Com. v. Grierson, M. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MARVEL GRIERSON :
:
Appellant : No. 1760 EDA 2020
Appeal from the PCRA Order Entered August 20, 2020
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0005294-2012
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED AUGUST 6, 2021
Appellant, Marvel Grierson, appeals pro se from the order entered on
August 20, 2020, dismissing his second petition filed pursuant to the Post
Conviction Relief Act (“PCRA”)1 as untimely. We affirm.
The trial court accurately summarized the procedural history of this case
as follows:
On November 19, 2012, Appellant [entered] a negotiated guilty
plea to [two charges of possession with intent to deliver2 and one
charge of criminal conspiracy to possession with intent to
deliver.3] In accordance with the terms of the negotiated guilty
plea, [the trial court] immediately [sentenced Appellant to
incarceration for a period of 35 months to 70 months and a
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
2 35 Pa.C.S.A. § 780-113(a)(30).
3 18 Pa.C.S.A. § 903.
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consecutive period of probation.] On November 21, 2012[,]
Appellant filed a motion for reconsideration of sentence. On
November 26, 2012[,] the motion was denied. Appellant did not
file an appeal and Appellant’s judgment of sentence became final
on December 26, 2012. On October 7, 2013[, Appellant] filed his
first PCRA petition. . . . On July 20, 2016[,] the PCRA petition
was denied.
On September 6, 2019[,] Appellant filed a second and untimely
pro se PCRA petition. On September 9, 2019[, the PCRA court]
entered an order appointing Stephen D. Molineux, Esquire to
represent Appellant on the PCRA petition. On January 24, 2020,
under Pennsylvania v. Finley, 481 U.S. 551 (1987) and
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)[,] counsel
filed a “[n]o [m]erit” letter and an application to withdraw
appearance. On March 5, 2020[,] Appellant filed a [document
with the PCRA court entitled] “Petitioner’s
Amendment/Supplement For Post-Conviction Relief Act” opposing
Mr. Molineux’s “no merit” letter. On July 1, 2020[,] counsel
confirmed, notwithstanding Appellant’s opposition, his conclusion
concerning the “no merit” letter remained the same. On July 8,
2020[, the PCRA court issued a] [n]otice of [i]ntention to [d]ismiss
[Appellant’s] PCRA [p]etition without a hearing pursuant to
Pa.R.Crim.P. 907. On July 23, 2020, Appellant[] pro se filed an
unnamed document [] in opposition to the Rule 907 notice, and
Appellant attached [his] pro se March 5, 2020 filing. On August
20, 2020[, the PCRA court] entered an order denying and
dismissing Appellant’s second and untimely September 6, 2019
PCRA petition.
Trial Court Opinion, 12/22/20, at 1-3. This timely pro se appeal followed.4
Appellant raises one issue on appeal:
Did the PCRA court exceed its authority by failing to uphold
[Appellant’s] negotiated plea bargain contract, when [an] agent
of the [Commonwealth, i.e., Appellant’s parole agent,] changed
his maximum date from May 11, 2020 to [S]eptember 5, 2022,
which caused the breach of contract[?]
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4 After review of the certified record, it appears that the PCRA court did not
order Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925.
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Appellant’s Pro Se Brief, at 2. Before we can address the substance of
Appellant’s claim, however, we first analyze the timeliness of Appellant’s
second PCRA petition, which implicates our jurisdiction over Appellant’s instant
claims.
We previously determined:
This Court's standard of review regarding an order denying a
petition under the PCRA is whether the determination of the PCRA
court is supported by the evidence of record and is free of legal
error. The PCRA court's findings will not be disturbed unless there
is no support for the findings in the certified record.
Pennsylvania law makes clear no court has jurisdiction to hear an
untimely PCRA petition. [A]mendments to the PCRA, effective
January 16, 1996, provide [that] a PCRA petition, including a
second or subsequent petition, shall 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 the review.” 42 Pa.C.S.A. §
9545(b)(3).
[There are] three statutory exceptions to the timeliness provisions
in the PCRA [that] allow for the very limited circumstances under
which the late filing of a petition will be excused. 42 Pa.C.S.A.
§ 9545(b)(1). To invoke an exception, a petitioner must allege
and prove:
(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
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provided in this section and has been held by that court to
apply retroactively.
We emphasize that it is the petitioner who bears the burden to
allege and prove that one of the timeliness exceptions applies.
Lastly, there is no generalized equitable exception to the
jurisdictional one-year time bar pertaining to post-conviction
petitions.
Commonwealth v. Vinson, 249 A.3d 1197, 1203–04 (Pa. Super. 2021)
(internal case citations and some quotations omitted).
Moreover, an appellant must plead a timeliness exception in the PCRA
petition itself. Commonwealth v. Stanton, 184 A.3d 949, 954 n.4 (Pa.
2018); Commonwealth v. Wharton, 886 A.2d 1120, 1125-1126 (Pa. 2005).
PCRA petitioners must acknowledge within the petition under review that it is
untimely but that one or more exceptions apply. Commonwealth v.
Beasley, 741 A.2d 1258 (Pa. 1999). “If the petition is determined to be
untimely, and no exception has been pled and proven, the petition must be
dismissed without a hearing[.]” Commonwealth v. Perrin, 947 A.2d 1284,
1285 (Pa. Super. 2008).
Here, Appellant’s judgment became final on December 26, 2012, after
the expiration of time for seeking review. 42 Pa.C.S.A. § 9545(b)(3).
Therefore, Appellant was required to file any PCRA petition, including a second
or subsequent petition, by December 26, 2013 for it to be considered timely.
42 Pa.C.S.A. § 9545(b)(1). Appellant filed his second PCRA petition on
September 6, 2019. As such, it was patently untimely. Appellant bore the
burden of alleging and proving within his second PCRA petition itself that it fit
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within one of the statutory timeliness exceptions. Stanton, supra.
Appellant, however, failed to address the timeliness of his second PCRA
petition at any stage of the instant proceedings. Appellant neither alleged nor
proved that his second pro se PCRA petition satisfied any of the three
enumerated exceptions to the one-year time bar pursuant to 41 Pa.C.S.A.
§ 9545(b)(1). Perrin, supra. Hence, neither this Court nor the PCRA court
possessed jurisdiction over Appellant’s claims. The PCRA court correctly
denied and dismissed Appellant’s PCRA petition.5 Id.Order affirmed.
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5 Even if Appellant pleaded and proved a timeliness exception, this Court lacks
jurisdiction to address Appellant’s claim. Appellant does not challenge the
validity of his original negotiated plea agreement or the terms thereof.
Instead, the essence of Appellant’s argument challenges the recalculation of
his original projected maximum sentence date by his parole agent or the
Pennsylvania Board of Probation and Parole (“PBPP”). See Appellant’s Pro Se
Brief at 2. As the trial court correctly determined:
Decisions concerning parole in a state sentence are vested solely
with the [PBPP]; appeals from administrative parole orders are
within the exclusive jurisdiction of the Commonwealth Court [of
Pennsylvania]. See Commonwealth v. Vega, 754 A.2d 714,
718 (Pa. Super. 2000)[;] Commonwealth v. Hollawell, 604
A.2d 723 ([Pa. Super.] 1992). In the present case, assuming
Appellant’s claim concerning the change of the parole date has
merit, any decision concerning Appellant’s release date and parole
for his state sentence lies with the [PBPP], and in the event the
decision of the parole board is appealed, the Commonwealth
Court.
Trial Court Opinion, 12/22/20, at 5-6. The proper venue for Appellant’s
grievance is with the Commonwealth Court.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/6/2021
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