Com. v. Harmon, J. ( 2019 )

J-S41007-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 529 MDA 2019
Appeal from the PCRA Order Entered March 6, 2019
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-MD-0000375-1978
BEFORE: LAZARUS, J., MURRAY, J., and STRASSBURGER*, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 09, 2019
James E. Harmon appeals, pro se, from the order denying as untimely
his seventh 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 previously 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 [c]ourt 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.]
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* Retired Senior Judge assigned to the Superior Court.
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Commonwealth v. Harmon, 1852 MDA 2017 (Pa. Super. filed May 31, 2018)
(unpublished memorandum decision), quoting PCRA Court Opinion, 1/21/17,
at 2-3 (footnote omitted).
On January 2, 2019, Harmon filed the PCRA petition at issue. On
February 13, 2019, the PCRA court issued notice to Harmon of its intention to
dismiss his PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907. On
March 5, 2019, Harmon filed a “Response and Objection” to the court’s Rule
907 notice. Thereafter, by order dated March 6, 2019, the PCRA court denied
Harmon’s petition as untimely. This timely appeal followed. Both Harmon and
the PCRA court have complied with Pa.R.A.P. 1925.
Before reaching the issues that Harmon raises 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.
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
of sentence is final unless the petition alleges, and the petitioner proves, that
an exception to the time for filing the petition, set forth at 42 Pa.C.S.A. §§
9545(b)(1)(i), (ii), and (iii), is met.1 A PCRA petition invoking one of these
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1 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
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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).2
Here, Harmon did not seek further review after our Supreme Court
affirmed his judgment of sentence on June 4, 1981. Accordingly, his judgment
of sentence became final ninety days thereafter, i.e., at the expiration of the
period for seeking certiorari before the United States Supreme Court. See 42
Pa.C.S.A. § 9543; U.S.Sup.Ct.R. 13. Harmon’s seventh petition, filed more
than 37 years later, is patently untimely, unless he has satisfied his burden of
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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).
2 On October 24, 2018, the General Assembly amended subsection 9545(b)(2)
to enlarge the time in which a petitioner may invoke a PCRA time-bar
exception from 60 days to one year from the date the claim arises. See Act
2018, Oct. 24, P.L. 894, No. 146, § 2, effective in 60 days [Dec. 24, 2018].
However, the amendment applies only to claims arising on December 24,
2017, or thereafter. Id. at § 3. In this case, all of Harmon’s claims arose
prior to the operative date of the amendment, so the 60-day period applies.
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pleading and proving that one of the enumerated exceptions applies. See
Hernandez, supra.
Harmon failed to plead and prove any exception to the PCRA’s time bar.
Rather, he attempted to invoke the newly-discovered-facts and newly-
recognized-constitutional-right exceptions to the jurisdictional time-bar,
asserting that the statute under which he was sentenced has been deemed
unconstitutional in certain unnamed “recent decisions handed down by both
the United States and Pennsylvania Supreme Court[s].” PCRA Petition,
1/2/19, at 3. However, such vague and unsupported contentions are
insufficient to satisfy the PCRA’s requirement of pleading and proving the
existence of an exception to the time bar. Commonwealth v. Yarris, 731
A.2d 581, 588 (Pa. 1999) (“vague and unsupported” allegation inadequate to
establish time-bar exception); Commonwealth v. Marshall, 947 A.2d 714,
721 (Pa. 2008) (petitioner does not meet burden of proving time-bar
exception where he offers only general allegations, unsupported by evidence).
Because Harmon has failed to plead and prove 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 serial PCRA petition.
We, therefore, affirm the PCRA court’s order denying post-conviction relief.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/9/2019
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