Com. v. Crump, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARVIN CRUMP
Appellant No. 447 EDA 2016
Appeal from the PCRA Order January 6, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0313991-1982
BEFORE: FORD ELLIOTT, P.J.E., STABILE, J., and MOULTON, J.
MEMORANDUM BY MOULTON, J.: FILED JUNE 20, 2017
Marvin Crump appeals, pro se, from the January 6, 2016 order entered
in the Philadelphia County Court of Common Pleas dismissing as untimely his
fourth petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-46. We affirm.
The PCRA court summarized the factual and procedural history of this
matter as follows:
On November 9, 1983, [Crump] was convicted of
murder in the second degree, robbery, criminal conspiracy,
and carrying firearms on public streets or public property
in Philadelphia,[1] and sentenced to a term of life
imprisonment by the Honorable Charles Durham. On
November 20, 1985, the Superior Court affirmed the
judgment of sentence. The Supreme Court of Pennsylvania
denied allocatur on June 17, 1993.
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1
18 Pa.C.S. §§ 2502, 3701, 903, and 6108, respectively.
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[Crump] filed his first PCRA petition on July 29, 1997,
and it was dismissed as untimely on March 27, 1998.
On January 14, 2008, [Crump] filed his second PCRA
petition. Supplements in support of this petition were filed
November 7, 2012, and February 5, 2013. [Crump]’s
principal claims were that he was being unlawfully held
due to a lack of sentencing order, and that the weight of
the evidence presented at trial was insufficient to sustain
his conviction. This Court issued an order dismissing
[Crump]’s claims as untimely on June 3, 2013. [Crump]
did not appeal.
On June 17, 2013, two weeks after [Crump’s] second
petition was dismissed on timeliness grounds, [Crump]
filed a writ of habeas corpus raising claims identical to
those raised in his second petition, namely, the lack of a
sentencing order and that the evidence presented at his
trial was insufficient to sustain his conviction. [Crump]’s
third petition was dismissed as untimely on July 31, 2014.
[Crump] then filed his [fourth], and instant, petition –
titled “Application For Relief” – on August 27, 2014.2 This
Court issued a notice of its intent to dismiss [Crump]’s
[fourth] and subsequent petitions[3] on November 5, 2015,
and having received no response from [Crump], issued its
order dismissing the instant petition and supplemental
petitions on January 6, 2016.
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2
From the certified record, it appears that Crump attempted to
withdraw his “Application for Relief.” See Praecipe to Discontinue/Withdraw
Pending Matter, 11/3/14.
3
Crump “submitted upwards of twenty-nine separate filings [from
August 2014 until January 2016]. These petitions are docketed and the
dates a matter of court record; thus, for the sake of brevity, each filing will
not be addressed in turn here as none pleads an exception to timeliness.”
PCRA Ct. Op., 7/13/16, at 1 n.1 (unpaginated). Among Crump’s numerous
filings were submissions styled as “codicils” to petitions for writ of habeas
corpus as well as additional petitions for writ of habeas corpus.
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On January 21, 2016 this Court received [Crump]’s
notice of appeal to the Pennsylvania Superior Court. This
Court did not order a Concise Statement of Matters
Complained of pursuant to Pa.R.A.P. 1925(b).
PCRA Ct. Op., 7/13/16, at 1-2 (unpaginated).
Crump raises the following issues on appeal:
1. Did the lower court abuse its discretion and/or commit
an error of law when it dismissed [Crump]’s writ of habeas
corpus w/supporting affidavits, challenging record evidence
of conviction in the certified docket entries, maintained by
the clerk of courts, as an untimely PCRA petition, without
the existence of a final order?
2. Did the lower court deprive [Crump] of his
constitutionally protected liberty interest under the due
process clause of the 14th amendment based on an
unforeseeable, retroac[t]ive judicial expansion of a
criminal statute which operates precisely like an ex post
facto law such as article I, sec. 10, of the Constitution
forbids?
3. Is discretion abused by subjecting [Crump] to a penal
statute by implication through Joseph v. Glunt, 96 A.3d
365 (Pa.Super.2014), to justify altering [Crump]’s habeas
claim to fit its opinion absent a final order in the certified
record?
4. Do the laws that govern retroactivity subsume
amendatory statutes such as 42 Pa.C.S. §9764(c.1)(3),
that do not clearly and mainfiestly [sic] indicate
retroactivity?
5. Did the lower court abuse its discretion by attempting to
establish presumption of the existence of an order
[November 9, 1983], in the record when no such order
exist in leagacy [sic] docket #8203139911; nor the
criminal docket at CP-51 -CR-031399-1982?
6. Does the lower court retain exclusive jurisdiction to
entertain, adjudicate or time-bar [Crump]’s brief, absent
the existence of a final order of conviction or sentence in
the certified court record?
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Crump’s Br. at 7 (unnecessary capitalization and suggested answers
omitted).
Before we reach the merits of Crump’s petition, we must determine
whether it was timely filed.
Our standard of review from the denial of PCRA relief “is limited to
examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).
It is well settled that “the timeliness of a PCRA petition is a
jurisdictional requisite.” Commonwealth v. Brown, 111 A.3d 171, 175
(Pa.Super.), app. denied, 125 A.3d 1197 (Pa. 2015). A PCRA petition
“including a second or subsequent petition, shall be filed within one year of
the date the judgment becomes final.” 42 Pa.C.S. § 9545(b)(1). A
judgment is 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. § 9545(b)(3).
Courts may consider a PCRA petition filed more than one year after a
judgment of sentence became final only if the petitioner alleges and proves
one of the following three statutory exceptions:
(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
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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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii); see Brown, 111 A.3d at 175-76. In
addition, when invoking an exception to the PCRA time bar, the petition
must “be filed within 60 days of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2).
On June 17, 1993, the Supreme Court denied Crump’s petition for
allowance of appeal. Therefore, Crump’s current petition, filed on August
27, 2014, is facially untimely. Crump’s petition remains untimely unless he
alleged and proved a PCRA time-bar exception.
As the PCRA court found, Crump’s “numerous filings attack his
sentence and the sufficiency of evidence to sustain the verdict.” PCRA Ct.
Order, 1/6/17, at 1 n.1. However, Crump did not attempt to invoke any
exception to the PCRA time bar. Accordingly, we conclude that the PCRA
court properly dismissed Crump’s PCRA petition as untimely.
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To the extent that Crump challenges the Department of Corrections’
(“DOC”) authority to detain him without a sentencing order,4 we agree with
the trial court that this “claim legitimately sound[s] in habeas corpus,”
Joseph v. Glunt, 96 A.3d 365, 368 (Pa.Super. 2014). The PCRA court
properly found that this claim was meritless. See id. at 372 (holding that a
record of the valid imposition of a sentence was sufficient authority to
maintain a prisoner’s detention, such that even in the absence of a written
sentencing order, the DOC had continuing authority to detain appellant).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/20/2017
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4
Crump appears to contend that the record does not contain proof of
his conviction. See PCRA Ct. Op. at 5. Crump states that he “does not seek
a sentencing order from the [DOC], nor is the DOC Respondents [sic] in this
matter as implied by Judge Minehart.” Crump’s Br. at 16. However, our
review of the record reveals that a sentencing order was entered in this
matter.
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