Com. v. Steward, D. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DONALD STEWARD :
:
Appellant : No. 2083 EDA 2020
Appeal from the PCRA Order Entered September 24, 2020,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0403521-2003.
BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED SEPTEMBER 7, 2021
Donald Steward appeals from the order denying his serial petition filed
pursuant to the Post Conviction Relief Act (“PCRA”) as untimely filed. 42
Pa.C.S.A. §§ 9541-46. We affirm.
A jury convicted Steward on July 27, 2004, of rape and sexual assault.
On December 3, 2004, the trial court sentenced Steward to an aggregate term
of ten to twenty years of imprisonment. The PCRA court summarized the
prolonged procedural history as follows:
On November 2, [2009], the Superior Court rejected a direct
appeal filed by [Steward], thereby affirming his judgment of
sentence. [Steward] then filed a timely petition for
allowance of appeal with the Pennsylvania Supreme Court,
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* Retired Senior Judge assigned to the Superior Court.
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which vacated the portion of the trial court’s opinion related
to prosecutorial [misconduct] and remanded the matter
back to the Superior Court to remand the matter to the trial
court to address whether the assistant district attorney
committed prosecutorial misconduct. The trial court
concluded that there was no prosecutorial misconduct which
our Superior Court affirmed. [Steward] then filed a timely
petition for allowance of appeal with the Pennsylvania
Supreme Court, which denied his petition on May 12, 2011.
On May 8, 2012, [Steward] filed his first PCRA petition.
During the next four (4) years, [Steward] with the aid of
court appointed counsel filed several amended petitions.
[Steward] also requested to proceed pro se and was
permitted to do so following a Grazier hearing. While
[Steward’s] first PCRA petition was proceeding, [Steward]
filed a second PCRA petition on May 12, 2016 and a third
petition on May 12, 2017. On June 7, 2017, the trial court
dismissed [Steward’s] first PCRA petition. [Steward]
appealed this dismissal and our Superior Court affirmed on
February 14, 2019. While [Steward’s] appeal from his first
PCRA petition was pending, a federal district judge from the
Eastern District of Pennsylvania issued an opinion finding
that a jury instruction on reasonable doubt, similar to the
one given in [Steward’s] trial, was unconstitutional.
[Brooks v. Gilmore, 2017 WL 3475475 (E.D. Pa. August
11, 2017).]
On October 10, 2017, [Steward] filed another PCRA
petition contending that both trial and appellate counsel
were ineffective for failing to object to the jury instruction
given on reasonable doubt in his trial as constitutionally
infirm. Thereafter, this second PCRA matter was
administratively reassigned to [the current PCRA court] for
disposition. Thereafter, [Steward] filed another PCRA
petition again contending that both trial and appellate
counsel were ineffective for failing to object to the jury
instruction given on reasonable doubt in his trial as
constitutionally infirm. These matters were both dismissed
by [the PCRA court] as [Steward’s] pending appeal deprived
[the PCRA court] of jurisdiction over the subsequently filed
PCRA petitions. [Steward’s] petition for allowance of appeal
with the Pennsylvania Supreme Court [from the denial of his
first PCRA petition] was denied on August 7, 2019.
[Steward] then appealed [the PCRA court’s dismissals of his
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two (2) subsequently filed PCRA petitions to our Superior
Court. On December 16, 2019 and February 3, 2020,
respectively both of these appeals were dismissed; the first
being quashed by our Superior Court, sua sponte, and the
other discontinued by [Steward].
While both of the above* subsequently dismissed
appeals were pending, [Steward] filed this [serial] PCRA
petition again contending that both trial and appellate
counsel were ineffective for failing to object to the jury
instruction given on reasonable doubt in his underlying rape
trial as constitutionally infirm. On February 20, 2020,
appointed counsel filed a supplemental petition challenging
the constitutionality of the reasonable doubt instruction,
premised upon the federal district court holding in [Brooks,
supra].
PCRA Court Opinion, 2/19//21, at 2-4 (excess capitalization and footnotes
omitted).
On July 8, 2020, the PCRA court issued a Pa.R.Crim.P. 907 notice of its
intent to dismiss Steward’s latest PCRA petition because the issue raised in
the petition was meritless and the petition was untimely filed. Steward did
not file a response. By order entered September 24, 2020, the PCRA court
dismissed Steward’s serial PCRA petition. This timely appeal followed. Both
Steward and the PCRA court have complied with Pa.R.A.P. 1925.
Steward raises the following two issues on appeal:
1. Did the PCRA court err and/or abuse its discretion when
it dismissed [Steward’s] petition as untimely filed?
2. Did the PCRA court err and/or abuse its discretion when
it dismissed [Steward’s] petition where counsel was
ineffective for failing to challenge a jury instruction
regarding reasonable doubt which violates [Steward’s]
Due Process rights?
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Steward’s Brief at 5.
In his first issue, Steward asserts that the PCRA court erred in
concluding his latest PCRA petition was untimely filed. 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
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)). Here, because Steward’s underlying
claim arose prior to December 24, 2017, he was required to file his PCRA
petition invoking one of these statutory exceptions within 60 days of the date
the claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2) (repealed).1
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).
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1 The current statutory subsection extends the period to one year.
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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, Steward’s judgment of sentence became final on August 10, 2011,
ninety days after our Supreme Court denied his petition for allowance of
appeal and the time for filing a writ of certiorari to the United States Supreme
Court expired. See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13. Therefore,
Steward had until August 10, 2012, to file a timely petition. Because Steward
filed his latest PCRA petition in 2019, it is untimely unless he has satisfied his
burden of pleading and proving that one of the enumerated exceptions
applies. See Hernandez, supra.Steward failed to plead and/or prove any exception to the PCRA’s time
bar in his supplemental PCRA petition. Rather, for the first time in his Rule
1925 statement he asserted that he has met the “newly-discovered evidence”
exception because he became aware that his due process rights were violated
once Brooks, supra, was decided. Because this exception was not raised in
the petition it is waived. Burton, supra. Moreover, it is now well-settled that
judicial decisions do not constitute a new “fact” for PCRA timeliness exception
purposes. See, e.g., Commonwealth v. Whitehawk, 146 A.3d 266, 271
(Pa. Super. 2016) (reiterating that “subsequent decisional law does not
amount to a new ‘fact’ under Section 9545(b)(1)(ii) of the PCRA”).
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In sum, our review of the record supports the PCRA court’s conclusion
that it lacked jurisdiction to consider Steward’s serial PCRA petition because it
was untimely, and Steward has not established a time-bar exception.2
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/7/2021
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2 The PCRA court therefore lacked jurisdiction to consider Steward’s second
issue. Derrickson, supra. Nonetheless, the court correctly noted that the
Brooks decision is not binding authority, and the court cogently explained
why the case is unpersuasive. See PCRA Court Opinion, 2/19/21, at 8-11.
While we do not disagree with this discussion, the court lacked jurisdiction to
consider the merits of Steward’s second issue.
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