Com. v. O'Neill, F. ( 2015 )


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  • J-S55040-14
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    FRANCIS O'NEILL
    Appellant                No. 560 EDA 2014
    Appeal from the PCRA Order January 15, 2014
    In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0708641-1979
    BEFORE: BOWES, J., SHOGAN, J., and OTT, J.
    MEMORANDUM BY OTT, J.:                          FILED FEBRUARY 20, 2015
    Francis O’Neill appeals from the order entered in the Philadelphia
    County Court of Common Pleas, dated January 15, 2014, dismissing his
    serial petition filed under the Post-Conviction Relief Act (“PCRA”)1 as
    untimely.      O’Neill seeks relief from the judgment of sentence of an
    aggregate 30 to 60 years’ imprisonment imposed on January 21, 1981,
    following his jury conviction of third-degree murder, three counts of
    aggravated assault, criminal conspiracy, and possession of an instrument of
    crime.2 Because we agree the petition is untimely, we affirm.
    ____________________________________________
    1
    42 Pa.C.S. §§ 9541-9546.
    2
    18 Pa.C.S. §§ 2502(c), 2702, 903, and 907, respectively.
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    O’Neill’s convictions arose out of a shooting on June 17, 1979, when
    O’Neill and his co-defendant, Robert Forbes, who are white, shot at four
    African-American teenage boys in Southwest Philadelphia.                This Court
    affirmed the judgment of sentence on April 2, 1982,3 and the Supreme Court
    denied allocatur on February 23, 1983. O’Neill did not file a petition for writ
    of certiorari in the United States Supreme Court.           Since that time, O’Neill
    has inundated the court with numerous PCRA petitions, raising an
    assortment of requests and claims.4            None of these petitions has provided
    O’Neill any relief.
    O’Neill filed the current pro se PCRA petition on December 5, 2012.
    After determining that the petition was untimely, the PCRA court notified
    O’Neill of its intent to dismiss the petition without a hearing on October 28,
    2013. See Pa.R.Crim.P. 907. O’Neill filed a response to the Rule 907 notice
    on November 13, 2013.           On January 15, 2014, the PCRA court dismissed
    O’Neill’s petition, finding the following: “Upon review, [O’Neill]’s claim of an
    ____________________________________________
    3
    Commonwealth v. O’Neill, 
    445 A.2d 198
    (Pa. Super. 1982).
    4
    The PCRA court recited the extensive procedural history in its opinion and
    we need not restate it here.     See PCRA Court Opinion, 3/7/2014, at
    unnumbered 1-3.
    It merits mention that O’Neill filed an appeal, concerning the
    underlying matter, with our sister court, the Commonwealth Court of
    Pennsylvania, that was denied in 2012. See O’Neill v. Commonwealth
    Pa. Dep’t of Corr., 2012 Pa. Commw. Unpub. LEXIS 884 [17 M.D. 2011]
    (Pa. Commw. 2012), appeal dismissed, 2013 Pa. LEXIS 1068 [3 EAP 2013]
    (Pa., May 29, 2013).
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    unlawful sentence fails to adequately invoke an exception to the timeliness
    provision.” Order, 1/15/2014, at 1 n.1. This appeal followed.5
    “Crucial to the determination of any PCRA appeal is the timeliness of
    the underlying petition. Thus, we must first determine whether the instant
    PCRA petition was timely filed.” Commonwealth v. Smith, 
    35 A.3d 766
    ,
    768 (Pa. Super. 2011), appeal denied, 
    53 A.3d 757
    (Pa. 2012).
    The PCRA timeliness requirement … is mandatory and
    jurisdictional in nature. Commonwealth v. Taylor, 
    933 A.2d 1035
    , 1038 (Pa. Super. 2007), appeal denied, 
    597 Pa. 715
    , 
    951 A.2d 1163
    (2008) (citing Commonwealth v. Murray, 
    562 Pa. 1
    , 
    753 A.2d 201
    , 203 (2000)). The court cannot ignore a
    petition’s untimeliness and reach the merits of the petition. 
    Id. Commonwealth v.
