Com. v. Breeden, W. ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
WILLIAM L. BREEDEN, : No. 555 EDA 2018
:
Appellant :
Appeal from the PCRA Order, April 5, 2017,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0009137-2007
BEFORE: OLSON, J., STABILE, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 23, 2018
William L. Breeden, appeals pro se from the April 5, 2017 order
dismissing his second petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
The PCRA court provided the following synopsis of the procedural
history of this case:
The charges filed against [appellant] arose out of an
incident that occurred on December 12, 2006, during
which [appellant] and Brian Burns committed an
armed robbery of Anthony DeShields and
Azeem Jordan. During the incident, Mr. Jordan was
shot and killed. Upon being arrested, [appellant]
confessed to the crime.
Following the imposition of sentence, [appellant]
appealed to the Superior Court, which on June 25,
2010, affirmed the judgment of sentence.
Commonwealth v. Breeden, [4 A.3d 699(Pa.Super. 2010) (unpublished memorandum)].
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[Appellant] thereafter filed a petition for allowance of
appeal, which the Pennsylvania Supreme Court
denied on December 10, 2010.[1]
On August 22, 2011, [appellant] timely filed a
pro se PCRA petition following which counsel was
appointed to represent him. On April 13, 2012,
appointed counsel filed an amended petition. After
supplying [appellant] with a Pa.R.Crim.P. 907 notice,
[the PCRA court] denied [appellant] PCRA relief
without a hearing on March 1, 2013. Subsequent
thereto, [appellant] filed a timely notice of appeal as
well as a requested Pa.R.A.P. 1925(b) notice. On
January 23, 2014, the Superior Court affirmed the
order denying [appellant] PCRA relief.
[Commonwealth v. Breeden, 96 A.3d 1090(Pa.Super. 2014 (unpublished memorandum).]
Appellant thereafter filed a petition for allowance of
appeal which the Pennsylvania Supreme Court
denied on June 20, 2014. [Commonwealth v.
Breeden, 94 A.3d 1007 (Pa. 2014).]
On January 5, 2016, [appellant] filed a document
entitled “Concise statement in support of this matter
complained on the PCRA”, which [the PCRA court]
treated as a second PCRA petition. In it, [appellant]
appears to be arguing that his current petition
should be treated as a timely nunc pro tunc PCRA
filing because he first learned on November 10,
2015, that his second PCRA petition, which he claims
he mailed to the [PCRA court] in March of 2015, had
not been filed. He adds that because his most recent
filing was filed within sixty days of November 10,
2015, his most recent filing was timely filed and that
he should be permitted to litigate his claim that
PCRA counsel provided him with ineffective
assistance of counsel on his claim that trial counsel
deprived him of his right to testify.[Footnote 3]
[Footnote 3] That claim was raised by
PCRA counsel and was determined to be
lacking in merit by [the PCRA court], a
1 Commonwealth v. Breeden, 13 A.3d 474 (Pa. 2010).
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decision affirmed by the Superior Court.
[Appellant] currently appears to be
arguing that PCRA counsel was
ineffective because the argument set
forth in support of the claim was
erroneous.
In his [petition, appellant] raises several claims of
ineffectiveness and alleges that [the PCRA court]
erred by not granting him hearings on those claims.
He also contends that [the PCRA court] erred by not
vacating the concurrent sentence of ten to twenty
years imposed on the robbery bill because that
charge merged with the life sentence imposed on the
second-degree murder charge.
On March 23, 2016, [appellant] filed an amended
PCRA petition wherein he asserted that when he
committed the killing he was twenty[ ]years old and
had a deprived childhood. He argues that because of
that and delayed development the cases of Miller v.
Alabama, 567 U.S. 460 (2012), and Montgomery
v. Louisiana, U.S. , 136 S.Ct. 718 (2016),
require that his life sentence without parole be
vacated and that he be resentenced.[2]
PCRA court opinion, 5/1/17 at 1-3 (footnotes 1 and 2 omitted).
On March 6, 2017, the PCRA court issued a notice of intent to dismiss
appellant’s second PCRA petition pursuant to Pa.R.Crim.P. 907. Appellant
did not file a response, and the PCRA court dismissed appellant’s petition on
April 5, 2017. On April 20, 2017, appellant filed a timely notice of appeal to
this court. The PCRA court did not order appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
2 Appellant did not raise this issue on appeal.
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On May 1, 2017, the trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a).
In reviewing appellant’s brief, we note that appellant failed to include a
statement of questions involved pursuant to Pa.R.A.P. 2116. The issue
appellant appears to raise is whether PCRA counsel provided him with
effective assistance of counsel.
Subsequent PCRA petitions beyond a petitioner’s first petition are
subject to the following standard:
A second or subsequent petition for post-conviction
relief will not be entertained unless a strong
prima facie showing is offered to demonstrate that
a miscarriage of justice may have occurred.
