Com. v. Harriott, H.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
HORACE HARRIOTT
Appellant No. 1364 MDA 2018
Appeal from the PCRA Order Entered July 12, 2018
In the Court of Common Pleas of Lackawanna County
Criminal Division at No.: CP-35-CR-0002139-2012
BEFORE: STABILE, MURRAY, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 15, 2019
Appellant Horace Harriott pro se appeals from the July 12, 2018 order
of the Court of Common Pleas of Lackawanna County ("PCRA court"), granting
in part and denying in part his "Petition for Credit for Time Served." Upon
review, we vacate.
The facts and procedural history of this case are uncontested.' On
August 29, 2012, Scranton Police Officers responded to an advertisement for
prostitution on Backpage.com posted by a female named "Jenn" listing a
telephone number to text for appointments. Upon arriving at the hotel
location arranged through text messages, the female agreed to perform a
sexual act in exchange for money. Officer Edward McIntyre arrested the
' Unless otherwise specified, these facts come from the PCRA court's
September 19, 2018 opinion. See PCRA Court Opinion, 9/19/16, at 1-8.
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female for prostitution. Upon questioning, the female explained that she had
a pimp named "JR" and described him and their arrangement. The officers
eventually arrested JR for promoting prostitution. JR was identified as
Appellant. A custodial search of Appellant's person yielded ten glassine
packets of heroin stamped "fire", two cell phones, including the target phone
used to arrange the prostitution, $120.00 in United States currency, and keys
to a Honda vehicle. As a result, Appellant was charged with possession with
intent to deliver ("PWID"), promoting prostitution, possession of a controlled
substance and drug paraphernalia.2
On November 4, 2013, Appellant pleaded guilty to PWID and promoting
prostitution and the trial court sentenced him, inter a/ia, to a consecutive term
of twenty-four to forty-eight months' incarceration for PWID, and sixteen to
thirty-six months' imprisonment for promoting prostitution. On December 3,
2013, the trial court modified Appellant's sentence to reflect his eligibility for
the Recidivism Risk Reduction Incentive ("RRRI")3 program. Appellant did not
file a direct appeal. Thus, his judgment of sentence became final on January
2, 2014.
On January 8, 2014, Appellant filed a timely first PCRA petition, alleging,
among other things, ineffective assistance of counsel. The PCRA court
2 35 P.S. § 781-113(a)(30), 18 Pa.C.S.A. § 5902(b)(1), and 35 P.S. § 780-
113(a)(16) and (32), respectively.
3 61 P.S. §§ 4501-4512.
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appointed counsel, who subsequently filed a no -merit letter under
TurnerlFinley.4 On May 8, 2017, the PCRA court granted the appointed
counsel's petition to withdraw and dismissed Appellant's petition. Appellant
appealed to this Court. On October 11, 2017, we dismissed his appeal for
failure to file a brief.
On February 1, 2018, Appellant pro se filed the instant "Petition for Time
Credit and Correct Commitment" ("Second Petition"), which the PCRA court
seemingly treated as a PCRA petition.5 On July 2, 2018, during the pendency
of the Second Petition before the PCRA court, Appellant filed a third petition
for collateral relief. On July 12, 2018, the PCRA court granted in part and
denied in part the Second Petition, concluding that Appellant was entitled to
"receive credit for the time period of August 29, 2012 until November 3,
2013," i.e., 432 days. Appellant appealed to this Court. Both Appellant and
the PCRA court complied with Pa.R.A.P. 1925.
4 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
5 It is well settled that the PCRA is intended to be the "sole means of obtaining
collateral relief." 42 Pa.C.S.A. § 9542; see also Commonwealth v. Taylor,
65 A.3d 462, 465 (Pa. Super. 2013). Even though a petition for time credit
challenges the legality of the sentence, it is cognizable under the PCRA. See
Commonwealth v. Davis, 852 A.2d 392, 399-400 (Pa. Super. 2004),
appeal denied, 868 A.2d 1197 (Pa. 2005). Accordingly, the PCRA court did
not err in treating as a PCRA petition Appellant's petition seeking time credit.
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On appeal,6 to the extent we can discern anything from his incoherent
and rambling brief/ Appellant appears to challenge only his guilty plea to
promoting prostitution and requests a sentence of "time served." Appellant's
Brief at 2.
Before we may address the merits of this pro se appeal, however, we
must determine whether the PCRA court had jurisdiction to entertain the
underlying PCRA petition (the Second Petition). The PCRA contains the
following restrictions governing the timeliness of any PCRA petition.
(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 the
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 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;
6 "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.'
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).
We note with disapproval that Appellant's brief is woefully inadequate
because it fails to conform, in any material aspect, with our rules of appellate
procedure. Appellant's brief does not contain, inter a/ia, a statement of
jurisdiction, statement of the order or other determination in question, a
statement of questions involved, a statement of the case, a summary of
argument, argument for appellant or a conclusion. See Pa.R.A.P. 2111, 2114,
2115, 2116, 2117, 2118, 2119, 2111(a)(9), respectively.
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(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.
(2) Any petition invoking an exception provided in paragraph (1)
shall be filed within 60 days of the date the claim could have been
presented.
(3) For purposes of this subchapter, a judgment 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.
42 Pa.C.S.A. § 9545(b). Section 9545's timeliness provisions are
jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).
Additionally, we have emphasized repeatedly that "the PCRA confers no
authority upon this Court to fashion ad hoc equitable exceptions to the PCRA
time -bar in addition to those exceptions expressly delineated in the Act."
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations
omitted).
Here, the record reflects Appellant's judgment of sentence became final
on January 2, 2014. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a).
Because Appellant had one year from January 2, 2014, to file his PCRA
petition, the current filing raising time credit issue is facially untimely given it
was filed on February 1, 2018.
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The one-year time limitation, however, can be overcome if a petitioner
alleges and proves one of the three exceptions set forth in Section
9545(b)(1)(i)-(iii) of the PCRA. See Commonwealth v. Marshall, 947 A.2d
714, 719 (Pa. 2008). Here, Appellant has failed to allege, let alone prove, at
any stage of the proceeding any exceptions to the one-year time bar. The
PCRA court, therefore, lacked jurisdiction to grant Appellant relief on his
Second Petition. Accordingly, given the untimeliness of the Second Petition,
we are constrained to vacate the PCRA court's July 12, 2018 order.
Order vacated. Jurisdiction relinquished.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 07/15/2019
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