Com. v. Martin, J.

J-S82008-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES W. MARTIN,
Appellant No. 1872 WDA 2016
Appeal from the PCRA Order Entered November 30, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s):
CP-02-CR-0011227-1986
CP-02-CR-0011427-1986
CP-02-CR-0011428-1986
CP-02-CR-0011429-1986
CP-02-CR-0011430-1986
CP-02-CR-0011985-1986
CP-02-CR-0012096-1986
CP-02-CR-0012097-1986
BEFORE: BENDER, P.J.E., STEVENS, P.J.E.*, and STRASSBURGER, J.**
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 7, 2018
Appellant, James W. Martin, appeals pro se from the post-conviction
court’s November 30, 2016 order denying, as untimely, his third petition
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We
affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
J-S82008-17
The facts of Appellant’s underlying convictions are not necessary to
our disposition of his appeal. The PCRA Court summarized the procedural
history of Appellant’s case, as follows:
This matter arises out of [Appellant’s] conviction after a
jury trial of robbery and other various offenses on September 1,
1987. The Superior Court affirmed the judgment of sentence on
[October 13, 1988,] and a Petition for Allowance of Appeal was
denied on April 25, 1989. [Appellant] filed a [PCRA] Petition on
August 24, 1990[,] and after a hearing[,] PCRA relief was denied
on October 16, 1991. The denial of PCRA relief was affirmed by
the Superior Court on September 21, 1992[,] and [Appellant’s]
Petition for Allowance of Appeal to the Supreme Court was
denied on April 13, 1993. On January 16, 1997[, Appellant] filed
a second PCRA Petition which was dismissed on June 5, 1997.
No direct appeal was taken.
On September 10, 2016[, Appellant] filed the instant
[“]Motion for the Court to Proceed on Petition for Writ of Habeas
Corpus Ad Subjiciendum.[”] [Appellant’s] Writ raised the
following claims:
(1) the prosecutor violated [Appellant’s] procedural due
process rights by charging robbery generally;
(2) the [c]ourt was biased, influenced by publicity or
political pressure, and imposed a harsh sentence due
to the presence of Michelle Madoff at [Appellant’s]
sentencing;
(3) the [c]ourt erred and/or abused its discretion in
imposing a sentence at CP-02-CR-0011429-1986
which was greater at Counts 1, 2, 4 and 5 than the
sentence at Count 3 when all of said counts involved
the same degree/grade of Robbery;
(4) the [c]ourt did not have the statutory authorization
to impose the 57-114 year[] sentence of
imprisonment rather than confinement;
(5) the [c]ourt erred in imposing a sentence
disproportionate to the crimes;
-2-
J-S82008-17
(6) the sentences violate [Appellant’s] rights under the
Fifth, Eighth and Fourteenth Amendments to the
United States Constitution to due process and equal
protection;
(7) the [c]ourt abused its discretion in imposing a
sentence outside the guideline range; and
(8) the Pennsylvania Department of Corrections lacks
authority to maintain custody of [Appellant] as it
does not possess the commitment documents
required by 42 Pa.C.S. [§] 9764.
An order was entered on September 26, 2016[,] appointing
counsel. On October 11, 2016[,] counsel filed a Motion for
Leave to Withdraw as Counsel Under Turner/Finley[1] and a
supporting brief. On November 15, 2016[,] an order was
entered granting counsel leave to withdraw and notifying
[Appellant] of the intent to dismiss the Writ without a hearing as
the Writ raised claims cognizable under the PCRA that were
untimely and that he failed to meet any of the exceptions under
42 Pa.C.S. § 9545(b)(1). In addition, the Notice of Intent to
Dismiss stated that the claim that the Department of Corrections
lacked authority to maintain custody of him, as it did not possess
the commitment documents required by 42 Pa.C.S. § 9764, was
without merit.
[Appellant] filed a response to the [Notice of Intent to
Dismiss] on November 20, 2016[,] indicating that the claims
were not cognizable under the PCRA…, but [were] covered by
the Writ of Habeas Corpus and requesting that the Writ be
referred … to the Civil Division. After review of [Appellant’s]
response[,] the order was entered on November 30, 2016[,]
dismissing his Petition.
PCRA Court Opinion (PCO), 6/27/17, at 2-3 (footnote omitted).
