Com. v. Oliver, C. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
CHARLES V. OLIVER :
:
Appellant : No. 1578 MDA 2020
Appeal from the PCRA Order Entered November 17, 2020,
in the Court of Common Pleas of Lackawanna County,
Criminal Division at No(s): CP-35-CR-0001403-1993.
BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: July 30, 2021
Charles V. Oliver appeals pro se from the order denying as untimely his
serial petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.
The pertinent facts and procedural history are as follows: On January
25, 1995, a jury convicted Oliver of first-degree murder and conspiracy. The
trial court sentenced him to life imprisonment, followed by a consecutive term
of five to ten years of incarceration. Oliver filed a timely appeal to this Court.
On April 3, 1996, we affirmed his judgment of sentence. Commonwealth v.
Oliver, 674 A.2d 287 (Pa. Super. 1996). Oliver did not seek further review.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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Beginning in 2010, when Oliver filed a pro se motion for DNA testing,
Oliver has filed a series of PCRA petitions which the PCRA court denied based
upon its determination that the petitions were untimely filed, and Oliver could
not prove a time-bar exception. In two of Oliver’s previous petitions, he
claimed his birth certificate was altered and that he was a juvenile when he
committed his crimes.
In 2016, Oliver filed a PCRA petition in which he claimed he was entitled
to resentencing pursuant to Montgomery v. Louisiana, 577 U.S. 190(2016), because he “insist[ed] he was a juvenile at the time of the February
1986 murder.” Commonwealth v. Oliver, 160 A.3d 258 (Pa. Super. 2017),
non-precedential decision at 4. We rejected this claim as it was clear from
the record that Oliver’s “birthdate is May 16, 1966, so he was 19 years old at
the time of the murder. Id. In addition, we concluded that Oliver’s “assertion
that his ‘evil’ foster parent(s) changed his birthdate (which [Oliver] claims is
actually April 12, 1968), lack[ed] any support in the record.” Id.In 2018, Oliver again filed a PCRA petition in which he claimed that
“various state governments interfered with his ability to seek relief” under
Montgomery, supra. Commonwealth v. Oliver, 221 A.3d 1225 (Pa.
Super. 2019), non-precedential opinion at 4. Oliver asserted specifically that
“he was sentenced to life imprisonment as an adult based on a fraudulent birth
certificate, and that his attempts to prove he was actually a minor at the time
he committed the crimes have been stymied.” Id. (footnote omitted). We
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rejected Oliver’s claim because Oliver “neither provide[d] any evidence in
support of this assertion nor explains why his actual birth date was previously
unavailable to him.” Id. at 5.
On August 21, 2020, Oliver filed the petition at issue, his sixth attempt
at post-conviction relief. In this petition, Oliver asserted that he had newly
discovered evidence to support his previous claim that his actual birthdate is
April 12, 1968. On October 27, 2020, the PCRA court issued a Rule 907 notice
of its intent to dismiss Oliver’s latest PCRA petition without a hearing because
it was untimely. Oliver filed a response. By order entered November 17,
2020, the PCRA court denied the petition. This timely appeal followed. Both
Oliver and the PCRA court have complied with Pa.R.A.P. 1925.
We note that Oliver’s pro se brief does not a contain a statement of
issues. Nonetheless, before we would consider any of his substantive
arguments, we must first determine whether the PCRA court correctly
determined that his sixth PCRA petition was untimely. The timeliness of a
post-conviction petition is jurisdictional. Commonwealth v. Hernandez, 79
A.3d 649, 651 (Pa. Super. 2013). Generally, a petition for relief under the
PCRA, including a second or subsequent petition, must be filed within one year
of the date the judgment becomes final unless the petition alleges, and the
petitioner proves, that an exception to the time for filing the petition is met.
The three narrow statutory exceptions to the one-year time bar are as
follows: “(1) interference by government officials in the presentation of the
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claim; (2) newly discovered facts; and (3) an after-recognized constitutional
right.” Commonwealth v. Brandon, 51 A.3d 231-233-34 (Pa. Super. 2012)
(citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii)). A PCRA petition invoking one of these
statutory exceptions must be filed within one year of the date the claim could
have been presented.” 42 Pa.C.S.A. § 9545(b)(2). In addition, exceptions to
the PCRA’s time bar must be pled in the petition and may not be raised for
the first time on appeal. 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).
Finally, if a PCRA petition is untimely and the petitioner has not pled and
proven an exception “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.
Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007) (citation omitted).
Here, Oliver’s judgment of sentence became final on May 3, 1996, upon
expiration of the time to file a petition for allowance of appeal with our
Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 1113. Therefore,
Oliver had until May 3, 1997, to file a timely PCRA petition. Because Oliver
filed the PCRA petition at issue in 2020, it is untimely unless he has satisfied
his burden of pleading and proving that one of the enumerated exceptions
applies. See Hernandez, supra.-4-
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Oliver has failed to prove any exception to the PCRA’s time bar. Within
his brief, Oliver asserts that his latest PCRA petition included a “Pennsylvania
State Police Criminal Record History Document, Exhibit #2,” which establishes
both the previously unknown facts exception and the governmental
interference exception.” Oliver’s Brief at 1.
The newly discovered fact exception has two components, which must
be alleged and proved. Namely, the petitioner must establish that: 1) the
facts upon which the claim was predicated were unknown and 2) could not
have been ascertained by the exercise of due diligence. Commonwealth v.
Brown, 141 A.3d 491, 500 (Pa. Super. 2016) (citation omitted). The
“governmental interference” exception requires the petitioner to prove that
the “failure to raise the claim previously was the result of interference by
government officials[.]” 42 Pa.C.S.A. § 9545(b)(1)(i).
Here, the PCRA court concluded that Oliver could not establish either
time-bar exception because Oliver could not establish the existence of a “new”
fact. The court explained:
[Oliver] asserts that he meets the “newly-discovered
evidence” and “government interference” exceptions to the
PCRA time bar. He again asserts that his real date of birth
is April 12, 1968, and that he was a juvenile at the time of
the February 1986 murder. He again asserts that he is the
biological child of Robert Shriver and Elisabeth Halaby and
that he was adopted by the Oliver family. As newly
discovered evidence of this, he attaches a copy of the
request for criminal record check form that he submitted to
the Pennsylvania State Police, in which he used not only his
name, but also the name Charles Halaby and Charles
Shriver, as well as an alternative birth date of April 12,
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1968. He asserts that this confirms that he was born
Charles Halaby on April 12, 1968. However, the criminal
history record generated by the State Police only found a
result for the name Charles Oliver, not Charles Halaby or
Charles Shriver, and the date of birth that triggered a
criminal record was May 16, 1966. Just because [Oliver]
asked the State Police to search a different name and
different birthdate does not prove that this “newly
discovered evidence” demonstrates that he had an
alternative birthdate.
Rule 907 Notice, 10/27/20, at 3-4.
Our review of the record supports the PCRA court’s conclusions that the
state police’s record check, based on information Oliver submitted, did
not definitively established that he was born Charles Halaby on April 12, 1968.
Even if there were some merit to his claim, Oliver gives no explanation for
why he could not obtain this information sooner through the exercise of due
diligence, nor does he explain how the government interfered with his gaining
this information.
In sum, our review of the record supports the PCRA court’s conclusion
that it lacked jurisdiction to consider Oliver’s serial PCRA petition because it
was untimely, and Oliver had not established a time-bar exception.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/30/2021
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