Com. v. Everett, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JAMES EVERETT, III, :
:
Appellant : No. 228 EDA 2016
Appeal from the PCRA Order December 4, 2015
in the Court of Common Pleas of Philadelphia County,
Criminal Division, No(s): CP-51-CR-0100251-1986
BEFORE: BOWES, MOULTON and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 23, 2016
James Everett, III (“Everett”), appeals, pro se, from the Order
dismissing his sixth Petition for relief filed pursuant to the Post Conviction
Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On April 4, 1987, following a jury trial, Everett was convicted of first-
degree murder and possession of an instrument of crime.1 The trial court
sentenced Everett to a term of life in prison for the first-degree murder
conviction, and a concurrent term of 2½ to 5 years for possessing an
instrument of crime. This Court affirmed Everett’s judgment of sentence on
November 2, 1988. See Commonwealth v. Everett, 555 A.2d 244 (Pa.
Super. 1988) (unpublished memorandum).
On May 18, 2012, Everett, pro se, filed the instant PCRA Petition, his
sixth. Everett subsequently filed two Amended Petitions, one in July 2012,
1
18 Pa.C.S.A. §§ 2502(a), 907.
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and one in August 2013. The PCRA court issued a Pa.R.Crim.P. 907 Notice
of Intent to Dismiss, and Everett filed a Response. The PCRA court
dismissed Everett’s Petition as untimely filed on December 4, 2015.2
Thereafter, Everett filed the instant timely appeal.
On appeal, Everett raises the following questions for our review:
I. Whether the [PCRA] court[’]s 43[-]month inordinate[,]
inexcusable delay in deciding [Everett’s] Martinez v. Ryan[,
132 S. Ct. 1309 (2012)3] claim of initial-review collateral
counsel[’]s ineffectiveness[,] causing [the] default of [a]
substantive claim of trial/[appellate] counsel’s ineffectiveness,
therein prejudiced [Everett’s] right to federal review, where the
[PCRA] court[’]s review/analysis failed to establish by record
evidence of facts that [Everett’s] claim did not fit within the
Martinez holding for collateral review[?]
II. Whether the [PCRA] court[,] in its decision to govern
[Everett’s] claim of illegal/unlawful sentence of life
imprisonment, where the [PCRA] court[’]s [] lack of statutory
authority, and/or subject matter/persona[l] jurisdiction to
impose, under the time bar provision was/is in violation of due
process, and unsupported by case law [and] record evidence to
deny relief, where [a] claim of illegal/unlawful sentence is non-
waivable and can be raised at any time[?]
2
The PCRA court noted that its Order dismissing Everett’s PCRA Petition as
untimely filed “also covers [Everett’s] Writs of Habeas Corpus and all of his
subsequent petitions, motions and responses, which pertain to [Everett’s]
current PCRA [P]etition and which have been filed to date with [the PCRA]
court.” PCRA Court Memorandum and Order, 12/4/15, at 8.
3
In Martinez, the United States Supreme Court held that “[w]here, under
state law, claims of ineffective assistance of trial counsel must be raised in
an initial-review collateral proceeding, a procedural default will not bar a
federal habeas court from hearing a substantial claim of ineffective
assistance at trial if, in the initial-review collateral proceeding, there was no
counsel or counsel in that proceeding was ineffective.” Martinez, 132 S. Ct.
at 1320 (emphasis added).
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Brief for Appellant at ii (footnote added).
We review an order dismissing a petition under the PCRA
in the light most favorable to the prevailing party at the PCRA
level. This review is limited to the findings of the PCRA court
and the evidence of the record. We will not disturb a PCRA
court’s ruling if it is supported by evidence of record and is free
of legal error.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
Initially, under the PCRA, any 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.A. § 9545(b)(1) (emphasis added). A judgment
of sentence becomes 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.” Id. § 9545(b)(3). The PCRA’s timeliness requirements are
jurisdictional in nature and a court may not address the merits of the issues
raised if the PCRA petition was not timely filed. Commonwealth v.
Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
Everett’s judgment of sentence became final in December 1988, when
the time for filing a petition for allowance of appeal with the Pennsylvania
Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); see also Pa.R.A.P.
1113. Because Everett filed the instant Petition nearly three decades later,
his Petition is facially untimely.
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However, Pennsylvania courts may consider an untimely petition if the
appellant can explicitly plead and prove one of three exceptions set forth
under 42 Pa.C.S.A. § 9545(b)(1)(i-iii). Any petition invoking one of these
exceptions “shall be filed within 60 days of the date the claim could have
been presented.” Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.
In his first claim, Everett invokes the newly-recognized constitutional
right exception, set forth at 42 Pa.C.S.A. § 9545(b)(1)(iii),4 and claims that
the United States Supreme Court decision in Martinez entitles him to
redress on his previously raised ineffective assistance of counsel claims.
Brief for Appellant at 8-11. Everett claims that he has not been granted the
review to which the Martinez decision entitles him. Id. at 12. Additionally,
Everett asserts that the Martinez decision set forth a substantive rule,
which applies retroactively. Id. at 13-16.
This Court has specifically considered the application of Martinez to
Pennsylvania PCRA proceedings, and has determined that Martinez does
not satisfy the newly-recognized constitutional right exception. See
Commonwealth v. Saunders, 60 A.3d 162, 165 (Pa. Super. 2013) (stating
that “[w]hile Martinez represents a significant development in federal
4
In order to successfully invoke the newly-recognized constitutional right
exception, a petitioner must plead and prove that “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.A. § 9545(b)(1)(iii).
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habeas corpus law, it is of no moment with respect to the way Pennsylvania
courts apply the plain language of the time bar set forth in [S]ection
9545(b)(1) of the PCRA.”). Thus, Everett is not entitled to relief on this
claim.5
In his second claim, Everett challenges the lack of statutory
authorization for his sentence. Brief for Appellant at 19-21. Everett claims
that, at the time of his sentencing, the trial court could not impose a term of
life in prison without first designating his case as a capital case. Id. at 21.
Everett’s claim challenges the legality of his sentence, and such a
claim is cognizable under the PCRA. See 42 Pa.C.S.A. § 9542 (stating that
the PCRA “provides for an action by which … persons serving illegal
sentences may obtain collateral relief.”); Commonwealth v. Rivera, 95
A.3d 913, 915 (Pa. Super. 2014) (stating that “[i]f no statutory
authorization exists for a particular sentence, that sentence is illegal and
subject to correction”) (citation omitted). However, a challenge to the
legality of a sentence is still subject to the PCRA’s jurisdictional
requirements. See Commonwealth v. Berry, 877 A.2d 479, 482 (Pa.
Super. 2005) (en banc) (stating that “a court may entertain a challenge to
the legality of the sentence[,] so long as the court has jurisdiction to hear
the claim. In the PCRA context, jurisdiction is tied to the filing of a timely
5
To the extent that Everett claims that his counsel was ineffective, we note
that “a claim of ineffective assistance of counsel does not save an otherwise
untimely petition for review on the merits.” Commonwealth v. Fahy, 737
A.2d 214, 223 (Pa. 1999).
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PCRA petition.”); see also Commonwealth v. Infante, 63 A.3d 358, 365
(Pa. Super. 2013) (stating that “[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.”) (citation omitted).
As previously stated, Everett’s Petition is facially untimely.
Additionally, Everett failed to establish an exception to the PCRA’s timeliness
requirement. Accordingly, we lack jurisdiction to consider the merits of
Everett’s challenge to the legality of his sentence. See Commonwealth v.
Jones, 932 A.2d 179, 182 (Pa. Super. 2007) (stating that when a petitioner
challenges the legality of his sentence in an untimely PCRA petition, “the
claim is not waived, but the jurisdictional limits of the PCRA itself render the
claim incapable of review.”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/23/2016
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