Com. v. Freeland, K.

J-A14023-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEYON TYRELL FREELAND :
:
Appellant : No. 1083 MDA 2021
Appeal from the PCRA Order Entered July 16, 2021
In the Court of Common Pleas of York County
Criminal Division at No: CP-67-CR-0001946-2011
BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED: SEPTEMBER 12, 2022
Appellant, Keyon Tyrell Freeland, appeals from the July 16, 2021 order
entered in the Court of Common Pleas of York County, denying as untimely
his second motion for collateral relief filed pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Appellant contends that the
PCRA erred in denying his petition without a hearing because he presented
meritorious issues asserting ineffectiveness of prior PCRA counsel. Upon
review, we affirm.
As the PCRA court recognized, the underlying facts of the case were
previously summarized in the trial court’s Rule 1925(a) opinion filed on April
17, 2012 and in this Court’s memorandum opinion affirming Appellant’s
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* Former Justice specially assigned to the Superior Court.
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judgment of sentence on direct appeal. Commonwealth v. Freeland, 553
MDA 2021, unpublished memorandum at 1-3 (Pa. Super. filed August 23,
2012). This Court again summarized the facts in an opinion affirming the
denial of Appellant’s first PCRA petition. Commonwealth v. Freeland, 106
A.3d 768, 772 (Pa. Super. 2014). In its Rule 1925(a) opinion in support of
denial of the instant petition, Appellant’s second, the PCRA court explained
that Appellant was charged on January 19, 2011 with two counts of attempted
homicide, two counts of aggravated assault, and one count of possession of a
firearm, all in relation to the shootings of Kyree Maxfield and Ja’Quinn Barnes
that occurred on January 8, 2011. PCRA Rule 1925(a) Opinion, 12/10/21, at
2.
On December 8, 2011, a jury convicted Appellant of the firearms
charges and the charges relating to the shooting of Kyree Maxfield, but
acquitted him with respect to the shooting of Ja’Quinn Barnes. On February
17, 2012, the trial court imposed a sentence of 14 to 28 years in prison. The
court subsequently denied Appellant’s post-sentence motions and this Court
affirmed his judgment of sentence on August 23, 2012. Id. at 2-3. He did
not seek allowance of appeal to our Supreme Court.
Appellant filed a first, timely PCRA petition on March 4, 2013. Counsel
was appointed and a hearing was held on September 25, 2013. At the
conclusion of the hearing, the PCRA court dismissed the petition for lack of
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merit. As noted above, this Court affirmed the dismissal on December 11,
2014. Commonwealth v. Freeland, 106 A.3d 768 (Pa. Super. 2014).
Appellant pro se filed the instant petition, his second, on January 5,
2021, alleging that his sentence for attempted murder was illegal and that
counsel for his first PCRA petition was ineffective. See PCRA Petition, 1/5/21,
at 4. Appellant did not assert any exception to the PCRA timeliness
requirements in his petition, leaving blank the page of the petition designated
for offering proof of any applicable exceptions. Id. at 3.
On March 5, 2021, the PCRA court issued a Rule 907 notice of intent to
dismiss Appellant’s petition. The Rule was reissued on April 19, 2021 and was
served on Appellant at that time. Appellant filed a response on May 6, 2021.
Privately retained counsel subsequently entered an appearance for Appellant
and filed a supplemental response on July 12, 2021. By order entered July
16, 2021, the court dismissed the petition. This timely appeal followed. Both
Appellant and the PCRA court complied with Pa.R.A.P. 1925.
In his Rule 1925(b) statement, Appellant listed eleven issues that he
intended to raise on appeal. Rule 1925(b) Statement, 9/7/21, at ¶ 10(a)(1-
11). In his brief, Appellant presents the following issue for our review:
I. Whether the trial court erred in denying Appellant’s petition
for post conviction collateral relief without a hearing
pursuant to Rule 907 of the Pennsylvania Rules of Criminal
Procedure?
Appellant’s Brief at 4.
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“[A]n appellate court reviews the PCRA court’s findings of fact to
determine whether they are supported by the record, and reviews its
conclusions of law to determine whether they are free from legal error.”
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).
Where the record supports the PCRA court’s findings of fact, they are binding
on this Court. Commonwealth v. Watkins, 108 A.3d 692, 701 (Pa. 2014).
We review the PCRA court’s legal conclusions de novo. Id.All PCRA petitions, “including a second or subsequent petition, shall be
filed within one year of the date the judgment becomes final” unless an
exception to timeliness applies. 42 Pa.C.S.A. § 9545(b)(1). “The PCRA’s
time restrictions are jurisdictional in nature. Thus, if a PCRA petition is
untimely, 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. (Frank) Chester, 895
A.2d 520, 522 (Pa. 2006) (internal citations and quotation marks omitted)
(overruled on other grounds by Commonwealth v. Small, 238 A.3d 1267(Pa. 2020)). As timeliness is separate and distinct from the merits of
Appellant’s underlying claims, we first determine whether his PCRA petition
was timely filed. Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008).
In this instance, Appellant’s judgment became final on September 23,
2012, thirty days after this Court affirmed his judgment of sentence.
Therefore, Appellant had until September 23, 2013 to file a PCRA petition.
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His petition, filed on January 5, 2021, is facially untimely. Therefore, unless
Appellant has pleaded and proved an exception to the PCRA’s time bar, we
may not address his substantive claims.
In its July 16, 2021 order dismissing Appellant’s petition, the PCRA
court noted that it considered the petition, as well as the responses filed by
Appellant and by privately retained counsel to the court’s Rule 907 notice.
The court explained that it dismissed the petition for the reasons set forth in
its Rule 907 notice. Order, 7/16/21, at 1. The court also offered its reasons
for rejecting the additional contentions asserted in the Rule 907 responses.
Id. at 1-3.
Pertinent to our assessment of the timeliness of the petition, the court
concluded that the “petition is facially untimely.” Rule 907 Notice at 1. “By
your own admission in the PCRA petition, your time period within which to
file a petition had long expired by that date.” Id. at 3. The court considered
Appellant’s assertions that his sentences were illegal and that both trial and
PCRA counsel were ineffective but determined that those issues did not meet
any timeliness exceptions under the PCRA. Id. at 3-4.1 We agree with the
PCRA court’s analysis and conclusions.
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1 In the July 16, 2021 order, the court did not further address the timeliness
issue.
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In his brief, Appellant asserts that “any claim of an illegal sentence may
be raised at any time and cannot be waived.” Appellant’s Brief at 9. It is
unquestioned that an illegal sentence can be remedied through PCRA relief.
See 42 Pa.C.S.A. § 9542 (“This subchapter provides for an action by which
persons . . . serving illegal sentences may obtain collateral relief”);
Commonwealth v. McIntyre, 232 A.3d 609, 617 (Pa. 2020). However,
“[a]lthough legality of sentence is always subject to review within the PCRA,
claims must still first satisfy the PCRA’s time limits or one of the exceptions
thereto.” Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (citation
omitted).
Because the instant PCRA petition is facially untimely and Appellant
failed to plead and prove the applicability of any exception to the time bar of
the PCRA, we have no jurisdiction to entertain the merits of the instant PCRA
petition. See Chester, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/12/2022
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