Com. v. Reed, L. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
LEROY REED
Appellant No. 682 EDA 2017
Appeal from the PCRA Order January 18, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-1130761-1988
BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED MARCH 06, 2018
Appellant, Leroy Reed, appeals pro se from the January 18, 2017 order
entered in the Court of Common Pleas of Philadelphia County (“PCRA court”)
dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-46, as untimely. Upon review, we affirm.
The instant PCRA petition filed by Appellant is his third PCRA petition.
This Court affirmed the denial of Appellant’s first PCRA petition on September
16, 1998, and our Supreme Court denied allocator on January 25, 1999. See
Commonwealth v. Reed, 735 A.2d 1269 (Pa. 1999); Commonwealth v.
Reed, 726 A.2d 1082 (Pa. Super. 1998). On November 8, 2010, this Court
affirmed the dismissal of Appellant’s second PCRA petition as untimely. See
Commonwealth v. Reed, 3553 EDA 2009 (Pa. Super. November 8, 2010)
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(unpublished memorandum). Appellant filed the instant PCRA petition, his
third, on August 7, 2012, raising a claim based upon Miller v. Alabama, 567
U.S. 460 (2012).1
On February 7, 2014, Appellant filed a supplemental petition challenging
his arrest and the lack of sentencing order. The PCRA court issued a
Pa.R.Crim. P. 907 notice on November 28, 2016. Appellant failed to respond
to this notice and the PCRA court dismissed Appellant’s petition on January
18, 2017. Appellant filed a timely notice of appeal on February 14, 2017. The
PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) statement.
Nevertheless, the PCRA court issued a Pa.R.A.P. 1925(a) opinion on March 10,
2016.
Appellant raises two issues on appeal, which we repeat verbatim.
[I.] Did the [PCRA court] err in it’s factual findings and
conclusions of law when it rejected Appellant’s petition when
he clearly met one of the exceptions to the time-bar under
Pennsylvania Statute 42 Pa.C.S.A. § 9545(B)(1)(ii), which
is the new/after discovered evidence exception?
[II.] Did the [PCRA court] err in it’s factual findings and
conclusion of law when it ruled on an issue that sounds in
habeas corpus relief instead of in a [PCRA] setting, when
Appellant was challenging not his sentence but his
confinement when raising the claim of a sentencing order?
Appellant’s Brief at iii (sic).
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1 Appellant does not address the Miller issue in his brief; therefore, the claim
is waived. See Pa.R.A.P. 2119; see also Commonwealth v. Cole, 167 A.3d
49, 73 (Pa. Super. 2017) (“Appellant’s failure to adequately develop his
argument results in waiver of this issue) (additional citations omitted).
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All PCRA petitions, “including a second or subsequent petition, shall be
filed within one year of the date the judgment becomes final” unless an
exception to timeliness applies. 42 Pa.C.S.A. § 9545(b)(1). These
“restrictions are jurisdictional in nature. Thus, [i]f a PCRA petition is untimely,
neither this Court nor the [PCRA] court has jurisdiction over the petition.
Without jurisdiction, we simply do not have the legal authority to address the
substantive claims.” Commonwealth v. Chester, 895 A.2d 520, 522 (Pa.
2006) (first alteration in original) (internal citations and quotation marks
omitted). Further, “an appellate court reviews the PCRA court’s findings of
fact to determine whether they are supported by the record, and reviews its
conclusions of law to determine whether they are free from legal error.”
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (quoting
Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa. 2010)).
There are only three exceptions to the timeliness requirement of the
PCRA. These exceptions are
(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; 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-iii).
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In his brief, Appellant claims that the newly discovered fact exception,
42 Pa.C.S.A. § 9545(b)(1)(ii), applies to his third PCRA petition. Appellant
alleges that he did not discover until July 20, 2012, after receiving a letter
following a Right-to-Know records request for his sentencing order, that the
Right-to-Know office could not locate his sentencing order or affidavit of
probable cause. Therefore, Appellant claims that he is being unlawfully
imprisoned. In order for the newly discovered fact exception to apply, the
information must not have been obtainable through due diligence. “Due
diligence demands that the petitioner take reasonable steps to protect his own
interests. A petitioner must explain why he could not have learned the new
fact(s) earlier with the exercise of due diligence. This rule is strictly enforced.”
Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015) (internal
citations omitted). Appellant argues that he exercised due diligence; however,
the record belies that assertion because Appellant was sentenced on January
30, 1990. Appellant’s petition and brief fail to discuss the 22-year period
wherein he failed to obtain this information. Therefore, the PCRA court
properly found that Appellant failed to exercise due diligence and the PCRA
court was without jurisdiction to hear Appellant’s petition.
Next, Appellant asserts that the PCRA court erred because it ruled on an
issue sounding in habeas corpus rather than under the PCRA. Appellant’s
claim fails, as the PCRA is “the sole mean of obtaining collateral relief and
encompasses all other common law and statutory remedies for the same
purpose that exist when this subchapter takes effect, including habeas
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corpus and coram nobis.” 42 Pa.C.S.A. § 9542 (emphasis added). Therefore,
Appellant’s claim fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date:3/6/18
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