Com. v. Williams, M. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARKCAIL WILLIAMS :
:
Appellant : No. 1156 WDA 2022
Appeal from the Order Entered September 6, 2022
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002050-2017
BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED: October 30, 2023
Markcail Williams appeals pro se from the order entered in the Erie
County Court of Common Pleas, dismissing his serial petition filed pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541-9546 as
untimely. After careful review, we affirm.
In January 2018, Williams entered a guilty plea to aggravated assault
and discharge of a firearm into an occupied structure. Shortly thereafter,
Williams sent a pro se letter to the court seeking to withdraw his guilty plea,
based on his claim that plea counsel had lied to him about the plea agreement.
This correspondence was forwarded to Williams’s counsel of record. Counsel
then filed a motion to withdraw from representation. After a hearing, the trial
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* Former Justice specially assigned to the Superior Court.
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court denied both Williams’s request to withdraw his guilty plea and counsel’s
motion to withdraw.
In April 2018, the trial court sentenced Williams to an aggregate term
of 90 to 240 months’ imprisonment. Williams did not file any post-sentence
motions or a direct appeal.
On December 6, 2018, Williams filed a timely pro se PCRA petition, in
which he raised claims of ineffective assistance of plea counsel. PCRA counsel
was appointed but did not file an amended petition. Instead, counsel filed a
Turner/Finley no-merit letter,1 along with a petition to withdraw as counsel.
The PCRA court granted counsel leave to withdraw and issued notice of its
intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907.
The PCRA court subsequently dismissed the petition.2
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1 Counsel petitioning to withdraw from PCRA representation must proceed
under Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)
and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). Counsel
must review the record, submit a “no-merit” letter evaluating the issues the
petitioner wishes to address and explaining their lack of merit, request
permission to withdraw, and send the “no-merit” letter and petition to
withdraw to their client along with an explanation of their right to proceed pro
se.
2 The certified record contains a pro se notice of appeal filed by Williams on
May 8, 2019. However, this notice of appeal was apparently never processed
by the trial court prothonotary because Williams did not pay a filing fee or
seek to proceed in forma pauperis. See Letter, 5/10/2019.
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On December 23, 2019, Williams filed a second pro se PCRA petition.
After issuing notice pursuant to Rule 907, the PCRA court later dismissed the
PCRA petition as untimely. See Order, 1/27/2020.
On February 13, 2020, Williams filed a third pro se PCRA petition. Again,
after issuing notice pursuant to Rule 907, the PCRA court dismissed the PCRA
petition as untimely. See Order, 3/24/2020.
On December 8, 2020, Williams filed a pro se “Petition For Sentence
Modification and Status”. In this filing, Williams sought a modification of his
allegedly illegal sentence. See Petition, 12/8/2020, at 2. The PCRA court
properly treated this motion as a fourth PCRA petition, see Commonwealth
v. Taylor, 65 A.3d 462, 467-68 (Pa. Super. 2013), and issued notice pursuant
to Rule 907, finding the petition untimely. Williams filed a response in which
he argued he should have been allowed to introduce evidence of ineffective
assistance of all prior counsel, and that the PCRA court should have appointed
him counsel. The court subsequently dismissed the petition. We affirmed the
dismissal on appeal. See Commonwealth v. Williams, 141 WDA 2021 (Pa.
Super. filed June 15, 2021) (unpublished memorandum). Williams filed a
petition for allowance of appeal with the Pennsylvania Supreme Court,
followed by a “Motion to Amend New Evidence”, in which he sought to amend
his motion to include newly discovered evidence in the form of a victim
affidavit exonerating him. On December 7, 2021, our Supreme Court denied
both the petition for allowance of appeal and the motion to amend.
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On May 13, 2022, Williams filed the instant pro se PCRA petition, his
fifth. In the petition, Williams asserted an exception to the PCRA time-bar
based on the same victim affidavit he sought to present to the Supreme Court.
Williams alleged this affidavit was not made known to him until January 23,
2020. After issuing notice pursuant to Rule 907, the PCRA dismissed the
petition. On September 30, 2022, after being granted nunc pro tunc relief,
Williams filed the instant timely appeal.
Prior to reaching the merits of Williams’s claims on appeal, we must
consider the timeliness of his PCRA petition. See Commonwealth v. Miller,
102 A.3d 988, 992 (Pa. Super. 2014).
A PCRA petition, including a second or subsequent one, must be
filed within one year of the date the petitioner’s judgment of
sentence becomes final, unless he pleads and proves one of the
three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
judgment becomes final at the conclusion of direct review by this
Court or the United States Supreme Court, or at the expiration of
the time for seeking such review. The PCRA’s timeliness
requirements are jurisdictional; therefore, a court may not
address the merits of the issues raised if the petition was not
timely filed. The timeliness requirements apply to all PCRA
petitions, regardless of the nature of the individual claims raised
therein. The PCRA squarely places upon the petitioner the burden
of proving an untimely petition fits within one of the three
exceptions.
Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (internal citations
and footnote omitted).
