Com. v. Chambers, M. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MAURICE CHAMBERS, :
:
Appellant : No. 87 MDA 2018
Appeal from the PCRA Order, December 6, 2017,
in the Court of Common Pleas of Luzerne County,
Criminal Division at No(s): CP-40-CR-0000910-1997.
BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY KUNSELMAN, J.: FILED JULY 13, 2018
Maurice Chambers appeals pro se from the order denying as untimely his sixth
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
The pertinent facts and partial procedural history have been
summarized as follows:
On October 27, 1997, a jury found [Chambers] guilty of
Second-Degree Murder, Robbery, and two counts of
Criminal Conspiracy in connection with his shooting Paul
Rubin Garman, Jr., in the back of his head during a drug
transaction in Wilkes-Barre. The court sentenced [him] on
December 5, 1997, to, inter alia, life imprisonment. This
Court affirmed the Judgment of Sentence, and the
Pennsylvania Supreme Court denied [Chambers’] Petition
for Allowance of Appeal. Commonwealth v. Chambers,
742 A.2d 201 (Pa. Super. 1999) (unpublished
memorandum), appeal denied, 749 A.2d 466 (Pa. 2000).
The United States Supreme Court denied his Petition for
Certiorari on October 2, 2000. Chambers v.
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Pennsylvania, 531 U.S. 853 (2000). His Judgment of
Sentence, thus, became final [on that date]. See 42 Pa.C.S.
§ 9545(b)(3) (judgment of sentence 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.”)
[Chambers] filed his first pro se PCRA Petition timely,
which the PCRA court denied on June 12, 2003, and this
Court affirmed. Commonwealth v. Chambers, 852 A.2d
1197 (Pa. Super. 2004), affirmed, 871 A.2d 188 (Pa. 2005).
[Chambers] filed three additional PCRA Petitions, each of
which the PCRA court dismissed.
Commonwealth v. Chambers, 160 A.3d 244 (Pa. Super. 2017), unpublished
memorandum at 1-2.
Chambers filed a fifth PCRA petition on September 1, 2015, which the
PCRA court dismissed, and we affirmed because the serial petition was
untimely, and Chambers failed to plead and prove an exception to the PCRA’s
time bar. See id.Chambers filed the PCRA petition at issue, his sixth, on January 30,
2017, and an amended petition on February 4, 2017. The PCRA court ordered
that this petition be held in abeyance while Chambers’ appeal from the denial
of his fifth petition was still pending before this Court. On or about September
29, 2017, the PCRA court issued Pa.R.Crim.P. 907 notice of its intent to
dismiss Chambers’ latest filing without a hearing. Chambers filed a response.
By order entered December 6, 2017, the PCRA court dismissed the petition as
untimely. This appeal follows. The PCRA court did not require Pa.R.A.P. 1925
compliance.
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Before addressing the issues Chambers raises on appeal, we must first
determine whether the PCRA court correctly determined that his serial petition
for post-conviction relief was untimely filed. This Court’s standard of review
regarding an order dismissing a petition under the PCRA is to ascertain
whether “the determination of the PCRA court is supported by the evidence of
record and is free of legal error. The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified record.”
Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013)
(citations omitted).
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. sections
9545(b)(1)(i), (ii), and (iii), is met.1 42 Pa.C.S.A. § 9545. A PCRA petition
____________________________________________
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
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
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invoking one of these statutory exceptions must “be filed within 60 days of
the date the claims could have been presented.” See Hernandez, 79 A.3d
651-52 (citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2). Asserted
exceptions to the time restrictions for a PCRA petition must be included in the
petition, and may not be raised for the first time on appeal. Commonwealth
v. Furgess, 149 A.3d 90 (Pa. Super. 2016).
Here, Chambers’ judgment of sentence became final on October 2,
2000, when the United States Supreme Court denied his petition for certiorari.
Thus, for purposes of the PCRA’s time bar, Chambers had to file his latest
petition by October 2, 2001. As he filed his sixth petition in 2017, it is patently
untimely, unless Chambers has satisfied his burden of pleading and proving
that one of the enumerated exceptions applies. See Hernandez, supra.
