Com. v. Mitchell, C. ( 2018 )

J-S53043-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CALVIN MITCHELL :
:
Appellant : No. 549 EDA 2018
Appeal from the PCRA Order January 31, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0106351-1996
BEFORE: GANTMAN, P.J., OTT, J., and PLATT*, J.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED SEPTEMBER 25, 2018
Appellant, Calvin Mitchell, appeals pro se from the order entered in the
Philadelphia County Court of Common Pleas, which denied his fifth petition
brought pursuant to the Post-Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A.
§§ 9541-9546. On February 10, 1997, a jury convicted Appellant of robbery,
aggravated assault, possession of an instrument of crime, and conspiracy.
The court sentenced Appellant on September 5, 1997, to an aggregate term
of 27½ to 55 years’ imprisonment. On August 26, 1999, this Court affirmed
the judgment of sentence; our Supreme Court denied allowance of appeal on
February 18, 2000. See Commonwealth v. Mitchell, 745 A.2d 43 (1999)
(unpublished memorandum), appeal denied, 561 Pa. 691, 751 A.2d 187
(2000). Between 2000 and 2013, Appellant litigated multiple PCRA petitions
without success.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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On June 21, 2016, Appellant filed pro se the current PCRA petition that
argued the court erred by not merging aggravated assault and robbery for
sentencing purposes. The PCRA court appointed counsel on January 4, 2017.
Appellant filed an amended pro se PCRA petition on May 23, 2017, which
argued he was entitled to have his appeal rights for his first PCRA petition
reinstated nunc pro tunc under Commonwealth v. Burton, 638 Pa. 687, 158
A.3d 618 (2017). That same day, counsel filed a Turner/Finley1 no-merit
letter and a motion to withdraw. On June 23, 2017, the PCRA court issued
notice of its intent to dismiss pursuant to Pa.R.Crim.P. 907. Appellant
responded pro se on July 7, 2017. On October 31, 2017, counsel filed a second
Turner/Finley letter and motion to withdraw, after reviewing Appellant’s
response to the Rule 907 notice. The PCRA court again issued Rule 907 notice
on December 28, 2017; Appellant responded pro se on January 10, 2018. On
January 31, 2018, the PCRA court denied relief and granted counsel’s motion
to withdraw. Appellant timely filed a pro se notice of appeal on February 13,
2018. On February 21, 2018, the PCRA court ordered Appellant to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b); Appellant timely complied on March 7, 2018.
The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA
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1 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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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
that excuse the late filing of a petition; 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)(1-2).
Instantly, Appellant’s judgment of sentence became final on or about
May 18, 2000, following the 90 days for filing a petition for certiorari with the
United States Supreme Court. See U.S.Sup.Ct.R. 13. Appellant filed the
current pro se PCRA petition on June 21, 2016, more than 16 years after his
judgment of sentence became final, which is patently untimely. See 42
Pa.C.S.A. § 9545(b)(1). Nevertheless, Appellant attempts to invoke the newly
discovered facts exception per Section 9545(b)(1)(ii). Specifically, Appellant
argues he filed his amended PCRA petition within 60 days of our Supreme
Court’s decision in Burton, which states the presumption that matters of
public record are deemed known does not apply to pro se prisoners. New case
law, however, does not satisfy the new-facts exception to the PCRA time-bar.
See Commonwealth v. Watts, 611 Pa. 80, 23 A.3d 980 (2011) (stating
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judicial determinations are not “facts” within meaning of Section
9545(b)(1)(ii)). Therefore, Appellant’s petition remains time-barred, and the
PCRA court lacked jurisdiction to review it on the merits. Accordingly, we
affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/25/18
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