Com. v. Ford, H. ( 2019 )

J-A13043-19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
v. :
:
HAROLD FRANKLIN FORD, :
:
Appellant : No. 110 EDA 2019
Appeal from the PCRA Order Entered December 5, 2018
in the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0003457-2002
BEFORE: SHOGAN, J., NICHOLS, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 1, 2019
Harold Franklin Ford (Appellant) appeals pro se from the December 5,
2018 order dismissing his petition to strike judgment as an untimely-filed
petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-
9546. We affirm.
On December 18, 2002, a jury convicted [Appellant] of
robbery and conspiracy based upon his participation in a June
2002 robbery at a hotel in Chester County. On June 30, 2003,
the trial court sentenced [Appellant] to a mandatory minimum
term of 25 to 50 years’ imprisonment, pursuant to
[subsection] 9714(a)(2), for his robbery conviction, concluding
the conviction was [Appellant’s] “third strike” under the law.
[Appellant’s] judgment of sentence was affirmed by this Court
on direct appeal, and the Supreme Court subsequently denied
his petition for review on April 19, 2005. See Commonwealth
v. Ford, 859 A.2d 829 [] (Pa. Super. 2004) (unpublished
memorandum), appeal denied, 872 A.2d 1198 (Pa. 2005). On
May 2, 2005, Ford filed a timely, pro se PCRA petition. Counsel
was appointed and filed an amended petition, which the PCRA
court ultimately dismissed on May 29, 2007. This Court affirmed
the PCRA court’s order on appeal, and, once again, the Supreme
Court denied [Appellant’s] petition for review. See
*Retired Senior Judge assigned to the Superior Court.
J-A13043-19
Commonwealth v. Ford, 947 A.2d 1251 (Pa. Super. 2008),
appeal denied, 959 A.2d 319 (Pa. 2008).
Thereafter, [Appellant] filed multiple pro se petitions
seeking PCRA relief, none of which [was] successful.
Commonwealth v. Ford, 192 A.3d 248 (Pa. Super. 2018) (unpublished
memorandum at *1).
Most recently, Appellant filed the petition at issue herein on October
25, 2018. Although styled as a petition to strike judgment, the PCRA court
treated the October 25, 2018 filing as Appellant’s sixth PCRA petition.1 On
November 7, 2018, the PCRA court filed a notice of intent to dismiss the
petition without a hearing pursuant to Pa.R.Crim.P. 907. Appellant did not
respond, and the petition was dismissed on December 5, 2018.
On December 17, 2018, Appellant timely filed a notice of appeal.2,3 On
appeal, Appellant challenges the legality of his sentence. Appellant’s Brief at
1 Because Appellant’s claims implicate the legality of his sentence, his issues
were cognizable under the PCRA and therefore, the PCRA court properly
considered Appellant’s filing as a PCRA petition. See Commonwealth v.
Beck, 848 A.2d 987, 989 (Pa. Super. 2004) (“Issues concerning the legality
of sentence are cognizable under the PCRA.”).
2
Appellant’s notice of appeal lists the “November 7, 2018 order of
dismissal[,]” as the order from which he appeals. See Pro Se Notice of
Appeal, 12/17/2018 (emphasis and unnecessary capitalization omitted).
However, as noted supra, the November order was merely a notice of the
PCRA court’s intent to dismiss Appellant’s petition, and thus was a non-
final, non-appealable order. On this basis, the PCRA court urges this Court
to quash Appellant’s appeal. See PCRA Court Opinion, 1/10/2019, at 1 n.1
(“I respectfully suggest that this appeal is taken from a non-final, non-
(Footnote Continued Next Page)
-2-
J-A13043-19
5 (unnumbered). Specifically, Appellant avers he is entitled to relief because
the trial court improperly sentenced Appellant as a “third-strike” offender
when (1) he was never sentenced as a second-strike offender, and (2) his
prior convictions did not meet the statutory requirements to qualify as first
or second strikes. Id. We begin our review mindful of the following.
Under the PCRA, all petitions must be filed within one year of the date
that the petitioner’s judgment of sentence became final, unless one of three
statutory exceptions under 42 Pa.C.S. § 9545(b)(1) applies. 42 Pa.C.S.
§ 9545(b)4; Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006).
“The PCRA’s time restrictions are jurisdictional in nature.” Chester, 895
A.2d at 522. “Thus, ‘[i]f a PCRA petition is untimely, neither this Court nor
(Footnote Continued) _______________________
appealable order.”). Notably, Appellant’s notice of appeal was filed after the
actual order of dismissal was filed.
Considering Appellant’s reference to the November 7th order as the
“order of dismissal,” it appears Appellant mistakenly listed the November
order instead of the PCRA court’s December 5, 2018 order which did dismiss
Appellant’s petition. Regardless, this apparent error is of no consequence,
as Appellant’s timely-filed notice of appeal invoked this Court’s jurisdiction.
