Com. v. Kirk, N. ( 2017 )

J-S40014-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NELSON KIRK :
:
Appellant : No. 3016 EDA 2016
Appeal from the PCRA Order August 18, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1108841-1991
BEFORE: OTT, DUBOW, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 19, 2017
Appellant, Nelson Kirk, appeals pro se from the order entered in the
Philadelphia County Court of Common Pleas, which dismissed as untimely his
serial petition filed under the Post Conviction Relief Act (“PCRA”), at 42
Pa.C.S.A. §§ 9541–9546. We affirm.
Appellant was convicted of involuntary deviate sexual intercourse,
kidnapping, robbery, aggravated assault, and criminal conspiracy. On
February 24, 1995, the court sentenced Appellant to an aggregate term of
20-40 years' imprisonment. On July 28, 1997, this Court affirmed judgment
of sentence, and on March 19, 1998, the Pennsylvania Supreme Court
denied Appellant’s petition for allowance of appeal. Ninety days later, on or
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S40014-17
about June 19, 1998, Appellant’s judgment of sentence became final upon
the expiration of time allotted to appeal to the United States Supreme Court.
See U.S. Sup.Ct. Rule 13, 28 U.S.C.A.
Appellant filed his first PCRA petition on November 27, 1998.
Appointed counsel did not file an amended petition but instead filed a
Turner/Finley1 no-merit letter on September 15, 1999. On November 1,
1999, the PCRA court dismissed the petition and granted counsel leave to
withdraw. Appellant filed an appeal and the court appointed counsel to
represent him. Appointed counsel, however, also filed a Turner/Finley
letter requesting leave to withdraw, which this court granted in its
memorandum decision of May 23, 2001, affirming the order denying
Appellant PCRA relief.
On February 18, 2016, Appellant filed the current, serial pro se PCRA
petition. The court issued notice of its intent to dismiss the petition without
a hearing per Pa.R.Crim.P. 907, on June 20, 2016. The court denied PCRA
relief on August 18, 2016. On September 19, 2016, Appellant timely filed a
pro se notice of appeal and voluntary concise statement per Pa.R.A.P.
1925(b).
Preliminarily, the timeliness of a PCRA petition is a jurisdictional
requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A
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1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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PCRA petition, including a second or subsequent petition, shall be filed within
one year of the date the underlying judgment of sentence becomes final. 42
Pa.C.S.A. § 9545(b)(1). A judgment of sentence is deemed 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.A. § 9545(b)(3).
The statutory exceptions to the PCRA time-bar allow for very limited
circumstances under which the late filing of a petition will be excused. 42
Pa.C.S.A. § 9545(b)(1)(i-iii). A petitioner asserting a timeliness exception
must file a petition within 60 days of when the claim could have been
presented. 42 Pa.C.S.A. § 9545(b)(2).
As noted, Appellant's judgment of sentence became final on or about
June 19, 1998, upon expiration of the time for filing a direct appeal with the
United States Supreme Court. Appellant filed the current serial PCRA
petition on February 18, 2016, which is patently untimely. See 42 Pa.C.S.A.
§ 9545(b)(1). In Appellant’s hand-written, pro se brief on appeal, he raises
only claims asserting the ineffective assistance of trial counsel. Both our
Supreme Court and this Court, however, have held repeatedly that claims of
ineffectiveness of counsel cannot save an otherwise untimely PCRA petition.
See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785 (holding that
ineffectiveness of counsel claim generally does not constitute an exception to
the PCRA time requirements); Commonwealth v. Williams, 35 A.3d 44,
54 (Pa.Super. 2011). Accordingly, we agree with the PCRA court that
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Appellant’s serial petition was untimely and that he has failed to plead and
prove the applicability of a timeliness exception.
Order is AFFIRMED.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/19/2017
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