Com. v. Butler, S.

J-S29011-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHARIFF BUTLER :
:
Appellant : No. 1637 EDA 2020
Appeal from the PCRA Order Entered July 16, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0409891-2002,
CP-51-CR-0415571-2002, CP-51-CR-0415591-2002,
CP-51-CR-0700562-2002, CP-51-CR-0700571-2002
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHARIFF BUTLER :
:
Appellant : No. 1638 EDA 2020
Appeal from the PCRA Order Entered July 16, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0409891-2002,
CP-51-CR-0415571-2002, CP-51-CR-0415591-2002,
CP-51-CR-0700562-2002, CP-51-CR-0700571-2002
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHARIFF BUTLER :
:
Appellant : No. 1639 EDA 2020
Appeal from the PCRA Order Entered July 16, 2020
J-S29011-21
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0409891-2002,
CP-51-CR-0415571-2002, CP-51-CR-0415591-2002,
CP-51-CR-0700562-2002, CP-51-CR-0700571-2002
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHARIFF BUTLER :
:
Appellant : No. 1640 EDA 2020
Appeal from the PCRA Order Entered July 16, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0409891-2002,
CP-51-CR-0415571-2002, CP-51-CR-0415591-2002,
CP-51-CR-0700562-2002, CP-51-CR-0700571-2002
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHARIFF BUTLER :
:
Appellant : No. 1641 EDA 2020
Appeal from the PCRA Order Entered July 16, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0409891-2002,
CP-51-CR-0415571-2002, CP-51-CR-0415591-2002,
CP-51-CR-0700562-2002, CP-51-CR-0700571-2002
BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED JANUARY 12, 2022
____________________________________________
* Former Justice specially assigned to the Superior Court.
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Shariff Butler appeals, pro se, from the order dismissing as untimely his
third petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), see 42 Pa.C.S.A. §§ 9541-9546. We affirm.
Over the course of several days in September 2001, Butler and several
accomplices robbed, burglarized and kidnapped Craig Brown and Patricia
Mack, because Butler believed that Brown owed him money for drugs. Brown
was later found dead with multiple gunshot wounds. On June 10, 2003, a jury
found Butler guilty of possession of a controlled substance, attempted
burglary, burglary, criminal conspiracy, kidnapping, robbery and carrying a
firearm without a license.1 The trial court subsequently sentenced Butler to an
aggregate term of 27½ to 55 years in prison. This Court affirmed Butler’s
judgment of sentence, and the Pennsylvania Supreme Court denied allowance
of appeal. See Commonwealth v. Butler, 869 A.2d 4, 2847 EDA 2003 (Pa.
Super., filed December 27, 2004) (unpublished memorandum).
Butler subsequently litigated two unsuccessful PCRA petitions. On
February 26, 2016, Butler filed the instant pro se PCRA petition, alleging
claims based upon Montgomery v. Louisiana, 577 U.S. 190 (2016),2 and
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135 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 901, 3502, 903, 2901, 3701,
6106.
2 In Montgomery, the United States Supreme Court reviewed its prior
decision in Miller v. Alabama, 567 U.S. 460, 489 (2012) (declaring
unconstitutional mandatory sentences of life without the possibility of parole
(Footnote Continued Next Page)
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Alleyne v. United States, 570 U.S. 99 (2013).3 Following appropriate notice
pursuant to Pa.R.Crim.P. 907, the PCRA court dismissed Butler’s petition as
untimely filed on July 16, 2020. This timely appeal followed.4, 5
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for juvenile offenders) and held that the rule espoused in Miller must be
applied retroactively. Montgomery, 577 U.S. at 206.
3 In Alleyne, the United States Supreme Court held that “[a]ny fact that, by
law, increases the penalty for a crime is an ‘element’ that must be submitted
to the jury and found beyond a reasonable doubt.” Alleyne, 570 U.S. at 103.
4 Butler’s pro se notice of appeal is hand-dated August 13, 2020, and was
entered on the docket on August 17, 2020. The thirtieth day following the
entry of the PCRA court’s order dismissing Butler’s PCRA petition was August
15, 2020, a Saturday. Thus, Butler’s appeal was timely filed. See 1 Pa.C.S.A.
