Com. v. Mosley, L. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEON MOSLEY :
:
Appellant : No. 3122 EDA 2022
Appeal from the PCRA Order Entered November 18, 2022
In the Court of Common Pleas of Montgomery County
Criminal Division at CP-46-CR-0002911-2001
BEFORE: NICHOLS, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY MURRAY, J.: FILED AUGUST 15, 2023
Leon Mosley (Appellant) appeals pro se from the order dismissing as
untimely his fifth petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-46. We affirm.
This Court previously explained:
A jury convicted Appellant on May 31, 2002, of one count of each
of robbery of a motor vehicle, terroristic threats, recklessly
endangering another person [], simple assault, conspiracy to
commit robbery, and two counts of theft. [Appellant had been
convicted of escape in a separate case a month prior.] The court
sentenced Appellant [in both cases] on August 1, 2002, to an
aggregate term of 28½ to 60 years’ imprisonment. The sentence
included a 25 to 50 year term under Pennsylvania’s three strikes
law, 42 Pa.C.S.A § 9714(a)(2). Appellant did not file a direct
appeal, so the judgment of sentence became final on or about
September 1, 2002.
Commonwealth v. Mosley, 1595 EDA 2017 (Pa. Super. 2020) (unpublished
memorandum at *1).
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Between 2003 and 2018, Appellant filed four unsuccessful PCRA
petitions. In two of the petitions, Appellant challenged the legality of his
sentence. See id.; see also PCRA Court Opinion, 1/24/23, at 2-3.
On August 18, 2020, Appellant filed the instant PCRA petition, his fifth.
Appellant again claimed that his sentence is illegal. PCRA Petition, 8/18/20,
at 5 (unnumbered). The PCRA court appointed counsel, who filed a no-merit
letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On
October 18, 2022, the PCRA court granted counsel’s request to withdraw and
issued notice of intent to dismiss the petition pursuant to Pa.R.Crim.P. 907.
Appellant filed a response claiming ineffective assistance of PCRA
counsel. Response, 11/7/22, at 1-6. On November 18, 2022, the PCRA court
dismissed Appellant’s PCRA petition as untimely filed. Appellant filed this
appeal. Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
Appellant raises the following issue:
[Did the] PCRA court err[] in dismissing Appellant’s PCRA petition
[and] failing to address Appellant’s illegal sentence[?]
Appellant’s Brief at 4 (some capitalization modified).
We review the dismissal of Appellant’s petition to determine “whether
the PCRA court’s findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Busanet,
54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of
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the PCRA court and the evidence of record, viewed in the light most favorable
to the party who prevailed in the PCRA court proceeding.” Id.A PCRA petition must be filed within one year of the petitioner’s
judgment of sentence becoming final. 42 Pa.C.S.A. § 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 the time for seeking
the review.” 42 Pa.C.S.A. § 9545(b)(3). The timeliness of a PCRA petition is
jurisdictional. If a PCRA petition is untimely, a court lacks jurisdiction.
Commonwealth v. Wharton, 886 A.2d 1120, 1124 (Pa. 2005).
“Without jurisdiction, we simply do not have the legal authority to address the
substantive claims.” Commonwealth v. Lewis, 63 A.3d 1274, 1281 (Pa.
Super. 2013).
Appellant concedes his PCRA petition is untimely. Appellant’s Brief at 5.
Appellant’s judgment of sentence became final on September 1, 2002, and he
did not file his petition until August 18, 2020. A petitioner may overcome the
PCRA’s time-bar if he pleads and proves one of the statutory exceptions set
forth in 42 Pa.C.S.A. § 9545(b)(1). Commonwealth v. Spotz, 171 A.3d 675,
678 (Pa. 2017). The exceptions are: “(1) interference by government officials
in the presentation of the claim; (2) newly discovered facts; and (3) an after-
recognized constitutional right.” Commonwealth v. Brandon, 51 A.3d 231,
233-34 (Pa. Super. 2012); see also 42 Pa.C.S.A. § 9545(b)(1)(i-iii). A
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petition invoking an exception to the jurisdictional time-bar must be filed
within one year of the date that the claim could have been presented. 42
Pa.C.S.A. § 9545(b)(2) (effective December 24, 2018). If a petitioner fails to
plead and prove an exception, the court lacks jurisdiction to review the petition
or provide relief. Spotz, 171 A.3d at 676.
Appellant argues the Pennsylvania Supreme Court’s decision in
Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021) created an exception
to the PCRA time-bar because it recognized a new constitutional right.
Appellant’s Brief at 5-6. We disagree.
This Court recently explained:
Reliance on Bradley for purposes of overcoming the
untimeliness of the underlying PCRA petition is misplaced. In
Bradley, our Supreme Court extended the opportunity for a PCRA
petitioner to raise claims of PCRA counsel’s ineffectiveness.