See Commonwealth v. Williams, 106 A.3d 583 (Pa. 2014) (holding that a
timely notice of appeal, irrespective if it is otherwise defective, triggers the
jurisdiction of the appellate court).
3
Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
4
There are also time restrictions on when a petitioner must file a petition
after a time-bar-exception claim has arisen. See 42 Pa.C.S. § 9545(b)(2).
On October 24, 2018, the General Assembly amended subsection 9545(b)(2)
in order to extend the time for filing a petition from 60 days to one year
from the date the claim could have been presented. See 2018
Pa.Legis.Serv.Act 2018-146 (S.B. 915), effective December 24, 2018.
-3-
J-A13043-19
the trial court has jurisdiction over the petition. Without jurisdiction, we
simply do not have the legal authority to address the substantive claims.’”
Id. (quoting Commonwealth v. Lambert, 884 A.2d 848, 851 (Pa. 2005)).
Moreover, “[t]hough not technically waivable, a legality [of sentence] claim
may nevertheless be lost should it be raised ... in an untimely PCRA petition
for which no time-bar exception applies, thus depriving the court of
jurisdiction over the claim.” Commonwealth v. Miller, 102 A.3d 988, 995-
96 (Pa. Super. 2014).
“For purposes of [the PCRA], a judgment [of sentence] becomes final
at the conclusion of direct review, including discretionary review in the
Supreme Court of the United States and the Supreme Court of Pennsylvania,
or at the expiration of time for seeking the review.” 42 Pa.C.S.
§ 9545(b)(3). In this case, our Supreme Court denied Appellant’s petition
for allowance of appeal on April 19, 2005. Thus, Appellant’s October 25,
2018 petition is facially untimely.
Nevertheless, we may consider an untimely-filed PCRA petition if
Appellant pleaded and proved one of the three exceptions set forth in 42
Pa.C.S. § 9545(b)(1)(i-iii). In his brief on appeal, Appellant asserts the
governmental-interference and newly-discovered evidence exceptions found
at 42 Pa.C.S. § 9545(b)(1)(i) (providing an exception where “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
-4-
J-A13043-19
laws of this Commonwealth or the Constitution or laws of the United States”
and 42 Pa.C.S. § 9545(b)(1)(ii) (providing an exception where “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”). Appellant’s
Brief at 8. In support of the latter exception, Appellant cites
Commonwealth v. Armstrong, 74 A.3d 228 (Pa. Super. 2014) and
Commonwealth v. Armstrong, 107 A.3d 735 (Pa. 2014). Appellant’s Brief
at 8.
Initially, we note that “although this Court is willing to construe
liberally materials filed by a pro se litigant, pro se status generally confers
no special benefit upon an appellant.” Commonwealth v. Lyons, 833 A.2d
245, 251-52 (Pa. Super. 2003). “This Court will not act as counsel and will
not develop arguments on behalf of an appellant.” Commonwealth v.
Tchirkow, 160 A.3d 798, 804 (Pa. Super. 2017) (citation omitted).
“It is Appellant’s obligation to sufficiently develop arguments in
his brief by applying the relevant law to the facts of the case,
persuade this Court that there were errors below, and convince
us relief is due because of those errors. If an appellant does not
do so, we may find the argument waived.”
Commonwealth v. Gibbs, 981 A.2d 274, 284 (Pa. Super. 2009). Here, the
argument section of Appellant’s brief is underdeveloped and incoherent at
times. Likewise, this section is difficult to follow due to Appellant’s failure to
divide his argument section “into as many parts as there are questions to be
-5-
J-A13043-19
argued.” Pa.R.A.P. 2119. In light of the foregoing, we find Appellant’s issues
waived.
Regardless, even if Appellant did not waive his issues on appeal, he
would still not be entitled to relief. Notably, this Court has previously
determined that Appellant’s reliance on Armstrong did not constitute a
newly discovered fact. Ford, 947 A.2d at 1255.
Although [Appellant] does not explicitly invoke any of the
time for filing exceptions, he does imply that he is entitled to
relief based upon the Pennsylvania Supreme Court’s decision in
[Armstrong, 107 A.3d at 735]. In that case, the Supreme
Court affirmed, without further opinion, the decision of this
Court, which held that a defendant cannot be sentenced under
the third strike provision of Section 9714, when his second strike
offense was committed before he was convicted and sentenced
as a first strike offender, and, therefore, the defendant had no
opportunity to reform. See [Armstrong, 74 A.3d[ at 241–242]
We conclude the Armstrong decision does not provide
[Appellant] with relief. First, it is well-settled that judicial
decisions do not equate to “newly discovered facts” pursuant to
the exception set forth in [subs]ection 9545(b)(1)(ii). … [E]ven if
Armstrong did provide [Appellant] with a basis for relief, his
present petition was not filed within 60 days of the Supreme
Court’s decision as required by [subs]ection 9545(b)(2). See 42
Pa.C.S. § 9545(b)(2) (“Any petition invoking an exception
provided in paragraph (1) shall be filed within 60 days of the
date the claim could have been presented.”). Therefore,
[Appellant] has failed to invoke a timing exception based on
Armstrong.
