Com. v. Floyd, C. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee
v.
CALVIN J. FLOYD,
Appellant No. 1770 EDA 2016
Appeal from the PCRA Order May 9, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0813171-1980
BEFORE: SHOGAN, STABILE, and PLATT,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 29, 2017
Appellant, Calvin Floyd, appeals pro se from the order denying his
most recent petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.
We summarize the procedural history of this case as follows. On
February 24, 1981, a jury convicted Appellant of first-degree murder and
related crimes. The jury sentenced Appellant to death, and the trial court
imposed the sentence on October 6, 1982. On November 24, 1984, our
Supreme Court affirmed Appellant’s conviction. Commonwealth v. Floyd,
484 A.2d 365 (Pa. 1984). However, our Supreme Court agreed with
Appellant’s argument that the prosecutor improperly argued in closing
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*
Retired Senior Judge assigned to the Superior Court.
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argument during the sentencing hearing “that the jury should pronounce a
sentence of death because of the possibility that Appellant might one day be
released from prison if he received a life sentence.” Id. at 370.
Accordingly, our Supreme Court reduced Appellant’s death sentence to a
term of life imprisonment. Id.Appellant has since filed a series of petitions seeking collateral relief.1
Specifically, on January 4, 1988, Appellant filed a petition for collateral relief
under the Post Conviction Hearing Act (“PCHA”), the predecessor of the
PCRA,2 which was ultimately denied on April 3, 1991. On December 16,
1991, a panel of this Court affirmed the denial of post-conviction relief.
Commonwealth v. Floyd, 606 A.2d 1228, 1051 PHL 1991 (Pa. Super. filed
December 16, 1991) (unpublished memorandum).
On August 29, 1996, Appellant filed a PCRA petition, and the PCRA
court denied relief on October 9, 1996. Appellant filed an additional PCRA
petition on December 31, 1996, and the PCRA court denied relief on June
11, 1997. On April 4, 2001, Appellant filed another PCRA petition, which the
PCRA court dismissed on March 8, 2003. Appellant filed his next PCRA
petition on June 30, 2003. The PCRA court again denied relief, and this
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1
We observe that relief was denied by the court of common pleas as to
each of Appellant’s post-conviction petitions, and that Appellant appealed to
this Court in only two of those instances.
2
The PCHA was repealed and replaced by the PCRA for petitions filed on or
after April 13, 1988.
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Court affirmed the PCRA court’s decision on August 10, 2005.
Commonwealth v. Floyd, 885 A.2d 574, 804 EDA 2004 (Pa. Super. filed
August 10, 2005). On August 12, 2008, Appellant filed yet another PCRA
petition, which the PCRA court ultimately denied on August 30, 2010.
On December 28, 2012, Appellant filed pro se the instant petition,
titled as a petition for writ of habeas corpus. On February 4, 2014, and
June 5, 2014, Appellant filed amended petitions for writ of habeas corpus.
In an order and opinion dated May 9, 2016, the court of common pleas
denied relief after concluding that certain portions of Appellant’s petitions
should be considered under the PCRA, while another portion should be
considered to be a proper petition for writ of habeas corpus.3 This timely
pro se appeal followed.
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3
We note that in addressing Appellant’s instant filing, the PCRA court
properly bifurcated the matter and considered a portion of the filing to be a
PCRA petition and a portion to be a habeas corpus petition. PCRA Court
Opinion, 5/9/16, at 2-5. Specifically, the PCRA court reviewed whether
Appellant’s claim that his continued detention is unlawful because the
Department of Corrections does not possess a sentencing order and
determined that it falls outside of the PCRA pursuant to this Court’s
precedent in Joseph v. Glunt, 96 A.3d 365 (Pa. Super. 2014), but
nevertheless found the claim to lack merit. PCRA Court Opinion, 5/9/16, at
4-5. The PCRA court properly observed that “there is no statutory obligation
for the Department of Corrections to maintain or produce documents such
as, the sentencing order, upon request of an inmate.” Id. at 4 (citing
Joseph, 96 A.3d at 371). Interestingly, the PCRA court noted that Appellant
attached to his filing a written copy of his judgment of sentence, which
imposed a term of life imprisonment. Id. at 4 n.3. We have reviewed the
certified record and agree that a written judgment of sentence, which
(Footnote Continued Next Page)
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Appellant attempts to present the following issues for our review,
which we reproduce verbatim:
1. Whether Appellant’s Habeas Corpus Ad Subjiciendum alleging
Constitutional violations was properly denied by Judge Leon W.
Tucker of the Philadelphia Court of Common Pleas without
issuing the Writ or Order as a matter of due course, for Appellant
did not file a PCRA?
2. Whether Appellant’s detention is lawful in view of the fact that
Pennsylvania has not Murder Statute-therefore, there is no
Sentencing Order?
