Com. v. Fenton, E. ( 2015 )

J-S59006-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EUGENE ALBERTO FENTON,
Appellant No. 1540 WDA 2014
Appeal from the PCRA Order May 14, 2014
In the Court of Common Pleas of Crawford County
Criminal Division at No(s): CP-20-CR-0001034-2007
BEFORE: BOWES, DONOHUE, AND FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 09, 2015
Eugene Albert Fenton appeals from the April 22, 2014 order denying
him PCRA relief. We affirm.
On November 20, 2008, a jury convicted Appellant of third-degree
murder and aggravated assault in connection with the October 23, 2007
death of an eleven-month-old child. Appellant was watching the baby alone
while the child’s mother, Appellant’s girlfriend, was at work, and Appellant
caused serious injuries to the child. When the baby’s mother returned home
the following morning, the child was whimpering and moaning. She called
an ambulance, and the baby was transported to the hospital, where he
underwent surgery but died from his injuries to his brain. On January 30,
2009, Appellant was given a standard-range sentence for third-degree
*
Former Justice specially assigned to the Superior Court.
J-S59006-15
murder of 20 to 40 years imprisonment and a concurrent sentence on the
aggravated assault. He did not appeal the conviction.
On January 4, 2010, Appellant filed a timely PCRA petition claiming
trial counsel was ineffective for failing to call certain witnesses and
entitlement to a new trial since the court refused to appoint a new lawyer to
represent him. After a hearing, the PCRA court denied relief, and, pursuant
to a second request for post-conviction relief, Appellant obtained
reinstatement of his right to appeal from that denial. We affirmed on
appeal. Commonwealth v. Fenton, 55 A.3d 135 (Pa.Super. 2012), appeal
denied, 60 A.3d 535 (Pa. 2012).
On November 8, 2013, Appellant filed a third PCRA petition averring
that counsel was ineffective for ignoring his request to file an appeal and
that his sentence was excessive in light of his prior record score of zero.
Relief was denied on May 14, 2014, and this appeal followed. Appellant
raises these issue on appeal:
I. Was Appellant denied due process of law in proceedings before
the court in violation of his constitutional rights[?].
II. Is there layered ineffective assistance of counsel claims
through counsel’s failure to file post-sentence appeals, and for
not filing for a motion to reduce sentence in a timely manner[?]
III. Did the state court violate Appellant's Eighth Amendment
right representing cruel and unusual punishment[?]
Appellant’s brief at 5.
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Initially, we observe that, “In reviewing the denial of PCRA relief, we
examine whether the PCRA court’s determination is supported by the record
and free from legal error.” Commonwealth v. Montalvo, 114 A.3d 401,
409 (Pa. 2015). All PCRA petitions, including second or subsequent ones,
must be filed within one year of when a judgment of sentence becomes final.
42 Pa.C.S. § 9545(b)(1). This time requirement “is mandatory and
jurisdictional, and the court may not ignore it in order to reach the merits of
the petition.” Commonwealth v. Hernandez, 79 A.3d 649, 651
(Pa.Super. 2013). A judgment of sentence becomes final following direct
review or when the time for seeking direct review expires. 42 Pa.C.S. §
9545(b)(3). Appellant’s sentence was imposed on January 30, 2009, and,
since he did not file a direct appeal, his judgment of sentence became final
thirty days thereafter, or on March 2, 2009. Hernandez, supra. Appellant
had until March 2, 2010, to file a PCRA petition, and the present November
8, 2013 petition is untimely.
There are three exceptions to the one-year time bar: 1) when
governmental interference prevented the petitioner from raising the claim;
2) if the facts upon which the claim is based were unknown to the petitioner
and were not ascertainable through due diligence: 3) where the right
asserted is a constitutional right recognized by our Supreme Court or the
United States Supreme Court after the one-year time limitation and where
that right has been held by one of those courts to apply retroactively. 42
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Pa.C.S. § 9545(b)(1)(i-iiii). Any petition invoking an exception must be filed
within sixty days of when it first could have been presented, 42 Pa.C.S. §
9545(b)(2), and it is incumbent upon the PCRA petitioner to plead and prove
“specific facts that demonstrate his claim was raised with the sixty-day time
frame” outlined in § 9545(b)(3). Hernandez, supra at 652 (citation
omitted).
In this case, Appellant has failed to even acknowledge the time
limitations imposed by § 9545, much less attempt to seek application of an
exception. As Appellant neglects to plead and prove an applicable exception
under § 9545(b)(1), he has failed to invoke our jurisdiction.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2015
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