Com. v. Blanchett, J. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEROME BLANCHETT
Appellant No. 816 MDA 2014
Appeal from the PCRA Order April 14, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0004472-2008,
CP-22-CR-0004473-2008, CP-22-CR-0004477-2008
BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED DECEMBER 17, 2014
Jerome Blanchett (“Appellant”) appeals from the order dismissing his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546. After careful review, we affirm.
On April 2, 2009, a jury convicted Appellant of four counts of robbery,1
three counts of criminal conspiracy to commit robbery,2 and two counts of
aggravated assault.3 On April 22, 2009, the trial court sentenced Appellant
to an aggregate sentence of 52 to 104 years’ incarceration.
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1
18 Pa.C.S. § 3701.
2
18 Pa.C.S. § 903.
3
18 Pa.C.S. § 2702.
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On April 29, 2009, Appellant filed a Motion for Modification of
Sentence, which the trial court denied on May 7, 2009. Appellant appealed,
and this Court affirmed on April 16, 2010. The Pennsylvania Supreme Court
denied Appellant’s petition for allowance of appeal on September 13, 2010.
On January 19, 2011, Appellant filed a Motion to Withdraw Plea, which
the lower court treated as a PCRA petition. The PCRA court appointed
counsel and directed counsel to file an amended PCRA petition on Appellant’s
behalf. Following a number of extensions, on November 9, 2011, PCRA
counsel filed a Turner/Finley4 no merit letter in the form of a motion to
withdraw. The PCRA court filed a Pa.R.Crim.P. 907 notice of intent to
dismiss the petition on November 10, 2011, and dismissed the petition on
December 6, 2011. Appellant did not appeal.
On February 7, 2014, Appellant filed the instant PCRA petition, his
second. On March 19, 2014, the PCRA court filed a Memorandum Opinion
and Order notifying Appellant of the court’s intent to dismiss the petition in
accordance with Pa.R.Crim.P. 907. On April 14, 2014, the PCRA court
dismissed Appellant’s second PCRA petition. Appellant filed his notice of
appeal together with his Pa.R.A.P. 1925(b) statement on May 8, 2014. The
PCRA court filed its Pa.R.A.P. 1925(a) opinion on July 3, 2014.
On appeal, Appellant presents the following issues for our review:
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4
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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1. Whether the Appellant is entitled to a discharge, or any
alternative relief with respect to his convictions because the trial
court failed to provide a Signed Written Judgment of Sentencing
Order?
2. Whether Trial counsel provided ineffective assistance during
sentencing proceedings, failing to preserve this claim, and PCRA
counsel was ineffective for failing to raise the ineffective
assistance of direct appeal and trial counsels?
3. Whether the trial/PCRA judge denied appellant his right to
due process of law and to a fair PCRA proceeding in violation of
Code of Judicial Conduct Canons 1, and 2(A)?
4. Whether the Pennsylvania Superior Court have the Judicial
Authority allowing Appellant to raise newly discovered evidence
issues in his brief?
Appellant’s Brief, p. 5 (verbatim).
In reviewing an order denying PCRA relief, our well-settled standard of
review 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,
191-192 (Pa.Super.2013) (internal quotations and citations omitted).
We must first consider the timeliness of the petition. “It is undisputed
that a PCRA petition must be filed within one year of the date that the
judgment of sentence becomes final.” Commonwealth v. Hernandez, 79
A.3d 649, 651 (Pa.Super.2013); 42 Pa.C.S. § 9545(b)(1). “This time
requirement is mandatory and jurisdictional in nature, and the court may not
ignore it in order to reach the merits of a petition.” Hernandez, 79 A.3d at651 (citing Commonwealth v. Murray, 753 A.2d 201, 203 (Pa.2000)). A
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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). However, a facially untimely petition
may be received where any of the PCRA’s three limited exceptions to the
time for filing the petition are met. Hernandez, 79 A.3d at 651 (footnote
omitted). These exceptions include:
(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. § 9545(b)(1)(i)-(iii). As our Supreme Court has repeatedly
stated, the petitioner maintains the burden of pleading and proving that one
of these exceptions applies. Commonwealth v. Abu-Jamal, 941 A.2d
1263, 1268 (Pa.2008), cert. denied, 555 U.S. 916 (2008). Further,
[a] petition invoking one of these exceptions must be filed within
sixty days of the date the claim could first have been presented.
42 Pa.C.S. § 9545(b)(2). In order to be entitled to the
exceptions to the PCRA’s one-year filing deadline, the petitioner
must plead and prove specific facts that demonstrate his claim
was raised within the sixty-day time frame under section
9545(b)(2).
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Hernandez, 79 A.3d at 651-652 (internal quotations omitted).
