Com. v. Shiloh, L.

J-S67039-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LISA LEE SHILOH,
Appellant No. 357 MDA 2015
Appeal from the PCRA Order February 4, 2015
in the Court of Common Pleas of Adams County
Criminal Division at No.: CP-01-CR-0000635-2010
BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED DECEMBER 18, 2015
Appellant, Lisa Lee Shiloh, appeals pro se from the order dismissing
her second petition filed pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.
A previous panel of this Court summarized the factual and procedural
background of this case as follows:
On February 1, 2011, a jury convicted [Appellant] on five
counts of delivery of cocaine, one count of delivery of heroin,
criminal conspiracy to deliver cocaine, three counts of criminal
use of a communication facility, and one count of endangering
the welfare of a child. The charges arose from disparate
incidents, but all were predicated upon allegations that
[Appellant] operated as a dealer of controlled substances to the
local community. On April 21, 2011, the trial court sentenced
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*
Retired Senior Judge assigned to the Superior Court.
J-S67039-15
[Appellant] to an aggregate sentence of imprisonment of 14 to
30 years.[1] [Appellant did not file a direct appeal].
On November 17, 2011, [Appellant] filed a pro se petition
pursuant to the PCRA, and counsel was appointed to represent
her. On May 11, 2012, counsel filed an amended PCRA petition.
Pursuant to the amended petition, the PCRA court held a hearing
on August 21, 2012. The PCRA court dismissed [Appellant’s]
petition and denied relief via order dated February 12, 2013.
(Commonwealth v. Shiloh, No. 357 MDA 2013 at *1-2, unpublished
memorandum (Pa. Super. filed Nov. 20, 2013)).
This Court affirmed the PCRA court’s order on November 20, 2013. On
January 17, 2014, Appellant, acting pro se, filed the instant second PCRA
petition.2 On May 5, 2014, the PCRA court issued notice of its intent to
dismiss the petition without a hearing. See Pa.R.Crim.P. 907(1). After
Appellant made a number of supplemental filings, the PCRA court entered its
order and opinion dismissing the petition and all additional filings on
February 4, 2015. This timely appeal followed.3
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1
The court imposed the mandatory minimum penalties for drug trafficking
pursuant to 18 Pa.C.S.A. § 7508. (See Sentencing Order, 4/21/11;
Commonwealth’s Brief, at 5-6).
2
Appellant’s PCRA filing is extremely prolix, consisting of the petition itself,
an attached eighty-four page argument, and several exhibits. (See PCRA
Petition, Attachment, and Exhibits, 1/17/14).
3
Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on March 20, 2015. The PCRA
court filed an opinion on March 24, 2015, in which it incorporated by
reference its opinion entered February 4, 2015. See Pa.R.A.P. 1925.
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In her statement of the questions involved, Appellant raises twenty-two
questions for our review. (See Appellant’s Brief, at 5-10). We paraphrase
her overarching question, and the issue dispositive of this appeal, as follows:
Did the PCRA court err in dismissing Appellant’s second PCRA petition as
untimely? (See id. at 5).4
We begin by noting our well-settled standard of review. In
reviewing the denial of PCRA relief, we examine whether the
PCRA court’s determination is supported by the record and free
of legal error. The scope of review is limited to the findings of
the PCRA court and the evidence of record, viewed in the light
most favorable to the prevailing party at the trial level. It is
well-settled that a PCRA court’s credibility determinations are
binding upon an appellate court so long as they are supported by
the record. However, this Court reviews the PCRA court’s legal
conclusions de novo.
We also note that a PCRA petitioner is not automatically
entitled to an evidentiary hearing. We review the PCRA court’s
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4
Appellant’s pro se brief fails to conform to our Rules of Appellate Procedure
in several material respects. For example, the brief is excessive in length—
ninety-four pages—and does not contain a certification that it is not in
excess of 14,000 words, as required by Rule 2135. See Pa.R.A.P.
2135(a)(1). Her six-page statement of the questions involved fails to “state
concisely the issues to be resolved[.]” Pa.R.A.P. 2116(a) (emphasis
added). Significantly, the argument section is meandering, unfocused, and
nearly unintelligible; it lacks pertinent legal discussion, in violation of Rule
2119. See Pa.R.A.P. 2119(a), (b). Although this Court is willing to construe
pro se materials liberally, pro se litigants must comply with procedural rules.
See Commonwealth v. Lyons, 833 A.2d 245, 251-52 (Pa. Super. 2003),
appeal denied, 879 A.2d 782 (Pa. 2005). This Court could quash or dismiss
this appeal in light of these substantial defects. See Pa.R.A.P. 2101. In the
interest of judicial economy, we decline to do so, and will discuss the
arguments raised by Appellant relevant to our disposition to the extent we
are able to discern them.
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decision dismissing a petition without a hearing for an abuse of
discretion.
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations
and quotation marks omitted).
“Before we may address the merits of Appellant’s arguments we must
first consider the timeliness of Appellant’s PCRA petition because it
implicates the jurisdiction of this Court and the PCRA court.” Id. (citation
omitted).
A PCRA petition, including a second or subsequent one, must be
filed within one year of the date the petitioner’s judgment of
sentence became final, unless he pleads and proves one of the
three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
judgment becomes final at the conclusion of direct review by
[the Pennsylvania Supreme] Court or the United States Supreme
Court, or at the expiration of the time for seeking such review.