3. Whether the Pennsylvania Supreme Court’s 1984 vacation of
Appellant's death sentence and imposition of a New Sentence of
Life in prison was properly conducted under 42 Pa. C. S. subsec.
9711 (h) (2) and 42 Pa. C. S. subsec. 9711 (h) (4), still, in
absence of a Murder Statute, no remand, and nor resentencing
hearing to preserve a sentencing transcript?
4. Whether Philadelphia Police Homicide detectives Phillip
Checcia and his partner, detective Aikens along with Assistant
prosecutors, Gerald Dugan and John DiDanato withhold
exculpatory material evidence, threaten, terrorize, and coerce
another witness to alter his testimony, then, under Gerald
Dugan’s lead, who initiated preliminary proceedings involving
Appellant, fashioned a so-called Prima Fascia case against
Appellant, then have himself removed from the case and
reentered as an ineligible witness to bolster the terrorized
witness’s testimony, conspire to perpetrate fraud upon the
Judicial Machinery of the Philadelphia Court of Common Pleas to
fashion the face of the record as it reads violated his
Constitutional rights to due process?
5. Whether Appellant never being notified in 1991 that the
Pennsylvania Superior Court dismissed his appeal to the denial of
his first PCHA petition, which precipitated the following PCRA
petitions, holds merit as a denial of due process?
_______________________
(Footnote Continued)
imposes a term of life imprisonment upon Appellant, exists and was
appended to Appellant’s instant filing at Exhibit A.
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Appellant’s Brief at 6. However, the argument portion of Appellant’s pro se
brief to this Court consists of the following two paragraphs:
Appellant states and avers that in the absence of a murder
statute his detention is unlawful. Every stage of due process
was violated beginning with the exclusion of the eyewitness who
could have changed the outcome of the trial. This is a Brady
violation. Initially, Appellant was sentenced to death. The
Pennsylvania Supreme Court vacated that sentence and
suggested a New Sentence of life in prison, however, under the
sentencing statutes, 9711 (h) (2) and 9711 (h) (4), Appellant
should have been remanded for re-sentencing.
That was thirty-two years ago. Technically, therefore,
Appellant languishes in prison without a sentence.
Appellant’s Brief at 19.
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.
2014) (en banc)). This Court is limited to determining whether the evidence
of record supports the conclusions of the PCRA court and whether the ruling
is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.
Super. 2012). We grant great deference to the PCRA court’s findings that
are supported in the record and will not disturb them unless they have no
support in the certified record. Commonwealth v. Rigg, 84 A.3d 1080,
1084 (Pa. Super. 2014).
Initially, we must ascertain whether this matter is properly before us.
We begin by determining whether the PCRA court correctly considered the
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majority of Appellant’s petition to be a PCRA petition. If so, we then
determine whether the petition satisfied the timeliness requirements of the
PCRA.4
The scope of the PCRA is explicitly defined as follows:
This subchapter provides for an action by which persons
convicted of crimes they did not commit and persons serving
illegal sentences may obtain collateral relief. The action
established in this subchapter shall be the sole means of
obtaining collateral relief and encompasses all other
common law and statutory remedies for the same purpose
that exist when this subchapter takes effect, including
habeas corpus and coram nobis. This subchapter is not
intended to limit the availability of remedies in the trial court or
on direct appeal from the judgment of sentence, to provide a
means for raising issues waived in prior proceedings or to
provide relief from collateral consequences of a criminal
conviction.
42 Pa.C.S. § 9542 (emphasis added).
The plain language of the statute demonstrates that the General
Assembly intended that claims that could be brought under the PCRA must
be brought under that Act. Commonwealth v. Hall, 771 A.2d 1232, 1235
(Pa. 2001). Where a defendant’s claims “are cognizable under the PCRA,
the common law and statutory remedies now subsumed by the PCRA are not
separately available to the defendant.” Id. at 1235 (citations omitted). By
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4
We observe that Appellant has not presented to this Court an issue or
argument relating to the claim which the PCRA court considered to fall
outside of the PCRA, i.e., whether Appellant is properly detained because the
Department of Corrections allegedly does not possess a sentencing order.
Therefore, we will not address this concern.
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its own language, and by judicial decisions interpreting such language, the
PCRA provides the sole means for obtaining state collateral relief.
Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa. 1999) (citations
omitted). Thus, it is well settled that any collateral petition raising issues
with respect to remedies offered under the PCRA will be considered to be a
PCRA petition. Commonwealth v. Deaner, 779 A.2d 578, 580 (Pa. Super.
2001).
The question then is whether the particular claims at issue, i.e.
whether Appellant’s various procedural due-process rights were violated and
whether the trial court had statutory authority to impose the sentence of life
imprisonment, are available to him under the PCRA. The relevant portion of
the PCRA provides as follows:
(2) That the conviction or sentence resulted from one or more
of the following:
(i) A violation of the Constitution of this
Commonwealth or the Constitution or laws of the
United States which, in the circumstances of the
particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or
innocence could have taken place.
