procedure 108 provides that, “in computing
any period of time under these rules involving the date of entry of an order
by a court . . . , the day of entry shall be the day the clerk of the court . . .
mails or delivers copies of the order to the parties.” Pa.R.A.P. 108(a)(1) and
(d). Since the Commonwealth does not challenge the timeliness of this
appeal, we conclude that Appellant’s averments and exhibits establish that
the York County Clerk of Courts did not mail the PCRA court’s final order to
him until July 15, 2022. See Commonwealth v. Cooper, 710 A.2d 76, 79
(Pa. Super. 1998) (“[w]here . . . the opposing party does not challenge the
timeliness of the appeal and the prisoner's assertion of timeliness is plausible,
we may find the appeal timely without remand”). Therefore, Appellant’s
August 1, 2022 notice of appeal was timely, as it was filed within 30 days of
the date that the York County Clerk of Courts mailed a copy of the order to
Appellant. Pa.R.A.P. 108(a)(1) and (d); see also Pa.R.A.P. 903(a) (“the
notice of appeal . . . shall be filed within 30 days after the entry of the order
from which the appeal is taken”).
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“As a general proposition, we review a denial of PCRA relief to determine
whether the findings of the PCRA court are supported by the record and free
of legal error.” Commonwealth v. Eichinger, 108 A.3d 821, 830 (Pa. 2014).
Before this Court may address the substance of Appellant’s claims, we
must first determine if this petition is timely.
[The PCRA requires] a petitioner to file any PCRA petition
within one year of the date the judgment of sentence
becomes final. A judgment of sentence becomes final at the
conclusion of direct review . . . or at the expiration of time
for seeking review.
...
However, an untimely petition may be received when the
petition alleges, and the petitioner proves, that any of the
three limited exceptions to the time for filing the petition, set
forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are met.
A petition invoking one of these exceptions must be filed
within [one year] of the date the claim could first have been
presented. In order to be entitled to the exceptions to the
PCRA’s one-year filing deadline, the petitioner must plead
and prove specific facts that demonstrate his claim was raised
within the [one-year] timeframe.
See Commonwealth v. Lawson, 90 A.3d 1, 4-5 (Pa. Super. 2014)
(quotation marks and some citations omitted).
The trial court sentenced Appellant on April 16, 2019 and Appellant did
not file a notice of appeal. Thus, Appellant’s judgment of sentence became
final at the end of the day on May 16, 2019. See, e.g., Pa.R.A.P. 903(a).
Since the PCRA requires that a petition be filed “within one year of the date
the judgment becomes final,” Appellant had until Monday, May 18, 2020 to
file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1); see also 1
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Pa.C.S.A. § 1908 (computation of time). Therefore, Appellant’s current
petition, which was filed on May 11, 2022, is patently untimely and the burden
thus fell upon Appellant to plead and prove that one of the enumerated
exceptions to the one-year time-bar applied to his case. See 42 Pa.C.S.A.
§ 9545(b)(1); Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa. Super.
2008) (to properly invoke a statutory exception to the one-year time-bar, the
PCRA demands that the petitioner properly plead and prove all required
elements of the relied-upon exception).
Appellant purports to invoke the “newly discovered facts” and
“governmental interference” exceptions to the time-bar. These statutory
exceptions 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[.]
...
(2) Any petition invoking an exception provided in paragraph
(1) shall be filed within one year of the date the claim could
have been presented.
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42 Pa.C.S.A. § 9545(b).
To successfully invoke the governmental interference exception, a
“petitioner must plead and prove the failure to previously raise the
[underlying] claim was the result of interference by government officials, and
the information could not have been obtained earlier with the exercise of due
diligence.” Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008).
Regarding the newly discovered evidence exception, our Supreme Court
has explained:
subsection (b)(1)(ii) has two components, which must be
alleged and proved. Namely, the petitioner must establish
that: 1) “the facts upon which the claim was predicated were
unknown” and (2) “could not have been ascertained by the
exercise of due diligence.” 42 Pa.C.S.A.
§ 9545(b)(1)(ii)(emphasis added). If the petitioner alleges
and proves these two components, then the PCRA court has
jurisdiction over the claim under this subsection.
Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (emphasis
omitted).
Further, to properly invoke either exception, the petitioner is statutorily
required to file his petition “within one year of the date the claim could have
been presented.” 42 Pa.C.S.A. § 9545(b). As our Supreme Court explained,
to satisfy this “one year requirement,” a petitioner must “plead and prove that
the information on which he relies could not have been obtained earlier,
despite the exercise of due diligence.” See Commonwealth v. Stokes, 959
A.2d 306, 310-311 (Pa. 2008); Commonwealth v. Breakiron, 781 A.2d 94,
98 (Pa. 2001). Moreover, because the “one year requirement” of section
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9545(b)(2) is a statutory mandate, the requirement is “strictly enforced.” See
Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010).
Appellant claims that his petition satisfies both exceptions to the
time-bar because he pleaded that he recently discovered the Agreement
Letter. Additionally, Appellant claims that he is entitled substantive relief
because the Agreement Letter provided: “[i]f this is a rental property, I also
understand that the landlord must agree to allow the offender to reside at the
proposed residence.” Agreement Letter, dated 8/31/17, at 1. According to
Appellant, this provision means that, “in order for the document to be
enforceable, ‘the landlord must agree to allow the offender to reside at the
proposed residence.’” Appellant’s Second PCRA Petition, 5/11/22, at 3.
Further, Appellant claims that, since his landlord never agreed to allow him to
reside at the property, the entire Agreement Letter is “defective” and the
underlying search unconstitutional. See Appellant’s Second PCRA Petition,
5/11/22, at 3; see also Appellant’s Brief at 18-25.
Appellant’s claim does not satisfy either the newly discovered fact or
governmental interference exception to the time-bar. Initially, and contrary
to Appellant’s claim, the mere fact that – three years after the search –
Appellant’s landlord stated that he “did not give ‘permission’ for [Appellant] to
live at the residence” does not render the Agreement Letter “defective.” See
Appellant’s Second PCRA Petition, 5/11/22, at 3. Certainly, such a fact might
hypothetically cause a parole agent to deny a parolee’s home plan, but it does
not void the signed Agreement Letter post hoc. Further, and more to the
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point, Appellant could have always contacted his landlord and asked whether
the landlord consented to the search of Appellant’s residence. Appellant did
not do so and, thus, Appellant cannot establish that “the information could not
have been obtained earlier with the exercise of due diligence.” See
Abu-Jamal, 941 A.2d at 1268; Bennett, 930 A.2d at 1272. Therefore,
Appellant’s petition does not satisfy either the newly discovered facts or
governmental interference exception to the PCRA’s time-bar.
Since Appellant has failed to plead a valid exception to the time-bar, we
conclude that Appellant's petition is time-barred and that our “courts are
without jurisdiction to offer [Appellant] any form of relief.” Commonwealth
v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011). We thus affirm the PCRA
court's order, which dismissed Appellant's second PCRA petition without a
hearing.3
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3 Although the PCRA court failed to provide Appellant with a Rule 907 notice
of intent to dismiss, this Court has held that a PCRA court's “failure to issue
[the mandatory] Rule 907 notice is not reversible error where the record is
clear that the petition is untimely.” Commonwealth v. Zeigler, 148 A.3d
849, 851 n.2 (Pa. Super. 2016); see also Commonwealth v. Taylor, 65
A.3d 462, 468 (Pa. Super. 2013), citing Commonwealth v. Pursell, 749
A.2d 911, 917 n.7 (Pa. 2000) (holding that, where the PCRA court failed to
provide the petitioner with a notice of intent to dismiss the petition, “we will
not provide [the petitioner] with relief on this issue as our independent review
has determined that [the petitioner] failed to invoke the jurisdiction of the
[PCRA] court by failing to plead and prove the applicability of the timeliness
exceptions contained in 42 Pa.C.S.A. § 9545(b)(1)(i)–(iii)”). In the case at
bar, Appellant did not plead or prove any of the timeliness exceptions to the
one-year time-bar. Therefore, Appellant is not entitled to a remand for the
issuance of a Rule 907 notice.
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Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/2023
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