Com. v. Brown, K. ( 2014 )

J-S52039-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KAREEN BROWN
Appellant No. 984 EDA 2014
Appeal from the PCRA Order February 25, 2014
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0000837-2007
BEFORE: GANTMAN, P.J., ALLEN, J., and FITZGERALD, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 29, 2014
Appellant, Kareen Brown, appeals from the order entered in the
Chester County Court of Common Pleas, dismissing as untimely his first
1
We
affirm.
The relevant facts and procedural history of this case are as follows.
Appellant robbed a Kentucky Fried Chicken restaurant at gunpoint on June 8,
2005. On May 15, 2008, at the conclusion of a three-day trial in which
Appellant represented himself, a jury convicted Appellant of seven (7)
counts of robbery, one (1) count of aggravated assault, and related charges.
____________________________________________
1
42 Pa.C.S.A. §§ 9541-9546.
_____________________________
*Former Justice specially assigned to the Superior Court.
J-S52039-14
The trial court imposed an aggregate sentence of sixteen (16) to thirty-two
affirmed the judgment
of sentence on April 9, 2010. On September 24, 2010, the Pennsylvania
Appellant subsequently filed a petition for a writ of certiorari with the United
States Supreme Court, which the Court denied on March 7, 2011. See
Commonwealth v. Brown, 998 A.2d 1002 (Pa.Super. 2010) (unpublished
memorandum), appeal denied, 608 Pa. 615, 8 A.3d 341 (2010), cert.
denied, ___ U.S. ___, 131 S.Ct. 1616, 179 L.Ed.2d 511 (2011).
Appellant filed the current pro se PCRA petition on July 26, 2013. On
July 30, 2013, the PCRA court appointed counsel, who filed an amended
petition on August 26, 2013. On December 2, 2013, the PCRA court issued
tition without a hearing, pursuant
to Pa.R.Crim.P. 907. After Appellant filed a reply and the PCRA court issued
an amended Rule 907 notice, the court dismissed the petition on February
25, 2014. On March 25, 2014, Appellant timely filed a notice of appeal. On
April 15, 2014, the PCRA court ordered Appellant to file a concise statement
of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b), and
Appellant timely complied.
Appellant raises the following issue for our review:
WHETHER THE [PCRA] COURT ERRED BY DISMISSING
PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME
-2-
J-S52039-14
COURT OF THE UNITED STATES HAD BEEN DENIED AND
APPELLANT FILED HIS PCRA PETITION BEYOND THE TIME
LIMIT SET BY STATUTE?
-4).
PCRA petition was timely. Commonwealth v. Hutchins, 760 A.2d 50(Pa.Super. 2000). The timeliness of a PCRA petition is a jurisdictional
requisite. Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008),
cert. denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009). A
court may not examine the merits of a petition for post-conviction relief that
is untimely. Commonwealth v. Abu-Jamal, 574 Pa. 724, 735, 833 A.2d
719, 726 (2003). A PCRA petition must be filed within one year of the date
the underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A
view, 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
timeliness provisions in the PCRA allow for very limited circumstances under
which the late filing of a petition will be excused. To invoke an exception, a
petition must allege and the petitioner must prove:
(i) the failure to raise a 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;
-3-
J-S52039-14
(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)(1)(i)-(iii). A petitioner asserting a timeliness
exception must file a petition within sixty days of the date the claim could
petition is not filed within one year of the expiration of direct review, or not
eligible for one of the three limited exceptions, or entitled to one of the
exceptions, but not filed within 60 days of the date that the claim could have
been first brought, the trial court has no power to address the substantive
Commonwealth v. Gamboa-Taylor,
562 Pa. 70, 77, 753 A.2d 780, 783 (2000). For purposes of the timeliness
exception regarding the discovery of new facts, due diligence demands that
the petitioner take reasonable steps to protect his own interests, and the
petitioner must explain why he could not have obtained the new fact earlier
with the exercise of due diligence; this rule is strictly enforced.
Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.Super. 2010).
2011, upon the United States Sup
for a writ of certiorari. Appellant filed the current PCRA petition on July 26,
-4-
J-S52039-14
petition is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant
PCRA. Appellant argues his counsel on direct appeal failed to notify him of
the denial of the petition for a writ of certiorari with the United States
Supreme Court, thereby depriving Appellant of the knowledge that the
judgment became final.
After a thorough review of the record, the briefs of both parties, the
applicable law, and the well-reasoned opinion of the Honorable William P.
s issue merits no relief. The PCRA court
opinion properly disposes of the question presented. (See PCRA Court
Opinion, filed May 8, 2014, at 3-6) (finding: Appellant failed to plead
jurisdictional facts, that, if proven, would establish as matter of law that he
acted with due diligence; Appellant failed to explain why he could not have
learned new fact that United States Supreme Court denied certiorari earlier
showing he took reasonable steps to protect his own interests; status of
ition was
untimely, and PCRA court had no jurisdiction to review it). Based upon the
-barred. See
-5-
J-S52039-14
Monaco, supra; Gamboa-Taylor, supra. Accordingly, we affirm on the
pinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2014
-6-