    Taylor, 
    67 A.3d 1245
    , 1248 (Pa. 2013).                   A PCRA
    petition must be filed within one year of the date the underlying judgment
    becomes final. 42 Pa.C.S. § 9545(b)(1). A 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 review.”          42 Pa.C.S. § 9545(b)(3).   Here,
    O’Neill’s petition for allowance of appeal with the Pennsylvania Supreme
    Court was denied on February 23, 1983.              Therefore, O’Neill’s sentence
    ____________________________________________
    5
    The PCRA court did not order O’Neill to file a concise statement of errors
    complained of on appeal under Pa.R.A.P. 1925(b). Nevertheless, he filed a
    concise statement on May 15, 2014, after the PCRA court had issued an
    opinion under Pa.R.A.P. 1925(a) on March 7, 2014.
    We also note that even though the Commonwealth received an extension,
    it did not file a response in this matter.
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    became final on May 24, 1983, when his time to file a petition for writ of
    certiorari with the United States Supreme Court expired. See Sup. Ct. R. 13.
    Moreover, pursuant to Section 9545(b)(1), O’Neill had one year from the
    date his judgment of sentence became final to file a PCRA petition.        See
    
    Taylor, supra
    . The instant petition was not filed until December 5, 2012,
    almost 30 years later, making it patently untimely.6
    An untimely PCRA petition may be considered if one of the following
    three exceptions applies:
    (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). Furthermore, a PCRA petition alleging any of
    the exceptions under Section 9545(b)(1) must be filed within 60 days of
    ____________________________________________
    6
    There exists a proviso to the 1995 amendments to the PCRA that provides
    a grace period for petitioners whose judgments became final on or before
    the January 16, 1996 effective date of the amendments. However, the
    proviso applies to first PCRA petitions only, and the petition must be filed by
    January 16, 1997. See Commonwealth v. Thomas, 
    718 A.2d 326
    (Pa.
    Super. 1998) (en banc). It is evident O’Neill is not entitled to the relief
    provided by the proviso.
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    when the PCRA claim could have first been brought. 42 Pa.C.S. §
    9545(b)(2).
    O’Neill argues his claims may be considered because the requirements
    for the “governmental interference” and “unknown facts” exceptions are
    satisfied.7   O’Neill’s Brief at unnumbered 4.       Specifically, he contends the
    PCRA court erred in dismissing his petition as untimely because his sentence
    is illegal and no statutory authorization exists for this particular sentence.
    
    Id. at unnumbered
    2. He states that in 2008, he learned his criminal record
    showed incorrect convictions for 28 crimes and in December of that year, he
    was able to have these false convictions corrected and removed from his
    record.    
    Id. at unnumbered
    4.          O’Neill alleges he then began requesting
    more legal documents to examine, including his presentence report,
    psychiatric evaluation, and criminal docket sheet.8        
    Id. at unnumbered
    5.
    With respect to the docket sheet, he states that it indicates he was found
    guilty of three counts of simple assault and was sentenced to a term of five
    to ten years on each count. 
    Id. O’Neill asserts
    the jury never convicted him
    of three counts of simple assault and therefore, he is serving an illegal
    sentence.      
    Id. Moreover, he
    argues, “According to the sentencing
    ____________________________________________
    7
    O’Neill raises fives issue on appeal, which we will address together. See
    O’Neill’s Brief at unnumbered 1-2.
    8
    He states he received the presentence report and psychiatric evaluation in
    October of 2012, and the docket sheet on March 14, 2014.             
    Id. at unnumbered
    5-6.
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    guidelines, [his] prior convictions do not warrant the maximum sentence to
    be imposed on every count.” 
    Id. at unnumbered
    7. O’Neill also states both
    the pre-sentence report and the psychiatric evaluation report recommended
    a “short” sentence and “[t]here is nothing in the record that supports the
    violations of the sentencing guidelines.”   
    Id. Lastly, he
    avers that the 28
    false convictions “may have contributed” to the trial court’s determination in
    imposing a maximum sentence. 
    Id. at unnumbered
    8.
