Com. v. Warrick, R.

J. S18043/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
RONALD WARRICK, : No. 1828 WDA 2017
:
Appellant :
Appeal from the PCRA Order, October 17, 2017
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0011872-2005
BEFORE: STABILE, J., MUSMANNO, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 16, 2018
Appellant, Ronald Warrick, appeals, pro se, from the October 17,
2017 order entered by the Court of Common Pleas of Allegheny County
dismissing his third petition filed pursuant to the Post Conviction Relief Act,
42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
A previous panel of this court gave the following summary of the
procedural posture of this case:
The sentencing court imposed a term of not less than
twenty nor more than forty years of incarceration.
After Appellant’s direct appeal rights were reinstated
nunc pro tunc, this Court affirmed judgment of
sentence and our Supreme Court denied allowance of
appeal on July 21, 2010. The PCRA court denied
Appellant’s first, counseled PCRA petition on
February 29, 2012. This Court affirmed on
October 19, 2012.
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On August 18, 2015, Appellant, acting pro se, filed
[his second PCRA] petition, which he styled as a
petition for writ of habeas corpus
ad subjiciendum.[Footnote 5] After entering a
notice of intent to dismiss pursuant to Pa.R.Crim.P.
907, and receiving Appellant’s response, the PCRA
court dismissed the petition on December 15, 2015.
Commonwealth v. Warrick, No. 2019 WDA 2015, unpublished
memorandum at 2-3 (Pa.Super. filed July 12, 2016) (footnotes omitted).
This court affirmed the PCRA court’s dismissal of appellant’s second
PCRA petition on July 12, 2016. Appellant filed the instant PCRA petition
pro se on May 23, 2017. On August 22, 2017, the PCRA court entered its
notice of intention to dismiss without a hearing pursuant to
Pa.R.Crim.P. 907. Appellant filed a response to the PCRA court’s notice of
intention to dismiss on September 12, 2017. The PCRA court dismissed
appellant’s PCRA petition on October 17, 2017. Appellant filed a notice of
appeal to this court on November 16, 2017. 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(b). The PCRA court filed an opinion pursuant to
Pa.R.A.P. 1925(a) on December 21, 2017. On March 12, 2018, appellant
filed an application to amend his appeal.
In reviewing appellant’s three-page brief, we note that appellant failed
to include a statement of questions involved pursuant to Pa.R.A.P. 2116.
Additionally, appellant appears to be arguing that he is entitled to relief
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under the PCRA based on the contents of a PCRA petition and testimony
from a trial involving his co-defendant, David P. King.
Subsequent PCRA petitions beyond a petitioner’s first petition are
subject to the following standard:
A second or subsequent petition for post-conviction
relief will not be entertained unless a strong
prima facie showing is offered to demonstrate that
a miscarriage of justice may have occurred.
Commonwealth v. Allen, 732 A.2d 582, 586 (Pa.
1999). A prima facie showing of entitlement to
relief is made only by demonstrating either that the
proceedings which resulted in conviction were so
unfair that a miscarriage of justice occurred which no
civilized society could tolerate, or the defendant’s
innocence of the crimes for which he was charged.
Id. at 586. Our standard of review for an order
denying post-conviction relief is limited to whether
the trial court’s determination is supported by
evidence of record and whether it is free of legal
error. Commonwealth v. Jermyn, 709 A.2d 849,
856 (Pa. 1998).
A PCRA petition, including a second or subsequent
petition, must be filed within one year of the date
that judgment of sentence becomes final.
42 Pa.C.S.[A.] § 9545(b)(1). A judgment becomes
final for purposes of the PCRA “at the conclusion of
direct review, including discretionary review in the
Supreme Court of the United States and the
Supreme Court of Pennsylvania, or the expiration of
time for seeking the review.” 42 Pa.C.S.[A.]
§ 9543(b)(3). PCRA time limits are jurisdictional in
nature, implicating a court’s very power to
adjudicate a controversy. Commonwealth v. Fahy,
737 A.2d 214 (Pa. 1999). Accordingly, the “period
for filing a PCRA petition can be extended only if the
PCRA permits it to be extended, i.e., by operation of
one of the statutorily enumerated exceptions to the
PCRA time-bar. Id. at 222.
