Com. v. Richardson, T. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
THOMAS ALONZO RICHARDSON, :
:
Appellant : No. 870 MDA 2016
Appeal from the PCRA Order July 7, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No.: CP-22-CR-0001964-1977
BEFORE: GANTMAN, P.J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 08, 2017
Appellant, Thomas Alonzo Richardson, appeals pro se from the July 7,
2015 Order entered in the Court of Common Pleas of Dauphin County
dismissing as untimely his seventh Petition filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful
review, we affirm on the basis that Appellant’s PCRA Petition is untimely and
this Court, thus, lacks jurisdiction to review the Petition.
The underlying facts, as summarized in this Court’s memorandum
decision disposing of Appellant’s direct appeal from the denial of his sixth
PCRA Petition, are as follows:
On November 9, 1977, Appellant and an accomplice entered a
bar in Harrisburg, shot and killed the bartender, and pistol-
whipped four people. A jury convicted Appellant of third degree
murder and five counts of aggravated assault on February 15,
1978. Appellant also pled guilty to robbery and simple assault
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on March 14, 1978. On May 10, 1978, the court sentenced
Appellant to an aggregate term of thirty-five (35) to seventy
(70) years’ imprisonment. This Court affirmed the judgment of
sentence on June 28, 1979.
Appellant filed his first PCRA petition in January 1988. The PCRA
court denied the petition on November 15, 1990, and this Court
affirmed the decision on July 15, 1991. Between 1995 and
2011, Appellant filed numerous PCRA petitions, all of which were
unsuccessful.
Commonwealth v. Richardson, No. 1117 MDA 2013, unpublished
memorandum at 1-2 (Pa. Super. filed April 2, 2014).1
On January 14, 2015, Appellant filed the instant pro se PCRA Petition,
his seventh, claiming his sentence is illegal. On June 9, 2015, the PCRA
court issued notice of its intent to dismiss without a hearing pursuant to
Pa.R.Crim.P. 907. Appellant responded pro se on June 25, 2015, and June
30, 2015. On July 7, 2015, the PCRA court dismissed Appellant’s PCRA
Petition.
On July 17, 2015, Appellant timely filed a pro se Notice of Appeal.
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents two issues for our review:
1. Whether the [PCRA] court erred when it dismissed
[Appellant’s] successive PCRA [P]etition seeking review and a full
evidentiary hearing upon an outstanding on the record legal
error of an imposed illegal sentence with evidence proffered?
1
This Court noted that, “The chief complaint raised in Appellant’s [sixth]
petition is the legality of his sentence.” Commonwealth v. Richardson,
No. 1117 MDA 2013, unpublished memorandum at 2 n.1 (Pa. Super. filed
April 2, 2014).
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2. Whether the Superior Court was [misled] by Judge Hoover on
7/12/2013, when he told Judge D.E. Curcillo, that her order to
show cause why [A]ppellant shouldn’t be furnished a certified
copy of his co-defendant[’]s sentencing transcripts which he
desire[d] to furnish to the Superior Court in a pending appeal
No.-1117-MDA-2013, that “…no matters were pending which
require the sentence transcripts and that Judge Curcillo should
not entertain any evidence appellant offers upon same.[”] That
entire situation should be deemed government interference
because this Superior Court was pending disposition of No-
1117[-]MDA-2013 which Judge Hoover was the lower court
opinion judge. Therefore he [] caused appellant enability [sic] to
furnish the Superior Ct. with that appellant could obtain relief via
a PCRA/Writ and with the sentence for comparison of an illegal
sentence matter.
Appellant’s Brief at 3.
We review the denial of a PCRA Petition to determine whether the
record supports the PCRA court’s findings and whether its Order is otherwise
free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
2014). There is no right to a PCRA hearing; a hearing is unnecessary where
the PCRA court can determine from the record that there are no genuine
issues of material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.
Super. 2008).
Before addressing the merits of Appellant’s claims, we must first
determine whether we have jurisdiction to entertain the underlying PCRA
Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)
(explaining that the timeliness of a PCRA Petition is a jurisdictional
requisite).
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Under the PCRA, any Petition “including a second or subsequent
petition, shall be filed within one year of the date the judgment becomes
final[.]” 42 Pa.C.S. § 9545(b)(1). A Judgment of Sentence 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 the review.” 42 Pa.C.S. §
9545(b)(3). The PCRA’s timeliness requirements are jurisdictional in nature,
and a court may not address the merits of the issues raised if the PCRA
petition was not timely filed. Commonwealth v. Albrecht, 994 A.2d 1091,
1093 (Pa. 2010).
Here, Appellant’s Judgment of Sentence became final on July 30,
1979, upon expiration of the time to file a Petition for Allowance of Appeal
with our Supreme Court.2 See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 1113(a).
In order to be timely, Appellant needed to submit his PCRA Petition by July
30, 1980. Id. Appellant filed this PCRA Petition on January 14, 2015, more
than thirty-five years after his Judgment of Sentence became final. The
PCRA court properly concluded that Appellant’s Petition is facially untimely.
PCRA Court Opinion, dated 9/12/16, at 2-3.
Pennsylvania courts may consider an untimely PCRA petition, however,
if the appellant pleads and proves one of the three exceptions set forth in 42
Pa.C.S. § 9545(b), which provides the following:
2
July 28, 1979, was a Saturday. See 1 Pa.C.S. § 1908.
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(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 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)(1)-(2). See, e.g., Commonwealth v. Lark, 746
A.2d 585, 588 (Pa. 2000) (reviewing specific facts that demonstrated the
claim had been timely raised within 60-day timeframe).
Here, Appellant attempts to invoke the timeliness exception under
Section 9545(b)(1)(i) to challenge the legality of his sentence, averring that
the trial court interfered with his attempts to obtain the sentencing transcript
of his accomplice and codefendant. Appellant’s Brief at 16-18.
“[A] court is not required to comply with a defendant’s request for
transcripts in order to pursue relief in a PCRA proceeding where no such
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action is pending.” Commonwealth v. Crider, 735 A.2d 730, 733 (Pa.
Super. 1999). “[I]t is well settled that a defendant need not possess
transcripts and other court documents before pursuing post-conviction
relief.” Id.
In support of his claim of a timeliness exception, Appellant baldly
avers that his family members prepaid the Clerk of Courts for these
transcripts. Appellant’s Brief at 18. When the Clerk of Courts stated that
they could not release the transcript in question without a court order,
Appellant “petitioned the lower court for an order to have the pre-paid
transcripts of his co-defendant released.” Id. On July 12, 2013, the PCRA
court entered an Order refusing to entertain Appellant’s petition, effectively
denying Appellant’s request and stating, “No matters are pending before this
court, and no issues exist in the pending appeal, which require the
production of transcripts.” Order, filed 7/12/13, at 1.
We agree with the PCRA court’s assessment. At the time of
Appellant’s request, Appellant did not have a PCRA petition pending.
Consequently, we disagree with Appellant’s contention that the trial court
committed governmental interference with his ability to pursue PCRA relief
by denying his request for transcripts from his codefendant’s case. See
Crider, supra. We note that a lack of transcripts did not prevent Appellant
from filing the instant PCRA Petition.
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Accordingly, the PCRA court properly concluded that Appellant failed to
plead and prove any of the timeliness exceptions provided in 42 Pa.C.S. §
9545(b)(1), and properly dismissed Appellant’s Petition as untimely. See
PCRA Court Opinion at 2-3. We, thus, affirm the denial of PCRA relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/8/2017
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