Com. v. Durham, G. ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
GEORGE M. DURHAM, : No. 1525 WDA 2017
:
Appellant :
Appeal from the PCRA Order, September 18, 2017,
in the Court of Common Pleas of Beaver County
Criminal Division at No. CP-04-CR-0001860-2007
BEFORE: STABILE, J., MUSMANNO, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 21, 2018
George M. Durham (“appellant”) appeals pro se from the order of the
Court of Common Pleas of Beaver County that dismissed his fourth petition
filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546. Because we agree with the PCRA court that appellant’s
facially untimely petition failed to establish a statutory exception to the
one-year jurisdictional time limit for filing a petition under the PCRA, we
affirm.
On March 14, 2008, a jury found appellant guilty of first degree
murder.1 Appellant stabbed his then girlfriend, Mary Ann Brown, 19 times.
On April 23, 2008, the trial court sentenced appellant to life in prison with no
1 18 Pa.C.S.A. § 2502(a).
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possibility of parole. Appellant filed a direct appeal with this court. In an
unpublished memorandum filed April 21, 2010, this court affirmed the
judgment of sentence. See Commonwealth v. Durham, 998 A.2d 1019(Pa.Super. 2010) (unpublished memorandum).
On September 5, 2009, appellant filed a pro se PCRA petition. The
PCRA court entered an order on October 1, 2009, stating that no action
would be taken until the resolution of the direct appeal. Appellant filed a
pro se PCRA petition on September 7, 2010. Counsel was appointed.
Counsel filed a supplement to the PCRA petition on October 10, 2012.
Following a hearing, the PCRA court dismissed the petition as meritless on
January 14, 2013. On May 9, 2014, this court affirmed. Commonwealth
v. Durham, 104 A.3d 43 (Pa.Super. 2014) (unpublished memorandum),
appeal denied, 108 A.3d 34 (Pa. 2015).
In August 2016, appellant filed another pro se PCRA petition that he
called a petition for habeas corpus relief. On September 22, 2016, the
PCRA court dismissed the petition as untimely. Appellant appealed to this
court, which affirmed on August 3, 2017. Commonwealth v. Durham,
No. 1705 EDA 2016, unpublished memorandum (Pa.Super. filed August 3,
2017).
On October 7, 2016, appellant filed another pro se PCRA petition. On
November 3, 2016, the PCRA court denied appellant’s request for
appointment of counsel because that PCRA petition was “untimely and
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constitutes an obvious waste of judicial resources, as have all of the
[appellant’s] many, many pro se pleadings over the last nine (9) years.”
(PCRA court order, 11/3/16 at 1.)
On August 11, 2017, appellant filed the PCRA petition that is currently
before this court. On September 18, 2017, the PCRA court denied
appellant’s petition without appointment of counsel and without benefit of a
hearing as the petition was untimely. On October 10, 2017, appellant filed a
notice of appeal. On October 10, 2017, the PCRA court directed appellant to
file a more concise statement of matters complained of on appeal within
21 days of the date of the order. On October 31, 2017, the PCRA court filed
an opinion in support of its order pursuant to Pa.R.A.P. 1925(a).2
Appellant raises the following issues for this court’s review:
I. Did the [PCRA c]ourt abuse its discretion or
commit an error of Law in holding that
[a]ppellant’s Post Conviction Relief Act Petition
was untimely?
II. Did the [PCRA c]ourt abuse its discretion or
commit an error of Law by imposing an illegal
sentencing condition “without parole” upon
[a]ppellant that’s not within the laws of
Pennsylvania Act No. 46, H.B. 1060 P.L. 213
§ 4 violating [a]ppellant’s Rights under the
5th, 6th, 8th, and 14th Amendments of the
United States Constitution and the
Pennsylvania Constitution?
III. Did the PCRA c]ourt abuse its discretion
on [sic] commit an error of Law by imposing an
2 Although appellant’s concise statement of matters complained of on appeal
is not part of the record, the trial court referred to it in its opinion.
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illegal sentence, enacting the crimes code
statue [sic] 18 pa. .cs. [sic] § 2502 as a
sentencing [sic] without statutory authority
and lacking subject matter jurisdiction where
the General Assembly never gave authorization
to [j]udges to charge, punish and sentence
defendants under the statue [sic], violating
[a]ppellant’s rights under the 5th, 6th, 8th,
and 14th Amendments of the United States
Constitution and the Pennsylvania
Constitution?
IV. Did the PCRA c]ourt abuse its discretion or
commit an error of [l]aw by sentencing
[a]ppellant under a First Degree Murder
conviction that in the Commonwealth of
Pennsylvania could only be reached legally in a
[c]apital murder case violating [a]ppellant[’]s
[r]ights under the 5th, 6th, 8th, and
14th Amendments of the United States
Constitution and the Pennsylvania
Constitution?
Appellant’s brief at 4.
Subsequent PCRA petitions beyond a petitioner’s first petition are
subject to the following standard:
A second or subsequent petition for post-conviction
relief will not be entertained unless a strong
prima facie showing is offered to demonstrate that
a miscarriage of justice may have occurred.
Commonwealth v. Allen, 732 A.2d 582, 586 (Pa.
