Com. v. Joiner, B.

J-S09035-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BLAKE EDWARD JOINER,
Appellant No. 1328 WDA 2014
Appeal from the PCRA Order entered July 28, 2014,
in the Court of Common Pleas of Clearfield County,
Criminal Division, at No(s): CP-17-CR-0000390-1997
& CP-17-CR0000391-1997
BEFORE: FORD ELLIOTT, P.J.E., BOWES, and ALLEN, JJ.
MEMORANDUM BY ALLEN, J.: FILED FEBRUARY 11, 2015
Blake Edward Joiner (“Appellant”) appeals pro se from the order
denying his untimely petition for post-conviction relief filed pursuant to the
Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.
The pertinent facts and protracted procedural history are as follows:
This matter arises as a result of Appellant’s having been
charged under two Bills of Information: 97-390 and 97-
391. On Bill 97-390, Appellant was charged with 35
counts each of Rape, Statutory Rape and related offenses
which stemmed from allegations of sexual contact between
his stepdaughter and him between August 1994 and May
1995. On Bill 97-391, Appellant was charged with 76
counts each of Rape, Statutory Sexual Assault and related
charges. These charges were based on similar allegations
occurring between June 1995 and March 1997. On
December 2007, the Bills were consolidated for trial, and
on January 5, 1998, the Commonwealth nolle prossed 35
counts of Rape and 35 counts of Statutory Rape. On April
23, 1998, Appellant entered into a plea agreement with
the Commonwealth and pled guilty to three counts of Rape
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and five counts of Corruption of Minors from the original
390 Bill of Information. Appellant also pled guilty to two
counts of Rape and five counts of Corruption of Minors
from the 391 Bill of Information. All of the remaining
charges were nolle prossed as part of the plea agreement.
Commonwealth v. Joiner, 68 A.3d 341, 342 (Pa. Super. 2013) (footnotes
omitted).
Thereafter, the trial court sentenced Appellant at both bills of
information to an aggregate term of five (5) years to life imprisonment
pursuant to section 9794 of Megan’s Law in effect at the time. Appellant
filed a timely appeal to this Court. In an unpublished memorandum filed on
May 25, 1999, we recognized this Court’s en banc decision in
Commonwealth v. Halye, 719 A.2d 763 (Pa. Super. 1998), which struck
as unconstitutional section 9794 of Megan’s Law. We therefore reversed
Appellant’s judgment of sentence and remanded for resentencing.
Commonwealth v. Joiner, 739 A.2d 558 (Pa. Super. 1999).
On remand, the trial court resentenced Appellant at both bills of
information to an aggregate term of twenty-five (25) to one-hundred (100)
years of imprisonment. In an unpublished memorandum filed on April 4,
2000, a divided panel of this Court determined that the trial court improperly
increased Appellant’s minimum sentence without adequate explanation.
Once again, we reversed Appellant’s judgment of sentence and remanded
for resentencing. Commonwealth v. Joiner, 758 A.2d 721 (Pa. Super.
2000).
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On subsequent remand, the trial court sentenced Appellant at both
bills of information to an aggregate term of five (5) to twenty (20) years of
imprisonment, and a consecutive twenty-five (25) year probationary term.
Appellant did not file a direct appeal.
On July 11, 2001, Appellant filed a pro se PCRA petition. The PCRA
court appointed counsel, and the PCRA court held a hearing on the petition
on September 16, 2003. By order entered July 2, 2004, the PCRA court
denied post-conviction relief. Thereafter, Appellant successfully sought the
withdrawal of PCRA counsel, and was permitted to proceed pro se. Appellant
filed a timely pro se appeal to this Court. In an unpublished memorandum
filed on January 24, 2005, we affirmed the PCRA court’s order.
Commonwealth v. Joiner, 872 A.2d 1271 (Pa. Super. 2005). On July 12,
2005, our Supreme Court denied Appellant’s petition for allowance of appeal.
Commonwealth v. Joiner, 879 A.2d 782 (Pa. 2005).