____________________________________________
1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
-3-
J-S82008-17
Appellant filed a timely, pro se notice of appeal. On December 14,
2016, the PCRA court ordered him to file a Pa.R.A.P. 1925(b) statement
within 21 days. According to the PCRA court, Appellant “filed his Concise
Statement” on January 3, 2017. PCO at 1. On June 27, 2017, the court
issued a Rule 1925(a) opinion. Herein, Appellant raises the following four
issues for our review:
A. Whether the [PCRA] court erred in construing or dismissing
[Appellant’s] writ of habeas corpus ad sudjiciendum [sic] as a
[PCRA] petition[?]
B. The Commonwealth’s attorney violated [Appellant’s]
procedural due process of law right’s [sic][?]
C. The court did not have statutory authorization to inpose [sic]
the sentence of 57-114 years[’] imprisonment.
D. [Appellant’s] 5th [and] 14th constitutional rights, amendments
[and] due process right were violated.
Appellant’s Brief at 4.
Initially, we must address whether Appellant preserved his issues for
our review. While the PCRA court states that Appellant “filed” his Rule
1925(b) statement on January 3, 2017, the docket in the certified record
indicates that Appellant’s concise statement was not filed until July 26, 2017.
Thus, it appears that Appellant served the court with his Rule 1925(b)
statement in January, but he did not file that document until July. In
Greater Erie Ind. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d 222(Pa. Super. 2014) (en banc), this Court declared that,
it is no longer within this Court’s discretion to review the merits
of an untimely Rule 1925(b) statement based solely on the trial
-4-
J-S82008-17
court’s decision to address the merits of those untimely raised
issues. Under current precedent, even if a trial court ignores the
untimeliness of a Rule 1925(b) statement and addresses the
merits, those claims still must be considered waived: “Whenever
a trial court orders an appellant to file a concise statement of
[errors] complained of on appeal pursuant to Rule 1925(b), the
appellant must comply in a timely manner.” Hess v. Fox
Rothschild, LLP, 925 A.2d 798, 803 (Pa. Super. 2007) (citing
[Commonwealth v.] Castillo, 888 A.2d [775,] 780 [(Pa.
2005)]) (emphasis in original); see Feingold v. Hendrzak, 15
A.3d 937, 940 (Pa. Super. 2011).
Id. at 225. The Greater Erie panel also stated that,
there are still operative exceptions to Rule 1925(b) waiver with
regard to timeliness. “[I]n determining whether an appellant has
waived his issues on appeal based on non-compliance with
Pa.R.A.P. 1925, it is the trial court’s order that triggers an
appellant's obligation ... therefore, we look first to the language
of that order.”
Id. (citations omitted).
In this case, the PCRA court’s Rule 1925(b) order complied with the
requirements of Rule 1925(b)(3)(i)-(iv). In particular, the order directed
Appellant “to file and serve upon the undersigned” his concise statement.
PCRA Court Order, 12/14/16, at 1 (emphasis added). The order also
informed Appellant that “[a]ny issue not properly included in the Concise
Statement timely filed and served pursuant to this Order shall be deemed
waived.” Id. (emphasis added). This Court has explicitly stated that, “[i]f
an appellant does not comply with an order to file a Rule 1925(b) statement,
all issues on appeal are waived – even if the Rule 1925(b) statement
was served on the trial judge who subsequently addressed in an opinion
the issues raised in the Rule 1925(b) statement.” In re L.M., 923 A.2d 505,
509 (Pa. Super. 2007) (citation omitted; emphasis added). Accordingly,
-5-
J-S82008-17
because the record demonstrates that Appellant did not timely file his Rule
1925(b) statement, we are compelled to deem his issues waived. 2 See
Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not
raised in accordance with the provisions of this paragraph (b)(4) are
waived.”); Greater Erie, supra.
In any event, even if Appellant had timely filed his Rule 1925(b)
statement, we would conclude, for the following reasons, that the PCRA
court’s denial of his petition is supported by the record and free from legal
error. See Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007)
(stating that this Court’s standard of review regarding an order denying 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).
In Appellant’s first issue, he contends that the PCRA court erred by
treating his writ of habeas corpus as a PCRA petition. Appellant essentially
avers that the PCRA statute unconstitutionally suspends the writ of habeas
corpus for petitioners, such as Appellant, who file their claims beyond one
year after their judgment of sentence becomes final. In other words,
____________________________________________
2 We note that, because Appellant is proceeding pro se, we may not remand
for the nunc pro tunc filing of a Rule 1925(b) statement under Rule
1925(c)(3) (“If an appellant in a criminal case was ordered to file a
Statement and failed to do so, such that the appellate court is convinced
that counsel has been per se ineffective, the appellate court shall remand for
the filing of a Statement nunc pro tunc and for the preparation and filing of
an opinion by the judge.”).
