Com. v. Frezzell, S.

J-S54035-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAIMIK C. FREZZELL :
:
Appellant : No. 306 WDA 2017
Appeal from the PCRA Order January 12, 2017
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0000589-2010
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAIMIK C. FREZZELL :
:
Appellant : No. 313 WDA 2017
Appeal from the PCRA Order January 12, 2017
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0000589-2010
BEFORE: OTT, MOULTON, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 28, 2017
Appellant, Shaimik C. Frezzell, appeals pro se from the order
dismissing as untimely his serial petition for relief under the Post-Conviction
Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. Appellant contends, inter
alia, that his petition falls within a time-bar exception of the PCRA, and that
*
Former Justice specially assigned to the Superior Court.
J-S54035-17
the PCRA court erred in finding that his claims that have been previously
litigated. We affirm.
The procedural history of this case is as follows. A jury found
Appellant guilty of robbery of a motor vehicle,1 robbery,2 and related
offenses. The trial court sentenced Appellant to an aggregate ten to twenty
years’ imprisonment on October 27, 2010.3 This Court affirmed the
judgment of sentence finding that Appellant’s vague Pa.R.A.P. 1925(b)
statement failed to preserve any issue for appeal. Commonwealth v.
Frezzell, 1785 WDA 2010 (Pa. Super. filed Aug. 9, 2011) (unpublished
memorandum). Appellant did not petition the Pennsylvania Supreme Court
for allowance of appeal.
The PCRA court received Appellant’s first pro se PCRA petition on
February 3, 2012, and appointed counsel. On May 15, 2012, the PCRA court
denied the petition following a hearing. On May 29, 2012, the PCRA court
granted appointed counsel’s motion to withdraw from representation, and
new counsel was appointed. Appellant did not take an appeal.
1
18 Pa.C.S. § 3702(a).
2
18 Pa.C.S. § 3701(a)(1)(ii).
3
The trial court sentenced Appellant to ten to twenty years’ imprisonment
for robbery, which fell within the standard range of the sentencing guidelines
based on Appellant’s prior record score as a repeat violent offender. There
is no indication that the Commonwealth sought, or that the trial court
applied, a mandatory minimum sentencing provision.
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On January 11, 2013, Appellant filed a second pro se PCRA petition.
The PCRA court appointed new counsel. Appellant filed another pro se PCRA
petition on September 9, 2013. Counsel filed a motion to withdraw pursuant
to Turner/Finley,4 which the trial court granted on December 6, 2013. The
court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss the petition on
June 12, 2014, and dismissed the petition on August 6, 2014. However,
new counsel did not file an appeal.
Appellant continued to file pro se motions, including motions to (1)
modify and correct an illegal sentence based on Alleyne v. United States,
133 S. Ct. 2151 (2013), and (2) modify and reduce sentence, which the
PCRA court denied on November 6, 2015.5 On June 16, 2016, Appellant
filed a pro se motion for inspection of documents of discovery to support his
sentencing claims. The PCRA court denied the motion on August 8, 2016,
noting that all appeals and PCRA proceedings were exhausted.
On December 9, 2016, the PCRA court received Appellant’s fourth pro
se PCRA petition giving rise to this appeal. The PCRA court issued a Rule
907 notice of its intent to dismiss the petition, to which Appellant filed a pro
se response. On January 12, 2017, the PCRA court dismissed the petition,
4
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
5
Appellant’s motion to correct an illegal sentence constitutes a third PCRA
petition, while his motion to modify his sentence constitutes an untimely
post-sentence motion.
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opining that it was untimely and raised issues that were previously litigated.
PCRA Ct. Statement in Lieu of Op., 3/22/17, at 1.
Appellant filed a pro se motion for judgment in the Pennsylvania
Supreme Court, which was postmarked February 14, 2017, and received by
the Pennsylvania Supreme Court on February 15, 2017. That filing was
transferred to the PCRA court on February 17, 2017, and was docketed as
an appeal at 306 WDA 2017. A second pro se filing, entitled as a notice of
appeal, was received by the PCRA court on February 21, 2017, and was
docketed at 313 WDA 2017. Appellant complied with the PCRA court’s order
to submit a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
This Court sua sponte consolidated the appeals.
Preliminarily, we must consider whether Appellant’s appeals are
properly before this Court. It is well settled that an appeal must be taken
“within [thirty] days after the entry of the order” being appealed. Pa.R.A.P.
