Com. v. Bryant, R. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
REGINALD BRYANT
Appellant No. 2455 EDA 2015
Appeal from the PCRA Order July 10, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1206841-1997
CP-51-CR-1206851-1997
BEFORE: OTT, J., SOLANO, J. AND JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED DECEMBER 02, 2016
Appellant Reginald Bryant appeals from the order of the Philadelphia
County Court of Common Pleas dismissing as untimely his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et
seq. After careful review, we affirm.
On March 30, 2001, a jury convicted Appellant of first-degree murder,
third-degree murder, arson, aggravated assault, conspiracy, and possession
of an instrument of crime following a horrific 1997 home invasion in which
Appellant and an accomplice shot Madeline Carter, poured gasoline on her
body, and set fire to her and her house.1 On April 4, 2001, the trial court
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1
For a full recitation of the facts of the underlying matter, see
Commonwealth v. Bryant, 1151 EDA 2001 (unpublished memorandum),
pp. 1-4.
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sentenced Appellant to life imprisonment for first-degree murder and an
aggregate term of 17½ to 35 years’ imprisonment on the remaining
convictions.
Appellant appealed. This Court affirmed his convictions on September
13, 2002, and the Supreme Court of Pennsylvania denied allocatur on
August 19, 2003.
On August 11, 2008, Appellant filed a pro se PCRA petition,2 and the
PCRA court appointed counsel who filed an amended petition on November
2, 2010. Ultimately, on July 10, 2015, the PCRA court dismissed Appellant’s
PCRA petition as untimely. Appellant timely appealed.3
Appellant raises the following two issues for our review:
[1.] Whether the General Assembly intended 42 Pa.C.S. §
9545(b)’s one year filing deadline to be jurisdictional and,
therefore, not subject to equitable tolling[?]
[2.] If [PCRA section] 9545(b)’s one year filing deadline is
jurisdictional, whether its application in [Appellant’s] case
violated [Appellant’s] state and federal due process rights[?]
Appellant’s Brief, p. 6.
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2
In the interim, Appellant filed a federal habeas corpus petition, which the
district court denied on April 14, 2005.
3
The trial court did not order Appellant to file a Pa.R.A.P. 1925(b) concise
statement of matters of on appeal, and Appellant did not file such a
statement. The trial court filed its Pa.R.A.P. 1925(a) opinion on March 14,
2016.
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Our well-settled standard of review for orders denying PCRA relief 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, as a petition’s
timeliness implicates the jurisdiction of both this Court and the PCRA court.
Commonwealth v. Williams, 35 A.3d 44, 52 (Pa.Super.2011), appeal
denied, 50 A.3d 121 (Pa.2012) (“Pennsylvania law makes clear that no court
has jurisdiction to hear an untimely PCRA 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 at 651 (citing
Commonwealth v. Murray, 753 A.2d 201, 203 (Pa.2000)). A 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
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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).
Hernandez, 79 A.3d at 651-652 (internal quotations omitted). Further, in
the absence of one of the enumerated exceptions, a PCRA court lacks
authority to extend the PCRA’s filing period. Commonwealth v. Fahy, 737
A.2d 214, 222 (Pa.1999); see also Commonwealth v. Watts, 23 A.3d
980, 983 (Pa.2011) (“[To] accord finality to the collateral review process[,]”
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the PCRA “confers no authority upon [appellate courts] to fashion ad hoc
equitable exceptions to the PCRA timebar”).
Here, Appellant was sentenced on April 4, 2001. Appellant litigated his
direct appeal through our Supreme Court’s denial of his petition for allocatur
on August 19, 2003. Appellant’s judgment of sentence therefore became
final 90 days later, on November 17, 2003, when his time for seeking
certiorari in the Supreme Court of the United States expired. See 42
Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.Rule 13.1 (allowing 90 days for the filing
of a writ of certiorari in the Supreme Court of the United States).
Accordingly, Appellant had until November 17, 2004 to timely file a PCRA
petition.
