Com. v. Grant, R. ( 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
RICHARD GRANT, :
:
Appellant : No. 1412 EDA 2014
Appeal from the Order Entered March 20, 2014,
in the Court of Common Pleas of Bucks County,
Criminal Division at No(s): CP-09-CR-0005241-1999,
CP-09-CR-0005242-1999
BEFORE: LAZARUS, MUNDY, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 09, 2014
Richard Grant (Appellant) appeals pro se from the order entered March
20, 2014, which denied his “Petition for Credit for Time Served.” The lower
court treated the petition as an untimely-filed petition pursuant to the Post
Conviction Relief Act (PCRA).1 We affirm.
A panel of this Court previously summarized the background
underlying this matter as follows:
On December 9, 1999, Appellant was convicted by a jury
of nine (9) counts of conspiracy (predicated on each of the
completed crimes), two (2) counts each of false imprisonment
and recklessly endangering another person, and one (1) count
each of robbery, simple assault, aggravated assault, theft by
unlawful taking, firearms not be carried without a license,
terroristic threats, and delivery of a controlled substance.
Additionally, before trial, Appellant pleaded guilty to a delivery of
marijuana charge. On February 4, 2000, Appellant was
1
42 Pa. C.S. §§ 9541-9546.
* Retired Senior Judge assigned to the Superior Court.
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sentenced to serve not less than fifteen (15) nor more than
thirty-two (32) years for the above convictions and he also
received a consecutive sentence of not less than one (1) nor
more than two (2) years for the prior delivery of marijuana
conviction. Appellant filed a timely motion for reconsideration of
sentence, the trial court held a hearing on April 14, 2000, and
denied Appellant’s motion.
Appellant then discharged his privately retained counsel,
and a public defender from the Bucks County Public Defender’s
Office was appointed to represent him in his first appeal to this
Court. On August 27, 2001, we affirmed the trial court’s
judgment of sentence, and Appellant’s counsel failed to file a
timely petition for allowance of appeal to the Pennsylvania
Supreme Court. On November 29, 2002, Appellant filed a
petition under the PCRA requesting nunc pro tunc relief to file a
petition for allowance of appeal to our Supreme Court. On
December 17, 2002, the PCRA court appointed new counsel. On
September 5, 2003, the PCRA court granted relief to file a
petition for allowance of appeal to our Supreme Court nunc pro
tunc due to the ineffectiveness of Appellant’s original appellate
counsel, who failed to file a timely petition. On December 19,
2003, our Supreme Court denied Appellant’s petition for
allowance of appeal without stating a reason for its denial. On
May 28, 2004, Appellant filed another petition under the PCRA.
On June 1, 2004, pursuant to Appellant’s second PCRA petition,
the trial court appointed new counsel. On August 17, 2004,
Appellant filed a memorandum of law requesting leave to amend
his PCRA petition. As a result of Appellant expressing
dissatisfaction with appointed counsel’s disinclination to request
a hearing, the PCRA court appointed yet another new counsel.
The PCRA court scheduled a hearing upon this counsel’s motion,
and hearings were held March 1 and March 3, 2005. By an order
dated March 3, 2005, the PCRA court denied Appellant’s request
for post conviction collateral relief.
Commonwealth v. Grant, 897 A.2d 517 (Pa. Super. 2006) (unpublished
memorandum at 1-3) (footnotes omitted).
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Appellant subsequently appealed to this Court. On February 8, 2006,
this Court affirmed the PCRA court’s order on the basis that Appellant
untimely filed his petition. Id.
Appellant then filed a Petition for Credit for Time Served with the lower
court. The petition was docketed on March 18, 2013; the Certificate of
Service attached to the petition is dated November 1, 2012; and the
envelope attached to the petition has a postage stamp of October 31, 2012.
When the lower court failed to act on the petition, Appellant sought
mandamus relief in the Pennsylvania Supreme Court. On December 5,
2013, the Supreme Court directed the lower court to dispose of the petition
within 90 days. On February 6, 2014, the lower court held a hearing on the
petition. At the hearing, the Commonwealth argued, inter alia, that the
court should treat Appellant’s petition as an untimely-filed PCRA petition.
The lower court ultimately treated Appellant’s Petition for Credit for
Time Served as a PCRA petition. By order entered March 20, 2014, the
lower court denied Appellant’s petition as untimely filed. Appellant timely
filed the instant appeal. Both the lower court and Appellant have complied
with Pa.R.A.P. 1925.2
On appeal, Appellant raises the following issues for our consideration:
2
In its Pa.R.A.P. 1925(a) opinion, the lower court concluded that Appellant
failed to file timely a 1925(b) statement. The record, however, belies that
conclusion. By order dated May 23, 2014, the lower court directed Appellant
to file a 1925(b) statement within 21 days after entry of the order. The
docket reflects that Appellant filed his 1925(b) statement on June 5, 2014,
well within the 21-day time limitation.
