Com. v. Frederick, S.

J-S51006-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEVEN DENNIS FREDERICK :
:
Appellant : No. 772 MDA 2019
Appeal from the PCRA Order Entered April 25, 2019
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0000743-1975
BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.
MEMORANDUM BY PANELLA, P.J.: FILED DECEMBER 10, 2019
Steven Dennis Frederick appeals pro se from the order entered on April
25, 2019, in the Court of Common Pleas of Berks County, which dismissed as
untimely his second petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), see 42 Pa.C.S.A. §§ 9541-9546, and third total post-conviction
petition. Frederick’s petition is facially untimely, and Frederick has failed to
prove any of the three statutory exceptions to the PCRA time-bar. Therefore,
the PCRA court rightfully concluded that it lacked jurisdiction to consider the
merits of his appeal. Accordingly, we affirm.
In 1977, Frederick was convicted of first-degree murder, burglary,
aggravated assault, robbery, and theft by unlawful taking.1 On June 5, 1980,
Frederick was sentenced to life imprisonment without the possibility of parole.
____________________________________________
1 See 18 Pa.C.S.A. §§ 2502(a); 3502(a); 2702(a)(1); 3701(a)(1); and
3921(a), respectively.
J-S51006-19
Our Supreme Court affirmed per curiam his judgment of sentence on May 27,
1983,2 and Frederick did not seek any further review with the United States
Supreme Court.
In 1988, Frederick filed a petition for relief under the then Post
Conviction Hearing Act (“PCHA”), which was denied by the PCHA court. We
affirmed the denial of the petition, and subsequently, our Supreme Court
affirmed per curiam. In 2016, Frederick filed his first PCRA petition, which was
dismissed. On January 17, 2017, we affirmed the dismissal of Frederick’s PCRA
petition. Frederick did not seek review of our decision in the Supreme Court
of Pennsylvania. The Supreme Court of the United States denied Frederick’s
petition for writ of certiorari on February 20, 2018.
Frederick filed the current PCRA petition on July 26, 2018. On April 25,
2019, the PCRA court dismissed his petition as untimely filed.
Correspondingly, Frederick filed a timely notice of appeal.
In his brief, Frederick presents one question for our review:
1) Did the lower court abuse its discretion in denying Frederick’s
subsequent PCRA petition invoking 42 Pa.C.S.A. §
9545(b)(1)(i), which would have allowed for proper
adjudication of his substantive claim and would warrant relief
from the judgment against him?
____________________________________________
2Frederick appealed the judgment of sentence directly to the Pennsylvania
Supreme Court. See Appellate Court Jurisdiction Act of July 31, 1970, P.L.
673, No. 223, Art. II, § 202, repealed and reenacted in part, Act of September
23, 1980, P.L. 686, No. 137, 42 Pa.C.S.A. § 722.
-2-
J-S51006-19
See Appellant’s Brief, at 4.
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. See Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007).
Before we can reach the merits of Frederick’s claim, we must first
consider whether his PCRA petition is timely. See Commonwealth v. Miller,
102 A.3d 988, 992 (Pa. Super. 2014). Our law is clear that the PCRA's time
restrictions are jurisdictional in nature, and “if a PCRA petition is untimely,
neither this Court nor the trial court has jurisdiction over the petition. Without
jurisdiction, we simply do not have the legal authority to address the
substantive claims.” Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa.
2010) (citation omitted).
A PCRA petition, including a second or subsequent one, must be
filed within one year of the date the petitioner's judgment of
sentence became final, unless he pleads and proves one of the
three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
judgment becomes final at the conclusion of direct review by this
Court or the United States Supreme Court, or at the expiration of
the time for seeking such review. 42 Pa.C.S.[A.] § 9545(b)(3).
The PCRA's timeliness requirements are jurisdictional; therefore,
a court may not address the merits of the issues raised if the
petition was not timely filed. The timeliness requirements apply to
all PCRA petitions, regardless of the nature of the individual claims
raised therein. The PCRA squarely places upon the petitioner the
burden of proving an untimely petition fits within one of the three
exceptions.
Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (some internal
citations and footnote omitted).
