Com. v. Sampson, K.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
KAREEM SAMPSON, : No. 3410 EDA 2015
:
Appellant :
Appeal from the PCRA Order, October 30, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0502081-1999
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 20, 2016
Kareem Sampson appeals from the order of October 30, 2015,
dismissing his third PCRA1 petition. We affirm.
The history of this case has been summarized by this court as follows:
In March of 1999, [Appellant] telephoned
Natise Johnson to question her about her brother’s
relationship with [A]ppellant’s former fiancée, Crystal
Mack.[Footnote 1] Unhappy with Natise Johnson’s
responses, [Appellant] went to Natise Johnson’s
home located at 5428 Lansdowne Avenue, in the City
and County of Philadelphia. Natise Johnson had
known [A]ppellant since middle school, so she
allowed [him] into the living room where they began
to talk. During their conversation, Natise Johnson
informed [Appellant] that “Crystal was a big girl and
could do whatever she wants.” Frustrated with the
situation, [A]ppellant put his gun to Natise Johnson’s
* Former Justice specially assigned to the Superior Court.
1
Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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face and ordered her to tell him the whereabouts of
her brother and Mack. She refused. [A]ppellant
fired four times in Natise Johnson’s head. Natise
Johnson was found dead on the kitchen floor by her
father later that day when he returned from work.
At the time of her murder, Natise Johnson was
nine (9) months pregnant. Her unborn child died
twenty minutes after the shooting from a lack of
oxygen.
[Footnote 1] Crystal Mack and the
[A]ppellant had dated for years and
shared a child. She had left the
[A]ppellant’s home and started dating
Natise Johnson’s brother.
Following a jury trial, [Appellant] was found
guilty of the first degree murder of Natise Johnson
and first degree murder of her unborn child. After
[the] penalty phase, the jury could not reach a
unanimous decision on the issue of penalty.
Appellant was sentenced to two concurrent terms of
life in prison without parole.
At trial, [A]ppellant was represented by Ronald
Joseph, Esquire. Subsequent to trial Mitchell Strutin,
Esquire, was appointed for direct appeal. On
August 13, 2002, the Superior Court affirmed the
judgment of sentence. Petition for Allowance of
Appeal to the Supreme Court was filed and
subsequently denied on April 14, 2003.
On September 2, 2003, [A]ppellant filed a
pro se Post Conviction Relief Act (PCRA) petition.
After the Commonwealth’s response and
[A]ppellant’s supplemental response, the PCRA
[c]ourt issued a [Rule] 907 Notice[2] on
September 30, 2004 deeming the issues raised in
the PCRA petition meritless. This appeal flows from
the denial of [A]ppellant’s PCRA petition.
2
Pa.R.Crim.P. 907.
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Commonwealth v. Sampson, 900 A.2d 887, 888-889 (Pa.Super. 2006),
appeal denied, 907 A.2d 1102 (Pa. 2006), quoting PCRA court opinion,
6/22/05 at 1-2 (brackets in original). On May 23, 2006, in a published
opinion, this court affirmed the denial of PCRA relief; appellant filed a
petition for allowance of appeal with the Pennsylvania Supreme Court, which
was denied on September 28, 2006. Id.Appellant filed a second pro se PCRA petition on July 6, 2011, which
was denied on April 30, 2013, following Rule 907 notice. Appellant did not
file a notice of appeal from denial of his second PCRA petition. On
December 1, 2014, appellant filed the instant PCRA petition, his third,
seeking reinstatement of his appeal rights from denial of his second petition.
Appellant claimed that he never received notice of the PCRA court’s denial of
his second petition. Following Rule 907 notice, appellant’s third petition was
dismissed on October 30, 2015, as untimely. The PCRA court found that
appellant did not act with due diligence in presenting his claim. This timely
appeal followed. Appellant was not ordered to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b); however, on
December 21, 2015, the PCRA court filed a Rule 1925(a) opinion explaining
the reasons for its dismissal of appellant’s third PCRA petition.
Appellant has raised the following issue for this court’s review:
1. Whether the lower Court abused its discretion
in denying PCRA relief by failing to reinstate
appellate rights to Appellant nunc pro tunc
where Appellant establ[is]hed timeliness and
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due diligence, where the Court’s offic[]er sent
Notice of Judgment Order, 907 Dismissal
Notice, and Memorandum Opinion to another
prisoner and not Appellant, [and] as a result
Appellant was denied Due Process of Law?
Appellant’s brief at 5 (emphasis added).
