Com. v. Allen, B. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
BILLY RAY ALLEN
Appellant No. 206 EDA 2014
Appeal from the PCRA Order December 18, 2013
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0000048-1996
BEFORE: ALLEN, J., OLSON, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED NOVEMBER 24, 2014
Billy Ray Allen brings this appeal pro se from the order entered
December 18, 2013, in the Court of Common Pleas of Montgomery County,
dismissing, as untimely, his second petition filed pursuant to the
Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546.
In this appeal, Allen presents 13 issues, of which the final two address the
timeliness of his PCRA petition.1 Based upon the following, we affirm.
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1
In the first nine issues raised by Allen, he contends that he is entitled to
relief on the basis of prosecutorial misconduct. In his tenth issue, Allen
contends his trial counsel engaged in unethical acts of professional
misconduct. In the eleventh issue, Allen claims the trial court abused its
discretion and violated his constitutional rights to have his innocence
determined by a jury, when the trial judge denied his pro se motion for a
mistrial and appointment of new counsel. See Allen’s Brief at 4–5.
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On November 27, 1996, a jury found Allen guilty of murder of the first
degree, robbery, and possession of an instrument of crime (PIC). 2 On
December 3, 2006, following a penalty hearing, the jury did not impose the
death penalty. The trial court thereafter sentenced Allen to life
imprisonment, a consecutive sentence of 10 to 20 years on the robbery
conviction, and a concurrent sentence of one to five years for the PIC
conviction. On May 14, 1998, this Court affirmed the judgment of sentence,
and on March 29, 1999, the Pennsylvania Supreme Court denied Allen’s
petition for allowance of appeal. Commonwealth v. Allen, 718 A.2d 853[3996 PHL 1997] (Pa. Super. 1998) (unpublished memorandum), appeal
denied, 737 A.2d 1222 [466 MDA 1996] (Pa. 1999).
On October 18, 1999, Allen filed his first PCRA petition, which was
unsuccessful. See Commonwealth v. Allen, 778 A.2d 730 [1556 EDA
2000; 2782 EDA 2000] (Pa. Super. 2001) (unpublished memorandum),
appeal denied, 788 A.2d 731 [455 MAL 2001; 456 MAL 2001] (Pa. 2001).
Presently, we address Allen’s second PCRA petition, filed pro se on July 31,
2013.
Preliminarilyy, we state the principles that guide our review:
This Court’s standard of review regarding a PCRA court’s order is
whether the determination of the PCRA court is supported by the
evidence of record and is free of legal error. Great deference is
granted to the findings of the PCRA court, and these findings will
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2
18 Pa.C.S. §§ 2502(a), 3701, and 907, respectively.
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not be disturbed unless they have no support in the certified
record.
Commonwealth v. Turpin, 87 A.3d 384, ___ (Pa. Super. 2013) (citation
omitted). Furthermore,
[a] PCRA petition, including a second or subsequent one, must
be filed within one year of the date the petitioner's judgment of
sentence became final, unless he pleads and proves one of the
three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
judgment becomes final at the conclusion of direct review by
[the Pennsylvania Supreme] Court or the United States Supreme
Court, or at the expiration of the time for seeking such review.
42 Pa.C.S.[A.] § 9545(b)(3). The PCRA’s timeliness
requirements are jurisdictional; therefore, a court may not
address the merits of the issues raised if the petition was not
timely filed. The timeliness requirements apply to all PCRA
petitions, regardless of the nature of the individual claims raised
therein. The PCRA squarely places upon the petitioner the
burden of proving an untimely petition fits within one of the
three exceptions.
Commonwealth v. Jones, 54 A.3d 14, 16–17 (Pa. 2012) (case citations
and footnote omitted).
Instantly, the Pennsylvania Supreme Court, on March 29, 1999,
denied Allen’s petition for allowance of appeal, filed following direct review of
his judgment of sentence. As such, Allen’s judgment of sentence became
final on June 27, 1999, upon expiration of the 90-day appeal period for filing
a petition for writ of certiorari in the United States Supreme Court. See 42
Pa.C.S. § 9545(b)(3) (providing judgment is deemed 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”); U.S.Sup.Ct. Rule 13 (allowing 90 days to file a
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petition for writ of certiorari). Therefore, Allen had one year from that date
to file a petition for collateral relief. See 42 Pa.C.S. § 9545(b)(1).
Here, Allen filed the current petition on July 31, 2013, over 13 years
after his judgment of sentence became final. Therefore, Allen’s petition is
untimely on its face, and the PCRA court lacked jurisdiction unless Allen
pleaded and proved one of the statutory exceptions to the time bar. See 42
Pa.C.S. § 9545(b)(1)(i)-(iii).3
Our review of the record in light of the PCRA timeliness requirements
and relevant case law confirms that the PCRA court correctly determined
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3
The statutory exceptions that allow for review of an untimely petition are:
(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. § 9545(b)(1)(i)-(iii). In addition, a PCRA petition invoking one of
these statutory exceptions must “be filed within 60 days of the date the
claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).
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Allen’s petition was untimely and that he failed to prove a statutory
exception to the PCRA’s one year time-bar.
In this appeal, Allen has acknowledged that he mistakenly relied on
the United States Supreme Court decision in McQuiggin v. Perkins, 133 S.
Ct. 1924 (2013), in invoking the PCRA’s exception for an after-recognized
constitutional right, 42 Pa.C.S. § 9545(b)(1)(iii). Allen concedes McQuiggin
does not satisfy this exception. See Allen’s Brief at 34.4 As the PCRA Court
aptly explained in its Pa.R.Crim.P. 907(1) notice:
McQuiggin holds that, in federal habeas corpus proceedings,
strict compliance with the one (1) year statute of limitations
imposed by 28 U.S.C. § 2244(d) will not be required when the
petitioner advances a convincing claim of actual innocence.
Nowhere in McQuiggin does the Supreme Court of the United
States announce that this holding recognizes any new
constitutional right that is to be accorded retroactive effect.
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4
Specifically, Allen states in his brief:
Even though his PCRA Petition wa[s] facially untimely, Defendant
thought nonetheless, that he was still entitled to proceed under
the authority of McQuiggin[] vs. Perkins, 133 S. Ct. 1924,
185 L.Ed.2d 1019 [decided May 28, 2013]. Defendant was
under the presumption that the aforementioned ruling
recognized a Constitutional Right that the State could review the
merits of his claims under the authority of 42 Pa.C.S.A. §
9545([b])(1)(iii). This Defendant acknowledges that he was
mistaken.
Allen’s Brief at 34.
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PCRA Court Notice Pursuant to Pa.R.Crim.P. 907(1), 11/15/2013, at 8.
Therefore, the after-recognized constitutional right exception does not allow
review of Allen’s untimely petition.
Furthermore, Allen did not raise any other statutory exception in his
PCRA petition. Accordingly, we agree with the Commonwealth that Allen has
waived his argument raised in his brief filed with this Court that 42 Pa.C.S. §
9545(b)(1)(i) and (ii) allow review of his claims. See Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for
the first time on appeal.”); Commonwealth v. Burton, 936 A.2d 521, 525
(Pa. Super. 2007) (“[E]xceptions to the time bar must be pled in the PCRA
petition, and may not be raised for the first time on appeal.”), appeal
denied, 959 A.2d 957 (Pa. 2008).
Accordingly, there is no basis upon which to disturb the decision of the
Honorable William T. Nicholas that dismissed Allen’s second PCRA petition as
untimely and satisfying no statutory exception to the time bar.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/24/2014
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