    With respect to the governmental interference exception, we conclude
    O’Neill has not met the burden of proving that such an exception applies to
    his case. While O’Neill seems to allege the government interfered with his
    ability to obtain the sentencing transcripts, he has not demonstrated that
    government officials interfered with his ability to present or assert his
    claims. According to his own statements, he did not even attempt to obtain
    the documents at issue until 2008, well after his sentencing in 1981.
    With regard to the “unknown facts” exception, we again conclude
    O’Neill has not met the burden of proving this exception applies. First, to
    the extent that he argues his sentence is illegal because the docket indicates
    he was convicted and sentenced for three counts of simple assault, we are
    guided by the following:
    “Though not technically waivable, a legality [of sentence] claim
    may nevertheless be lost should it be raised for the first time in
    an untimely PCRA petition for which no time-bar exception
    applies, thus depriving the court of jurisdiction over the claim.”
    Commonwealth v. Slotcavage, 
    2007 Pa. Super. 378
    , 
    939 A.2d 901
    , 903 (Pa. Super. 2007) (citing Commonwealth v. Fahy,
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    558 Pa. 313
    , 
    737 A.2d 214
    , 223 (Pa. 1999) (“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. Seskey, 
    86 A.3d 237
    , 241 (Pa. Super. 2014).
    Here, O’Neill has failed to demonstrate that he exercised due diligence
    in obtaining his criminal docket, which had been publicly available since his
    case was held for court in 1979. See Commonwealth v. Lopez, 
    51 A.3d 195
    , 196 (Pa. 2012) (concluding a PCRA petition is time-barred pursuant
    Section 9545(b)(1)(ii) where the information at issue was publicly available
    for years and discoverable). Therefore, O’Neill could have ascertained this
    information earlier if he had exercised due diligence. 9   He did not so, and
    therefore, this argument fails.
    Second, to the extent that O’Neill argues that his prior convictions do
    not warrant the maximum sentence to be imposed on every count where the
    ____________________________________________
    9
    We note O’Neill had several opportunities to obtain this information,
    including during to his appeal to the Commonwealth Court, which concerned
    the issue of whether the Department of Corrections had incorrectly recorded
    that his sentences be served consecutively.              See O’Neill v.
    Commonwealth Pa. Dep’t of 
    Corr., supra
    .
    Moreover, it is evident from the 1981 quarter session sheets,
    contained in the certified record, that O’Neill was charged with both
    aggravated assault and simple assault. Simple assault is a lesser included
    offense of aggravated assault. See Commonwealth v. Bracey, 
    831 A.2d 678
    , 686 (Pa. Super. 2003). In the quarter session sheets, the court
    indicated the simple assault counts merged with the aggravated assault
    convictions and the court did not impose a sentence with respect to these
    counts. As such, his argument is futile.
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    presentence report and psychiatric evaluation both recommend shorter
    sentences and the 28 false convictions were removed from his record, we
    disagree.
    Again, we note O’Neill has failed to demonstrate that he exercised due
    diligence in obtaining the presentence report and psychiatric evaluation,
    which have been available since his sentencing in 1981. See 
    Lopez, supra
    .
    Moreover, as determined by the PCRA court:
    [O’Neill] attempts to attack the discretionary aspects of
    sentencing.      Attached to his petition is a letter from the
    Pennsylvania State Police stating that his record was corrected
    to accurately reflect his prior convictions. The letter is dated
    November 25, 2008. [O’Neill] did not file the instant petition
    un[til] December 5, 2012, over four years after it could have
    been filed. Therefore, because [O’Neill] failed to raise this claim
    with[in] 60 days of when it first could have been presented, this
    Court could not review the merits of his claim and properly
    dismissed it.
    PCRA Court Opinion, 3/4/2014, at unnumbered 4. We are inclined to agree
    with the PCRA court that these facts could have been ascertained sooner,
    through the exercise of due diligence, and O’Neill failed to do so.
    Accordingly, because O’Neill’s petition is untimely and does not satisfy
    any exception to the PCRA timeliness requirement, we are without
    jurisdiction to review his claims.     Therefore, the PCRA court did not err in
    dismissing his petition as untimely.
    Order affirmed.
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    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/20/2015
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