Com. v. Allen, J. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JACK E. ALLEN :
:
Appellant : No. 1740 WDA 2019
Appeal from the PCRA Order Entered October 18, 2019
In the Court of Common Pleas of Clearfield County Criminal Division at
No(s): CP-17-CR-0000738-1995
BEFORE: MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 18, 2020
Jack E. Allen appeals pro se from the order dismissing his Post
Conviction Relief Act (“PCRA”) petition as untimely. See 42 Pa.C.S.A. §§ 9541-
46. We affirm.
In 1996, a jury convicted Allen of first-degree murder for the shooting
death of his wife, and the trial court sentenced him to life imprisonment. On
a nunc pro tunc direct appeal, we vacated the judgment of sentence and
remanded for a new trial. Commonwealth v. Allen, 895 A.2d 644 (Table)
(Pa.Super. 2006). He went to trial the second time in 2006, and a jury again
convicted him of first-degree murder, and the trial court imposed a life
sentence. We affirmed the judgment of sentence. Commonwealth v. Allen,
____________________________________________
* Former Justice specially assigned to the Superior Court.
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959 A.2d 456 (Table) (Pa.Super. 2008), appeal denied, 959 A.2d 927 (Table)
(Pa. filed October 14, 2008).
Allen then filed his first PCRA petition in 2011 which the PCRA court
denied. Allen proceeded to file several PCRA petitions all of which were denied.
Allen filed the instant PCRA petition, entitled “Motion for New Trial,” on June
2, 2019. See Motion for New Trial, filed 6/2/19. The PCRA court issued a notice
of intent to dismiss the petition and eventually denied the petition. This timely
appeal followed.
Allen raises the following issues before this court:
1) WAS [ALLEN’S] CONSTITUTIONAL RIGHTS VIOLATED BY
THE COMMONWEALTH COURTS, AS WELL AS, THE TRIAL
COURT UP FRONT?
2) DOES DNA TESTING OR EXAMINATIONS OF BLOOD
SAMPLES PLAY A VITAL ROLE IN [ALLEN’S] CASE, AS WELL
AS, TESTING AND OTHER EXAMINATIONS OF [ALLEN’S]
WIFE[’]S CORPSE WHEN EXHUMED?
3) IS THERE SUCH FALSIFIED RECORDS AND
INFORMATION GIVEN CONSTITUTING A CRIME AMONGST
COURTROOM OFFICIALS, AND FOR PERSONAL GAIN?
4) WAS THERE IN ALL, SUCH FALSE IMPRISONMENT OF
[ALLEN] BY AND THROUGH SUCH PERJURY OF WITNESSES
OF THE PROSECUTION IN WHICH THE TRIAL COURT
ABUSED ITS DISCRETION ALLOWING SUCH STATEMENTS
TO STAND?
5) WAS THERE SUCH PLAIN ERRORS; CONSTITUTIONAL
ERRORS; AND MANY ERRORS OF THE TRIAL COURT WHERE
PA RULES OF COURT WERE NOT FOLLOWED UNDER
CRIMINAL PROCEDURES; PCRA PROCEDURES; APPELLATE
PROCEDURES?
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6) IS [ALLEN] INNOCENT OF THE CRIME CHARGED, AND
SHOULD THERE BE A LESSER INCLUDED OFFENSE
INDUCED, OR AN ACQUITTAL?
7) WAS THERE A MANIFEST AND A SUBSTANTIAL DENIAL
OF THE RIGHT TO AN ATTORNEY OF CHOICE, OR THE
EFFECTIVE ASSISTANCE OF COUNSEL FOR TRIAL
PURPOSES AT CRITICAL STAGES OF ALL PROCEEDINGS,
INCLUDING TRIAL?
8) WAS THERE A DEFINATE [sic] "ABANDONMENT" OF
COURT APPOINTED COUNSELS IN SUCH FAULTY
REPRESENTATION CONCERNING APPEALS; PCRAS, AND AT
TRIAL CONCERNING THE PUBLIC DEFENDERS WHOSE
DUTIES FELL BELOW PROFESSIONAL STANDARDS AND
VIOLATED THE RULES OF PROFESSIONAL CONDUCT?
9) WAS THERE A JUROR, NAMED RICK LONG, WHO BY THE
RECORDS AND IN WHICH DID REFLECT THAT HE WAS
BIASED, AND PREJUDICED,AND HAD ILL - WILL TOWARDS
[ALLEN] DURING TRIAL WHEN KNOWING HIS BROTHER
WAS KILLED AND MURDERED AND VIEWED [ALLEN] AS A
KILLER PUTTING GUILT ALREADY IN HIS MIND SET ON
GUILT?