1999). A prima facie showing of entitlement to
relief is made only by demonstrating either that the
proceedings which resulted in conviction were so
unfair that a miscarriage of justice occurred which no
civilized society could tolerate, or the defendant’s
innocence of the crimes for which he was charged.
Id. at 586. Our standard of review for an order
denying post-conviction relief is limited to whether
the trial court’s determination is supported by
evidence of record and whether it is free of legal
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error. Commonwealth v. Jermyn, 709 A.2d 849,
856 (Pa. 1998).
A PCRA petition, including a second or subsequent
petition, must be filed within one year of the date
that judgment of sentence becomes final.
42 Pa.C.S.[A.] § 9545(b)(1). A judgment becomes
final for purposes of the PCRA “at the conclusion of
direct review, including discretionary review in the
Supreme Court of the United States and the
Supreme Court of Pennsylvania, or the expiration of
time for seeking the review.” 42 Pa.C.S.[A.]
§ 9543(b)(3). PCRA time limits are jurisdictional in
nature, implicating a court’s very power to
adjudicate a controversy. Commonwealth v. Fahy,
737 A.2d 214 (Pa. 1999). Accordingly, the “period
for filing a PCRA petition can be extended only if the
PCRA permits it to be extended, i.e., by operation of
one of the statutorily enumerated exceptions to the
PCRA time-bar. Id. at 222.
Commonwealth v. Ali, 86 A.3d 173, 176-177 (Pa. 2014), cert. denied,
135 S.Ct. 707 (2014). Before addressing appellant’s issues on the merits,
we must first determine if we have jurisdiction to do so.
As noted above, a PCRA petitioner has one year from the date his or
her judgment of sentence becomes final in which to file a PCRA petition.
This court has held the following regarding when a judgment becomes final:
The plain language of the PCRA provides that a
judgment of sentence becomes final at the
conclusion of direct review or when the time seeking
direct review expires. See 42 Pa.C.S.A.
§ 9545(b)(3). In fixing the date upon which a
judgment of sentence becomes final, the PCRA does
not refer to the conclusion of collateral review or the
time for appealing a collateral review determination.
Thus, the plain language of the PCRA statute shows
that a judgment of sentence becomes final
immediately upon expiration of the time for seeking
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direct review, even if other collateral proceedings are
still ongoing. As this result is not absurd or
unreasonable, we may not look for further
manifestations of legislative intent. See
Commonwealth v. Hall, 80 A.3d 1204, 1211 (Pa.
2013) (internal quotation marks omitted) (We may
“look beyond the plain language of the statute only
when words are unclear or ambiguous, or the plain
meaning would lead to a result that is absurd,
impossible of execution, or unreasonable.”).
Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa.Super. 2014).
In the instant case, the trial court sentenced appellant on April 23,
2008. This court affirmed the judgment of sentence on April 21, 2010. See
Commonwealth v. Durham, 998 A.2d 1019 (Pa.Super. 2010)
(unpublished memorandum). Appellant did not appeal to the Pennsylvania
Supreme Court. Appellant’s judgment of sentence became final on May 21,
2010, after his opportunity to file a direct appeal expired. Appellant had one
year from May 21, 2010, to file a timely PCRA petition. Appellant’s current
petition was filed on August 11, 2017, more than six years after a PCRA
petition could be considered timely. See 42 Pa.C.S.A. § 9545(b)(1).
As noted above, the PCRA does enumerate exceptions to the one-year
requirement. In order to file a petition after one year has passed from the
final judgment of sentence, appellant must plead and prove one of the
following exceptions:
(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
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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). Section 9545 also mandates that any
petition filed under these exceptions must be filed within 60 days of the date
the claim could have been presented. Id. at § 9545(b)(2).
Appellant asserts that his petition meets the exception contained in
42 Pa.C.S.A. § 9545(b)(1)(ii) because he did not learn until July 2017 when
he read in “Graterfriends Magazine”3 that a trial court did not have the
authority to impose a life sentence without possibility of parole and that also
in July 2017 he received from his cellmate a document entitled “The Truth
about First Degree Murder in Pennsylvania.” He also asserts that he filed
this most recent PCRA petition within 60 days of learning of these facts in
compliance with Section 9545(b)(2).
This court does not agree with appellant’s characterization of these
magazine articles as “facts.” To qualify as facts, a petitioner must establish
3 Apparently, this publication is printed at the State Correctional Institution
at Graterford. It is a publication of the Pennsylvania Prison Society.
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that the facts were unknown to him and that they could not have been
ascertained through due diligence. 42 Pa.C.S.A. § 9545(b)(1)(ii). The fact
allegedly contained in the Graterfriends publication is a column written by an
inmate urging all to support a bill to abolish life imprisonment without
parole. The author also opined that an act passed in 1974 does not allow
judges to impose a further condition of “without parole” in a life
imprisonment sentence. Without determining the accuracy of that
statement, it is the act from 1974 that is the fact not the column in
Graterfriends. Under this exception, the focus is on newly discovered facts
not a new source for previously known facts. Commonwealth v. Marshall,
947 A.2d 714, 720 (Pa. 2008). If the statement is accurate, appellant could
have ascertained the fact with the exercise of due diligence. The PCRA court
did not err when it dismissed the petition as untimely.
Because appellant failed to meet any exception to the timeliness
requirements, this court need not address his remaining issues.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/21/2018
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