Com. v. Gibson, K. ( 2015 )

J-S35027-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KAREEM GIBSON
Appellant No. 2977 EDA 2014
Appeal from the PCRA Order January 2, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1302511-2006
BEFORE: MUNDY, OLSON and PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED JUNE 19, 2015
Appellant, Kareem Gibson, appeals following the PCRA court’s
September 15, 2014 order, which granted his “Nunc Pro Tunc Petition for
Post-Conviction Collateral Relief.” We conclude that Appellant’s “Nunc Pro
Tunc Petition for Post-Conviction Collateral Relief” constituted an untimely,
serial petition under the Post-Conviction Collateral Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-9546. Moreover, since Appellant failed to plead and
prove an exception to the PCRA’s one-year time-bar, the PCRA court lacked
jurisdiction to entertain the claims contained in Appellant’s “Nunc Pro Tunc
Petition for Post-Conviction Collateral Relief” and we lack jurisdiction to
entertain this appeal. Accordingly, we quash this appeal.
The trial court has ably summarized the underlying facts of Appellant’s
convictions and sentence.
*Retired Senior Judge assigned to the Superior Court.
J-S35027-15
In 2005, Philadelphia Police Officer Joseph Domico, then a
nine[-]year police veteran, had been assigned to the
Narcotics Strike Force for five years and had received
training in narcotics surveillances and the testing, storing,
and packaging of narcotics. As of November 2005, Officer
Domico had participated in over 1000 narcotics
surveillances; roughly ten [] to [30] of these were in the
area of 1200 West Venango Street in Philadelphia.
On November 22, 2005, around 7:30 p.m., Officer
[Domico], with the aid of ten-by-fifty power binoculars, was
surveilling the 1200 West Venango Street area when he saw
an unknown black man approach [Appellant], converse
briefly, and hand [Appellant] United States currency. After
[Appellant] removed a baggy from the leg pocket of his
pants, removed objects, and handed them to the man, the
man left the area.
Around 7:40 p.m., a man later identified as Tracy Dorsey
approached [Appellant], conversed, and handed [Appellant]
United States currency. [Appellant] took a baggy from the
same pocket, removed objects, and handed them to
Dorsey. Dorsey left the area, was stopped, and had a green
tinted packet of crack cocaine in his pants pocket.
Around 7:45 p.m., based upon his observations and
information regarding Dorsey’s drug possession, Officer
Domico instructed his fellow officers to arrest [Appellant.
Thirty-six green-tinted] packets of crack cocaine, with an
aggregate weight of 1.8 grams, were recovered from
[Appellant], as was [$122.00, which was composed of six
$20.00 bills and two $1.00 bills].
...
[Following Appellant’s arrest, the Commonwealth charged
Appellant] with possession of a controlled substance with
the intent to deliver [(hereinafter “PWID”)] and [possession
of a controlled substance.1] On May 15, 2008, the [trial
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1
35 P.S. § 780-113(a)(30) and (16), respectively.
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court] heard and denied [Appellant’s] motion to suppress
physical evidence.
. . . On December 18, 2008, after a jury trial . . . ,
[Appellant] was convicted of PWID.[2] On February 6, 2009,
[the trial court] sentenced [Appellant] to [serve a term of
48 to 96 months in prison and to serve a consecutive term
of 24 months of probation].
Trial Court Opinion, 5/6/09, at 1-3 (internal citations omitted) (some internal
capitalization omitted).
Appellant filed a timely notice of appeal and, on February 24, 2010,
this Court affirmed Appellant’s judgment of sentence. Commonwealth v.
Gibson, 966 A.2d 6 (Pa. Super. 2010) (unpublished memorandum) at 1-5.
Appellant did not file a petition for allowance of appeal with our Supreme
Court.
On June 25, 2010, Appellant filed a timely, pro se PCRA petition.
Appellant later retained counsel and counsel filed an amended PCRA petition
on Appellant’s behalf. Within the petition, Appellant claimed that his trial
counsel was ineffective for: 1) “stipulat[ing] to the drug type and quantity
rather than requiring the Commonwealth to elicit testimony from the
Commonwealth’s expert witnesses;” 2) failing to file a post-sentence motion
to claim that the trial court abused its discretion when it “fail[ed] to identify
an aggravating factor in sentencing [Appellant] to a term of incarceration in
excess of the sentencing guideline range of 24-30 months;” and, 3) “failing
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2
The Commonwealth nolle prossed the simple possession charge.