Since Williams did not file a post-sentence motion or a direct appeal, his
judgment of sentence became final on May 3, 2018, 30 days after the entry
of the judgment of sentence, when his time for seeking direct review with this
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Court expired. See 42 Pa.C.S.A. § 9545(b)(3) (judgment of sentence becomes
final “at the conclusion of direct review … or at the expiration of time for
seeking the review”). The instant petition – filed four years later – is patently
untimely.
As a result, the PCRA court lacked jurisdiction to review Williams’s
petition unless he was able to successfully plead and prove one of the
statutory exceptions to the PCRA’s time-bar. See 42 Pa.C.S.A. §
9545(b)(1)(i)-(iii).
The PCRA provides three exceptions to its 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.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Exceptions to the time-bar must be pled in
the petition and may not be raised for the first time on appeal. See
Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007); see also
Pa.R.A.P. 302(a) (providing that issues not raised before the lower court are
waived and cannot be raised for the first time on appeal). Further,
although this Court is willing to construe liberally materials filed
by a pro se litigant, pro se status generally confers no special
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benefit upon an appellant. Accordingly, a pro se litigant must
comply with the procedural rules set forth in the Pennsylvania
Rules of the Court. This Court may quash or dismiss an appeal if
an appellant fails to conform with the requirements set forth in
the Pennsylvania Rules of Appellate Procedure.
Commonwealth v. Lyons, 833 A.2d 245, 251–52 (Pa. Super. 2003)
(citations omitted).
Even liberally construed, Williams has failed to plead and prove that any
of his claims constitute a valid exception to the PCRA time-bar. Williams
asserts he meets the requirements of Section 9545(b)(1)(ii), i.e., the newly
discovered fact exception to the PCRA’s time-bar, based on a victim affidavit
stating Williams did not shoot him.
Section 9545(b)(1)(ii) requires Williams to allege and prove that there
were facts that were unknown to him and that he could not have ascertained
those facts by the exercise of due diligence. See Commonwealth v.
Bennett, 930 A.2d 1264, 1270-72 (Pa. 2007). “The focus of the exception is
on the newly discovered facts, not on a newly discovered or newly willing
source for previously known facts.” Commonwealth v. Marshall, 947 A.2d
714, 720 (Pa. 2008) (citation and brackets omitted). “Due diligence demands
that the petitioner take reasonable steps to protect his own interests. A
petitioner must explain why he could not have learned of the new fact(s)
earlier with the exercise of due diligence.” Commonwealth v. Williams, 35
A.3d 44, 53 (Pa. Super. 2011) (citations omitted).
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Williams filed his petition after becoming aware of the victim’s affidavit
in which the victim exonerates Williams. However, the affidavit itself is not a
new fact. See Commonwealth v. Maxwell, 232 A.3d 739, 745 (Pa. Super.
2020). The actual “fact” for purposes of Section 9545(b)(1)(ii) is that Williams
was not the shooter. See Commonwealth v. Marshall, 947 A.2d 714, 720
(Pa. 2008) (holding that an affidavit alleging perjury does not satisfy the
requirements of the newly discovered fact exception “because the only ‘new’
aspect of the claim was that a new witness had come forward to testify
regarding the previously raised claim.” (citation omitted)).
It is clear from a review of the record that the affidavit is merely a new
conduit for information already known by Williams. The underlying assertion
that Williams was not the shooter is not a “new fact” to Williams, as he made
the same argument in his pretrial filings prior to choosing to plead guilty.
Accordingly, Williams’s allegation of newly discovered evidence does not
qualify his petition for an exception to the PCRA’s time-bar.
Further, Williams contends he filed his petition within one year of the
date he discovered the victim’s affidavit. However, Williams admits he became
aware of the victim’s letter in January 2020. Over a year and half then passed,
during which time Williams filed two PCRA petitions, neither of which
mentioned the affidavit. In November 2021, Williams filed a motion to amend
a petition for allowance of appeal with our Supreme Court, for the sole purpose
of attaching the victim’s affidavit as “newly discovered evidence.” Despite
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attaching the affidavit to a filing at that time, another five months then passed
from the Supreme Court’s denial of Williams’s petition for allowance of appeal
before Williams filed the instant PCRA petition, again claiming the affidavit as
“newly discovered”.
In his petition, Williams claims the clock did not start until he received
the affidavit in January 2020, and that the clock “again halted due to
Statewide Judicial Emergency issued by PA Supreme Court in May 2020.”
PCRA Petition, 5/13/2022, at 8. However, Williams does not indicate why he
was unable to file a petition within the five months between those two dates.
Nor does he explain how he was able to file two PCRA petitions prior to the
current petition in which he failed to address the affidavit, or why another five
months passed after he raised the affidavit with our Supreme Court.
As such, Williams has failed to show he exercised due diligence, or that
he filed his petition within one year of learning of the newly discovered fact.
As the PCRA court properly concluded Williams’s PCRA petition was untimely
and does not fall under an exception to the PCRA time bar, we affirm the PCRA
court’s order dismissing the petition.
Order affirmed.
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10/30/202310/30/2023
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