On September 28, 2006, Appellant filed a second PCRA petition. The
Commonwealth filed a motion to dismiss this petition because of
untimeliness, and the PCRA court, after appointing counsel for the purpose
of determining whether Appellant’s second PCRA petition was timely, held a
hearing on November 22, 2006. By order entered May 2, 2007, the PCRA
court dismissed Appellant’s second petition. Appellant filed a timely appeal
to this Court. In an unpublished memorandum filed on February 14, 2008,
this Court acknowledged the PCRA court’s rejection of Appellant’s newly-
discovered evidence claim, and therefore affirmed the dismissal of
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Appellant’s second PCRA petition. Commonwealth v. Joiner, 951 A.2d
1212 (Pa. Super. 2008).
On November 17, 2008, Appellant filed his third pro se PCRA petition,
which the PCRA court dismissed as untimely. Appellant filed a timely pro se
appeal to this Court. In an unpublished memorandum filed on August 21,
2009, we affirmed the PCRA court’s order denying relief. Commonwealth
v. Joiner, 984 A.2d 1016 (Pa. Super. 2009). On June 2, 2010, our
Supreme Court denied Appellant’s petition for allowance of appeal.
Commonwealth v. Joiner, 996 A.2d 1067 (Pa. 2010).
Meanwhile, on August 28, 2009, Appellant filed a pro se motion to
amend his first PCRA petition that he had filed on July 11, 2001. On
September 4, 2009, the PCRA court, correctly treating Appellant’s motion to
amend as a fourth PCRA petition, denied relief. Appellant filed a timely pro
se appeal to this Court. In an unpublished memorandum filed on May 28,
2010, this Court affirmed the dismissal of Appellant’s fourth PCRA as
untimely filed. Commonwealth v. Joiner, 4 A.3d 210 (Pa. Super. 2010).
Undaunted, Appellant continued to seek post-conviction relief:
On August 8, 2011, Appellant filed a motion for
expungement wherein he sought the expungement of the
35 counts of Rape and Statutory Rape that he stated had
been nolle prossed in January 1998. The trial court
dismissed the motion as an untimely PCRA petition on
September 14, 2011, and Appellant filed a timely pro se
appeal.
In a Memorandum decision filed on June 19, 2012, a
panel of this Court noted that a motion for expungement is
not a claim contemplated by the PCRA and, therefore, the
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trial court had erred as a matter of law in dismissing
Appellant’s motion as an untimely PCRA petition.
Commonwealth v. Joiner, [53 A.3d 934 (Pa. Super.
2012), unpublished memorandum at 3-4]. We proceeded
to analyze the substance of Appellant’s claim and observed
that he was entitled to have his petition to expunge
records of arrests terminated without convictions
evaluated according to the factors set forth in
Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877(1981). We further noted that in its brief, the
Commonwealth had agreed that Appellant was entitled to a
Wexler hearing as to the charges nolle prossed on
January 6, 1998, however, we stated that pursuant to
Commonwealth v. V.G., 9 A.3d 222, 225-26 (Pa. Super.
2010), Appellant was not entitled to a Wexler hearing as
to the charges nolle prossed as part of the plea agreement
entered on April 23, 1998. Id. at 5-6. As such, we
vacated the trial court’s Order and remanded the matter to
the trial court to “schedule a hearing on the 70 charges
nolle prossed in January 1998, prior to the plea
agreement.” Id. at 6.
Joiner, 68 A.3d at 342-43.
We further noted that the trial court never held a Wexler hearing,
instead it issued an order on August 7, 2012, which read in pertinent part:
[***]
The [c]ourt notes the Commonwealth has no
opposition to the expungement of 32 counts of Rape,
and the 35 counts of Rape nol[le] prossed in January
1998, prior to [Appellant’s] plea agreement of April
23, 1998. For this reason, no Wexler hearing is
scheduled on those counts and said counts are
hereby ORDERED EXPUNGED.
Id. at 343. The panel also referred to the trial court’s footnote:
The Superior Court of Pennsylvania referenced
35 counts of rape in their [sic] non-Precedential
Decision on this matter. [Appellant] was charged
with 35 counts of rape, 32 of which were nol[le]
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prossed in January of 1998. [Appellant] pled guilty
to the remaining three charges of rape.
Id. On August 30, 2012, Appellant filed a pro se “Petition for Writ of Habeas
Corpus and Release from Custody” which was treated as a notice of appeal.