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to investigate and make known to the [trial c]ourt at sentencing
[Appellant’s] eligibility for RRRI which would have shortened [Appellant’s]
sentence by several months.” Appellant’s Amended PCRA Petition,
11/28/11, at 1-4. Further, Appellant claimed that his appellate counsel was
ineffective for failing to raise the claim that the Commonwealth purposefully
discriminated against African-American jurors, in violation of Batson v.
Kentucky, 476 U.S. 79 (1986), and that the trial court erred when it denied
his request to issue a Kloiber3 instruction to the jury. Id. at 2-3. Finally,
Appellant raised a boilerplate claim that he is actually innocent of the crimes
for which he was convicted. Id. at 3.
On September 17, 2012, the trial court notified Appellant that, in 28
days, it intended to dismiss the PCRA petition without a hearing, as it
determined that the “issues raised in the amended [PCRA] petition [were]
without merit.” Trial Court Notice, 9/17/12, at 1; see also Pa.R.Crim.P.
907(1). Appellant responded to the PCRA court’s Rule 907 notice by calling
attention to this Court’s opinion in Commonwealth v. Robinson, 7 A.3d
868 (Pa. Super. 2010). In that case, we held: “where the trial court fails to
make a statutorily required determination regarding a defendant's eligibility
for an RRRI minimum sentence as required, the sentence is illegal.” Id. at
871.
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3
See Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).
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On January 2, 2013, the PCRA court entered the following order:
AND NOW, to wit, this 2nd day of January, 2013,
[Appellant’s PCRA] petition is granted in part, in that
[Appellant] was eligible for the [RRRI] program at the time
of sentencing. [Appellant] is to be immediately paroled.
PCRA Court Order, 1/2/13, at 1 (some internal capitalization omitted).
On February 1, 2013, Appellant filed a timely notice of appeal from the
PCRA court’s order; in his Rule 1925(b) statement, Appellant claimed that
the PCRA court erred when it failed to grant him relief on his remaining
claims. Appellant’s Rule 1925(b) Statement, 3/13/13, at 1-2 (some internal
capitalization omitted).
On June 4, 2013, the PCRA court issued a Rule 1925(a) opinion in the
case. Within this opinion, the PCRA court acknowledged that it mistakenly
failed to consider all of the claims that Appellant raised in his petition. The
PCRA court thus requested that this Court remand the matter so that it could
hold a hearing on Appellant’s remaining claims. PCRA Court Opinion,
6/4/13, at 1 (some internal capitalization omitted).
However, on September 25, 2013, this Court dismissed Appellant’s
appeal for failure to file a brief. Commonwealth v. Gibson, 411 EDA 2013
(Pa. Super. 2013) (unpublished order) at 1.
On May 19, 2014 – or, almost eight months after we dismissed
Appellant’s appeal – Appellant, through counsel, filed a “Nunc Pro Tunc
Petition for Post-Conviction Collateral Relief.” The petition – which
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constitutes Appellant’s second petition under the PCRA – declared, in
relevant part:
13. On June 4, 2013, the [PCRA court] issued an opinion
that stated in pertinent part that[] “the Court recommends
remand so that it can hold a hearing on [Appellant’s]
remaining PCRA claims[”] . . .
14. Based on [the PCRA court’s] June 4th opinion,
[Appellant] believed that the matter would be remanded
from the Superior Court and [Appellant] did not file [an]
appellant’s brief in the Superior Court.
15. [Appellant] reviewed the criminal dockets in this matter
and saw that the matter had not been remanded from [the]
Superior Court.
16. [Appellant] reviewed the Superior Court dockets and
saw that [Appellant’s] appeal was dismissed by the Superior
Court on September 25, 2013. Unfortunately, [Appellant]
never received a copy of that order.
17. [Appellant] is filing the instant Nunc Pro Tunc Petition
for Post-Conviction Collateral Relief to request that the
matter be listed on the remaining claims contained in the
[PCRA petition] that were not addressed in [the PCRA
court’s] order of January 3, 2013.
18. [Appellant] believes that this [petition] should be
granted nunc pro tunc as it was [the PCRA court’s]
recommendation that a hearing on [Appellant’s] remaining
PCRA issues be held. . . .
19. [Appellant’s] counsel has been in contact with the
assigned Assistant District Attorney . . . who has kindly
indicated that she has no opposition to a hearing on the
nunc pro tunc [PCRA petition] being held.
WHEREFORE, [Appellant] prays your Honorable Court to
grant a hearing on this nunc pro tunc [PCRA petition].
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Appellant’s Nunc Pro Tunc Petition for Post-Conviction Collateral Relief,
5/19/14, at 2-3 (internal italics added) (some internal capitalization and
emphasis omitted).
