Com. v. Reese, D. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DARELL REESE
Appellant No. 3278 EDA 2016
Appeal from the PCRA Order September 22, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0100571-1998
BEFORE: BOWES, STABILE, AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 18, 2017
Darell Reese appeals from the September 22, 2016 order dismissing
as untimely his fifth petition for post-conviction relief. We affirm.
On September 23, 1999, a jury convicted Appellant of first-degree
murder for his participation in the shooting death of Rasheed Davis and the
non-fatal shooting of Lennell Billington on November 22, 1997, in
Philadelphia.1 He was sentenced to life in prison without possibility of
parole. This Court affirmed judgment of sentence, Commonwealth v.
Reese, 782 A.2d 1058 (Pa.Super. 2001) (unpublished memorandum), and
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1 Appellant was previously convicted of aggravated assault, criminal
conspiracy and possession of an instrument of crime. At the first trial, the
jury could not reach a verdict on the first-degree murder charge, resulting in
a second trial on that charge alone.
* Retired Senior Judge specially assigned to the Superior Court.
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the Supreme Court denied allowance of appeal on December 14, 2001.
Commonwealth v. Reese, 793 A.2d 907 (Pa. 2001).
Appellant filed a timely first PCRA petition and counsel was appointed.
Counsel filed a Turner/Finley no-merit letter, and the PCRA court granted
counsel leave to withdraw, issued Rule 907 notice, and later dismissed the
petition as meritless. That decision was affirmed on appeal to this Court and
allowance of appeal was denied. Commonwealth v. Reese, 885 A.2d 581(Pa.Super. 2005). Appellant subsequently filed an unsuccessful petition for
writ of habeas corpus in the federal court, and three PCRA petitions that
were dismissed as untimely, with the dismissals affirmed by this Court on
appeal.
Appellant’s latest PCRA petition, filed on March 21, 2016, and
amended on June 27, 2016, was dismissed as untimely on September 22,
2016, following issuance of Rule 907 notice. Appellant asserted therein that
his petition was timely under the exception for newly-recognized
constitutional rights held to apply retroactively. See 42 Pa.C.S. §
9545(b)(1)(iii). He maintained that Lafler v. Cooper, 566 U.S. 156 (2012)
and Missouri v. Frye, 566 U.S. 133 (2012), recognized a new constitutional
right to effective representation of counsel during the plea negotiation
process, and that the decisions were entitled to retroactive effect under
Montgomery v. Louisiana, 136 S.Ct. 718 (2016).
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In his amended pro se petition filed on June 27, 2016, Appellant
claimed that his sentence of life imprisonment without parole was illegal and
unauthorized by statute since he was under twenty-five years of age when
the crimes were committed, citing Miller v. Alabama, 567 U.S. 460 (2012)
(holding mandatory life sentences without possibility of parole for those
under age eighteen violative of eighth amendment prohibition against cruel
and unusual punishment) and Montgomery, supra (holding Miller is a new
rule retroactive to cases on collateral review).
The PCRA court entered an order dismissing the petition as untimely
on September 22, 2016. Appellant timely appealed and the court issued its
opinion. Appellant presents four questions for our review:
1. Whether the court erred as a matter of law, when it dismissed
petitioner’s PCRA for lack of jurisdiction/untimely[?]
2. Whether the legislature (sic) intent the PCRA’s Time Limits to
affect the PCRA Courts’ jurisdiction?
3. Whether the Time Limits in 42 Pa.C.S.A. § 9545 are
jurisdictional?
[4.] Whether counsel was ineffective when he failed to inform
petitioner of the Commonwealth’s plea offer?
Appellant’s brief at v.
We review the “denial of PCRA relief to determine whether the findings
of the PCRA court are supported by the record and free of legal error.”
Commonwealth v. Roane, 142 A.3d 79, 86 (Pa.Super. 2016) (quoting
Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015)). It is well
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settled law that all PCRA petitions must be filed within one year of the date a
defendant’s judgment becomes final unless an exception to the one-year
time bar applies. 42 Pa.C.S. § 9545(b)(1). If a PCRA petition is untimely,
“neither this Court nor the trial court has jurisdiction over the petition.”
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014) (citation
omitted); see also Commonwealth v. Chester, 895 A.2d 520, 522 (Pa.
2006).
Appellant’s petition, filed almost fifteen years after his judgment of
sentence became final, is facially untimely. Nor did he plead and prove
applicable exceptions to the time bar. We adopt the thorough and well-
reasoned opinion of the Honorable Leon W. Tucker, in affirming the order
dismissing the instant petition as untimely.2
In addition to the claims addressed by the PCRA court, Appellant
challenges for the first time on appeal the constitutionality of the PCRA’s
one-year time limitation and its jurisdictional effect. We find these claims
waived as Appellant could have raised them in prior post-conviction
proceedings. Commonwealth v. Mason, 130 A.3d 601 (Pa. 2015). Were
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2 Even if the PCRA petition had been timely filed, no relief was due. The
PCRA court correctly found Appellant’s claim that the court failed to instruct
him of his right to seek modification of his sentence waived and his
ineffective assistance of counsel claims previously litigated. Finally, the
court properly rejected Appellant’s claim that his sentence of life in prison
without possibility of parole was illegal, and additionally reiterated that
legality of sentence challenges are subject to the PCRA’s time limitation.
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they not waived, we would reject them as meritless. The constitutionality of
the PCRA time bar was upheld by this Court in Commonwealth v. Burton,
936 A.2d 521 (Pa.Super. 2007), and our Supreme Court affirmed the
jurisdictional effect of the time limitation in Commonwealth v. Peterkin,
722 A.2d 638 (Pa. 1998) and Commonwealth v. Fahy, 737 A.2d 214 (Pa.
1999).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/17
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