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Commonwealth v. Ali, 86 A.3d 173, 176-177 (Pa. 2014), cert. denied,
135 S. Ct. 707 (2014). Before addressing appellant’s issues on the merits,
we must first determine if we have jurisdiction to do so.
As noted above, a PCRA petitioner has one year from the date his or
her judgment of sentence becomes final in which to file a PCRA petition.
This court has held the following regarding when a judgment becomes final:
The plain language of the PCRA provides that a
judgment of sentence becomes final at the
conclusion of direct review or when the time seeking
direct review expires. See 42 Pa.C.S.A.
§ 9545(b)(3). In fixing the date upon which a
judgment of sentence becomes final, the PCRA does
not refer to the conclusion of collateral review or the
time for appealing a collateral review determination.
Thus, the plain language of the PCRA statute shows
that a judgment of sentence becomes final
immediately upon expiration of time for seeking
direct review, even if other collateral proceedings are
still ongoing. As this result is not absurd or
unreasonable, we may not look for further
manifestations of legislative intent. See
Commonwealth v. Hall, 80 A.3d 1204, 1211 (Pa.
2013) (internal quotation marks omitted) (We may
“look beyond the plain language of the statute only
when words are unclear or ambiguous, or the plain
meaning would lead to a result that is absurd,
impossible of execution, or unreasonable.”).
Commonwealth v. Callahan, 101 A.3d 118, 112 (Pa.Super. 2014).
In this case, our supreme court denied appellant’s petition for
allowance of appeal of his judgment of sentence on July 21, 2010.
Commonwealth v. Warrick, 998 A.2d 960 (Pa. 2010). Appellant did not
file a writ of certiorari with the Supreme Court of the United States.
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Accordingly, appellant’s judgment of sentence became final on October 19,
2010. See S.Ct.R. 13. Appellant filed the instant petition on May 23,
2017—more than six years after his judgment of sentence became final and
more than five years after a PCRA petition could be considered timely. See
42 Pa.C.S.A. § 9545(b)(1).
As noted above, the PCRA does enumerate exceptions to the one-year
requirement. A petitioner may file a petition under the PCRA after one year
has passed from the final judgment of sentence for any of the following
reasons:
(i) [T]he 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) [T]he 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) [T]he 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.A. § 9545(b)(1)(i)-(iii). Section 9545 also mandates that any
petition filed under these exceptions must be filed within 60 days of the date
the claim could have been presented. Id. at § 9545(b)(2).
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Here, appellant appears to have raised a claim under
Section 9545(b)(1)(ii).
The timeliness exception set forth in
Section 9545(b)(1)(ii) requires a petitioner to
demonstrate that he did not know the facts upon
which he based his petition and could not have
learned those facts earlier by the exercise of due
diligence. Commonwealth v. Bennett, 930 A.2d
1264, 1271 (Pa. 2007). Due diligence demands that
the petitioner take reasonable steps to protect his
own interests. Commonwealth v. Carr, 768 A.2d
1164, 1168 (Pa.Super. 2001). A petition must
explain why he could not have learned the new
fact(s) earlier with the exercise of due diligence.
Commonwealth v. Breakiron, 781 A.2d 94, 98
(Pa. 2001); Commonwealth v. Monaco, 996 A.2d
1076, 1080 (Pa.Super. 2010), appeal denied, 20
A.3d 1210 (Pa. 2011). This rule is strictly enforced.
Id. Additionally, the focus of this exception “is on
the newly discovered facts, not on a newly
discovered or newly willing source for previously
known facts.” Commonwealth v. Marshall, 947
A.2d 714, 720 (Pa. 2008).
Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super. 2015), appeal
denied, 125 A.3d 1197 (Pa. 2015).
In the instant appeal, appellant relies solely on allegations contained
within his co-defendant, David P. King’s, 2015 PCRA petition and subsequent
new trial. (See appellant’s brief at 1.) Appellant fails to provide any
explanation as to why he could not have learned of any facts allegedly raised
in Mr. King’s petition and/or subsequent new trial with the exercise of due
diligence. Accordingly, because appellant failed to comply with the
requirements set forth by this court in Brown, we find that appellant has
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failed to establish an exception to the PCRA’s time-bar; therefore, we do not
have jurisdiction to consider this case on its merits.
Order affirmed. Application to amend appeal denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/16/2018
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