* * *
(vii) The imposition of a sentence greater than the
lawful maximum.
42 Pa.C.S. § 9543(a)(2)(i), (vii). Thus, the statute indicates that claims of a
constitutional nature and those that challenge the lawfulness of a sentence
are cognizable under the PCRA. Id.
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Essentially, Appellant is attacking the validity of his underlying murder
conviction and the lawfulness of his sentence of life imprisonment. Because
such claims are cognizable under the PCRA, Appellant is precluded from
seeking relief on these claims pursuant to a petition for writ of habeas
corpus. Thus, the PCRA court had no authority to entertain these claims
except under the strictures of the PCRA.
We next address whether Appellant satisfied the timeliness
requirements of the PCRA. A PCRA petition must be filed within one year of
the date that the judgment of sentence becomes final. 42 Pa.C.S.
§ 9545(b)(1). This time requirement is mandatory and jurisdictional in
nature, and the court may not ignore it in order to reach the merits of the
petition. Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa. Super. 2013).
Effective January 16, 1996, the PCRA was amended to require a
petitioner to file any PCRA petition within one year of the date the judgment
of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment of
sentence “becomes 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 the
review.” 42 Pa.C.S. § 9545(b)(3). Where a petitioner’s judgment of
sentence became final on or before the effective date of the amendment, a
special grace proviso allowed first PCRA petitions to be filed by January 16,
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1997. See Commonwealth v. Alcorn, 703 A.2d 1054, 1056-1057 (Pa.
Super. 1997) (explaining application of PCRA timeliness proviso).
However, an untimely petition may be received when the petition
alleges, and the petitioner proves, that any of the three limited exceptions to
the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),
and (iii), is met.5 A petition invoking one of these exceptions must be filed
within sixty days of the date the claim could first have been presented. 42
Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions to the
PCRA’s one-year filing deadline, “the petitioner must plead and prove
specific facts that demonstrate his claim was raised within the sixty-day time
frame” under section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164,
1167 (Pa. Super. 2001).
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5
The exceptions to the timeliness requirement are:
(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. § 9545(b)(1)(i), (ii), and (iii).
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Our review of the record reflects that Appellant’s conviction of first-
degree murder was affirmed by our Supreme Court on November 20, 1984.
Floyd, 484 A.2d 365. Appellant did not file a petition for writ of certiorari
with the United States Supreme Court. Accordingly, Appellant’s judgment of
sentence became final on January 21, 1985,6 sixty days after the
Pennsylvania Supreme Court affirmed Appellant’s conviction and the time for
filing a petition for review with the United States Supreme Court expired.
See 42 Pa.C.S. § 9545(b)(3) (providing that “a judgment becomes 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 the review.”); U.S.Sup.Ct.R. 20.1.7
Thus, Appellant’s judgment of sentence became final prior to the effective
date of the PCRA amendments. Appellant’s instant PCRA petition, filed on
December 28, 2012, does not qualify for the grace proviso as it was not filed
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6
We note that, for purposes of this Court’s computation, Appellant would
have needed to file a petition for writ of certiorari on or before Monday,
January 21, 1985, because January 19, 1985 was a Saturday. See 1
Pa.C.S. § 1908 (stating that, for computations of time, whenever the last
day of any such period shall fall on Saturday or Sunday, or a legal holiday,
such day shall be omitted from the computation).
7
We observe that the Rules of the Supreme Court of the United States
pertaining to the time limit for filing a petition for writ of certiorari have
changed various times in relation to both length of time and rule number.
Rule 20.1, which was applicable to this case, required the filing of a petition
for a writ of certiorari within sixty days after the Pennsylvania Supreme
Court’s decision and became effective August 1, 1984.
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before January 16, 1997. Thus, the instant PCRA petition is patently
untimely.
As previously stated, if a petitioner does not file a timely PCRA
petition, his petition may nevertheless be received under any of the three
limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.
§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file
his petition within sixty days of the date that the exception could be
asserted. 42 Pa.C.S. § 9545(b)(2). Our review of the record reflects that
Appellant has not alleged, nor has he proven, that any of the three
exceptions to the timeliness requirement of the PCRA is satisfied. 42 Pa.C.S.
§ 9545(b)(1). Thus, the PCRA court did not err in denying Appellant’s
untimely PCRA petition.
In conclusion, because Appellant’s PCRA petition was untimely and no
exceptions apply, the PCRA court correctly determined that it lacked
jurisdiction to address the claims presented and grant relief. See
Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding
that PCRA court lacks jurisdiction to hear untimely petition). Likewise, we
lack the authority to address the merits of any substantive claims raised in
the PCRA petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267
(Pa. 2007) (“[J]urisdictional time limits go to a court’s right or competency
to adjudicate a controversy.”).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/2017
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