-6-
J-S82008-17
Appellant maintains that the PCRA’s subsuming the writ of habeas corpus,
and then imposing a timeliness requirement on petitioners, has deprived
untimely petitioners of their right to access the courts. See Appellant’s Brief
at 8.
Our Supreme Court rejected this same argument in Commonwealth
v. Peterkin, 722 A.2d 638 (Pa. 1998). There, “the Court considered the
[PCRA’s] one-year time bar in the context of the provision of the
Pennsylvania Constitution restricting the government’s ability to suspend the
privilege of the writ of habeas corpus, see PA. CONST. art. I § 14,
concluding that the timing requirement represented a reasonable
restriction.” Commonwealth v. Brown, 943 A.2d 264, 268 (Pa. 2008)
(citing Peterkin, 722 A.2d at 642). Accordingly, in light of Peterkin, we
would conclude that Appellant’s argument in his first issue is meritless.
In Appellant’s second issue, he avers that the Commonwealth violated
his procedural due process rights because “he was charged, tried and
convicted on an open charge of general robbery” and, therefore, not “fairly
apprise[d]” of the specific charges he faced. Appellant’s Brief at 10.
Because Appellant is raising this claim in a patently untimely PCRA petition
(filed over 27 years after his judgment of sentence became final), he must
prove that one of the following timeliness exceptions applies to his due
process claim:
(b) Time for filing petition.--
-7-
J-S82008-17
(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;
(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). Moreover, any petition attempting to invoke
one of these exceptions “shall be filed within 60 days of the date the claim
could have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Appellant makes no attempt to identify any timeliness exception
that applies to his due process claim. Additionally, we fail to see how he
could possibly demonstrate that he met the 60-day requirement of section
9545(b)(2), where he was obviously aware of the manner in which the
Commonwealth charged him at the time of his trial in 1987. Accordingly, we
would not have jurisdiction to review this claim, even had Appellant
preserved it in a timely Rule 1925(b) statement. See Commonwealth v.
Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (stating that the PCRA time
limitations implicate our jurisdiction and may not be altered or disregarded
to address the merits of the petition).
-8-
J-S82008-17
The same is true for Appellant’s next issue, which includes arguments
pertaining to both his claims labeled (C) and (D), above. Specifically,
Appellant alleges that the trial court imposed an excessive sentence, failed
to consider the requisite factors in fashioning his term of incarceration, and
was improperly influenced by “political pressure.” Appellant’s Brief at 13.3
Again, Appellant has wholly failed to identify any timeliness exception that
applies to these sentencing arguments, or make any claim that he could
satisfy the 60-day requirement of section 9545(b)(2). Consequently, even if
preserved below, we would not have jurisdiction to review the merits of
Appellant’s sentencing claims. See Bennett, supra.
In sum, Appellant has waived his issues by not filing a timely Rule
1925(b) statement. Nevertheless, we would also conclude that he has not
demonstrated that any timeliness exception applies to his claims.
Accordingly, we affirm the PCRA court’s order denying his untimely petition.
____________________________________________
3 We note that these arguments challenge the discretionary aspects of
Appellant’s sentence. Our Court has previously treated such claims as being
cognizable under the PCRA. See Commonwealth v. Taylor, 65 A.3d 462,
465-68 (Pa. Super. 2013) (recognizing “that an untimely post-sentence
motion filed after finality of judgment is to be treated as a PCRA petition[]”)
(citing Commonwealth v. Evans, 866 A.2d 442, 443 (Pa. Super. 2005),
and Commonwealth v. Guthrie, 749 A.2d 502, 503 (Pa. Super. 2000)).
Additionally, to the extent that any of his arguments could be construed as
attacks on the legality of his sentence, he would still have to prove the
applicability of a timeliness exception to permit our review.
Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (holding that
claims challenging the legality of sentence are subject to review within
PCRA, but must first satisfy the PCRA’s time limits).
-9-
J-S82008-17
Order affirmed.
President Judge Emeritus Stevens joins this memorandum.
Judge Strassburger concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/7/2018
- 10 -