Com. v. Jackson, M. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MARVIN JACKSON
Appellant No. 1837 EDA 2014
Appeal from the PCRA Order of May 13, 2014
In the Court of Common Pleas of Chester County
Criminal Division at No.: CP-15-CR-0001431-2006
BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY WECHT, J.: FILED FEBRUARY 17, 2015
Marvin Jackson appeals pro se from the order dismissing his second
petition pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-46. We affirm.
On November 14, 2006, a jury convicted Jackson of two counts each
of delivery of cocaine, possession of cocaine, possession of drug
paraphernalia, and criminal use of a communication facility.1 On April 27,
2007, the trial court sentenced Jackson to an aggregate sentence of not less
than ten nor more than twenty years’ incarceration. Jackson waived counsel
and appealed pro se, and this Court affirmed the judgment of sentence on
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1
35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(16), 35 P.S. § 780-
113(a)(32), and 18 Pa.C.S.A. § 7512(a), respectively.
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August 30, 2010. Our Supreme Court denied review on March 3, 2011. See
Commonwealth v. Jackson, 11 A.3d 1042 (Pa. Super. 2011) (unpublished
memorandum), appeal denied, -- A.3d ---, 2011 Pa. Lexis 510 (Pa. 2011).
On August 31, 2011, Jackson filed a first, pro se PCRA petition. The
PCRA court appointed counsel, who petitioned to withdraw from
representation pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
After providing notice to Jackson pursuant to Pa.R.Crim.P. 907, the PCRA
court dismissed the petition and granted counsel’s petition to withdraw on
May 30, 2012. Jackson did not appeal the dismissal, but filed an untimely
“objection” on July 3, 2012, which the PCRA court denied as moot.
Jackson filed the instant, second pro se PCRA petition on February 24,
2014. The PCRA court provided notice of its intent to dismiss the petition
without a hearing pursuant to Rule 907 on April 15, 2014. In its notice, the
court provided Jackson twenty days to respond. On May 13, 2014, having
received no response from Jackson, the PCRA court dismissed the petition.
On June 23, 2014, Jackson filed notice of appeal in this Court.2
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2
We observe that Jackson’s notice of appeal needed to be mailed by
June 12, 2014 to be considered timely filed. Pursuant to the “prisoner
mailbox rule,” filings by pro se appellants are deemed filed on the date that
the prisoner deposits the appeal with prison authorities or places it in a
prison mailbox. See Commonwealth v. Feliciano, 69 A.3d 1270, 1274
(Pa. Super. 2013). Furthermore, Rule of Appellate Procedure 902 provides:
Rule 902. Manner of Taking Appeal
(Footnote Continued Next Page)
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On June 26, 2014, the PCRA court directed Jackson to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
By mail dated July 14, 2014, Jackson sent a Rule 1925(b) statement to the
PCRA court’s chambers, but never filed the statement with the clerk of
courts.
On July 24, 2014, the PCRA court entered an order noting the
discrepancy and asserting that Jackson had waived his issues on appeal.
Thereafter, on August 25, 2014, in a per curiam order, this Court directed
Jackson to show cause why his appeal should not be quashed as untimely
filed. Jackson responded in an “Answer to Show Cause” dated September 4,
_______________________
(Footnote Continued)
An appeal permitted by law as of right from a lower court to an
appellate court shall be taken by filing a notice of appeal with
the clerk of the lower court within the time allowed by Rule 903
(time for appeal). Failure of an appellant to take any step other
than the timely filing of a notice of appeal does not affect the
validity of the appeal, but it is subject to such action as the
appellate court deems appropriate, which may include, but is not
limited to, remand of the matter to the lower court so that the
omitted procedural step may be taken.
Pa.R.A.P. 902. Thus, Jackson erred by attempting to file the “P.C.R.A.
Appeal,” dated June 9, 2014, with the Superior Court. The prothonotary
properly directed him to refile the notice of appeal with the clerk of court in
a letter dated June 16, 2013. Although Jackson’s subsequent notice of
appeal was properly but untimely filed on June 23, 2014, his original notice
of appeal, although misdirected, was filed within the thirty-day window.
