Com. v. Terry, T. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
THOMAS L. TERRY
Appellant No. 368 WDA 2014
Appeal from the PCRA Order of February 11, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No.: CP-02-CR-0015702-1991
BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and STRASSBURGER, J.*
MEMORANDUM BY WECHT, J.: FILED DECEMBER 18, 2014
Thomas L. Terry appeals the PCRA court order dismissing as untimely
his petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-46. Because we agree that the petition was untimely filed and not
subject to any applicable exception, we affirm.
Given the nature of our ruling, we need only recite essential aspects of
the procedural history in this case. On July 9, 1993, a jury convicted Terry
of burglary, aggravated assault,1 and spousal sexual assault.2 After
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
See 18 Pa.C.S. § 3502 and 2702, respectively.
2
See 18 Pa.C.S. § 3128, repealed by Act of March 31, 1995, P.L. 985,
No. 10, § 10.
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sentencing and post-sentencing proceedings, Terry appealed and this Court
affirmed his judgment of sentence on January 19, 1995. Terry filed a
petition for allowance of appeal to our Supreme Court, which was denied on
July 17, 1995. Terry did not file a petition for a writ of certiorari to the
United States Supreme Court within the ninety days allowed by Supreme
Court Rule 13.1. Consequently, Terry’s judgment of sentence became final
on October 16, 1995,3 and he had until October 16, 1996, to file a timely
PCRA petition. See 42 Pa.C.S. § 9545(b)(b)(1).
Terry filed the instant PCRA petition, his seventh, on January 2, 2014.4
By order dated January 21, 2014, and docketed on January 23, 2014, the
PCRA court entered a twenty-day notice pursuant to Pa.R.Crim.P. 907
indicating that the court intended to dismiss Terry’s petition without a
hearing because it was untimely and asserted claims that had been litigated
previously.5 On February 5, 2014, Terry filed a “letter brief” in rebuttal to
the PCRA court’s Rule 907 notice, wherein he offered no material argument
that his petition was timely under any exception to the PCRA’s one-year time
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3
The ninetieth day fell on October 15, 1995, but that date fell on a
Sunday. Consequently, Terry’s last day to file a timely certiorari petition
was Monday October 16, 1995. See Sup. Ct. R. 30.1.
4
The docket entry reflects a January 2, 2014 filing date. The time
stamp on the petition, however, reflects a filing date of December 33 [sic],
2013.
5
The docket incorrectly identifies this order as one “Denying Post-
Conviction Relief Act Petition.”
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limit. On February 12, 2014, the PCRA court entered the order dismissing
Terry’s petition, and this timely appeal followed. On March 14, 2014, the
PCRA court filed an order directing Terry to file a concise statement of the
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Terry timely
complied.6 Thereafter, the PCRA court filed a Rule 1925(a) opinion, wherein
it explained its bases for dismissing Terry’s petition as untimely.
Like the trial court, we begin by reviewing our jurisdiction to consider
Terry’s petition. It is well-established that the PCRA time limits are
jurisdictional, and must be strictly construed, regardless of the potential
merit of the claims asserted. Commonwealth v. Leggett, 16 A.3d 1144,
1145 (Pa. Super. 2011); Commonwealth v. Murray, 753 A.2d 201, 202-
03 (Pa. 2000), abrogated on other grounds, 943 A.2d 264 (Pa. 2008). “[N]o
court may properly disregard or alter [these filing requirements] in order to
reach the merits of the claims raised in a PCRA petition that is filed in an
untimely manner.” Murray, 753 A.2d at 203; see Commonwealth v.
Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).
Despite facial untimeliness, a tardy PCRA petition nonetheless will be
considered timely if (but only if) the petitioner pleads and proves one of the
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6
Before this Court, Terry asserts five issues, that are lengthier than
would warrant reproduction herein, given the fact that we do not reach the
merits of any of them.
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three exceptions to the one-year time limit enumerated in
subsection 9545(b) of the PCRA, which provides:
(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
(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. § 9545(b). When an appellant files a facially untimely petition
under the PCRA, and fails to plead and prove one or more of the exceptions
to the PCRA’s one-year jurisdictional time limit, the petition is untimely and
we must deny the appellant relief. Gamboa-Taylor, 753 A.2d at 783.
Moreover, as reflected in the plain language of subsection 9545(b)(2), even
when one of the exceptions may apply to a given petition, it will excuse the
untimeliness only if the petition was filed within sixty days of the date that
the conditions underlying the exception came to light. Id. at 784.
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Terry acknowledges that his petition is untimely. However, he asserts
that his untimeliness should be excepted based upon the governmental
interference and newly-discovered fact exceptions set forth at subsection
9545(b)(1)(i). As noted, supra, in order to establish the application of that
exception, Terry must plead and prove that he filed his petition within sixty
days of when the claim could have been presented—in this instance,
whenever he learned of the alleged government interference or the newly-
discovered facts to which he alludes.
Although Terry makes some effort to argue his governmental-
interference exception, he does not materially develop his newly-discovered
fact exception. More importantly, however, nowhere in his PCRA petition or
his brief does Terry assert that his petition was filed within sixty days of
when he learned of the possible applicability of either exception. His failure
to do so is fatal to his claims that either exception applies to release him
from the requirement that his PCRA petition be filed within one year of when
his judgment of sentence became final. Accordingly, the PCRA court
correctly determined that it lacked jurisdiction over Terry’s petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2014
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