Com. v. Howard, M. ( 2018 )

J-S41042-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MICHAEL L. HOWARD :
:
Appellant : No. 2718 EDA 2017
Appeal from the PCRA Order August 4, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002767-2010
BEFORE: GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.
MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 05, 2018
Appellant, Michael L. Howard, appeals pro se from the order entered in
the Philadelphia County Court of Common Pleas, which denied his second
petition brought pursuant to the Post-Conviction Relief Act (“PCRA”) at 42
Pa.C.S.A. §§ 9541-9546. We affirm.
The relevant facts and procedural history of this case are as follows. On
August 9, 2011, the court convicted Appellant of possession with intent to
distribute, possession of a controlled substance, possession of drug
paraphernalia, possession of an instrument of crime, conspiracy, and persons
not to possess firearms. On September 23, 2011, the court sentenced
Appellant to an aggregate term of 15 to 30 years’ imprisonment. This Court
affirmed the judgment of sentence on March 19, 2013, and our Supreme Court
denied Appellant’s petition for an allowance of appeal on August 28, 2013.
____________________________________
* Former Justice specially assigned to the Superior Court.
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See Commonwealth v. Howard, 64 A.3d 1082 (Pa.Super. 2013), appeal
denied, 621 Pa. 114, 74 A.3d 118 (2013).
On November 4, 2013, Appellant timely filed his first PCRA petition pro
se and an amended pro se petition on August 28, 2014, that raised a
sentencing claim under Alleyne v. United States, 570 U.S. 99, 133 S.Ct.
2151, 186 L.Ed.2d 314 (2013). The PCRA court appointed counsel, who filed
an amended PCRA petition, without the Alleyne challenge, on September 29,
2014. On June 22, 2015, the PCRA court issued notice of its intent to dismiss,
per Pa.R.Crim.P. 907; and, on August 7, 2015, the PCRA court denied relief.
This Court affirmed the denial of PCRA relief on March 28, 2017. See
Commonwealth v. Howard, 168 A.3d 351 (Pa.Super. 2017) (unpublished
memorandum). On May 23, 2017, Appellant filed pro se the current PCRA
petition, which asserted the governmental interference exception to the PCRA
time-bar and claimed the first PCRA court, and this Court on appeal, failed to
address the Alleyne challenge Appellant had raised in his pro se amended
first PCRA petition back in 2014. The PCRA court issued Rule 907 notice on
June 9, 2017, and denied relief on August 4, 2017. On August 14, 2017,
Appellant timely filed a pro se notice of appeal. The PCRA court did not order
and Appellant did not file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b).
Appellant raises the following issue for our review:
WHETHER THE PCRA COURT ERRED BY DISMISSING
[APPELLANT’S] PCRA PETITION CONCLUDING THAT
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APPELLANT DID NOT MEET THE GOVERNMENTAL
[INTERFERENCE] SECTION AND FACTS UNKNOWN
SECTION WHERE THE APPELLATE COURT OVERLOOKED
APPELLANT’S ILLEGAL SENTENCE CLAIM UNDER ALLEYNE
WHICH WAS PRESERVED BY APPELLANT IN THE PREVIOUS
APPEAL?
(Appellant’s Brief at 5).
Notwithstanding the phrasing of Appellant’s issue presented on appeal,
he argues he properly raised a challenge to his sentence under Alleyne in his
pro se amended first PCRA petition in 2014, but counsel’s amended PCRA
petition excluded that issue; and this Court overlooked it and did not address
it sua sponte on appeal. Appellant contends these omissions constitute
governmental interference to meet that exception to the PCRA time-bar.
Appellant submits he raised this claim in his current PCRA petition, which he
filed within 60 days of this Court’s March 28, 2017 decision on appeal.
Appellant avers his illegal sentence challenge is non-waivable because he
previously raised it in the PCRA court. Appellant concludes his sentence under
Section 9712.1 is unconstitutional per Alleyne and Commonwealth v.
Newman, 99 A.3d 86 (Pa.Super. 2014), and this Court must vacate the
sentence. We cannot agree.
As a preliminary matter, the timeliness of a PCRA petition is a
jurisdictional requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super.
2016). No court has jurisdiction to review an untimely PCRA petition.
Commonwealth v. Albrecht, 606 Pa. 64, 994 A.2d 1091 (2010). A PCRA
petition must be filed within one year of the date the underlying judgment
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becomes final. 42 Pa.C.S.A. § 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.A. § 9545(b)(3). The three
statutory exceptions to the PCRA timeliness provisions allow for very limited
circumstances under which the late filing of a petition will be excused. 42
Pa.C.S.A. § 9545(b)(1).
To meet the governmental interference exception to the PCRA time-bar,
a petitioner must plead and prove that government officials prevented him
from raising a claim. 42 Pa.C.S.A. § 9545(b)(1)(i); Commonwealth v.
Crawley, 559 Pa. 9, 12, 739 A.2d 108, 110 (1999). See also
Commonwealth v. Yarris, 557 Pa. 12, 24-25, 731 A.2d 581, 577 (1999)
(stating appointed counsel does not qualify as government official for
purposes of Section 9545(b)(1)(i)). Importantly, a court must have a
legitimate jurisdictional basis to entertain a legality of sentence claim, even if
a sentencing error is obvious. Commonwealth v. Jackson, 30 A.3d 516(Pa.Super. 2011), appeal denied, 616 Pa 634, 47 A.3d 845 (2012). If the
claim is raised in a patently untimely PCRA petition, the petitioner must first
overcome certain jurisdictional hurdles to correct his sentence. Id. at 522.
Instantly, this Court affirmed the judgment of sentence on March 19,
2013, and our Supreme Court denied Appellant’s petition for an allowance of
appeal on August 28, 2013. Appellant sought no further review, so the
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judgment of sentence became final on or about November 26, 2013, following
expiration of the 90-days for filing a petition for certiorari with the U.S.
Supreme Court. See U.S.Sup.Ct. Rule 13. Appellant filed his current PCRA
petition on May 23, 2017, which is patently untimely.
To resolve his timeliness problem, Appellant asserted the governmental
interference exception to the PCRA time-bar to assert his Alleyne issue.
Appellant, however, failed to prove the exception because government
officials did not prevent him from raising an Alleyne claim. See 42 Pa.C.S.A.
§ 9545(b)(1)(i); Crawley, supra. Although Appellant introduced an Alleyne
question in his amended pro se first PCRA petition, his appointed counsel
abandoned it, and counsel’s decision does not qualify as interference of
government officials. See Yarris, supra. Likewise, this Court’s failure to
address the claim sua sponte in its disposition on appeal from the denial of
the first PCRA petition does not satisfy the governmental interference
exception to the statutory time-bar. See 42 Pa.C.S.A. § 9545(b)(1). Thus,
Appellant’s current petition remains time-barred, and the PCRA court lacked
jurisdiction to review it.1 See Zeigler, supra; Jackson, supra. Accordingly,
we affirm.
Order affirmed.
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1 We are unable to confirm in the certified record that Appellant actually
received any mandatory minimum sentence, which might explain how and
why counsel abandoned it in the first PCRA petition and this Court did not raise
it sua sponte on appeal from the denial of the first PCRA petition.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/5/18
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