Thus, pursuant to our discretion under Rule 902, we shall “regard as done
that which ought to have been done,” and decline to quash Jackson’s appeal
for failure to timely file a notice of appeal in the court of common pleas.
Commonwealth v. Howard, 659 A.2d 1018, 1021 n.12 (Pa. Super. 1995).
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2014 (filed September 10, 2014). In it, he did not address his concise
statement; he contended that he timely filed a notice of appeal on June 11,
2014, but that the Superior Court had returned the appeal unfiled because it
did not have jurisdiction. Subsequently, he resent the notice of appeal to
the clerk of court in Chester County on June 19, 2014, filed June 23, 2014.
See Answer to Show Cause at 2.
Jackson raises two questions for our review:
1. Does a conviction obtained through false testimony and/or
perjury violate [Jackson’s] Constitutional Right to fair trial?
2. Does a conviction obtained through false testimony and/or
perjury result in a violation of [Jackson’s] 5th and 14th Amend.
Rights to Due Process and a fair trial?
Jackson’s Brief at 1.
[A]n appellate court reviews the PCRA court’s findings of fact to
determine whether they are supported by the record, and
reviews its conclusions of law to determine whether they are free
from legal error. The scope of review is limited to the findings of
the PCRA court and the evidence of record, viewed in the light
most favorable to the prevailing party at the trial level.
Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa. Super. 2014)
(citation omitted). “[W]e may affirm the PCRA court’s decision on any
basis.” Id. at 1028.
“As a threshold jurisdictional matter, however, the timeliness of the
PCRA petition must be addressed.” Commonwealth v. Callahan, 101 A.3d
118, 121 (Pa. Super. 2014) (citation omitted).
Any petition under [the PCRA], including a second or subsequent
petition, shall be filed within one year of the date the judgment
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becomes final, unless the petition alleges and the petitioner
proves that:
(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.A § 9545(b)(1).
Here, Jackson’s judgment of sentence became final on June 1, 2011,
when the time for petitioning the United States Supreme Court for certiorari
expired. The instant petition was filed on February 24, 2014, more than one
year and eight months after the one-year time bar enumerated at 42
Pa.C.S.A. § 9545(b)(1). Thus, his petition is untimely on its face.
However, even if Jackson could establish the jurisdictional basis for our
review, he cannot plead and prove an exception to the time bar because he
has waived his issues on appeal for failure to properly file a Rule 1925(b)
statement.
Pursuant to Rule 1925(b), “[i]ssues not included in the Statement
and/or not raised in accordance with the provisions of this paragraph (b)(4)
are waived.” Pa.R.A.P. 1925(b)(4)(vii).
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“It is well settled that simply depositing a motion in a judge’s
chambers is not filing. . . . Therefore, while the prisoner mailbox rule uses
the term ‘filed,’ the document must at least be addressed to a proper filing
office within the Unified Judicial System in order to complete the filing.”
Commonwealth v. Crawford, 17 A.3d 1279, 1282 (Pa. Super. 2011)
(citation omitted); see also Commonwealth v. Tedesco, 550 A.2d 796,
798 (Pa. Super. 1988).
Our review of the certified record confirms that Jackson never filed his
Rule 1925(b) statement with the clerk of courts. See Commonwealth v.
Edwards, 71 A.3d 323, 324 n.1 (Pa. Super. 2013) (“It is axiomatic that an
appellate court is limited to considering only those facts which have been
duly certified in the record on appeal and, for purposes of appellate review,
what is not of record does not exist.”). Thus, mailing a statement to the
PCRA court’s chambers does not constitute a valid filing and, therefore,
because no Rule 1925(b) statement was timely filed, Jackson has waived all
of his issues on appeal. Crawford, 17 A.3d at 1282; see also Pa.R.A.P.
1925(b)(4)(vii). Consequently, we affirm the PCRA court’s order dismissing
his petition. See Charleston, 94 A.3d at 1028.
Order affirmed.
Judge Donohue joins the memorandum.
Judge Jenkins concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/17/2015
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