On September 15, 2014, the PCRA court granted Appellant’s “Nunc Pro
Tunc Petition for Post-Conviction Collateral Relief” and declared that
Appellant was “allowed to file an appeal to the Superior Court on the
remaining issues in the PCRA petition.” PCRA Court Order, 9/15/14, at 1.
Appellant filed a notice of appeal on October 2, 2014. We now quash this
appeal.
As our Supreme Court has held, we “review an order granting or
denying PCRA relief to determine whether the PCRA court’s decision is
supported by evidence of record and whether its decision is free from legal
error.” Commonwealth v. Liebel, 825 A.2d 630, 632 (Pa. 2003). As to
questions of law, our standard of review is de novo and our scope of review
is plenary. Mazur v. Trinity Area Sch. Dist., 961 A.2d 96, 101 (Pa. 2008).
The PCRA contains a jurisdictional time-bar, which is subject to limited
statutory exceptions. This time-bar demands that “any PCRA petition,
including a second or subsequent petition, [] be filed within one year of the
date that the petitioner’s judgment of sentence becomes final, unless [the]
petitioner pleads [and] proves that one of the [three] exceptions to the
timeliness requirement . . . is applicable.” Commonwealth v. McKeever,
947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b). Further,
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since the time-bar implicates the subject matter jurisdiction of our courts,
we are required to first determine the timeliness of a petition before we are
able to consider any of the underlying claims. Commonwealth v. Yarris,
731 A.2d 581, 586 (Pa. 1999). Our Supreme Court has explained:
the PCRA timeliness requirements are jurisdictional in
nature and, accordingly, a PCRA court is precluded from
considering untimely PCRA petitions. See, e.g.,
Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)
(stating that “given the fact that the PCRA's timeliness
requirements are mandatory and jurisdictional in nature, no
court may properly disregard or alter them in order to reach
the merits of the claims raised in a PCRA petition that is
filed in an untimely manner”); Commonwealth v. Fahy,
737 A.2d 214, 220 (Pa. 1999) (holding that where a
petitioner fails to satisfy the PCRA time requirements, this
Court has no jurisdiction to entertain the petition). [The
Pennsylvania Supreme Court has] also held that even where
the PCRA court does not address the applicability of the
PCRA timing mandate, th[e court would] consider the issue
sua sponte, as it is a threshold question implicating our
subject matter jurisdiction and ability to grant the requested
relief.
Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003).
Since the time-bar implicates the subject matter jurisdiction of our
courts, “courts are without jurisdiction to offer any form of relief . . .
[b]eyond th[e jurisdictional] time-period.” Commonwealth v. Jackson, 30
A.3d 516, 523 (Pa. Super. 2011). Indeed, as we have held, the above
proscription even extends to claims challenging the legality of a sentence.
Id. Certainly, in Jackson, the petitioner filed an untimely PCRA petition and
claimed that the trial court imposed a manifestly illegal sentence. We held
that, since the “[PCRA] petition was patently untimely, [] the PCRA court did
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not have jurisdiction under [42 Pa.C.S.A. §] 9545 to consider [the
petitioner’s illegal sentence] claim.” Jackson, 30 A.3d at 521-522. The
Jackson Court reasoned that, although an illegal sentence claim cannot be
waived, a court must first have jurisdiction – or authority – to consider the
claim in the first instance. Id. at 522. Once the PCRA’s statutory deadline
has passed, however, “section 9545 . . . acts to divest a court of [subject
matter] jurisdiction” over the claims. Id. at 523.
Moreover, and important to the current appeal, this Court has held
that it is “well settled that a judgment or decree rendered by a court which
lacks jurisdiction of the subject matter or of the person is null and void.”
Commonwealth v. Schmotzer, 831 A.2d 689, 695 n.2 (Pa. Super. 2003);
see also Comm. ex rel. Penland v. Ashe, 19 A.2d 464, 466 (Pa. 1941)
(“every judgment is void, which clearly appears on its own face to have been
pronounced by a court having no jurisdiction or authority in the subject-
matter”). A void judgment is “no judgment at all.” Ashe, 19 A.2d at 466.
Thus, our Supreme Court has held, “it is the duty of the court of its own
motion to strike off [a void judgment] whenever its attention is called to it.”
Romberger v. Romberger, 139 A. 159, 160 (Pa. 1927).
Hence, as applied to the case at bar, if the PCRA court did not have
subject matter jurisdiction over Appellant’s “Nunc Pro Tunc Petition for Post-
Conviction Collateral Relief,” the PCRA court’s grant of nunc pro tunc
appellate relief would be “null and void” and we would not have jurisdiction
over the current appeal. Schmotzer, 831 A.2d at 695 n.2.
