Com. v. Henderson, W.

J-A10026-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WAYNE HENDERSON :
:
Appellant : No. 3012 EDA 2018
Appeal from the PCRA Order Entered August 24, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1107281-2003
BEFORE: GANTMAN, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED MAY 22, 2019
Wayne Henderson appeals from the order dated August 24, 2018, in the
Philadelphia County Court of Common Pleas, dismissing his first petition for
collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1
Henderson seeks relief from the term of one year of intermediate punishment,
followed by two years’ probation after his negotiated guilty plea to one count
of possession with intent to deliver (“PWID”). For the reasons below, we
affirm the PCRA court’s order.
The parties are aware of the underlying facts and we need not recite
them herein. As indicated above, Henderson entered a negotiated guilty plea
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1 42 Pa.C.S.A. §§ 9541-9546.
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to PWID on February 25, 2004. Henderson did not file any post-sentence
motions or a direct appeal.
On October 28, 2009, the United States indicted Henderson in federal
court on drug possession charges. In 2011, the United States District Court
sentenced him to a mandatory minimum sentence of twenty years’
imprisonment.
On June 29, 2015, Henderson filed a pro se writ of error coram nobis,
which the court deemed to be a PCRA petition.2 Subsequently, the PCRA
court appointed counsel, who filed an amended PCRA petition on November
6, 2017.3 On August 13, 2018, the PCRA court issued a notice of intention
to dismiss Henderson’s petition without a hearing pursuant to Rule 907.
Despite counsel’s representation, Henderson filed a pro se response. On
August 24, 2018, the court dismissed the petition both on ineligibility grounds
and as untimely; the court permitted counsel to withdraw.
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2 The PCRA is the sole means of obtaining collateral relief, encompassing
common law remedies. See 42 Pa.C.S.A. § 9542. Pennsylvania courts have
consistently held that, so long as it falls within the ambit of the PCRA, the
courts must treat any petition filed after the judgment of sentence is final as
a PCRA petition. Commonwealth v. Descardes, 136 A.3d 493, 497 (Pa.
2016). Here, Henderson’s claim of ineffective assistance of counsel is
cognizable under the PCRA. See 42 Pa.C.S.A. § 9543(a)(2). Thus, the court
below correctly treated his application for relief as a PCRA petition. See
Descardes, supra at 500.
3We note that, on appeal, Henderson vociferously objects to the PCRA court’s
appointment of counsel and disavows the amended petition filed by counsel.
Henderson’s Brief, at 1-2.
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On September 10, 2018, Henderson filed a pro se notice of appeal.4 The
PCRA court did not direct Henderson to file a concise statement of errors
complained of on appeal. On December 11, 2018, the PCRA court issued an
opinion.
When reviewing an order dismissing a PCRA petition, we must determine
whether the record supports the ruling of the PCRA court and is free of legal
error. Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa. Super. 2010).
“Great deference is granted to the findings of the PCRA court, and these
findings will not be disturbed unless they have no support in the certified
record.” Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011)
(citation omitted).
“Crucial to the determination of any PCRA appeal is the timeliness of the
underlying petition. Thus, we must first determine whether the instant PCRA
petition was timely filed.” Commonwealth v. Smith, 35 A.3d 766, 768 (Pa.
Super. 2011), appeal denied, 53 A.3d 757 (Pa. 2012).
The PCRA timeliness requirement . . . is mandatory and
jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
1035, 1038 (Pa. Super. 2007), appeal denied, 951 A.2d 1163 (Pa.
2008) (citation omitted). The court cannot ignore a petition’s
untimeliness and reach the merits of the petition. Id.
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4 The trial court originally treated Henderson’s filing as “pro se
correspondence.” The court later corrected the docket to reflect that the filing
was, in actuality, a timely notice of appeal.
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Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied,
572 U.S. 1151 (2014). A petitioner must file his or her PCRA petition within
one year of the date the underlying judgment becomes final. See 42 Pa.C.S.A.
§ 9545(b)(1). Our courts deem a judgment 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 review.” 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct. Rule 13.
Instantly, Henderson’s judgment of sentence became final on March 26,
2004, at the expiration of the time in which he had to file a direct appeal.
Thus, Henderson’s petition, filed on June 29, 2015, is patently untimely.
However, pursuant to 42 Pa.C.S.A. § 9545, an otherwise untimely
petition is not time-barred if a petitioner pleads and proves the applicability
of one of three time-for-filing exceptions:
(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.A. §§ 9545(b)(1)(i)-(iii). For claims arising prior to December 24,
2017, a petitioner invoking an exception must file his petition within 60 days
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of the date he or she could have presented the claim.5 See Act 2018, Oct.
24, P.L. 894, No. 146, §2 and §3. Here, Henderson fails to assert any reason
why his petition falls within one of the exceptions to the timeliness
requirement. Accordingly, the PCRA court was correct in finding his petition
was untimely filed.
Likewise, the PCRA court properly determined Henderson failed to plead
and prove that he is eligible for relief pursuant to 42 Pa.C.S.A. 9543(a)(1),
which provides, in pertinent part, as follows:
(a) General rule.--To be eligible for relief under this subchapter,
the petitioner must plead and prove by a preponderance of the
evidence all of the following:
(1) That the petitioner has been convicted of a crime
under the laws of this Commonwealth and is at the
time relief is granted:
(i) currently serving a sentence of
imprisonment, probation or parole for
the crime;
42 Pa.C.S.A. § 9543(a)(1)(i) (emphasis added). In the present case,
Henderson failed to demonstrate that he is still serving a sentence for the
conviction at issue.
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5 Effective December 24, 2018, Act 146 of 2018 amended 42 Pa.C.S.A. §
9545(b)(2), and now provides that a PCRA petitioner invoking a timeliness
exception must file the petition within one year of the date the claim could
have been presented, for all claims arising after December 24, 2017. See Act
2018, Oct. 24, P.L. 894, No. 146, §2 and §3.
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As previously indicated, the trial court sentenced Henderson to one year
of intermediate punishment followed by two years of probation on February
25, 2004, which expired on May 15, 2006. See Docket Entry, 5/15/2006
(“CASE TERMINATION”). Henderson does not suggest or provide any
evidence that he is still serving a sentence of probation for this specific case.
Therefore, he is not entitled to PCRA relief.
Because we conclude the PCRA court did not err in (1) determining that
Henderson’s petition was actually a request for PCRA relief; and (2) finding
that Henderson untimely filed his petition and he was ineligible for relief, we
affirm the order of the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/19
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