Ford, 192 A.3d 248 (unpublished memorandum at *2).
Additionally, with respect to Appellant’s government interference
claim, related to his previous counsel’s alleged ineffectiveness, it is well
settled that claims related to defense counsel “do not qualify [as
-6-
J-A13043-19
governmental interference] due to the specific provision in 42 Pa.C.S.
§ 9545(b)(4) that the term ‘government officials’ does not include defense
counsel.” Commonwealth v. Pursell, 749 A.2d 911, 916 (Pa. 2000). See
also 42 Pa.C.S. § 9545(b)(4) (“For purposes of this subchapter,
‘government officials’ shall not include defense counsel, whether appointed
or retained.”). Thus, Appellant has failed to plead and prove that either
exception applies.
Moreover, this Court previously concluded that, irrespective of
Appellant’s failure to meet a timeliness exception, Appellant’s legality claims
are meritless. See Ford, 947 A.2d at 1255; Ford, 192 A.3d at *3.
[Appellant] raised a virtually identical claim in the appeal
from the denial of his first PCRA petition. Specifically, he argued
“because he was never sentenced as a second strike offender
pursuant to section 9714, he cannot be sentenced as a third
strike offender.” Ford, supra, 947 A.2d at 1254. A panel of this
Court rejected this claim as follows:
[T]he Commonwealth’s Sentencing Memorandum
filed on June 17, 2003, in support of its Notice of
Intent to Invoke Mandatory Minimum Sentencing
Provisions, provides clear proof that [Appellant’s]
prior convictions satisfy the mandates of both
[Commonwealth v.] Shiffler[, 879 A.2d 185 (Pa.
2005),] and section 9714. Specifically, our review of
the Commonwealth’s sentencing memorandum
reveals the following:
1. On September 20, 1974, in case nos.
148–73 and 186–73, [Appellant] pled
guilty to, inter alia, the charge of robbery
while armed and robbery, respectively,
and was sentenced to two concurrent
terms of four to eight years
imprisonment.
-7-
J-A13043-19
2. On September 11, 1979, in case no.
1199–78, [Appellant] was sentenced to
24 months to 59 months imprisonment
following his conviction of, inter alia,
robbery.
3. On December 20, 1991, in case no.
2883–88, [Appellant] was sentenced to
four to ten years imprisonment following
his conviction of robbery.
Commonwealth’s Sentencing Memorandum,
06/17/03, Exhibits A, B, C, D.
Clearly, the record contradicts [Appellant’s] assertion
that the requirements for a third strike offender were
not established. Specifically, the record reflects that
[Appellant] was sentenced for crimes of violence on
three occasions prior to the instant offense, and
given intervening opportunities to reform, of which
he clearly failed to take advantage. As noted by the
learned trial judge, [Appellant’s] current robbery
conviction actually represents his fourth strike.
Accordingly, we find no error in the trial court’s
imposition of the mandatory minimum sentence
pursuant to [sub]section 9714(a)(2).
Ford, supra, 947 A.2d at 1255.
Ford, 192 A.3d 248 (unpublished memorandum at *3). (some citations and
unnecessary capitalization omitted). Thus, this Court has already reviewed
and addressed Appellant’s issues concerning his status as a third-strike
offender, as well as Appellant’s prior convictions to support the imposition of
a mandatory minimum sentence and determined that these claims were
without merit. It is well-settled that previously litigated claims are not
-8-
J-A13043-19
cognizable under the PCRA. See Commonwealth v. Spotz, 18 A.3d 244,
260 (Pa. 2011).
Based upon the foregoing, we conclude Appellant’s petition was
untimely filed, he did not satisfy an exception to the timeliness
requirements, and his legality claims were previously litigated. Thus, the
PCRA court lacked jurisdiction to review his petition, and he is not entitled to
relief.5
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/1/19
5
Lastly, we note that Appellant attempts to raise ineffective-assistance-of-
counsel claims for the first time on appeal. Appellant’s Brief at 7-8. Without
addressing whether these claims meet a timeliness exception, because these
issues were not raised in Appellant’s pro se petition before the PCRA court,
they are waived. See Pa.R.A.P. 302(a) (“Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.”).
-9-