Com. v. Royster, T. ( 2017 )

J-A25045-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TELLY ROYSTER :
:
Appellant : No. 1906 EDA 2016
Appeal from the PCRA Order May 13, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0903181-1999
BEFORE: OTT, STABILE, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 19, 2017
Appellant Telly Royster appeals pro se from the Order entered in the
Court of Common Pleas of Philadelphia County on May 13, 2016, denying as
untimely his second petition filed pursuant to the Post Conviction Relief Act
(PCRA).1 We affirm.
In the early morning hours of June 7, 1999, Appellant shot two men as
they sat in the stairwell of their apartment building. One of the victims died,
and the other survived a gunshot wound to his abdomen.
On October 27, 2000, following a jury trial, Appellant was convicted of
first-degree murder, attempted murder, aggravated assault and various
weapons offenses.2 On October 30, 2000, Appellant was sentenced to life
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1
42 Pa.C.S.A. §§ 9541-9546.
2
18 Pa.C.S.A. §§ 2502; 901; 907; and 6106, respectively.
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* Former Justice specially assigned to the Superior Court.
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imprisonment on the murder conviction, a consecutive term of five (5) years
to ten (10) years in prison for the attempted murder conviction and
concurrent terms of one (1) year to two (2) years in prison for each of the
weapons offenses. Appellant filed a direct appeal, and this Court affirmed
his judgment of sentence on May 5, 2003. Commonwealth v. Royster,
829 A.2d 364 (Pa.Super. 2003) (unpublished memorandum). Appellant did
not file a petition for allowance of appeal with the Pennsylvania Supreme
Court.
Appellant filed his first PCRA petition pro se on September 5, 2003.
Appellate counsel was appointed and filed an amended petition on June 14,
2004. Therein, Appellant raised six, separate claims of ineffective assistance
of trial counsel. After providing notice of its intent to dismiss the petition
without a hearing pursuant to Pa.R.Crim.P. 907, the PCRA court entered an
order doing so on February 7, 2005. A timely appeal followed, and this
Court affirmed the order on March 7, 2006 Commonwealth v. Royster,
898 A.2d 1133 (Pa.Super. 2006) (unpublished memorandum).
Appellant filed the instant PCRA petition on January 23, 2015.
Therein, he acknowledged the petition was filed untimely but claimed the
“after-discovered evidence” exception, 42 Pa.C.S.A. § 9545(b)(1)(ii), to the
PCRA time bar applied. See PCRA Petition, filed 1/23/15, at 1. Specifically,
Appellant alleged counsel’s struggle with mental illness about which
Appellant read in an article dated December 15, 2014, concerning counsel’s
suspension from the practice of law in The Legal Intelligencer resulted in
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counsel’s failure to investigate and raise a diminished capacity defense at
Appellant’s trial. Id. at 1-2.
PCRA counsel was appointed and later filed two, identical
Turner/Finley3 “no-merit letters on January 13, 2016, and March 24, 2016,
respectively. On April 8, 2016, the PCRA court provided notice of its intent
to dismiss the petition without a hearing. On May 13, 2016, the PCRA court
entered an order permitting counsel to withdraw, and on May 20, 2016, it
dismissed Appellant’s PCRA petition as untimely. Appellant filed a timely
appeal on June 6, 2016.4
In his brief, Appellant presents the following “Statement of the
Question Involved”:
Under Pennsylvania’s Post Conviction Relief Act, 42 Pa.
C.S.A. § 9545(b)(1)(ii), a person may petition for review of his
or her conviction more than one year after the conviction
becomes final if “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.”
Here, did the Philadelphia County Court of Common Pleas
commit reversible error when-
1) Judge Ransom in a rule 907 intent to dismiss ruled
petitioners [sic] PCRA untimely without having a hearing on
timeliness when the petition clearly states it invokes the
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3
Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and
Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988).
4
As the Honorable Lillian Ransom was no longer sitting as a judge in
Philadelphia County at the time the instant appeal was filed, the record was
forwarded to this Court without an opinion pursuant to Pa.R.A.P. 1925(a).
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exception and is being filed within 60 days of the newly
discovered evidence?
2) Counsel was permitted to withdraw without taking any
actions on behalf of petitioner or his issues which have merit and
were filed timely?
Brief for Appellant at 2.
At the outset, we consider whether this appeal is properly before us.
The question of whether a petition is timely raises a question of law, and
where a petitioner raises questions of law, our standard of review is de novo
and our scope of review is plenary. Commonwealth v. Callahan, 101 A.3d
118, 121 (Pa.Super. 2014).
All PCRA petitions must be filed within one year of the date upon which
the judgment of sentence became final, unless one of the statutory
exceptions set forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) applies. The
petitioner bears the burden to plead and prove an applicable statutory
exception. If the petition is untimely and the petitioner has not pled and
proven an exception, the petition must be dismissed without a hearing
because Pennsylvania courts are without jurisdiction to consider the merits
of the petition. Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super.
2013).
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) states:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the
date the judgment of sentence becomes final, unless the
petition alleges and the petitioner proves that:
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(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)(i)-(iii). In addition, any petition attempting to
invoke one of these exceptions “shall be filed within 60 days of the date the
claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).