The standard of review for an order denying
post-conviction relief is limited to whether the record
supports the PCRA court’s determination, and
whether that decision 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. Furthermore, a petitioner is not entitled to a
PCRA hearing as a matter of right; the PCRA court
can decline to hold a hearing if there is no genuine
issue concerning any material fact and the petitioner
is not entitled to post-conviction collateral relief, and
no purpose would be served by any further
proceedings.
Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa.Super. 2008),
appeal denied, 956 A.2d 433 (Pa. 2008), quoting Commonwealth v.
Taylor, 933 A.2d 1035, 1040 (Pa.Super. 2007) (citations omitted).
Pennsylvania law makes clear no court has
jurisdiction to hear an untimely PCRA petition.
Commonwealth v. Robinson, 575 Pa. 500, 508,
837 A.2d 1157, 1161 (2003). The most recent
amendments to the PCRA, effective January 16,
1996, provide a PCRA petition, including a second or
subsequent petition, shall be filed within one year of
the date the underlying judgment becomes final.
42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.
Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003);
Commonwealth v. Vega, 754 A.2d 714, 717
(Pa.Super.2000). A judgment is deemed final “at
the conclusion of direct review, including
discretionary review in the Supreme Court of the
United States and the Supreme Court of
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Pennsylvania, or at the expiration of time for seeking
the review.” 42 Pa.C.S.A. § 9545(b)(3).
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010).
The three statutory exceptions to the timeliness
provisions in the PCRA allow for very limited
circumstances under which the late filing of a
petition will be excused. 42 Pa.C.S.A. § 9545(b)(1).
To invoke an exception, a petition must allege and
prove:
(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). “As such, when a
PCRA petition is not filed within one year of the
expiration of direct review, or not eligible for one of
the three limited exceptions, or entitled to one of the
exceptions, but not filed within 60 days of the date
that the claim could have been first brought, the trial
court has no power to address the substantive merits
of a petitioner’s PCRA claims.” Commonwealth v.
Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783
(2000); 42 Pa.C.S.A. § 9545(b)(2).
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Id. at 1079-1080.
The timeliness exception set forth in
Section 9545(b)(1)(ii) requires a petitioner to
demonstrate he did not know the facts upon which
he based his petition and could not have learned
those facts earlier by the exercise of due diligence.
Commonwealth v. Bennett, 593 Pa. 382, 395, 930
A.2d 1264, 1271 (2007). Due diligence demands
that the petitioner take reasonable steps to protect
his own interests. Commonwealth v. Carr, 768
A.2d 1164, 1168 (Pa.Super.2001). A petitioner must
explain why he could not have obtained the new
fact(s) earlier with the exercise of due diligence.
Commonwealth v. Breakiron, 566 Pa. 323,
330-31, 781 A.2d 94, 98 (2001); Commonwealth
v. Yarris, 557 Pa. 12, 29, 731 A.2d 581, 590
(1999). This rule is strictly enforced. See Vega,
supra at 718.
Id. at 1080.
Instantly, the Supreme Court of Pennsylvania denied allowance of
appeal on April 14, 2003. Commonwealth v. Sampson, 821 A.2d 587 (Pa.
2003). Therefore, appellant’s judgment of sentence became final for PCRA
purposes on or about July 13, 2003, upon expiration of the time to file a
petition for writ of certiorari with the United States Supreme Court. See
42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13.1 (allowing 90 days to file a
petition for writ of certiorari with the United States Supreme Court).
Appellant filed the current petition, his third, on December 1, 2014, over
11 years later. Therefore, appellant’s current PCRA petition is manifestly
untimely on its face.
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However, as previously stated, there are three exceptions under which
a facially untimely PCRA petition may still be considered. Appellant attempts
to invoke the after-discovered facts exception to the time restrictions of the
PCRA, enumerated in Subsection 9545(b)(1)(ii). Appellant alleges that he
did not know until November 2014, within 60 days of filing the instant
petition, that his July 6, 2011 petition had been dismissed. (Appellant’s brief
at 12.) According to appellant, the PCRA court’s April 30, 2013 order and
memorandum dismissing his petition contained the wrong prisoner
identification number. (Id. at 10.) Appellant relies on Bennett, in which
our supreme court found that appointed counsel had abandoned the
appellant by failing to file an appellate brief, resulting in dismissal of the
appeal. The Bennett court held that this allegation brought the appellant’s
claim within the ambit of Subsection 9545(b)(1)(ii) and distinguished the
Gamboa-Taylor line of cases, in which it was held that an allegation of
PCRA counsel’s ineffectiveness cannot be invoked as a newly-discovered
“fact” to circumvent the one-year time limitation.3 Crucial to the analysis in
Bennett was that a defendant is entitled to assistance of counsel on a first
PCRA petition:
As part of the PCRA process, indigent petitioners
may apply for the assistance of counsel for purposes
of their first PCRA petition. We have held this rule to
3
Gamboa-Taylor, supra (holding a claim of ineffective assistance of
counsel does not save an otherwise untimely petition for review on the
merits); see also Breakiron, 781 A.2d at 97 (allegations of ineffective
assistance of counsel will not avoid the timeliness requirement of the PCRA).