With regard to the confusion over which charges had been nolle
prossed at each bill of information, this Court adopted as “sound” the
Commonwealth’s explanation that the order which nolle prossed the thirty-
five counts of rape in January 1998 “was simply entered to the wrong
docket.” Id. at 346. Thus, because “the trial court could not expunge the
three counts of Rape to which Appellant had [pled] guilty and upon which he
had been sentenced,” we affirmed the trial court’s order denying further
relief. Id.On June 5, 2014, Appellant filed a petition for “EXPUNGEMENT OF
CHARGES, NOLLE PROSEQUI/DISMISSED/QUASHED” BY THE “REQUEST OF
THE COMMONWEALTH” AND “RELEASE FROM ILLEGAL CUSTODY[.]” Within
this petition, Appellant asserted that he is confined on charges that were
“completely nolle prosequi” and “never reinstated to docket prior to
sentencing.” Petition, 6/5/14, at 5. According to Appellant, he should be
released from custody because he is incarcerated on charges that “no-longer
exist.” Id. (emphasis deleted).
Treating Appellant’s latest filing as a serial untimely PCRA petition, the
PCRA court, on July 2, 2014, issued Pa.R.Crim.P. 907 notice of its intent to
dismiss. Appellant filed a response on July 14, 2014. By order entered July
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28, 2014, the PCRA court denied Appellant’s petition. This timely pro se
appeal followed. The PCRA court did not require Pa.R.A.P. 1925 compliance.
This Court’s standard of review regarding an order dismissing a
petition under the PCRA is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA
court’s findings will not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,
1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a
hearing on the petition if the PCRA court determines that the petitioner’s
claim is patently frivolous and is without a trace of support in either the
record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011(Pa. Super. 2001).
Appellant first asserts that the PCRA court incorrectly treated his latest
filing as a serial untimely PCRA petition. We disagree. As stated in this
Court’s 2013 decision, Appellant sought, and received, expungement of all
charges to which he was entitled. Joiner, supra. To the extent Appellant is
claiming he is serving an “illegal sentence” because the charges upon which
he remains confined no longer exist, his claim falls entirely within the PCRA.
See 42 Pa.C.S.A. § 9543(a)(vii). Thus, we next consider whether the PCRA
court properly determined that Appellant’s latest PCRA petition was
untimely. The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation
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omitted). If a petition is untimely, neither an appellate court nor the PCRA
court has jurisdiction over the petition. Id. “Without jurisdiction, we simply
do not have the legal authority to address the substantive claims” raised in
an untimely petition. Id.Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
becomes final unless the petition alleges, and the petitioner proves, an
exception to the time for filing the petition. Commonwealth v. Gamboa-
Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under
these exceptions, the petitioner must plead and prove that: “(1) there has
been interference by government officials in the presentation of the claim; or
(2) there exists after-discovered facts or evidence; or (3) a new
constitutional right has been recognized.” Commonwealth v. Fowler, 930
A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition
invoking one of these statutory exceptions must “be filed within sixty days of
the date the claim first could have been presented.” Gamboa-Taylor, 753
A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to
the time restrictions of the PCRA must be pled in the petition, and may not
be raised for the first time on appeal. Commonwealth v. Burton, 936
A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not
raised before the lower court are waived and cannot be raised for the first
time on appeal.”).
In a prior appeal, this Court stated:
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[Appellant’s] judgment of sentence was entered on July
18, 2000. Appellant had thirty days in which to file a
direct appeal, at which point his judgment of sentence
became final. See Pa.R.A.P. 903(a). Therefore, to be
timely under section 9545(b)(1), the PCRA petition must
have been filed by August 17, 2001[.]
Joiner, 984 A.2d 1016 (Pa. Super. 2009), unpublished memorandum at 3.
As Appellant filed the instant petition on June 5, 2014, it is untimely unless
he has satisfied his burden of pleading and proving that one of the
enumerated exceptions applies. See Commonwealth v. Beasley, 741
A.2d 1258, 1261 (Pa. 1999).
Appellant has failed to plead and prove any exception to the PCRA’s
time bar. To the extent that Appellant is arguing he is serving an illegal
sentence, we note, “[a]lthough legality of sentence is always subject to
review within the PCRA, claims must still satisfy the PCRA’s time limits or
one of the exceptions thereto.” Commonwealth v. Fahy, 737 A.2d 214,
223 (Pa. 1999). Thus, the PCRA court correctly determined that it lacked
jurisdiction to consider Appellant’s PCRA petition. We therefore affirm the
PCRA court’s order denying Appellant post-conviction relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/2015
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