Com. v. West, L. ( 2020 )


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  • J-S56034-20
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    LEONARD WEST                               :
    :
    Appellant               :   No. 1124 EDA 2020
    Appeal from the PCRA Order Entered March 5, 2020
    In the Court of Common Pleas of Philadelphia County Criminal Division at
    No(s): CP-51-CR-0011936-2009
    BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*
    MEMORANDUM BY PELLEGRINI, J.:                      FILED: DECEMBER 29, 2020
    Leonard West (West) appeals from the March 5, 2020 order of the Court
    of Common Pleas of Philadelphia County (PCRA court) dismissing his second
    petition filed under the Post-Conviction Relief Act (PCRA).1       Because the
    petition is untimely, we affirm.
    We briefly recount the procedural history of this case. On January 26,
    2011, West, after a jury found him guilty of attempted murder and related
    offenses, was sentenced to an aggregate term of 33.5 to 67 years’
    imprisonment. On December 29, 2011, we affirmed the judgment of sentence
    and on July 10, 2012, the Pennsylvania Supreme Court denied West’s petition
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    1   42 Pa.C.S. §§ 9541-9546.
    J-S56034-20
    for allowance of appeal. Commonwealth v. West, 
    40 A.3d 206
     (Pa. Super.
    2011) (unpublished memorandum), appeal denied, 
    48 A.3d 1249
     (Pa. 2012).
    West filed his first timely pro se PCRA petition on August 9, 2012, and
    the PCRA court appointed counsel. Counsel filed an amended petition raising,
    among other issues, trial counsel’s ineffectiveness for failing to: (1) present
    West’s girlfriend as an alibi witness; (2) file a post-verdict motion challenging
    the weight of the evidence; (3) investigate the case and obtain expert
    witnesses; and (4) properly represent West.          The PCRA court held an
    evidentiary hearing relating to the alibi defense but ultimately denied the
    petition.
    PCRA counsel timely appealed. Commonwealth v. West, 3823 EDA
    2017, at *3-4 (Pa. Super. May 8, 2019) (unpublished memorandum). This
    court held that counsel had properly preserved the alibi claim but found trial
    counsel was not ineffective for failing to call West’s girlfriend as an alibi
    witness.    Id. at *4-6.   We then held that PCRA counsel had waived all
    remaining issues on appeal by failing to specifically list them in his Pa. R.A.P.
    1925(b) statement. Id. at *7.
    Shortly after we affirmed the denial of his first PCRA petition, on June
    9, 2019, West filed a second pro se petition, using the standard, fill-in-the-
    blank form provided by the Pennsylvania Department of Corrections.            The
    PCRA court then appointed current counsel who filed an amended petition
    asserting that prior PCRA counsel was ineffective in filing a deficient Pa. R.A.P.
    -2-
    J-S56034-20
    1925(b) statement that led to the waiver of most of West’s claims on appeal.
    Counsel did not plead any of the exceptions to the one-year jurisdictional time-
    bar in the amended petition.2 The PCRA court issued a notice of intent to
    dismiss the petition without a hearing under Pa.R.Crim.P. 907 and, after
    receiving no response, dismissed the petition. West timely appealed and he
    and the PCRA court have complied with Pa. R.A.P. 1925.
    Before considering the merits of the PCRA petition, we must first
    determine whether the petition is timely in accordance with the PCRA’s
    jurisdictional time-bar.3 “A PCRA petition, including a second and subsequent
    petition, shall be filed within one year of the date the underlying judgment
    becomes final.”      Commonwealth v. Graves, 
    197 A.3d 1182
    , 1185 (Pa.
    ____________________________________________
    2 We note that West’s pro se form PCRA petition asserted that the petition was
    timely under the exception to the jurisdictional time-bar for claims predicated
    on facts that were unknown to the petitioner and could not have been
    ascertained through the exercise of due diligence. See Pro Se PCRA Petition,
    6/7/19, at 2 (citing 42 Pa.C.S. § 9545(b)(1)(ii)). However, in outlining his
    claims in more detail, West only pled that he had been afforded ineffective
    assistance of counsel when his first PCRA counsel filed a deficient Pa. R.A.P.
    1925(b) statement in his PCRA appeal. Id. at 3, 8. Counsel did not raise this
    argument in the amended petition in support of any exception to the time-
    bar. For the reasons discussed infra, even if counsel had pled ineffective
    assistance of counsel specifically as an exception to the jurisdictional time-