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be absolute inasmuch as we have concluded that a
petitioner need not establish that his petition is
timely before he or she is entitled to the
appointment of counsel. See, e.g.,
Commonwealth v. Smith, 572 Pa. 572, 818 A.2d
494 (2003). To this end, it can be assumed that the
PCRA court will appoint appropriate counsel, i.e.,
counsel that can and will raise potentially meritorious
claims. In this same vein, while the performance of
PCRA counsel is not necessarily scrutinized under the
Sixth Amendment, the performance of counsel must
comply with some minimum norms, which would
include not abandoning a client for purposes of
appeal.
Bennett, 930 A.2d at 1273-1274 (citations omitted).
In this case, appellant was not entitled to counsel on a serial, untimely
PCRA petition. Commonwealth v. Kubis, 808 A.2d 196, 200 (Pa.Super.
2002), appeal denied, 813 A.2d 839 (Pa. 2002). Appellant already
received the review to which he was entitled. Therefore, we find that
appellant’s reliance on Bennett is misplaced.4
Additionally, the petitioner in Bennett filed his PCRA petition within
60 days of the date it could have been presented, since it was filed fewer
than 25 days after he received the letter from this court explaining that his
appeal was dismissed due to PCRA counsel’s failure to file a brief. Id., 930
A.2d at 1272 n.11. Instantly, appellant has not provided any description of
steps he took to ascertain the status of his case, such that would satisfy
4
As the Commonwealth observes, appellant also asserted that the
governmental interference exception applied; however, he has abandoned
that claim on appeal. (Commonwealth’s brief at 12.)
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Subsection (b)(1)(ii)’s due diligence requirement.5 Appellant must have
received a copy of the PCRA court’s October 14, 2011 Rule 907 20-day
notice, because he filed a pro se response on October 26, 2011. (Docket
#30.) Yet, as the PCRA court stated, “he failed to set forth the efforts he
made to ascertain the status of his prior petition after the 907 notice was
sent to him.” (PCRA court opinion, 12/21/15 at 3.) The PCRA court did not
err in finding that appellant failed to demonstrate he acted with due
diligence to protect his own interests.
Additionally, courts “will not entertain a second or
subsequent request for PCRA relief unless the
petitioner makes a strong prima facie showing that
a miscarriage of justice may have occurred.”
Commonwealth v. Marshall, 596 Pa. 587, 947
A.2d 714, 719 (2008) (citation omitted). “Appellant
makes a prima facie showing of entitlement to relief
only if he demonstrates either that the proceedings
which resulted in his conviction were so unfair that a
miscarriage of justice occurred which no civilized
society could tolerate, or that he was innocent of the
crimes for which he was charged.” Commonwealth
v. Allen, 557 Pa. 135, 732 A.2d 582, 586 (1999)[.]
Commonwealth v. Medina, 92 A.3d 1210, 1215 (Pa.Super. 2014)
(en banc), appeal dismissed as improvidently granted, A.3d ,
2016 WL 3390813 (Pa. 2016) (per curiam).
5
Appellant refers to various letters he allegedly sent inquiring about the
status of his PCRA petition. (Appellant’s brief at 12.) These letters do not
appear in the certified record and do not exist for purposes of appellate
review. Commonwealth v. Hallock, 722 A.2d 180, 182 (Pa.Super. 1998).
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In his July 6, 2011 PCRA petition, appellant leveled a bald,
unsupported allegation that the trial court altered the transcripts in his case.
(PCRA court opinion, 4/30/13 at 2.) Apparently, this claim was based on a
newspaper article detailing an incident involving the same trial judge in an
unrelated case. (Id.) This is hardly the sort of claim that would succeed in
a serial PCRA petition.
For these reasons, the PCRA court did not err in dismissing appellant’s
third PCRA petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/20/2016
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