903. The prisoner mailbox rule provides that an appeal by a pro se prisoner
is deemed filed when the prisoner “deposits the appeal with prison
authorities and/or places it in the prison mailbox.” Commonwealth v.
Jones, 700 A.2d 423, 426 (Pa. 1997) (citations omitted). The “prisoner
mailbox rule extends to all appeals by pro se prisoners.” Id. The prisoner
bears the burden of establishing he delivered the appeal in a timely manner.
Id.Here, the PCRA court’s order dismissing Appellant’s fourth PCRA
petition was docketed and served on January 12, 2017. The last day for
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appeal was Monday, February 13, 2017. See 1 Pa.C.S. § 1908; Pa.R.A.P.
903. Appellant signed certificates of service indicating that he prepared and
placed in the mail his pro se motion for judgment and his notice of appeal on
February 10, 2017, the Friday before the last day to take an appeal.
However, the envelopes for these filings were postmarked February 14 and
15, 2017, respectively. Thus, Appellant’s appeal may be deemed untimely,
unless Appellant adduces further proof that he timely deposited his filings
with prison officials. However, we decline to remand this matter to
determine whether Appellant’s filings were delivered to prison officials in a
timely manner, as our review of Appellant’s pro se brief in light of the record
reveals there is no need to expend further judicial resources in this matter.
This Court has stated:
Our standard of review regarding a PCRA court’s order
is whether the determination of the PCRA court is
supported by the evidence of the record and is free of legal
error. The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified
record.
Before addressing the issues presented on appeal, we
must determine whether Appellant’s instant PCRA petition
was timely filed. Our Supreme Court has stressed that
[t]he PCRA’s timeliness requirements are jurisdictional in
nature and must be strictly construed; courts may not
address the merits of the issues raised in a petition if it is
not timely filed. It is well settled that [a]ny and all PCRA
petitions must be filed within one year of the date on
which the petitioner’s judgment became final, unless one
of the three statutory exceptions applies. A judgment
becomes final at the conclusion of direct review, including
discretionary review in the Supreme Court of the United
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States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.
Commonwealth v. Garcia, 23 A.3d 1059, 1061-62 (Pa. Super. 2011)
(footnote, citations, and quotation marks omitted).
The PCRA provides:
(b) Time for filing petition.—
(1) Any petition under this subchapter, including a
second or subsequent petition, shall be filed within one
year of the date judgment becomes final, unless the
petition alleges and the petitioner proves that:
(i) the failure to raise the claim previously was
the result of interference of 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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). “The petitioner bears the burden to allege
and prove [that] one of the timeliness exceptions applies. A PCRA petition
invoking one of these statutory exceptions must be filed within 60 days of
the date the claims could have been presented.” Garcia, 23 A.3d at 1062-
63 (citations and quotation marks omitted).
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Instantly, this Court affirmed the judgment of sentence on August 9,
2011, and the sentence became final on September 8, 2011, when the time
for seeking allowance of appeal in the Pennsylvania Supreme Court elapsed.
See Pa.R.A.P. 1113. Thus, Appellant had until September 10, 2012, to file a
facially timely PCRA petition, and the instant petition, filed in December of
2016 was untimely on its face. See 42 Pa.C.S. § 9545(b)(1), (3).
A review of Appellant’s petition and his brief reveals that Appellant
sought to litigate claims of alleged prosecutorial misconduct and other trial
errors. However, Appellant has failed to plead or prove any exception to the
PCRA time bar, namely, that he was prevented from raising his claims by
governmental interference, or that the claims could not have been raised
previously due to an unknown fact or new constitutional rule held to be
retroactive. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Moreover, his brief raises
a boilerplate accusation that the PCRA court obstructed his ability to raise a
claim by denying his June 2016 pro se motion for inspection of documents in
support of a purported sentencing claim. However, this assertion fails to
establish an exception to the PCRA time bar or even the existence of a
potentially meritorious claim.6 Thus, we affirm the PCRA court’s order
dismissing the instant petition.
6
For example, Appellant’s petition refers to the proposition that the
Commonwealth must disclose exculpatory materials, but fails to establish
that the Commonwealth withheld any exculpatory materials in this case.
Similarly, his brief refers to governmental obstruction based on the denial of
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2017
his June 2016 motion for inspection of documents. However, Appellant was
apparently in possession of the trial transcripts, which he cites in support of
his underlying claims for relief.
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