§ 1908 (providing that “[w]henever the last day of any such period
[concerning computation of time] shall fall on a Saturday or Sunday, … such
day shall be omitted from the computation.”).
5 Because Butler’s notice of appeal listed all five docket numbers, this Court
issued a rule to show cause why Butler’s appeal should not be quashed in light
of Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018) (explaining
that when an order resolves issues arising on more than one docket, an
appellant must file a notice of appeal at each docket, and failure to do so will
result in quashal). In response, Butler argued that the trial court in the
underlying action addressed all five dockets together and issued a single
judgment of sentence. This Court subsequently discharged the rule to show
cause and referred the issue to the merits panel. This Court, sua sponte,
entered an order consolidating Butler’s appeals.
The record reflects that Butler’s pro se notice of appeal identifies all five
docket numbers and was filed on each docket. Accordingly, we conclude that
Butler has sufficiently complied with the dictates of Walker. See
Commonwealth v. Johnson, 236 A.3d 1141, 1148 (Pa. Super. 2020) (en
banc) (concluding that the appellant complied with Walker by filing four
separate notices of appeal, one at each docket number).
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Prior to reaching the merits of Butler’s claims, we must consider the
timeliness of his PCRA petition. See Commonwealth v. Miller, 102 A.3d 988,
992 (Pa. Super. 2014).
Because the time limitations established by the PCRA are
jurisdictional in nature, a court lacks jurisdiction to address the
claims raised in an untimely petition. The PCRA provides that a
petition for relief must be filed within one year of the date the final
judgment is entered. 42 Pa.C.S.A. § 9545(b). A judgment
becomes final for purposes of the PCRA at the conclusion of direct
review or after the time provided for seeking direct review has
lapsed, if no direct review has been taken.
Commonwealth v. Liebensperger, 904 A.2d 40, 45 (Pa. Super. 2006)
(some internal citations omitted).
Butler’s judgment of sentence became final on July 18, 2005, when the
time for filing a petition for writ of certiorari to the United States Supreme
Court expired. See SUP. CT. R. 13.1. The instant petition, filed more than a
decade later, is patently untimely. Thus, the PCRA court lacked jurisdiction to
review Butler’s petition unless he was able to successfully plead and prove one
of the statutory exceptions to the PCRA’s time bar:
(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 provided in this section and
has been held by that court to apply retroactively.
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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petitioner asserting one of these
exceptions must file a petition within 60 days of the date the claim first could
have been presented. Id. § 9545(b)(2).6 “The PCRA squarely places upon the
petitioner the burden of proving an untimely petition fits within one of the
three exceptions.” Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 2012).
Butler attempts to invoke the newly-recognized constitutional right
exception set forth at 42 Pa.C.S.A. § 9545(b)(1)(iii). See Appellant’s Brief at
8. Butler argues that the Montgomery decision requires retroactive
application of Alleyne, which Butler believes established a new substantive
rule of law. See id. at 8-10.7
The Pennsylvania Supreme Court has specifically rejected Butler’s
argument that Alleyne was made retroactive through Montgomery. See
Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016).
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6 On October 24, 2018, the General Assembly amended section 9545(b)(2) in
order to extend the time for filing a petition from 60 days to one year from
the date the claim could have been presented. See 2018 Pa.Legis.Serv.Act
1028-146 (S.B. 915), effective December 24, 2018. The amendment applies
to claims arising one year before the effective date of the section, i.e.,
December 24, 2017. Because Butler’s claim arose no later than January 25,
2016, when the Montgomery decision was issued, the amendment does not
apply.
7 Butler raises two additional claims in his brief, reiterating his argument in
favor of retroactive application of Alleyne. See Appellant’s Brief at 10-24.
Butler does not explicitly reference any of the timeliness exceptions set forth
in section 9545(b)(1)(i)-(iii) in support of these claims.
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Accordingly, Butler has failed to establish the newly-recognized constitutional
right timeliness exception.
Accordingly, as Butler has failed to plead and prove an exception to the
PCRA’s time bar, we affirm the PCRA court’s order dismissing his untimely
petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/12/2022
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