Appellant filed the instant PCRA petition on August 11, 2008, over
three and a half years after the expiration of his PCRA limitations period.
Accordingly, Appellant’s petition is facially untimely. Thus, he must plead
and prove that his petition falls under one of the Section 9545(b) exceptions
set forth in the PCRA. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).
Appellant acknowledges the untimeliness of his petition. See
Appellant’s Brief, p. 8. To overcome the PCRA’s time bar, Appellant states
the following:
[Appellant] can overcome the untimeliness for two reasons; both
being directly connected to [prior appellate counsel’s] egregious
and unethical representation of [Appellant] during his initial-
review PCRA proceedings: (1) based on [prior counsel’s]
representation, [Appellant] was entitled to have the PCRA’s one
year filing deadline equitably tolled until he filed his pro se
petition on August 11, 2008; and (2) based on [prior counsel’s]
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representation, the application of the PCRA’s one year filing
deadline violated [Appellant’s] state and federal due process
rights.
Appellant’s Brief, p. 8.
Appellant’s attempts to overcome the time bar fail. “It is well settled
that allegations of ineffective assistance of counsel will not overcome the
jurisdictional timeliness requirements of the PCRA.” Commonwealth v.
Wharton, 886 A.2d 1120, 1127 (Pa.2005) (petitioner’s claim of
ineffectiveness of prior counsel did not toll PCRA time bar); see also
Commonwealth v. Pursell, 749 A.2d 911, 915-16 (Pa.2000) (petitioner’s
claim in a second PCRA petition, that all prior counsel rendered ineffective
assistance, did not invoke timeliness exception); Commonwealth v.
Gamboa-Taylor, 753 A.2d 780, 785-86 (Pa.2000) (prior PCRA counsel’s
failure to develop issue of trial counsel’s ineffectiveness not exception to
time-bar); Commonwealth v. Lark, 746 A.2d 585, 589 (Pa.2000)
(allegation of counsel ineffectiveness not sufficient justification to overcome
otherwise untimely PCRA claims).
Additionally, our Supreme Court has held that, because “the PCRA’s
time restrictions are jurisdictional, . . . the period for filing a PCRA petition is
not subject to the doctrine of equitable tolling, save to the extent the
doctrine is embraced by § 9545(b)(1)(i)–(iii).” Commonwealth v. Fahy,
737 A.2d 214, 222 (Pa.1999). Further, the Supreme Court has noted that
the PCRA “confers no authority upon this Court to fashion ad hoc equitable
exceptions to the PCRA time-bar in addition to those exceptions expressly
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delineated in the Act.” Watts, 23 A.3d at 983 (quoting Commonwealth v.
Robinson, 837 A.2d 1157, 1161 (Pa.2003)). Because Appellant did not
plead any of the enumerated section 9545(b) timeliness exceptions, he is
not entitled to any form of tolling.
Appellant’s claim that the PCRA’s timeliness limitations violated his due
process rights because it forfeited an entire legal proceeding also fails. Our
Supreme Court has expressly stated that the PCRA’s time limitations are
constitutional. Peterkin, 722 A.2d at 643 n.5. The PCRA’s time limitations
did not cause the forfeiture of entire legal proceedings in this matter,
Appellant caused the forfeiture by failing to comply with the time
limitations.4
Because Appellant filed the instant PCRA petition over three and a half
years after the expiration of the PCRA limitations period and cannot avail
himself of any time-bar exception, the PCRA court did not err in dismissing
this petition as untimely.
Order affirmed.
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4
We acknowledge that Appellant claims to have requested that his prior
appellate counsel file a PCRA in lieu of a federal habeas corpus petition.
However, even if this claim were true and counsel ignored Appellant’s
request, Appellant had, at worst, 60 days from the receipt of counsel’s
October 27, 2005 letter explaining his actions and the result of the habeas
petition to assert his rights. Appellant did not assert any claim of rights
related to the discovery of prior appellate counsel’s actions at that time.
Instead, he waited nearly three years from the date of counsel’s letter to
attempt to challenge counsel’s actions.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/2/2016
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