42 Pa.C.S.[A.] § 9545(b)(3). The PCRA’s timeliness
requirements are jurisdictional; therefore, a court may not
address the merits of the issues raised if the petition was not
timely filed. The timeliness requirements apply to all PCRA
petitions, regardless of the nature of the individual claims raised
therein. 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, 16-17 (Pa. 2012) (case citations
and footnote omitted).
In this case, Appellant’s judgment of sentence became final on May
23, 2011 when her time to file a direct appeal with this Court expired. 5 See
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5
The last day of the thirty-day period fell on a Saturday. Therefore,
Appellant had until that Monday to file a notice of appeal. See 1 Pa.C.S.A. §
1908.
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Pa.R.A.P. 903(a); 42 Pa.C.S.A. § 9545(b)(3). Therefore, she had one year
from that date, until May 23, 2012, to file a petition for collateral relief. See
42 Pa.C.S.A. § 9545(b)(1). Because Appellant filed the instant petition on
January 17, 2014, it is untimely on its face, and the PCRA court lacked
jurisdiction to review it unless she pleaded and proved one of the statutory
exceptions to the time-bar. See id. at § 9545(b)(1)(i)-(iii).
Section 9545 of the PCRA provides only three limited exceptions that
allow for review of an untimely PCRA petition:
(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.
Id.
Further, a PCRA petition invoking one of these statutory exceptions
must “be filed within 60 days of the date the claim could have been
presented.” 42 Pa.C.S.A. § 9545(b)(2). “[Our Supreme Court] has
repeatedly stated it is the appellant’s burden to allege and prove that one of
the timeliness exceptions applies.” Commonwealth v. Hawkins, 953 A.2d
1248, 1253 (Pa. 2008) (citation omitted).
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Here, Appellant argues the applicability of the governmental
interference exception, which requires a petitioner to plead and prove that
the failure to raise the claim previously was the result of interference by
government officials, and that the interference violates the United States or
Pennsylvania Constitution or laws. See Commonwealth v. Abu-Jamal,
941 A.2d 1263, 1268 (Pa. 2008), cert. denied, 555 U.S. 916 (2008);
Commonwealth v. Albrecht, 994 A.2d 1091, 1095 (Pa. 2010). However,
Appellant fails to explain coherently how government officials interfered with
her ability to raise her substantive PCRA claims challenging her conviction or
sentence. Instead, she lodges a series of bald accusations regarding the
alleged misconduct of the assistant district attorney during the hearing on
her first PCRA petition. (See Appellant’s Brief, at 17, 22, 29-31, 36, 59, 86)
(alleging governmental interference occurred at PCRA hearing because
Commonwealth elicited false testimony and misled court). Thus, after
review, we conclude that Appellant has failed to meet her burden of pleading
and proving the applicability of the governmental interference exception to
the PCRA’s time-bar. See Hawkins, supra at 1253.
Appellant also claims a right to relief predicated on Alleyne v. United
States, 133 S. Ct. 2151 (2013), in which the United States Supreme Court
held that facts that increase the mandatory minimum sentence are elements
of the offense and must be submitted to a jury and proven beyond a
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reasonable doubt. See Alleyne, supra at 2155; (see also Appellant’s
Brief, at 46, 54-56, 86).6 Appellant asserts that a challenge to the legality of
a sentence cannot be waived, and that this Court may consider the issue sua
sponte. (See Appellant’s Brief, at 46, 56). We disagree.
Instructive to the instant case is Miller, supra, in which this Court
explained, in the context of an untimely PCRA petition, that:
We are aware that an issue pertaining to Alleyne goes to
the legality of the sentence. It is generally true that this Court is
endowed with the ability to consider an issue of illegality of
sentence sua sponte. However, in order for this Court to review
a legality of sentence claim, there must be a basis for our
jurisdiction to engage in such review. As this Court recently
noted, [t]hough not technically waivable, a legality [of sentence]
claim may nevertheless be lost should it be raised . . . in an
untimely PCRA petition for which no time-bar exception applies,
thus depriving the court of jurisdiction over the claim. As a
result, the PCRA court lacked jurisdiction to consider the merits
of [a]ppellant’s second PCRA petition, as it was untimely filed
and no exception was proven.
Miller, supra at 995-96 (quotation marks and citations omitted).
In the instant case, although Appellant claims a right to relief based on
Alleyne, she raised it in an untimely PCRA petition for which no time-bar
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6
Section 7508, the mandatory minimum sentencing statute pursuant to
which the trial court sentenced Appellant, has been held unconstitutional in
light of Alleyne. See Commonwealth v. Thompson, 93 A.3d 478, 494
(Pa. Super. 2014); see also Commonwealth v. Mosley, 114 A.3d 1072,
1091 (Pa. Super. 2015).
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exception applies, depriving the court of jurisdiction over the claim. 7
Therefore, Appellant’s Alleyne claim does not merit relief.
After review of the record in this matter, we conclude that Appellant
has not met her burden of pleading and proving her untimely petition fits
within one of the three limited exceptions to the PCRA’s jurisdictional time-
bar. See Hawkins, supra at 1253. The PCRA court properly dismissed the
petition without a hearing based on its determination that it was untimely
with no exception to the time-bar pleaded or proven. See Miller, supra at
992. Because Appellant’s PCRA petition is untimely, we are not permitted to
address the merits of her remaining issues on appeal. See id. Accordingly,
we affirm the order of the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2015
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7
Although not argued by Appellant, we observe for the sake of
completeness that an Alleyne claim does not satisfy the requirements of the
exception to the time-bar set forth at 42 Pa.C.S.A. § 9545(b)(1)(iii) (newly-
recognized, retroactively-applied constitutional right). See Miller, supra at
995.
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