Finally, a heightened standard applies to a second or subsequent PCRA
petition. A second or subsequent PCRA petition “will not be entertained
unless a strong prima facie showing is offered to demonstrate that a
miscarriage of justice may have occurred.” Commonwealth v. Austin, 712
A.2d 375, 377 (Pa.Super.1998); Commonwealth v. Williams, 660 A.2d
614, 618 (Pa.Super.1995). Additionally, in a second or subsequent post-
conviction proceeding, “all issues are waived except those which implicate a
defendant’s innocence or which raise the possibility that the proceedings
resulting in conviction were so unfair that a miscarriage of justice which no
civilized society can tolerate occurred”. Williams, 660 A.2d at 618.
On September 13, 2010, our Supreme Court denied Appellant’s
petition for allowance of appeal from this Court’s affirmation of his judgment
of sentence. Appellant did not file for a writ of certiorari to the Supreme
Court of the United States, and his sentence became final at the expiration
of his time to seek review ninety days later, on December 13, 2010.5 See
42 Pa.C.S. § 9545(b)(3); U.S. Sup.Ct. Rule 13. Accordingly, Appellant had
until December 13, 2011 to timely file a PCRA petition.
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5
The ninetieth day technically fell on December 12, 2010, a Sunday.
Accordingly, Appellant had until the following business day, Monday,
December 13, 2011, to timely file for a writ of certiorari to the Supreme
Court of the United States. See U.S. Sup.Ct. Rule 30.
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Appellant filed the instant petition on February 7, 2014, over two years
after the expiration of his PCRA time limitation. Accordingly, Appellant’s
petition is facially untimely. Thus, he must plead and prove that his petition
falls under one of the Section 9545 exceptions set forth in the PCRA. See
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Appellant’s instant PCRA petition, however,
makes no attempt to plead or prove any of the three limitations exceptions.
To the extent Appellant’s brief refers to the PCRA’s newly discovered
evidence time bar exception, Appellant was required to plead and prove the
time bar exception in his PCRA petition. See Abu-Jamal, 941 A.2d at 1268.
The PCRA petition itself includes no discussion whatsoever of the
applicability of any of the PCRA’s time bar exceptions. Instead, Appellant
waited until his appellate brief to plead a Section 9545(b)(1)(ii) time bar
exception.6 See Appellant’s Brief, pp. 5, 10. As a result, Appellant has
waived this time-bar-exception claim. See Commonwealth v. Burton, 936
A.2d 521, 525 (Pa.Super.2007) (“exceptions to the [PCRA] time bar must be
pled in the PCRA petition, and may not be raised for the first time on
appeal”); see also Pa.R.A.P. Rule 302(a) (issues not raised in the lower
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6
To overcome the PCRA’s time bar, Appellant’s brief states as follows:
[Appellant] invokes the exception set forth in title 42 Pa.C.S. §
9545(b)(1)(ii), the newly discovered facts exception. Petitioner
is correct.
Appellant’s Brief, p. 10.
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court are waived and cannot be raised for the first time on appeal).
Accordingly, the petition remains time-barred.
Additionally, the sole claim contained in the instant PCRA petition –
that Appellant’s due process rights were violated by the trial court’s failure
to enter a written judgment of sentence order7 – neither implicates
Appellant’s actual innocence nor raises the possibility that the proceedings
were so unfair that a miscarriage of justice which no civilized society can
tolerate occurred. See Williams, supra.
Further, although our decision does not require a review of Appellant’s
underlying claims, we have studied the records and the briefs in this matter,
as well as the applicable law. After careful review, we conclude that the
Pa.R.A.P. 1925(a) opinion authored by the Honorable John F. Cherry
correctly explains that the PCRA petition’s underlying claim is untimely and
otherwise meritless. See PCRA Court Opinion, July 3, 2014, pp. 4-7. The
PCRA court’s discussion requires no expansion.
Because Appellant filed the instant PCRA petition over two years after
the expiration of the limitations period and cannot avail himself of any of the
PCRA’s time bar exceptions, the PCRA court did not err in dismissing this
petition as untimely.
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7
See PCRA petition, February 7, 2014, p. 2.
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Order affirmed. Appellant’s September 10, 2014 application for
remand denied.8
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/17/2014
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8
Appellant’s application for remand seeks remand so that Appellant might
raise a claim that “the sentencing judge’s actions were inconsistent with the
provisions of the sentencing code and was contrary to the fundamental
norms that underlie the sentencing process.” Motion for Remand, p. I.
Appellant attempts to somehow attach this discretionary aspects of
sentencing claim to the Supreme Court of the United States’ decision in
Alleyne v. United States, 133 S.Ct. 2151 (2013), wherein the Supreme
Court held that a fact that, by law, increases a penalty is an element of the
crime that must be determined by the jury beyond a reasonable doubt. See
Motion for Remand, p. 4. We note, however, that Appellant has already
litigated his sentencing claim on direct appeal. See Commonwealth v.
Blanchett, 996 MDA 2009 (April 16, 2010) (unpublished memorandum).
Further, his sentence does not implicate Alleyne because it did not involve
the imposition of any mandatory minimum sentence. Finally, we note that
neither the Supreme Court of the United States nor the Pennsylvania
Supreme Court has held Alleyne to apply retroactively to matters on
collateral appeal.
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