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In the present case, this Court affirmed Appellant’s judgment of
sentence on February 24, 2010 and Appellant did not thereafter file a
petition for allowance of appeal with our Supreme Court. Thus, Appellant’s
judgment of sentence became final for purposes of the PCRA on March 27,
2010, when the period for seeking review in our Supreme Court expired.
Pa.R.A.P. 1113(a); 42 Pa.C.S.A. § 9545(b)(3). As Appellant did not file his
current petition until May 19, 2014, the current petition is manifestly
untimely and the burden thus fell upon Appellant to plead and prove that
one of the enumerated exceptions to the one-year time-bar applied to his
case. See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Perrin, 947 A.2d
1284, 1286 (Pa. Super. 2008) (to properly invoke a statutory exception to
the one-year time-bar, the PCRA demands that the petitioner properly plead
and prove all required elements of the relied-upon exception).
The statutory exceptions to the PCRA’s one-year time-bar are as
follows:
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment 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
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(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.
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the date the
claim could have been presented.
42 Pa.C.S.A. § 9545(b).
Further, as our Supreme Court has held, “the 60-day rule requires a
petitioner to plead and prove that the information on which he relies
could not have been obtained earlier, despite the exercise of due diligence.”
Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008) (emphasis
added); Commonwealth v. Williams, 105 A.3d 1234, 1239 (Pa. 2014)
(same).
Within Appellant’s “Nunc Pro Tunc Petition for Post-Conviction
Collateral Relief,” Appellant did not explicitly invoke any of the statutory
exceptions to the PCRA’s one-year time-bar.4 Further, within the petition,
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4
In Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007), the petitioner
failed to plead a statutory exception to the PCRA’s one-year time-bar and
our Supreme Court nevertheless forgave the failure and considered whether
the petitioner’s claim satisfied a statutory exception to the time-bar.
However, the Bennett Court forgave the insufficient pleading because the
petitioner had “reasonably relied” upon an incorrect procedure that this
Court established, but that the Supreme Court altered while the petition was
pending. Id. at 1269-1270; see Commonwealth v. Robinson, 837 A.2d
1157 (Pa. 2003) (rejecting the “extension theory,” which “construe[d] an
untimely, serial PCRA petition as if it were an ‘extension’ of a timely, but
previously dismissed, first PCRA petition in cases where an appeal was taken
from the denial of the first petition, but the Superior Court ultimately
(Footnote Continued Next Page)
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Appellant did not plead the date upon which he learned that this Court
dismissed his appeal for failure to file a brief and Appellant did not explain
why it took him eight months from the dismissal order to file his “Nunc Pro
Tunc Petition for Post-Conviction Collateral Relief.” See 42 Pa.C.S.A.
§ 9545(b)(2); Stokes, 959 A.2d at 310. Thus, since Appellant failed to
plead that one of the enumerated exceptions to the time-bar applied to his
case, the PCRA court did not have subject matter jurisdiction over
Appellant’s second PCRA petition. Hence, the court’s September 15, 2014
order, which purported to enlarge the scope of Appellant’s prior appeal, is
“null and void” and, as such, we do not have jurisdiction over the current
appeal. Schmotzer, 831 A.2d at 695 n.2. Accordingly, we quash.
Romberger, 139 A. at 160.5
Appeal quashed.
_______________________
(Footnote Continued)
dismissed the appeal when the PCRA appellant failed to file a brief”). In the
case at bar, there has been no alteration of the law during the pendency of
Appellant’s PCRA petition and Appellant should have known that, to be
entitled to relief under the PCRA, he was required to explicitly invoke a
statutory exception to the PCRA’s one-year time-bar. 42 Pa.C.S.A.
§ 9545(b).
5
Within Appellant’s “Nunc Pro Tunc Petition for Post-Conviction Collateral
Relief,” Appellant pleaded that the Commonwealth did not oppose “a hearing
on the nunc pro tunc [PCRA petition].” Appellant’s Nunc Pro Tunc Petition
for Post-Conviction Collateral Relief, 5/19/14, at 3. Yet, even if the
Commonwealth had consented to the relief requested in Appellant’s petition,
the consent would have been toothless. As our Supreme Court has held:
“[N]either by act of the parties nor by the act of this Court can jurisdiction
be conferred upon a court where jurisdiction is nonexistent.” In re
Pozzuolo’s Estate, 249 A.2d 540, 545 (Pa. 1969).
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Judges Mundy and Platt concur in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/19/2015
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