Com. v. Capers, D. ( 2015 )

J-S06025-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DONALD CAPERS
Appellant No. 384 EDA 2014
Appeal from the PCRA Order December 17, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0807282-1997
BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 20, 2015
Donald Capers appeals, pro se, from the order of the Court of Common
Pleas of Philadelphia County that dismissed his petition brought pursuant to
the Post Conviction Relief Act.1 After careful review, we affirm.
On January 7, 1999, Capers was convicted of murder in the second
degree and related offenses. The court sentenced him to life imprisonment
for murder, and imposed additional sentences of 2½ to 5 years’
incarceration for possessing an instrument of crime and 10 to 20 years’
incarceration for conspiracy. Capers did not file a direct appeal.
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*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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After reinstatement of his appellate rights, Capers filed a direct appeal
on April 19, 2001. On January 14, 2003, based upon the failure of Capers’
counsel to file a brief, this Court quashed the appeal without prejudice to file
another petition requesting nunc pro tunc reinstatement of his right to a
direct appeal.
On August 19, 2004, Capers filed a pro se PCRA petition. Appointed
counsel filed an amended petition on January 19, 2005, and a supplemental
amended petition on March 31, 2005. The PCRA court dismissed the petition
on timeliness grounds on December 20, 2005. This Court affirmed,
Commonwealth v. Capers, 913 A.2d 938 (Pa. Super. 2006) (unpublished
memorandum), and our Supreme Court denied allowance of appeal.
Commonwealth v. Capers, 919 A.2d 954 (Pa. 2007).
Capers filed a habeas corpus petition on May 1, 2008, and an
amended petition on July 30, 2012. On October 1, 2013, the court sent
Capers a notice of intent to dismiss the petition pursuant to Pennsylvania
Rule of Criminal Procedure 907.2 Capers failed to file a response, and on
December 17, 2013, the court dismissed the petition as untimely.
This appeal followed, in which Capers raises the following issue for our
review:
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2
The order further stated that the PCRA encompasses the remedy of habeas
corpus, citing Commonwealth v. Peterkin, 722 A.2d 638 (Pa. 1998).
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Whether the PCRA court erred in dismissing [Capers’] PCRA
petition where, [Capers] demonstrated therein that a
miscarriage of justice occurred during his 1999 state trial when
the Commonwealth’s attorney knowingly presented the false
testimony of co-defendant Aaron Moore; or, allowed such
testimony to go uncorrected, in violation of [Capers’] Fourteenth
Amendment right to due process and equal protection of law?
Appellant’s Brief, at 4.
“Our 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. The PCRA court’s findings will not be disturbed unless
there is no support for the findings in the certified record.”
Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)
(citations omitted).
Section 9545 of the PCRA provides in relevant part:
(b) Time for filing petition. –
(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
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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.
(3) For purposes of this subchapter, a judgment
becomes 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.
(4) For purposes of this subchapter, “government
officials” shall not include defense counsel, whether
appointed or retained.
42 Pa.C.S. § 9545(b).
Capers’ judgment of sentence became final on February 13, 2003,
when he failed to file a petition for allowance of appeal from this Court’s
order dismissing his direct appeal. See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P.
1113. He had one year from that date in which to file “any petition . . .
including a second or subsequent petition” seeking post-conviction relief.
See 42 Pa.C.S. § 9545(b)(1). Capers filed the instant petition on May 1,
2008, which was more than four years after his judgment of sentence
became final.
A court has no jurisdiction to consider an untimely PCRA petition.
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003).
Therefore, the PCRA court lacked jurisdiction to consider Capers’ petition
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unless he could meet one of the enumerated exceptions included in Section
9545(b)(1)(i)-(iii).
Because Capers has not proven any of the exceptions to the statutory
time bar, the PCRA court did not err in concluding that it lacked jurisdiction
to address the issues raised in Capers’ petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/20/2015
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