As noted previously, Appellant was sentenced on October 30, 2000,
and this Court affirmed the judgment of sentence on May 5, 2003. Appellant
did not file a petition for allowance of appeal with the Pennsylvania Supreme
Court; therefore Appellant’s judgment of sentence became final thirty days
thereafter on June 5, 2003. See 42 Pa.C.S.A. § 9545(b)(3) (stating, “a
judgment 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[ ]”). Since Appellant filed the instant petition on January 23, 2015,
almost twelve years thereafter, it is patently untimely and the burden fell
upon Appellant to plead and prove that one of the enumerated exceptions to
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the one-year time-bar is applicable. See 42 Pa.C.S.A. § 9545(b)(1);
Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa.Super. 2008) (to
invoke a statutory exception to the PCRA time-bar, a petitioner must
properly plead and prove all required elements of the exception). In
addition, an Appellant must comply with 42 Pa.C.S.A. § 9545(b)(2) (stating
“Any petition invoking an exception provided in paragraph (1) shall be filed
within 60 days of the date the claim could have been presented”).
Appellant claims the “new fact” of trial counsel’s diagnosis with
Attention Deficit Hyperactivity Disorder (ADHD) in 2011 was unavailable to
him until he discovered the article in The Legal Intelligencer in December of
2014. Appellant asserts that counsel’s “undiagnosed list of psychiatric
disorders that caused or rather impacted his lack of competent
representation pre-trial and during trial” entitles him to relief and, thus, the
PCRA court erred in permitting PCRA counsel to withdraw “without having
performed any duties on behalf of Appellant.” Brief for Appellant at 5-6.
Appellant avers that because he filed the instant PCRA petition within sixty
days of the date of the article, it was timely filed under an exception to the
PCRA time-bar. Brief for Appellant at 4-5; Reply Brief for Appellant at 3.
Assuming, arguendo, Appellant filed the instant petition within sixty
days of the article’s publication, Appellant’s bald claims that counsel’s
medical diagnosis affected his representation of Appellant in 2000 do not
entitle him to relief. The exception set forth in Subsection (b)(1)(ii) requires
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a petitioner to allege and prove that there were facts that were unknown to
him or her and could not have been ascertained by the exercise of due
diligence. Commonwealth v. Bennett, 593 Pa. 382, 393, 930 A.2d 1264,
1270 (2007). “The focus of the exception is ‘on [the] newly discovered facts,
not on a newly discovered or newly willing source for previously known
facts.’” Commonwealth v. Marshall, 596 Pa. 587, 596–97, 947 A.2d 714,
720 (2008) (citation omitted) (emphasis in original). Also, it is well-settled
that allegations of ineffective assistance of counsel will not overcome the
jurisdictional timeliness requirements of the PCRA. Commonwealth v.
Wharton, 584 Pa. 576, 588, 886 A.2d 1120, 1127 (2005) See also
Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585, 589 (2000) (holding
an allegation of ineffectiveness is not sufficient justification to overcome
otherwise untimely PCRA claims); Commonwealth v. Gamboa-Taylor,
562 Pa. 70, 753 A.2d 780, 785-86 (2000) (finding the “fact” that current
counsel discovered prior PCRA counsel had failed to develop issue of trial
counsel's ineffectiveness was not after-discovered evidence exception to
time-bar).
Herein, the basis of Appellant’s claim is the alleged fact that trial
counsel had been ineffective in failing to investigate or present a diminished
capacity defense at trial; however, this allegation is not dependent upon any
subsequent medical diagnosis affecting trial counsel about which Appellant
may have read in 2014, as Appellant clearly would have been aware that
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counsel did not present a diminished capacity defense at trial in 2000.
Appellant had the opportunity to present this claim in his first PCRA petition
along with the other allegations of trial counsel’s ineffectiveness that he
5
raised, but he failed to do so. As stated previously, a panel of this Court
thoroughly considered the numerous allegations of trial counsel’s
ineffectiveness that Appellant raised in his first PCRA petition and found each
to be meritless. Thus, “Appellant's attempt to interweave concepts of
ineffective assistance of counsel and after-discovered evidence as a means
of establishing jurisdiction is unconvincing.” Commonwealth v. Gamboa-
Taylor, 562 Pa. 70, 79–80, 753 A.2d 780, 785 (2000).
While Appellant also seeks reversal of the trial court’s order permitting
PCRA counsel to withdraw, it is well-settled that one has no automatic right
to counsel upon filing a second PCRA petition. See Pa.R.Crim.P. 904(b). As
Appellant has not raised a cognizable claim under the PCRA time-bar, the
PCRA court did not err in permitting counsel to withdraw. For the foregoing
reasons, Appellant's second PCRA petition is untimely, and he has failed to
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5
The copy of the Report and Recommendations of the Disciplinary Board of
the Supreme Court of Pennsylvania Appellant which attaches to his appellate
brief states the contrary: “[a]ll of [counsel’s] clients but one had been
convicted of homicide and were serving lengthy prison sentence. None of
the clients suffered irreparable harm, because all were ultimately permitted
to pursue their appellate and PCRA claims despite [counsel’s] failure to file
them on time.” See “Exhibit B” to Brief of Appellant titled “Report and
Recommendations of the Disciplinary Board of the Supreme Court of
Pennsylvania” at 9. (footnote omitted).
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plead and prove an exception to the statutory time-bar. The PCRA court
properly dismissed it, and we discern no other basis on which to disturb the
PCRA court's dismissal of Appellant's petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/19/2017
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