Com. v. White, T. ( 2017 )

J-S32023-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TODD WHITE
Appellant No. 2394 EDA 2016
Appeal from the PCRA Order June 24, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at Nos: CP-51-CR-1009401-2001; CP-51-CR-1009411-
2001
BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 18, 2017
Appellant, Todd White, appeals from the June 24, 2016 order entered
in the Court of Common Pleas of Philadelphia County (“PCRA court”),
dismissing his petition for collateral relief pursuant to the Post conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.
The PCRA court summarized the procedural history of the matter as
follows.
On September 24, 2002, following a jury trial before [the
trial court], [Appellant] was convicted of rape (F-1), involuntary
deviate sexual intercourse (IDSI) (F-1), 13 counts of robbery (F-
1), criminal conspiracy (F-1), and possessing instruments of
crime (PIC) (M-1). Sentencing was deferred until November 13,
2002, on which date [the trial court] imposed an aggregate
sentence of not less than 48-and-a-half years nor more than 123
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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years in prison. On December 1, 2004, Superior Court [(sic)]
affirmed [Appellant’s] judgment of sentence; [Appellant] did not
seek allocatur.
On September 2, 2005, [Appellant] filed his first PCRA
petition. Counsel had been appointed; however, following
[Appellant’s] request to proceed pro se, a Grazier hearing was
held on May 31, 2006. Following the Grazier hearing,
[Appellant] was permitted to proceed pro se. The
Commonwealth filed a motion to dismiss on September 28,
2006. [Appellant] replied to the Commonwealth’s motion to
dismiss on October 12, 2006. After conducting an evidentiary
hearing pursuant to Pa.R.Crim.P. 908 (908 Hearing), on July 9,
2007, [the PCRA court] dismissed [Appellant’s] PCRA petition.
On May 21, 2009, Superior Court [(sic)] affirmed [the PCRA
court’s] dismissal and, on December 9, 2009, our Supreme Court
denied [Appellant’s] petition for allowance of appeal.
On February 5, 2010, [Appellant] filed a second, untimely,
PCRA petition. The Commonwealth filed a motion to dismiss on
December 30, 2010. On January 4, 2011, [the PCRA court] sent
[Appellant] notice of its intent to deny and dismiss his PCRA
petition without a hearing pursuant to PA.R.Crim.P. 907 (907
Notice). On March 4, 2011, [Appellant’s] PCRA petition was
dismissed consistent with [the PCRA court’s] 907 Notice.
[Appellant] did not appeal the dismissal of this untimely PCRA
Petition.
[Appellant] filed a third PCRA petition on May 21, 2012.
On August 15, 2014, [the PCRA court] sent [Appellant] a 907
Notice of its intent to dismiss his petition as untimely, as it failed
to satisfy any of the timeliness exceptions. Thereafter, on
October 16, 2014, [Appellant’s] PCRA petition was dismissed
consistent with the 907 Notice. [Appellant] did not appeal the
dismissal of this PCRA petition.
On November 13, 2015, [Appellant] filed a fourth untimely
pro se PCRA petition. Having determined that [Appellant’s]
claim did not satisfy any of the timeliness exceptions
enumerated in 42 Pa.C.S.[A.] § 9545(b)(1), [the PCRA court]
sent a 907 Notice on May 20, 2016. [Appellant] did not respond.
On June 24, 2016, [the PCRA court] dismissed [Appellant’s]
PCRA petition as untimely, consistent with its 907 Notice.
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PCRA Court Opinion, 9/26/16, at 1-3 (footnotes omitted). Appellant filed a
timely notice of appeal. On August 8, 2016, the PCRA court directed
Appellant to file a concise statement of matters complained of on appeal.
Appellant complied on August 25, 2016, and the PCRA court issued a
Pa.R.A.P. 1925(a) Opinion on September 26, 2016.
Appellant raises four issues on appeal which we repeat verbatim.
I. Did not the PCRA court dismiss Appellant’s PCRA without a
hearing to determine whether or not Appellant’s (60) sixty
day exception rule was within the (60) day rule/law of the
hybrid-representation.
II. Did not the lower judge commit and error/government
interference under 9445(b)(i)(i) when she allow PCRA
counsel to remove herself from the Appellant’s PCRA
without first confirming counsel did all of the proper
procedure”s[.]
III. Did not the PCRA counsel Jacquelyn A. Barnes commit
abandonmen of loyalty when she fail to file and
amendment brief on the Appellant’s behalf and or file a
Turner/Finley letter to suppo her reasons for not doing so.
IV. Did not the Commonwealth commit the same interference
when it fail to oject to the allowance of counsel being allow
to withdraw without complying with the Turner/Finely law,
rules, and procedures.
Appellant’s Brief at V (sic).
Preliminarily, “an appellate court reviews the PCRA court’s findings of
fact to determine whether they are supported by the record, and reviews its
conclusions of law to determine whether they are free from legal error.”
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (quoting
Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa. 2010)).
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Furthermore, all PCRA petitions, “including a second or subsequent petition,
shall be filed within one year of the date the judgment becomes final” unless
an exception to timeliness applies. 42 Pa.C.S.A. § 9545(b)(1). These
“restrictions are jurisdictional in nature. Thus, [i]f a PCRA petition is
untimely, neither this Court nor the [PCRA] court has jurisdiction over the
petition. Without jurisdiction, we simply do not have the legal authority to
address the substantive claims.” Commonwealth v. Chester, 895 A.2d
520, 522 (Pa. 2006) (first alteration in original) (internal citations and
quotation marks omitted).
There are only three exceptions to the timeliness requirement of the
PCRA. These exceptions 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.A. § 9545(b)(1)(i-iii).
While Appellant briefly addresses the timeliness requirement in his
brief, he fails to establish any of the exceptions apply. Appellant asserts
that his discovery of Commonwealth v. Ellis, 626 A.2d 1137 (Pa. 1993),
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provides newly discovered evidence that satisfies the exception to the
timeliness requirement. See Appellant’s Brief at 6. Appellant’s argument is
fatally flawed as “[our Courts have expressly rejected the notion that judicial
decisions can be considered newly-discovered facts which would invoke the
protections afforded by section 9545(b)(1)(ii).” Commonwealth v.
Cintora, 69 A.2d 759, 763 (Pa. Super. 2013) (citations omitted). Thus,
Appellant failed to prove the newly discovered fact exception to the PCRA’s
timeliness requirement.
Next, Appellant asserts the government interference exception applies
because the PCRA court permitted his first PCRA counsel to withdraw after a
Grazier1 hearing on May 30, 2006. Appellant further asserts the
government interference exception applies because the Commonwealth
failed to object to Appellant appearing pro se after the Grazier hearing.
Even if these claims were properly plead and meritorious, Appellant failed to
bring this claim within 60 days of the date the claim could have been
presented. See 42 Pa.C.S.A. § 9545(b)(2). Thus, Appellant’s governmental
interference claims fail. As Appellant has failed to properly plead and prove
a timeliness exception to the PCRA applies, we conclude the PCRA court
properly dismissed Appellant’s petition as untimely.
Order affirmed.
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1
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/18/2017
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