Chambers has failed to prove any exception to the PCRA’s time bar.
Within his PCRA petition, Chambers relied upon our Supreme Court’s recent
decision in Commonwealth v. Rosado, 150 A.3d 425 (Pa. 2016), as
establishing a “new constitutional right” pursuant to 42 Pa.C.S.A. § 9545
(b)(1)(iii). The PCRA court concluded that Chambers could not rely on
Rosado because “[u]nder §9545(b)(2), this Court is without jurisdiction to
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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).
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entertain the instant Petition because it was not filed within sixty days of the
Rosado opinion.” PCRA Court Opinion, 12/6/17, at 2.2 We disagree.
This Court has recently summarized:
In Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585(2000), our Supreme Court held that “a subsequent PCRA
petition cannot be filed until the resolution of review of the
pending PCRA petition by the highest state court in which
review is sought, or upon the expiration of the time for
seeking such review.” Id. at 588. Our Supreme Court
reasoned that “[a] second appeal cannot be taken when
another proceeding of the same type is already pending.”
Id. (citation omitted). Where a petitioner attempts to raise
a subsequent, independent claim for relief during the
pendency of an earlier PCRA petition, his or her “only option
is to raise it within a second PCRA petition within [60] days
of the date of the order that finally resolves the [pending]
PCRA petition[.]” Commonwealth v. Steele, 599 Pa. 341,
961 A.2d 786, 908-809 (2008).
Commonwealth v. Montgomery, 181 A.3d 359, 363 (Pa. Super. 2018) (en
banc).3
Our review of the record reveals that Chambers filed his sixth PCRA
petition within sixty days of this Court’s affirming the denial of his fifth petition.
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2 The Commonwealth makes the same argument in its brief. See
Commonwealth Brief at 6.
3 In Montgomery, this Court addressed the issue of a PCRA court’s ability to
address a subsequent PCRA petition even though a prior PCRA petition was
still pending before that Court. We answered this question in the affirmative:
“a PCRA court may not entertain a new PCRA petition when a prior petition is
still under appellate review and, thus, is not final, however, nothing bars a
PCRA court from considering a subsequent PCRA petition, even if a prior
petition is pending, so long as the prior petition is not under appellate review.”
Id. at 364-65.
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Thus, Chambers could properly raise a Rosado claim in his sixth PCRA
petition. However, this does not end our inquiry. On appeal in PCRA
proceedings, the Superior Court may affirm a PCRA court’s decision in any
grounds if the record supports it. Commonwealth v. Benner, 147 A.3d 915,
919 (Pa. Super. 2016) (citation omitted).
Subsection 9545(b)(1)(iii) applies only when “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)(iii). This Court has reiterated:
Subsection (iii) of section 9545 has two requirements. First,
it provides that the right asserted is a constitutional right
that was recognized by the Supreme Court of the United
States or th[e Pennsylvania] Supreme Court after the time
period provided in this section. Second, it provides that the
right “has been held” by that court to apply retroactively.
The language “has been held” is the past tense. These
words mean that the action has already occurred, i.e., “that
court” has already held the new constitutional right to be
retroactive to cases on collateral review. By employing the
past tense in writing this provision, the legislature clearly
intended that the right was already recognized at the time
the petition was filed.
Commonwealth v. Garcia, 23 A.3d 1059, 1063 (Pa. Super. 2011) (citations
omitted).
Here, Chambers can establish neither requirement. In Rosado, supra,
our Supreme Court addressed an ineffective assistance of counsel claim, which
was raised in a timely filed PCRA petition, and held that counsel’s “filing of an
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appellate brief which abandons all preserved issues in favor of unpreserved
one constitutes ineffectiveness per se.” Rosado, 150 A.3d at 440. In doing
so, the high court did no more than apply existing state and federal case
precedent to the facts of that case. Id. at 429-435. Our Supreme Court did
not announce a new constitutional right and, therefore, did not address
retroactivity.
In sum, because Chambers has not established an exception to the
PCRA’s time bar, the PCRA court correctly determined that it lacked
jurisdiction to consider the merits of the petition. We therefore affirm its order
denying post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/13/18
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