-3-
J-S51006-19
Frederick’s judgment of sentence became final on July 26, 1983, sixty
days after our Supreme Court affirmed his judgment of sentence and he
sought no further review from the United States Supreme Court.3 See 42
Pa.C.S.A. § 9545(b)(3) (“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 time for seeking the
review.”); 42 Pa.C.S.A. § 9545(b)(1) (indicating that absent an exception, a
PCRA petition must be filed within one year of the date a judgment becomes
final). Accordingly, as a facially untimely petition more than thirty years
overdue, the PCRA court lacked jurisdiction to review Frederick’s petition
unless he was able to successfully plead and prove one of the statutory
exceptions to the PCRA’s time-bar. See 42 Pa.C.S.A. §§ 9545(b)(1)(i-iii).
Further, to invoke one of these exceptions, Frederick must have demonstrated
that he filed his petition within sixty days of the date his claim could have
been presented.4
____________________________________________
3 When our Supreme Court affirmed Frederick’s judgment of sentence, he had
sixty days to file with the Clerk of the United States Supreme Court a petition
for a writ of certiorari under what was then U.S. Sup. Ct. R. 20.1. Effective
January 1, 1990, Rule 20.1 was renumbered as U.S. Sup. Ct. R. 13. The
renumbering also enlarged the time for the filing of a petition for a writ of
certiorari to ninety days.
4 On October 24, 2018, the General Assembly amended Section 9545(b)(2)
to expand the time for filing a petition from 60 days to one year from the date
-4-
J-S51006-19
As best can be discerned, Frederick attempts to circumvent the PCRA’s
time-bar by asserting that he has been unconstitutionally and illegally
sentenced as a result of some sort of interference by government officials,
pursuant to 42 Pa.C.S.A. § 9545(b)(1)(i).5 See Appellant’s Brief, at 8. Stated
differently, Frederick contends that “the governmental officials in the case at
bar utterly failed to fulfill their oath,” Appellant’s Brief, at 12, when the
sentencing court and district attorney’s office apparently worked in concert
with one another to impose a sentence on Frederick that Frederick believes
was unconstitutional, see Appellant’s Brief, at 14.
“[A]lthough illegal sentencing issues cannot be waived, they still must
be presented in a timely PCRA petition.” Commonwealth v. Taylor, 65 A.3d
462, 465 (Pa. Super. 2013). Frederick has presented no exception to
surmount this timeliness mandate.
____________________________________________
a claim could have been presented. See 2018 Pa.Legis.Serv.Act 2018-146
(S.B. 915), effective December 24, 2018. The amendment applies only to
claims arising one year before the effective date of this section, i.e., December
24, 2017, or thereafter.
It does not appear that any element of Frederick’s claim arose on or
after December 24, 2017. Therefore, Frederick would have had sixty days
from the date he first became eligible to assert a PCRA exception.
5 The exception relied upon by Frederick allows a petitioner to avoid the PCRA’s
time-bar if “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[.]” 42 Pa.C.S.A. § 9545(b)(1)(i).
-5-
J-S51006-19
Here, Frederick’s purported claim arose on June 5, 1980, when “[t]he
lower court patently imposed an unconstitutional sentence where that
governmental official had no statutory authorization” to do so. Appellant’s
Brief, at 9-10. As best we can tell, Frederick is asserting that the sentencing
court acted under an unconstitutional and since-repealed statute.
However, Frederick does not explain how what he classifies as
“governmental interference” prevented him from timely filing his PCRA
petition. See Commonwealth v. Rizvi, 166 A.3d 344, 349 (Pa. Super. 2017)
(noting that even if that appellant’s claim “possessed substantive merit, [the
appellant] failed to offer a reasonable explanation why, with the exercise of
due diligence, [the appellant] did not ascertain this alleged interference of
government officials earlier and seek redress”). Therefore, even if Frederick
meritoriously alleged a violation of the Constitution or law of either
Pennsylvania or the United States, see 42 Pa.C.S.A. § 9545(b)(1)(i), he still
has not demonstrated that somehow government officials prevented him from
raising these concerns at an earlier date. Simply put, even through a generous
reading of his brief, we are unable to uncover any allegations contending that
government officials have, from June 5, 1980, until the present, interfered
with his ability to raise his illegal sentencing claim.
As Frederick filed his petition more than a year after his judgment of
sentence became final and has failed to plead and prove an exception to the
PCRA's time-bar that would allow him to file an untimely petition, we are
-6-
J-S51006-19
without jurisdiction to offer him any form of relief. As such, we find that the
PCRA court properly dismissed his PCRA petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/10/2019
-7-