    bar, we would conclude that the argument was meritless.
    3 When reviewing the denial of a PCRA petition, we consider “whether the
    PCRA court’s determination is supported by the record and free from legal
    error.” Commonwealth v. Mitchell, 
    141 A.3d 1277
    , 1283–1284 (Pa. 2016)
    (internal quotation marks and citation omitted). Whether a PCRA petition is
    timely filed is a question of law over which our standard of review is de novo
    and our scope of review is plenary. Commonwealth v. Taylor, 
    65 A.3d 462
    ,
    468 (Pa. Super. 2013) (citations omitted).
    -3-
    J-S56034-20
    Super. 2018) (citation omitted); see also 42 Pa.C.S. 9545(b)(1).               “[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.” 42 Pa.C.S. § 9545(b)(3). Because the timeliness requirements of
    the PCRA are jurisdictional, no court may consider the merits of an untimely
    petition. Commonwealth v. Small, 
    238 A.3d 1267
    , 1280 (Pa. 2020).
    West’s sentence became final in 2012 after our Supreme Court denied
    his petition for allocatur and he declined to seek further review by the United
    States Supreme Court. 42 Pa.C.S. § 9545(b)(3). Because he did not file the
    instant petition until June 9, 2019, his petition is facially untimely and he must
    plead and prove one of the exceptions to the PCRA’s timeliness requirements.
    There are three exceptions to the PCRA’s jurisdictional time-bar:
    (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.
    -4-
    J-S56034-20
    42 Pa.C.S. § 9545(b)(1)(i)-(iii). In addition, a PCRA petitioner must present
    a claimed exception within one year of the date the claim could have been
    presented. 42 Pa.C.S.A. § 9545(b)(2).
    As noted supra, West did not plead in his amended petition any of the
    enumerated exceptions to the jurisdictional time-bar. He fails to do the same
    in this appeal, opting instead to argue that the dismissal of his PCRA petition
    as untimely violates his right to substantive and procedural due process. More
    specifically, while acknowledging that our courts hold that ineffectiveness of
    counsel will not excuse an otherwise untimely PCRA petition, West insists that
    fundamental fairness mandates that we reach the merits of his claim of PCRA
    counsel ineffectiveness. See West’s Brief at 15.
    It is well-settled that the PCRA’s jurisdictional time-bar is constitutional
    and the time for filing a petition may only be extended through one of the
    exceptions enumerated in the statute. Commonwealth v. Burton, 
    936 A.2d 521
    , 527 (Pa. Super. 2007); Commonwealth v. Cruz, 
    852 A.2d 287
    , 292
    (Pa. 2004). “[T]he PCRA confers no authority upon this Court to fashion ad
    hoc equitable exceptions to the PCRA time-bar in addition to those exceptions
    expressly delineated in the Act.” Cruz, supra (quoting Commonwealth v.
    Robinson, 
    807 A.2d 838
    , 845 (Pa. 2002) (internal quotations omitted)).
    Thus, West’s bare assertions that the time-bar violates his right to substantive
    and procedural due process are insufficient to overcome the jurisdictional
    time-bar.
    -5-
    J-S56034-20
    West asserts that his petition should be considered timely in the
    interests   of   fundamental   fairness,   as   it   was   prior   PCRA   counsel’s
    ineffectiveness that resulted in waiver of appellate issues in his first PCRA
    petition. However, our Supreme Court has made it clear that “there is no
    statutory exception to the PCRA time-bar applicable to claims alleging the
    ineffectiveness of post-conviction counsel.” Commonwealth v. Robinson,
    
    139 A.3d 178
    , 186 (Pa. 2016); see also Commonwealth v. Wharton, 
    886 A.2d 1120
    , 1127 (Pa. 2005) (“It is well settled that allegations of ineffective
    assistance of counsel will not overcome the jurisdictional timeliness
    requirements of the PCRA.”). This court has similarly rejected the argument
    that the time-bar should not apply to a second or subsequent petition when a
    petitioner seeks to challenge prior PCRA counsel’s effectiveness.             See
    Commonwealth v. Laird, 
    201 A.3d 160
    , 162-163 (Pa. Super. 2018).
    Because West has not pled or proven the applicability of any of the
    statutory timeliness exceptions, we conclude that his petition is untimely. As
    neither the PCRA court nor this court has jurisdiction to consider the merits of
    an untimely PCRA petition, we affirm the order dismissing the petition.
    Order affirmed.
    -6-
    J-S56034-20
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/29/20
    -7-
    

Document Info

Docket Number: 1124 EDA 2020

Filed Date: 12/29/2020

Precedential Status: Precedential

Modified Date: 12/29/2020