Commonwealth v. Allen, [] 141, 732 A.2d 582,
586 ([Pa. ]1999). A prima facie showing of
entitlement to relief is made only by demonstrating
either that the proceedings which resulted in
conviction were so unfair that a miscarriage of
justice occurred which no civilized society could
tolerate, or the defendant’s innocence of the crimes
for which he was charged. [Id.] at 586. Our
standard of review for an order denying
post-conviction relief is limited to whether the trial
court’s determination is supported by evidence of
record and whether it is free of legal error.
Commonwealth v. Jermyn, [] 709 A.2d 849, 856
([Pa. ]1998).
A PCRA petition, including a second or subsequent
petition, must be filed within one year of the date
that judgment of sentence becomes final.
42 Pa.C.S.[A.] § 9545(b)(1). A judgment becomes
final for purposes of the PCRA “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.[A.]
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§ 9545(b)(3). PCRA time limits are jurisdictional in
nature, implicating a court’s very power to
adjudicate a controversy. Commonwealth v. Fahy,
[] 737 A.2d 214 ([Pa. ]1999). Accordingly, the
“period for filing a PCRA petition is not subject to the
doctrine of equitable tolling;” instead, the time for
filing a PCRA petition can be extended only if the
PCRA permits it to be extended, i.e., by operation of
one of the statutorily enumerated exceptions to the
PCRA time-bar. Id. [] at 222.
Commonwealth v. Ali, 86 A.3d 173, 176-177 (Pa. 2014), cert. denied,
135 S.Ct. 707 (2014).
As noted above, a PCRA petitioner has one year from the date his or
her judgment of sentence becomes final in which to file a PCRA petition.
This court has held the following regarding when a judgment becomes final:
The plain language of the PCRA provides that a
judgment of sentence becomes final at the
conclusion of direct review or when the time for
seeking direct review expires. See 42 Pa.C.S.A.
§ 9545(b)(3). In fixing the date upon which a
judgment of sentence becomes final, the PCRA does
not refer to the conclusion of collateral review or the
time for appealing a collateral review determination.
Thus, the plain language of the PCRA statute shows
that a judgment of sentence becomes final
immediately upon expiration of the time for seeking
direct review, even if other collateral proceedings are
still ongoing. As this result is not absurd or
unreasonable, we may not look for further
manifestations of legislative intent. See
Commonwealth v. Hall, [] 80 A.3d 1204, 1211
(2013) (internal quotation marks omitted) (We may
“look beyond the plain language of the statute only
when words are unclear or ambiguous, or the plain
meaning would lead to a result that is absurd,
impossible of execution or unreasonable.”).
Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa.Super. 2014).
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In the case before us, this court affirmed appellant’s judgment of
sentence on June 25, 2010. Our supreme court denied appellant’s petition
for allowance of appeal on December 10, 2010. Appellant did not file a writ
of certiorari with the Supreme Court of the United States. Accordingly,
appellant’s judgment of sentence became final on March 10, 2011. See
U.S.Sup.Ct.R. 13. Appellant filed the instant petition on January 5, 2016—
nearly four years after a PCRA petition could be considered facially timely.
See 42 Pa.C.S.A. 9545(b)(1).
A petitioner may nevertheless overcome the one-year time-bar under
the PCRA after one year has passed from the final judgment of sentence if
he or she pleads and proves any of the following reasons:
(i) [T]he 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) [T]he 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) [T]he 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.
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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Section 9545 also mandates that any
petition filed under these exceptions must be filed within 60 days of the date
the claim could have been presented. Id. at § 9545(b)(2).
In his sole issue on appeal, appellant alleges ineffective assistance of
counsel on the part of his PCRA counsel, Janis Smarro, Esq., during the
litigation of his first petition filed pursuant to the PCRA.
Appellant does not plead any of the enumerated exceptions to the
PCRA’s time-bar. Throughout his brief, he appears to allege interference on
the part of the Commonwealth pursuant to 42 Pa.C.S.A. § 9545(b)(1)(i) in
the litigation of his habeas corpus petition filed with the United States
District Court for the Eastern District of Pennsylvania. Any alleged
interference on the part of the Commonwealth in federal habeas corpus
litigation would have no impact on any serial PCRA petitions appellant would
wish to file. “There is no reason why federal habeas petitions and serial
state collateral petitions cannot proceed simultaneously. . . . The PCRA does
not require or authorize such delay; nor do [the Supreme] Court’s
procedural Rules.” Commonwealth v. Porter, 35 A.3d 4, 17 (Pa. 2012).
Accordingly, appellant has not pled or proven any of the enumerated
exceptions to the PCRA time-bar. Therefore, the PCRA court properly
dismissed appellant’s petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/23/18
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