Com. v. Love, M. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MARK ANTHONY LOVE :
:
Appellant : No. 620 WDA 2018
Appeal from the Order Entered March 22, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0001676-2006
BEFORE: BOWES, J., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: FILED DECEMBER 12, 2019
Mark Anthony Love appeals from the March 22, 2018 order1 dismissing
his PCRA petition as lacking in merit. We affirm based on the untimeliness of
the petition.
In January 2008, a jury convicted Appellant of second-degree murder,
robbery, criminal trespass, and carrying a firearm without a license, and he
was sentenced to life imprisonment. The convictions stemmed from the
January 19, 2006 shooting death of Eric Martin in the playground area of a
housing complex in West Mifflin. Information supplied by two brothers who
were perpetrating an armed robbery at the other end of the playground led
police to Appellant. Appellant told police that he intended to rob the victim,
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* Retired Senior Judge assigned to the Superior Court.
1The order is dated March 20, 2018, but was entered on the docket on March
22, 2018.
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but the victim ran when he drew a .9 mm firearm. Wanting to scare the
victim, Appellant fired the weapon in the victim’s direction, and the victim fell.
Ballistics confirmed that the cartridge case found at the scene was fired from
the .9 mm handgun found in Appellant’s apartment.
After several reinstatements of Appellant’s direct appeal rights, this
Court affirmed the convictions, finding that the evidence was sufficient to
sustain the verdict and that the verdict was not contrary to the weight of the
evidence. Commonwealth v. Love, 40 A.3d 189 (Pa.Super. 2011)
(unpublished memorandum). Appellant’s petition for allowance of appeal was
denied by the Pennsylvania Supreme Court on November 8, 2012.
Commonwealth v. Love, 56 A.3d 397 (Pa. 2012). He did not petition for a
writ of certiorari to the United States Supreme Court.
On November 13, 2013, Appellant filed a timely pro se PCRA petition,
counsel was appointed, and counsel filed an amended petition asserting that
trial counsel was ineffective for failing to request a ‘corrupt source’ jury charge
regarding the Meggett brothers. Following an evidentiary hearing, the court
denied the petition. Appellant appealed, and this Court affirmed.
Commonwealth v. Love, 159 A.3d 603 (Pa.Super. 2016) (unpublished
memorandum). Appellant did not seek allowance of appeal.
The petition that is the subject of the instant appeal was filed on October
3, 2017. The PCRA court issued notice of its intent to dismiss the petition as
untimely, to which Appellant did not respond. The court dismissed the petition
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on March 22, 2018, Appellant timely appealed, and complied with Pa.R.A.P.
1925(b).2 Appellant presents two issues for our review:
[I]. Whether the PCRA Court erred in dismissing Appellant’s PCRA
petition where his appellate counsel abandoned him and he was
just seeking to have his appellate rights reinstated.
[II] Whether Appellant[’s] counsel abandoned Appellant after
counsel stated that she would file his appeal but failed to do so.
Appellant’s brief at 4.
In reviewing the denial of PCRA relief, “this Court is limited to
ascertaining whether the evidence supports the determination of the PCRA
court and whether the ruling is free of legal error.” Commonwealth v.
Andrews, 158 A.3d 1260, 1263 (Pa.Super. 2017). The PCRA court ruled that
the within petition lacked merit. The Commonwealth contends, however, that
the petition was untimely filed, and urges us to affirm on that basis. Since
the timeliness of the petition implicates our jurisdiction to reach the merits of
Appellant’s claim, we must address that threshold issue first. See
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa.Super. 2013).
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2 In its Rule 1925(a) opinion, the PCRA court determined that it was “unclear
whether [counsel] had notified [Appellant] in a timely fashion of the decision
of the Superior Court at No. 929 WDA 2015 denying relief.” PCRA Court
Opinion, 5/1/19, at unnumbered 2. Since the court had not conducted an
evidentiary hearing to address the issue, the court recommended that this
Court remand for such a hearing, or in the alternative, reinstate Appellant’s
appellate rights to the Supreme Court. Id. We conclude that Appellant’s
petition was untimely filed, and hence, the PCRA court lacked jurisdiction to
address the merits of the petition or afford relief, and affirm on this alternate
basis.
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The law is well settled that a PCRA petition, including a second or
subsequent petition, must be filed within one year of the date the judgment
of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). Judgment of sentence
becomes final at the conclusion of direct review, or at the expiration of the
time for seeking the review. Herein, Appellant’s judgment of sentence became
final on February 6, 2013, when the ninety-day period expired to seek
certiorari from the United States Supreme Court. Thus, Appellant had one
year from that date, until February 6, 2014, to file a timely PCRA petition. The
instant petition filed on October 3, 2017, is facially time-barred.
There are three exceptions to the jurisdictional time-bar set forth in 42
Pa.C.S. §9545(b)(1)(i-iii). In order to invoke an exception, a petitioner must
plead and prove one of the following:
(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).
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Appellant invoked the timeliness exception for newly-discovered facts in
his PCRA petition. He contends that appointed appellate counsel on his prior
PCRA petition abandoned him. Appellant maintains that he would have sought
allowance of appeal to the Pennsylvania Supreme Court, but that counsel only
informed him on July 7, 2017, well beyond the sixty-day period for seeking
allowance of appeal, that this Court had denied relief on his appeal on
November 30, 2016.3 Appellant’s brief at 13. He cites Commonwealth v.
Touw, 781 A.2d 1250 (Pa.Super. 2001), for the proposition that he could
demonstrate that “but for counsel’s failure to consult[,] he would have timely
appealed.” Appellant’s brief at 17. Appellant also avers that he “was firm
with [counsel] that he wanted her to appeal this case to the Supreme Court
for their review.” Id. at 16.
The PCRA statute currently provides that a PCRA petition invoking a
timeliness exception must be filed within one year of the date the claim could
have been presented. See 42 Pa.C.S. § 9545(b)(2), as amended October 24,
2017, eff. in sixty days (expanding the period from sixty days to one year).
However, the amendment only applies the longer one-year period to claims
that arose after December 24, 2017. By his own admission, Appellant knew
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3 The Commonwealth characterizes Appellant’s newly-discovered fact as
Appellant’s knowledge that counsel failed to file a requested appeal, in effect
abandoning him. See Commonwealth v. Bennett, 930 A.2d 1264 (Pa.
2007).
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on July 7, 2017,4 that his Superior Court appeal had been denied, that counsel
had not apprised him of that fact, and that counsel had not filed a petition for
allowance of appeal, in effect abandoning him. Thus, the pre-amendment
sixty-day period was applicable, and Appellant had until September 7, 2017,
to file a timely petition alleging that newly-discovered fact. The instant
petition was filed on October 3, 2017, eighty-eight days after the claim could
have been presented.
The law is well settled that, prior to the amendment, a petitioner
invoking the newly-discovered fact exception to the PCRA one-year time bar
was required to present the claim within sixty days of discovering the new
fact. Commonwealth v. Geer, 936 A.2d 1075, 1078-79 (Pa.Super. 2007).
Appellant failed to do so, and thus, he cannot avail himself of the newly-
discovered fact timeliness exception. Since we lack jurisdiction to reach the
merits of Appellant’s claims, we affirm the dismissal of the petition on that
basis.
Order affirmed.
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4 Appellant may have known prior to July 7, 2017, that his appeal had been
denied. In his petition, Appellant averred that he had written to the Superior
Court to ascertain the status of his appeal, and was advised by letter dated
June 1, 2017, that it had been disposed of seven months earlier. PCRA
Petition, 10/3/17, at 4.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2019
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