Com. v. Gilmore, G. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
GEORGE GILMORE
Appellant No. 605 EDA 2015
Appeal from the PCRA Order entered January 30, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division, at No(s): CP-51-CR-0602111-2000
BEFORE: PANELLA J., and OLSON, J., and STEVENS, P.J.E.
MEMORANDUM BY PANELLA, J. FILED JULY 14, 2016
Appellant, George Gilmore, appeals pro se from the order dismissing
as untimely his latest petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On January 29, 2002, a jury convicted Appellant of burglary, theft and
criminal trespass at two separate dockets.1 On September 16, 2002, the trial
court sentenced him to an aggregate term of 13½ to 27 years of
____________________________________________
* Former Justice specially assigned to the Superior Court.
1
Although it appears Appellant filed an identical notice of appeal at No. CP-
51-CR-0602121-2000, the notice lists only the above docket number. In its
opinion in support of its denial of post-conviction relief, the PCRA court lists
both docket numbers. Even though only one docket number is properly
before us, our disposition in this case would equally apply to the other
docket.
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incarceration. Although Appellant’s original appeal was dismissed for failure
to file a brief, his appellate rights were later reinstated, nunc pro tunc. On
November 9, 2004, this Court affirmed Appellant’s judgment of sentence,
and our Supreme Court denied his petition for allowance of appeal on March
31, 2015. See Commonwealth v. Gilmore, 867 A.2d 645 (Pa. Super.
2004) (unpublished memorandum), appeal denied, 871 A.2d 188 (Pa.
2005). Appellant did not seek further review.
Appellant filed a timely pro se PCRA petition. The PCRA court
appointed counsel, who subsequently filed a “no-merit” letter and petition to
withdraw, pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc). Following an independent review of the record, the PCRA court
dismissed Appellant’s petition. We affirmed that decision on December 18,
2007. See Commonwealth v. Gilmore, 945 A.2d 761 (Pa. Super. 2007)
(unpublished memorandum).
Appellant filed a subsequent pro se PCRA petition on May 14, 2008.
Following notice of its intent to dismiss without a hearing, the PCRA court
dismissed Appellant’s petition as untimely. Appellant filed a timely appeal,
and we affirmed the denial of post-conviction relief. See Commonwealth v.
Gilmore, 11 A.3d 1035 (Pa. Super. 2010) (unpublished memorandum).
Appellant filed the pro se PCRA petition at issue on April 4, 2014. On
December 25, the PCRA court issued notice of its intent to dismiss
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Appellant’s petition without a hearing. The PCRA court dismissed Appellant’s
petition as untimely on January 30, 2015. This appeal follows.
Before addressing Appellant’s substantive issues we must first
determine whether the PCRA court correctly concluded that Appellant’s latest
pro se PCRA petition was untimely filed. The timeliness of a post-conviction
petition is jurisdictional. See Commonwealth v. Hernandez, 79 A.3d 649,
651 (Pa. Super. 2013). 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 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. A PCRA petition invoking one
of these statutory exceptions must “be filed within 60 days of the date the
claims could have been presented.” Hernandez, 79 A.3d 651-52 (citations
omitted). See also 42 Pa.C.S.A. § 9545(b)(2). Finally, exceptions to the
PCRA’s time bar must be pled in the petition and may not be raised for the
first time on appeal. See Commonwealth v. Burton, 936 A.2d 521, 525
(Pa. Super. 2007). See also Pa.R.A.P. 302(a)
Appellant’s judgment of sentence became final on June 29, 2005,
when the ninety-day period seek a writ of certiorari under United States
Supreme Court rules expired. See U.S.Sup.Ct.R. 13; 42 Pa.C.S.A. §
9543(b)(3). Therefore, Appellant needed to file the petition at issue by June
29, 2006, in order for it to be timely. Appellant filed the instant petition
almost nine years later; it is patently untimely unless he has satisfied his
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burden of pleading and proving that one of the enumerated exceptions
applies.
Appellant has failed to prove the applicability of any of the exceptions
to the PCRA’s time bar. The PCRA court noted the vagueness of Appellant’s
attempt to establish an exception:
[Appellant’s] arguments are barely comprehensible and it
is unclear exactly what he is attempting to express outside
of a general allegation of fraud by the Court. At times,
while [Appellant] frames his argument as if they were
newly discovered evidence claims, he never specifically
lays out a claim for that exception. Due to [Appellant’s]
claim of government interference further in his pleadings,
this Court reviewed his petition under that exception to the
time bar.
PCRA Court Opinion, 3/12/15, at 3 n.1.
The PCRA court then rejected Appellant’s governmental interference
claim by concluding that it was undeveloped:
In his present petition, which was facially untimely,
[Appellant] alleges that a “break down in [the] Clerk of
Courts office” led to the untimely docketing and resolution
of his “Speedy Trial Motion.” When attempting to raise the
governmental interference exception to the PCRA time bar,
a petitioner has sixty days to raise the claim from the date
the petitioner knew or should have known about the
evidence. Commonwealth v. Beasley, 741 A.2d 1258,
1261-62 ([Pa.] 1999). In order for [a] petitioner to obtain
relief upon government interference under the PCRA he
must plead that the “failure to raise the claim [or claims]
previously was the result of interference by government
officials with the presentation of the claim [or claims] in
violation of the Constitution or laws of this Commonwealth
or the Constitution or laws of the United States[.]” 42
Pa.C.S. §9545(b)(1)(i).
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However, [Appellant’s] claim entitled him to neither an
evidentiary hearing nor relief because he failed to establish
that the information contained in his filings could not have
been discovered previously. . . . Thus, [Appellant] has not
sufficiently developed his claim of governmental
interference thereby precluding review on this issue by this
Court. See Commonwealth v. Puksar, 597 Pa. 240, 951
A.2d 267, 293-94 (2008) (failure to develop claim waives
it).
PCRA Court Opinion, 3/12/15, at 3 (footnote omitted). In a footnote, the
PCRA court stated that Appellant’s “further claims of government
interference dealt with his apparent belief that motions he filed were not
dealt with by the court or they were precluded by the office of Clerk of
Court, but [Appellant] does not cite any evidence to back up these claims.”
Id. at 3 n.2
Our review of the record supports the PCRA court’s conclusions. See
Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013) (explaining
that the proper questions with respect to timeliness exceptions of the PCRA
are whether the government interfered with petitioner’s ability to present his
claim, and whether petitioner was duly diligent in seeking the facts on which
his claims are based). To the extent Appellant attempts to argue new
exceptions to the PCRA’s time bar, they are waived. See Burton. In
addition, given the amount of appellate review in this case, Appellant’s claim
that his appeal is timely because his judgment of sentence was never
officially finalized is specious. See Appellant’s Brief at 48 (unnumbered).
In sum, Appellant’s latest PCRA petition is untimely, and he has failed
to meet his burden of proof with regard to any exception to the timeliness
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requirements of the PCRA. Thus, the PCRA court correctly concluded that it
lacked jurisdiction, and properly denied Appellant post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2016
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