Com. v. Pate, K. ( 2014 )

J-S49044-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KENNETH PATE
Appellant No. 575 EDA 2014
Appeal from the Order Entered January 21, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0408261-1981
BEFORE: OLSON, OTT, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 14, 2014
Appellant, Kenneth Pate, appeals pro se from the January 21, 2014
order dismissing as untimely his petition pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Also pending before this
Court is Appellant’s July 7, 2014 application for relief asking this Court to
reconsider our March 31 and May 5, 2014 orders. We affirm the PCRA
court’s order and deny Appellant’s application for relief.
On January 13, 1982, a jury found Appellant guilty of third degree
murder, conspiracy, and possession of an instrument of crime.1 On May 30,
1984, the trial court imposed ten to twenty years of incarceration for
murder, a consecutive five to ten years of incarceration for conspiracy, and a
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1
18 Pa.C.S.A. §§ 2502(c), 903, 907.
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consecutive two and one half to five years for possession of an instrument of
crime.
Appellant did not file an immediate direct appeal, but later sought and
received permission to file a nunc pro tunc direct appeal. This Court
affirmed the judgment of sentence on December 3, 1992 and our Supreme
Court denied allowance of appeal on October 1, 1993. Appellant filed his
first PCRA petition on August 3, 1994. The PCRA court dismissed that
petition without a hearing, and this Court affirmed on January 18, 1996.
Our Supreme Court denied allowance of appeal on March 18, 1996.
Appellant filed the instant petition on December 12, 2011. On May 30,
2012, the PCRA court entered notice of its intent to dismiss the petition.
Appellant responded with several filings that the PCRA court construed as
amendments to the December 12, 2011 petition. On January 21, 2014, the
PCRA court dismissed Appellant’s petition. This timely pro se appeal
followed.
The instant PCRA petition, filed nearly two decades after Appellant’s
judgment of sentence became final, is facially untimely under § 9545(b) of
the PCRA:
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:
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(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.
42 Pa.C.S.A. § 9545(b). Section 9545’s timeliness provisions are
jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).
Appellant argues the timeliness provisions do not apply because his
sentence is illegal. He is incorrect, as an illegal sentence is not an exception
to the PCRA court’s timeliness requirement. Commonwealth v. Grafton,
928 A.2d 1112, 1114 (Pa. Super. 2007). In addition, Appellant’s assertion
of sentence illegality is nothing more than a rehashing of substantive
arguments – including alleged deprivation of his right to a speedy trial –
which previous courts have reviewed and rejected.2
Order affirmed. Application for relief denied.
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2
In our March 31, 2014 order, we explained to Appellant that the only issue
before this Court is the timeliness of Appellant’s PCRA petition. As we have
concluded the petition is indeed untimely, we are without jurisdiction to
order any relief. We therefore deny Appellant’s pending application for
relief.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2014
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