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1. Did the trial court err by denying the Appellant’s [Petition] for
Credit for Time Served?
2. Is the Appellant entitled, pursuant to 42 Pa. C.S.[ §] 9760(1),
to the requested time credit?
Appellant’s Brief at 6.
In his first issue, Appellant argues that the lower court improperly
treated his petition as a PCRA petition, rather than a post-sentence motion.
In the alternative, Appellant appears to contend that the lower court failed
to comply with the notice requirements of Pa.R.Crim.P. 907.
It is well-settled that “the PCRA provides the sole means for obtaining
collateral review, and that any petition filed after the judgment of sentence
becomes final will be treated as a PCRA petition.” Commonwealth v.
Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002). Moreover, “[a]n
appellant’s challenge to the trial court’s failure to award credit for time spent
in custody prior to sentencing involves the legality of sentence” and is
cognizable under the PCRA. Commonwealth v. Beck, 848 A.2d 987, 989
(Pa. Super. 2004). Because Appellant’s petition claimed that the sentencing
court failed to award him credit for time served, the lower court properly
treated the petition as a PCRA petition.
Moreover, the lower court was not required to comply with the notice
provisions of Pa.R.Crim.P. 907, as they only apply when a court seeks to
dismiss a PCRA petition without a hearing. See Pa.R.Crim.P. 907(1)
(providing that, when a judge seeks to dismiss a PCRA petition without a
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hearing, the judge must “give notice to the parties of the intention to
dismiss the petition and shall state in the notice the reasons for the
dismissal”). Because the lower court held a hearing on Appellant’s petition,
Appellant’s argument in this regard is without merit.
We now address whether the lower court erred in concluding that
Appellant’s PCRA petition was untimely filed.3 Our standard of review of the
denial of a PCRA petition is limited to examining whether the court's rulings
are supported by the evidence of record and free of legal error.
Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010).
Under the PCRA, all petitions must be filed within one year of the date
that the petitioner's judgment became final, unless one of three statutory
exceptions applies. 42 Pa.C.S. § 9545(b)(1); Commonwealth v. Chester,
895 A.2d 520, 522 (Pa. 2006). For purposes of the PCRA, a judgment
becomes final at the conclusion of direct review. 42 Pa.C.S. § 9545(b)(3).
“The PCRA’s time restrictions are jurisdictional in nature.” Chester, 895
A.2d at 522. “Thus, ‘[i]f a PCRA petition is untimely, neither this Court nor
the trial court has jurisdiction over the petition. Without jurisdiction, we
simply do not have the legal authority to address the substantive claims.’”
Id. (quoting Commonwealth v. Lambert, 884 A.2d 848, 851 (Pa. 2005)).
3
“Although legality of sentence is always subject to review within the PCRA,
claims must still first satisfy the PCRA’s time limits or one of the exceptions
thereto.” Commonwealth v. Fahy, 737 A.2d 214, 224 (Pa. 1999).
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This Court previously decided that Appellant’s judgment of sentence
became final on September 26, 2001.4 Thus, Appellant had until September
26, 2002, to file timely a PCRA petition. Giving Appellant the benefit of the
prisoner mailbox rule,5 the earliest possible date Appellant’s petition could
have been deemed to have been filed is October 31, 2012. Even with a
filing date of October 31, 2012, Appellant untimely filed the petition, unless
the petition alleged and Appellant offered to prove 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
(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).
Appellant’s petition did not plead any of these exceptions. In his
appellate brief, Appellant claims that he timely filed his petition pursuant to
the exceptions at 42 Pa.C.S. § 9545(b)(1)(i) and (ii). These claims are
4
Commonwealth v. Grant, 897 A.2d 517 (Pa. Super. 2006) (unpublished
memorandum at 7).
5
“[I]n the interest of fairness, the prisoner mailbox rule provides that a pro
se prisoner’s document is deemed filed on the date he delivers it to prison
authorities for mailing.” Commonwealth v. Chambers, 35 A.3d 34, 38
(Pa. Super. 2011).
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waived. See Commonwealth v. Blackwell, 936 A.2d 497, 500 (Pa. Super.
2007) (stating that “failure to allege a timeliness exception in the PCRA
petition itself precludes the petitioner from raising it on appeal”). For these
reasons, we conclude that the lower court properly denied Appellant’s
petition. Accordingly, we affirm the lower court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/2014
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