Com. v. Carson, G.

J-S41035-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GEORGE WILLIAM CARSON :
:
Appellant : No. 77 MDA 2017
Appeal from the PCRA Order December 15, 2016
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0003201-2008
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
JUDGMENT ORDER BY GANTMAN, P.J.: FILED JUNE 20, 2017
Appellant, George William Carson, appeals pro se from the order
entered in the Luzerne County Court of Common Pleas, which dismissed as
untimely his third petition filed under the Post Conviction Relief Act
(“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546. On March 26, 2009, Appellant
entered an open guilty plea to third-degree murder. The trial court
sentenced Appellant on May 28, 2009, to 19 to 38 years’ imprisonment. On
March 8, 2011, this Court affirmed the judgment of sentence. Appellant
sought no further review. Between 2011 and 2016, Appellant unsuccessfully
litigated two PCRA petitions.
On June 27, 2016, Appellant filed the current pro se PCRA petition.
The PCRA court issued Rule 907 notice on July 7, 2016; Appellant responded
on August 2, 2016. The PCRA court dismissed Appellant’s PCRA petition on
_____________________________
*Retired Senior Judge assigned to the Superior Court.
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December 15, 2016. On January 3, 2017, Appellant timely filed a pro se
notice of appeal. The PCRA court ordered Appellant, on January 11, 2017,
to file a concise statement of errors complained of on appeal per Pa.R.A.P.
1925(b).1
Preliminarily, the timeliness of a PCRA petition is a jurisdictional
requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A
PCRA petition, including a second or subsequent petition, shall be filed within
one year of the date the underlying judgment of sentence becomes final. 42
Pa.C.S.A. § 9545(b)(1). A judgment of sentence is deemed 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.A. § 9545(b)(3). The
statutory exceptions to the PCRA time-bar allow for very limited
circumstances under which the late filing of a petition will be excused; a
petitioner asserting a timeliness exception must file a petition within 60 days
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1
“To preserve their claims for appellate review, appellants must comply
whenever the trial court orders them to file a Statement of [Errors]
Complained of on Appeal pursuant to [Rule] 1925. Any issues not raised in
a [Rule] 1925(b) statement will be deemed waived.” Commonwealth v.
Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2005). Nevertheless, this
Court may address the merits of a criminal appeal where a defendant files
an untimely Rule 1925(b) statement, if the trial court had adequate
opportunity and chose to prepare an opinion addressing the issue(s) raised
on appeal. Commonwealth v. Burton, 973 A.2d 428 (Pa.Super. 2008) (en
banc). Here, the docket reflects that Appellant’s pro se Rule 1925(b)
statement was not timely filed, and the court did not address any issues.
Therefore, Appellant’s issues are waived in any event. See Castillo, supra.-2-
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of when the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(1-2).
When asserting the newly created constitutional right exception under
Section 9545(b)(1)(iii), “a petitioner must prove that there is a ‘new’
constitutional right and that the right ‘has been held’ by that court to apply
retroactively.” Commonwealth v. Chambers, 35 A.3d 34, 41 (Pa.Super.
2011), appeal denied, 616 Pa. 625, 46 A.3d 715 (2012). Under the “new
facts” exception to the PCRA’s timeliness requirements, the petitioner must
plead and prove: “[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[.]” 42 Pa.C.S.A. § 9545(b)(1)(ii).
Instantly, Appellant’s judgment of sentence became final on April 7,
2011, upon expiration of the time to file a petition for allowance of appeal
with our Supreme Court. See Pa.R.A.P. 1113. Appellant filed the current
serial PCRA petition on June 27, 2016, which is patently untimely. See 42
Pa.C.S.A. § 9545(b)(1). Appellant now attempts to invoke the “new
constitutional right” exception to the statutory time-bar per Section
9545(b)(1)(iii), citing Foster v. Chatman, ___ U.S. ___, 136 S.Ct. 1737,
195 L.Ed.2d 1 (2016) (reiterating United States Constitution forbids striking
prospective juror for discriminatory purpose; reversing capital murder
conviction because state’s two peremptory strikes of jurors on basis of race
were unconstitutional). Foster, however, does not satisfy an exception to
the PCRA timeliness requirement in this case, because: (1) Appellant
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entered an open guilty plea and did not have a jury trial; and (2) the Foster
Court did not announce it had created a new constitutional right that is
retroactively applicable. See Foster, supra; Chambers, supra. In his
petition, Appellant also claims prior counsel were ineffective, and the trial
judge was not impartial. To the extent Appellant attempts to invoke the
“newly discovered facts” exception, Appellant fails to plead new facts he was
previously unaware of or could not have discovered earlier with the exercise
of due diligence. See 42 Pa.C.S.A. § 9545(b)(1)(ii). Therefore, Appellant’s
third PCRA petition remains time-barred, and the PCRA court lacked
jurisdiction to review it. See Zeigler, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/20/2017
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