10) SHOULD THE TRIAL JUDGE AMMERMAN BEEN RECUSED
FROM [ALLEN’S] TRIAL AND OTHER PROCEEDINGS BASED
UPON SUCH BIASNESS, PREJUDICES: IMPROPRIETIES,
AND ILLWILL TOWARDS [ALLEN]?
11) SHOULD THERE BEEN A CHANGE OF VENUE AND
VENIRE IN ANOTHER COUNTY, OR OTHER COUNTIES NOT
ADJACENT TO CLEARFIELD COUNTY?
12) DOES MITIGATING CIRCUMSTANCES OUTWEIGH
AGGRAVATING CIRCUMSTANCES BRINGING ON A LESSER
INCLUDED OFFENSE[?]
13) DOES DOUBLE JEOPARDY PLAY A ROLE IN THIS CASE
AT HAND, WHERE [ALLEN] WAS TRIED TWICE FOR THE
SAME CRIMINAL ACT OR OFFENSE WITHOUT PROOF OF ALL
ELEMENTS OF THE CRIME CHARGED?
14) WAS [ALLEN’S] RIGHTS TO PSI'S; ALLOCUTION;
SPEEDY TRIAL RIGHTS VIOLATED UNDER THE FIRST AND
FOURTEENTH AMENDMENTS, U.S. CONSTITUTION, AS
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WELL AS, APPELLATE RIGHTS TO FILE AN APPEAL TO THE
SUPERIOR COURT OF SUCH DENIAL?
15) WAS THERE SUCH "CAUSE AND PREJUDICE" SHOWN
LEADING TOWARDS A "MISCARRIAGE OF JUSTICE", AND
WHERE INNOCENCE OF [ALLEN] IS SHOWN THROUGHOUT
THIS CASE AT HAND?
Allen’s Br. at 4-5.
Upon a challenge to the denial of PCRA relief, we determine whether the
PCRA court's conclusions are supported by the record evidence and free of
legal error. Commonwealth v. Burton, 121 A.3d 1063, 1067 (Pa.Super.
2015). Our standard of review of the legal determinations of a PCRA court is
de novo. Id.
Allen’s petition was untimely and we therefore do not address the merits
of his PCRA petition. See Commonwealth v. Smith, 194 A.3d 126, 132
(Pa.Super. 2018). Any petition seeking PCRA relief must be filed within one
year after the petitioner’s judgment of sentence becomes final unless at least
one of three statutory exceptions applies. 42 Pa.C.S.A. § 9545(b). 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.” Id. at § 9545(b)(3). Additionally, after the judgment of sentence has
become final, motions filed that raise issues “that can be addressed under the
PCRA is to be treated as a PCRA petition.” Commonwealth v. Taylor, 65
A.3d 462, 466 (Pa.Super. 2013) (restating conclusion that “any motion filed
after the finality of a sentence” should be treated as a PCRA petition if the
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issues raised in the motion fall under the PCRA). The timeliness of a PCRA
petition is jurisdictional in nature. Thus, if a PCRA petition is untimely, neither
an appellate court nor the trial court has jurisdiction over the petition.
Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (quoting
Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).
A petition filed beyond the one-year deadline must satisfy at least one
of the PCRA time-bar exceptions. These exceptions are: (1) governmental
interference in raising the claim, (2) newly discovered facts that could not
have been discovered with due diligence or (3) a newly recognized
constitutional right that has been recognized to apply retroactively. See 42
Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petitioner raising a time-bar exception must
file the petition within one year from the time the petitioner could have first
claimed the exception. Id. at § 9545(b)(2).
Here, Allen’s judgment of sentence became final on January 16, 2009,
when his time to appeal to the United States Supreme Court expired. See U.S.
Sup. Ct. R. 13.1. One year after that date was a Saturday, giving Allen until
the following Monday, January 18, 2010, to file a timely PCRA petition. See 1
Pa.C.S.A. § 1908. Thus, the instant petition, which Allen filed in 2019, is
facially untimely and Allen bore the burden of pleading and proving at least
one of the time-bar exceptions. See Taylor, 65 A.3d at 466. Allen did not
address timeliness in his PCRA petition or attempt to raise one of the time-bar
exceptions. He fails to do so even on appeal. Because his petition was filed
more than nine years after his judgment of sentence became final, and he did
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not plead a time-bar exception in his PCRA petition, the PCRA court did not
err in dismissing Allen’s petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2020
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