Com. v. Jerry, B. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BERNARD JERRY
Appellant No. 742 WDA 2014
Appeal from the PCRA Order April 15, 2014
In the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-04-CR-0000196-1977;
CP-04-CR-0000197-1977; CP-04-CR-0000317-1977
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 31, 2014
Appellant, Bernard Jerry, appeals pro se from the order entered in the
Beaver County Court of Common Pleas, denying as untimely his serial
petition filed per the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§
9541-9546. On August 16, 1977, a jury convicted Appellant of first-degree
murder and related offenses. The court sentenced Appellant on April 12,
1978, to life imprisonment, which our Supreme Court affirmed on March 10,
1982. See Commonwealth v. Jerry, 497 Pa. 422, 441 A.2d 1210 (1982).
On October 4, 1982, the United States Supreme Court denied Appellant’s
petition for certiorari. Since then, Appellant has filed numerous and
unsuccessful petitions for post-conviction relief. On April 15, 2014,
Appellant filed his current pro se PCRA petition, which the PCRA court denied
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*Retired Senior Judge assigned to the Superior Court.
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as untimely the following day.1 Appellant timely filed a pro se notice of
appeal and voluntary Rule 1925(b) statement on May 5, 2014.
The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008).
“Jurisdictional time limits go to a court’s right or competency to adjudicate a
controversy.” Id. at 359, 956 A.2d at 983. Under the amended PCRA,
effective 1/16/96, a PCRA petition must be filed within one year of the date
the underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A
judgment is deemed 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
review.” 42 Pa.C.S.A. § 9545(b)(3). The three statutory exceptions to the
timeliness provisions in the PCRA allow for very limited circumstances under
which the late filing of a petition will be excused. 42 Pa.C.S.A. §
9545(b)(1)(i)-(iii). A petitioner asserting a timeliness exception must file a
petition within sixty days of the date the claim could first have been
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1
The record indicates the PCRA court did not give Appellant notice of its
intent to dismiss the current PCRA petition without a hearing, pursuant to
Pa.R.Crim.P. 907. Appellant, however, has not challenged the absence of
the Rule 907 notice on appeal, which constitutes waiver of that claim. See
Commonwealth v. Boyd, 923 A.2d 513, 514 n. 1 (Pa.Super. 2007), appeal
denied, 593 Pa. 754, 932 A.2d 74 (2007). Moreover, even if raised, the
issue does not automatically warrant remand where the petition is
unquestionably untimely. See Commonwealth v. Pursell, 561 Pa. 214,
749 A.2d 911, 917 n. 7 (2000). See also Commonwealth v. Taylor, 65
A.3d 462, 468 (Pa.Super. 2013) (stating same).
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presented. 42 Pa.C.S.A. § 9545(b)(2). Section 9545(b)(1)(iii) requires the
petitioner to assert a constitutional right that the United States Supreme
Court or our Supreme Court has deemed to apply retroactively. See 42
Pa.C.S.A. § 9545(b)(1)(iii).
Instantly, Appellant’s judgment of sentence became final on October 4,
1982. Appellant filed his current PCRA petition on April 15, 2014, more than
thirty-one (31) years after his judgment became final; thus, it is patently
untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant attempts to allege a
new constitutional right under Section 9545(b)(1)(iii), citing Martinez v.
Ryan, ___ U.S. ___, 132 S. Ct. 1309, 182 L. Ed. 2d 272 (2012).2
Nevertheless, Martinez was filed on March 20, 2012, and Appellant filed his
current petition more than 60 days later, on April 15, 2014. See
Commonwealth v. Brandon, 51 A.3d 231 (Pa.Super. 2012) (explaining
60-day period runs from date of filing of underlying judicial decision).
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2
To the extent Appellant asserts ineffective assistance of all prior counsel,
such generic claims do not qualify as exceptions to the statutory timeliness
requirement. See Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 753
A.2d 780 (2000). Likewise, our Supreme Court’s decision in
Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264 (2007) affords
Appellant no relief. See id. (allowing abandonment by counsel on appeal to
serve as exception to PCRA timeliness requirement per Section
9545(b)(1)(ii), under only very limited circumstance where counsel
completely abandoned petitioner on appeal, abandonment was unknown to
petitioner, and petitioner filed for relief within 60 days of learning of
abandonment, assuming exercise of due diligence; distinguishing this precise
factual scenario from Gamboa-Taylor and progeny).
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Moreover, Martinez affords Appellant no relief. See Commonwealth
v. Saunders, 60 A.3d 162 (Pa.Super. 2013), appeal denied, ___ Pa. ___,
72 A.3d 603 (2013) (explaining Martinez applies in context of federal
habeas corpus law and is of no moment to timeliness analysis under PCRA).
Therefore, Appellant’s petition remains untimely. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/31/2014
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