Com. v. Armstead, 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
WILL ARMSTEAD, : No. 3623 EDA 2017
:
Appellant :
Appeal from the PCRA Order, October 10, 2017,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0403191-2004
BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 23, 2018
Will Armstead appeals, pro se, from the October 10, 2017 order of the
Court of Common Pleas of Philadelphia County dismissing without a hearing
his second pro se petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.1
The PCRA court provided the following procedural history:
On June 23, 2004, [appellant] pled guilty to
aggravated assault, attempted murder, and two
counts of possession of an instrument of crime
before the Honorable Carolyn Engel Temin. On
August 18, 2004, [appellant] was sentenced to 15 to
30 years of imprisonment for the attempted murder
1 On August 24, 2018, the Commonwealth filed a notice pursuant to
Pennsylvania Rule of Professional Conduct 1.12(c)(2), informing both
appellant and this court that Philadelphia County First Assistant District
Attorney Carolyn Temin had previously participated as a trial judge in this
case and “has disqualified herself and screened herself from any
participation in this matter.”
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bill to run consecutively with five (5) to ten (10)
years of imprisonment for the aggravated assault
bill. [Appellant], subsequently, filed a direct appeal
and on June 13, 2005, the Pennsylvania Superior
Court affirmed the trial court’s judgment of
sentence.[Footnote 2] The Pennsylvania Supreme
Court, subsequently, denied allocatur on
December 7, 2005.[Footnote 3]
[Footnote 2] Commonwealth v.
Armstead, 881 A.2d 977 (Pa.Super.
2004).
[Footnote 3] Commonwealth v.
Armstead, 8[9]0 A.2d 1055 (Pa. 2005).
On June 26, 2006, [appellant] filed a pro se petition
pursuant to the [PCRA.] Counsel was appointed and
after an evidentiary hearing, the PCRA court
dismissed the petition on May 4, 2007. The Superior
Court affirmed the dismissal of the petition on June
25, 2008, followed by the Pennsylvania Supreme
Court’s denial of allocatur on October 29,
2008.[Footnote 4]
[Footnote 4] Commonwealth v.
Armstead, 959 A.2d 456 (Pa.Super.
2008) (unpublished memorandum),
appeal denied, 960 A.2d 454 (Pa.
2008).
On August 10, 2015, [appellant] filed the instant
pro se PCRA petition, styled as a writ of habeas
corpus. An amended petition was filed on April 10,
2017. [The PCRA] court sent a notice of its intent to
dismiss the petition as untimely without exception on
July 21, 2017. [Appellant] filed a response to the
[Pa.R.Crim.P.] 907 notice on August 2, 2017. The
PCRA petition was formally dismissed by [the PCRA]
court on October 10, 2017. [Appellant] timely filed a
notice of appeal to the Pennsylvania Superior Court
on October 30, 2017.
PCRA court opinion, 2/2/18 at 1-2 (footnote 5 omitted).
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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). The PCRA
court filed an opinion pursuant to Pa.R.A.P. 1925(a) on February 2, 2018.
Appellant raises the following issues for our review:
[1.] Whether the PCRA court erred in denying
appellant [sic] petition to withdraw his guilty
plea[?]
[2.] [Whether the] PCRA court further violated its
oath of office, substantive/procedural due
process rights by ignoring/refusing to grant
relief where sentence imposed of 20-40 years
lacked statutory authorization[?]
Appellant’s brief at 7 (full capitalization omitted).
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, 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
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that judgment of sentence becomes final. 42 Pa.C.S.
§ 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 the expiration of
time for seeking the review.” 42 Pa.C.S.
§ 9543(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 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). We must first determine if the PCRA court properly
dismissed appellant’s PCRA petition as untimely.
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 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 (Pa.
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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).
In the instant case, our supreme court denied appellant’s petition for
allowance of appeal on December 7, 2005. Appellant did not file a writ of
certiorari to the Supreme Court of the United States. Accordingly,
appellant’s judgment of sentence became final on March 7, 2006. Appellant
filed the instant petition on August 10, 2015—more than nine years after his
judgment of sentence became final and more than eight years after a PCRA
petition could be considered timely. See 42 Pa.C.S.A. § 9545(b)(1).
As noted above, the PCRA does enumerate exceptions to the one-year
requirement. A petitioner may file a petition under the PCRA after one year
has passed from the final judgment of sentence for any of the following
reasons:
(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.
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 the instant appeal, appellant fails to demonstrate any of the
exceptions to the PCRA time-bar. Rather, appellant appears to argue that
his guilty plea was involuntary and unlawfully induced. (Appellant’s brief
at 12.) Therefore, we cannot consider appellant’s appeal on its merits.2
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/23/18
2Even if we were to consider appellant’s appeal, his claim would nonetheless
not be cognizable under the PCRA, as it has been previously litigated.
42 Pa.C.S.A. § 9544(a)(2)-(3). Appellant raised an issue of the
voluntariness of his guilty plea on direct appeal and in his first PCRA petition
as part of an ineffective assistance of counsel claim. See Commonwealth
v. Armstead, 881 A.2d 877 (Pa.Super. 2004) (unpublished memorandum),
appeal denied, 890 A.2d 1055 (Pa. 2005); Commonwealth v. Armstead,
959 A.2d 456 (Pa.Super. 2008) (unpublished memorandum), appeal
denied, 960 A.2d 454 (Pa. 2008).
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