Previously, “the sole method by which a petitioner c[ould]
challenge the ineffectiveness of his PCRA counsel [wa]s through
the filing of a response to the PCRA court’s Rule 907 dismissal
notice.” Bradley, 261 A.3d at 386. The Bradley Court
abandoned that approach, holding “that a PCRA petitioner may,
after a PCRA court denies relief, and after obtaining new counsel
or acting pro se, raise claims of PCRA counsel’s ineffectiveness at
the first opportunity to do so, even if on appeal.” Id. at 401.
Bradley, however, did not announce a new constitutional
right, much less one applicable retroactively. See, e.g.,
Commonwealth v. Johnson, 2023 WL 2379233 (Pa. Super.
2023) (unpublished memorandum) (noting “[a]lthough [Bradley]
did not specifically address the timeliness exception upon which
[a]ppellant relies, it is clear Bradley did not recognize a new
constitutional right,” id. at *4); Commonwealth v. Dixon, [290
A.3d 702] (Pa. Super. 2022) (unpublished memorandum) (holding
Bradley does not trigger the timeliness exception of Section
9545(b)(1)(iii)); Commonwealth v. Parkinson, 2022 WL
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5237927 (Pa. Super. 2022) (holding “Bradley did not create a
new, non-statutory exception to the PCRA time bar,” id. at *3).
Furthermore, this Court has continually declined to extend
the holding of Bradley to cases involving untimely petitions, like
the instant one. See, e.g., Commonwealth v. Stahl, [292 A.3d
1130] (Pa. Super. 2023) (concluding that “[n]othing in Bradley
creates a right to file a second PCRA petition outside the PCRA’s
one-year time limit as a method of raising ineffectiveness of PCRA
counsel,” id. at [1136]); Commonwealth v. Mead, [277 A.3d
1111] (Pa. Super. 2022) (unpublished memorandum), appeal
denied, 284 A.3d 118 (Pa. 2022) (emphasizing that Bradley
involved a timely first PCRA petition and did not apply to
appellant’s appeal from order denying his untimely petition);
Commonwealth v. Morton, [292 A.3d 1075] (Pa. Super. 2023)
(unpublished memorandum) (holding that appellant’s reliance on
Bradley does not afford relief in his appeal from the denial of his
untimely second PCRA petition); Commonwealth v. Gurdine,
[273 A.3d 1076] (Pa. Super. 2022) (same)[, appeal denied, 286
A.3d 707 (Pa. 2022)].
Commonwealth v. Ruiz-Figueroa, 1531 EDA 2022 (Pa. Super. Jun. 22,
2023) (unpublished memorandum at *2) (footnote omitted, emphasis
added).1
As explained above, Bradley did not announce a new constitutional
rights. Thus, Appellant has not satisfied an exception to the PCRA’s time-bar.2
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1 See Pa.R.A.P. 126(b) (unpublished non-precedential decisions of the
Superior Court filed after May 1, 2019, may be cited for their persuasive
value).
2 Further, Appellant first raised his claim of PCRA counsel’s ineffectiveness in
his response to the Rule 907(a) notice. Response, 11/7/22, at 1-6. Appellant
cites Bradley in his brief, but does otherwise argue that PCRA counsel was
ineffective; Appellant argues only that his sentence is illegal. Appellant’s Brief
at 6-8; see also Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super.
2010) (“This Court will not act as counsel and will not develop arguments on
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In addition, Appellant may not circumvent the PCRA’s timeliness
requirements by challenging the legality of his sentence. The Pennsylvania
Supreme Court has explained: “Although legality of sentence is always subject
to review within the PCRA, claims must still first satisfy the PCRA’s time limits
or one of the exceptions thereto.” Commonwealth v. Fahy, 737 A.2d 214,
223 (Pa. 1999) (citation omitted). Appellant cannot elude the PCRA’s
timeliness requirements based on a claim of an illegal sentence.3 See id.Appellant’s fifth PCRA petition is untimely. Because he failed to plead
and prove an exception to the PCRA’s time-bar, we affirm the order dismissing
his PCRA petition.
Order affirmed.
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behalf of an appellant.” (citation omitted)); Commonwealth v. Lewis, 63
A.3d 1274, 1278 (Pa. Super. 2013) (“Although this Court is willing to construe
liberally materials filed by a pro se litigant, pro se status generally confers no
special benefit ….”).
3 Appellant’s legality of sentence claims in the underlying petition are the same
as the claims he raised in his third and fourth PCRA petitions. See PCRA Court
Opinion, 1/24/23, at 3-4; PCRA Petition, 8/18/20, at 5 (unnumbered). Even
if the petition was timely, the claims would be barred as previously litigated.
42 Pa.C.S.A. § 9543(a)(3).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2023
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