Com. v. Harmon, J. ( 2018 )

J-S20014-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES E. HARMON, :
:
Appellant : No. 1852 MDA 2017
Appeal from the PCRA Order entered October 23, 2017,
in the Court of Common Pleas of Franklin County,
Criminal Division at No(s): CP-28-MD-0000375-1978.
BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED MAY 31, 2018
James E. Harmon appeals pro se from the order denying as untimely his
sixth petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. We affirm.
The pertinent facts and procedural history have been summarized as
follows:
On February 7, 1979, after a [non-jury trial], [Harmon]
was found guilty of murder in the second degree and
robbery. On August 29, 1979, the Court imposed the
following sentences to be served consecutively: mandatory
life imprisonment for the second degree murder conviction
and five (5) to twenty (20) years of incarceration for the
robbery conviction. Over the next thirty years, [Harmon]
filed several [PCRA petitions]; none of the [petitions] filed
has resulted in relief. [However, in 1986, a federal district
court ruled Harmon’s consecutive robbery sentence was null
and void.]
PCRA Court Opinion, 1/21/17, at 2-3 (footnote omitted).
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On March 17, 2017, Harmon filed the PCRA petition at issue, and the
PCRA court appointed counsel. On June 26, 2017, PCRA counsel filed a no-
merit letter pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d
927 (1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988),
and sought to withdraw as counsel. On October 3, 2017, the PCRA court
granted counsel’s motion to withdraw and issued notice to Harmon of its
intention to dismiss his PCRA petition without a hearing pursuant to
Pa.R.Crim.P. 907. Harmon filed a response. By order entered October 23,
2017, the PCRA court denied Harmon’s petition as untimely. This appeal
followed. Both Harmon and the PCRA court have complied with Pa.R.A.P.
1925.
Before reaching the issues that Harmon has raised in his appellate brief,
we must first determine whether the PCRA court correctly determined that
Harmon’s serial petition for post-conviction relief was untimely filed. This
Court’s standard of review regarding an order dismissing a petition under the
PCRA is “to determine 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).
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
is final unless the petition alleges, and the petitioner proves, that an exception
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to the time for filing the petition, set forth at 42 Pa.C.S.A. sections
9545(b)(1)(i), (ii), and (iii), is met.1 42 Pa.C.S.A. § 9545. A PCRA petition
invoking one of these statutory exceptions must “be filed within 60 days of
the date the claims could have been presented.” See Commonwealth v.
Hernandez, 79 A.3d 649, 651-52 (Pa. Super. 2013) (citations omitted); see
also 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).
Because Harmon did not seek further review after our Supreme Court
affirmed his judgment of sentence on June 4, 1981, his judgment of sentence
became final sixty days thereafter, i.e., at the expiration of the period for
____________________________________________
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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seeking certiorari before the United States Supreme Court. See 42 Pa. C.S.A.
§ 9543; U.S.Sup.Ct.R. 20 (repealed). Harmon’s sixth petition, filed over a
quarter of a century later, is patently untimely, unless he has satisfied his
burden of pleading and proving that one of the enumerated exceptions
applies. See Hernandez, supra.Harmon has failed to prove any exception to the PCRA’s time bar.
Rather, he first argues that the challenge to the legality of his sentence can
never be waived. See Harmon’s Brief at 5. We disagree. It is well settled
that, “[a]lthough legality of sentence is always subject to review within the
PCRA, claims must still first satisfy the PCRA’s time limits or of the exceptions
thereto. Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999). Harmon’s
sixth PCRA is clearly untimely.
Likewise, Harmon’s multiple claims of prior counsel’s ineffectiveness
cannot be used to salvage an otherwise untimely PCRA. 42 Pa.C.S.A. §
9545(b)(4); see also Commonwealth v. Edmiston, 65 A.3d 339 (Pa. 2013)
(explaining that alegations of ineffectiveness of counsel will not overcome the
jurisdictional timeliness requirements of the PCRA)
Finally, Harmon’s claims involving a “miscarriage of justice” do not
render his latest petition timely. See Harmon’s Brief at 14. Although courts
will review a request in a second or subsequent collateral attack on a
conviction if there is a strong prime facie showing that a miscarriage of justice
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occurred, there is no “miscarriage of justice” exception to the PCRA’s time bar.
Commonwealth v. Burton, 936 A.2d 521 (Pa. Super. 2007).
In sum, because Harmon has not pled and proven an exception to the
PCRA’s time bar, the PCRA court correctly determined that it lacked
jurisdiction to address the claims raised by Harmon in his PCRA petition. We
therefore affirm the PCRA court’s order denying post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/31/18
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