Com. v. Grace, F.

J-S01021-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FRAZIER CISCO GRACE
Appellant No. 719 WDA 2014
Appeal from the PCRA Order April 11, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0015667-2005
BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED DECEMBER 24, 2014
Appellant, Frazier Cisco Grace, appeals pro se from the order entered
in the Allegheny County Court of Common Pleas, which dismissed his
petition filed for relief pursuant to the Post Conviction Relief Act (“PCRA”).1
We affirm.
The trial court sets forth the relevant facts and procedural history of
this appeal as follows:
On February 14, 2007, following a trial by jury at which
[Appellant] acted pro se, [Appellant] was convicted of one
count each of rape, involuntary deviate sexual intercourse,
sexual assault, kidnapping, unlawful restraint, and simple
assault.[2] On May 14, 2007, [Appellant] was sentenced
____________________________________________
1
42 Pa.C.S. §§ 9541-9546.
2
18 Pa.C.S. §§ 3121(a)(1), (a)(2); 3123(a)(1), (a)(2); 3124.1; 2901(a);
2902; 2701(a)(1), respectively.
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to 120 to 240 months[’] incarceration for rape, with a
consecutive sentence of 114 to 228 months[’]
incarceration for involuntary deviate sexual intercourse; no
additional sentence was imposed on the remaining counts.
On October 1, 2009, after [Appellant] filed a first petition
under the [PCRA], this [c]ourt issued an [o]rder appointing
Alan R. Patterson, Esquire, as counsel for [Appellant]. On
February 11, 2010, counsel filed an amended petition,
seeking alternatively to have [Appellant’s] right to direct
[appeal] reinstated nunc pro tunc. By [o]rder of [c]ourt,
[Appellant’s] appellate rights were reinstated on June 16,
2010. A notice of appeal from the May 14, 2007 judgment
of sentence was filed on July 9, 2010.
On direct appeal, [Appellant] claimed, inter alia, that the
evidence was insufficient to allow a finding beyond a
reasonable doubt that the rape had occurred. On June 10,
2011, the Superior Court affirmed [Appellant’s] sentence;
the Court specifically found [Appellant’s] sufficiency claim
regarding his rape conviction to be waived due to the lack
of legal authority presented, and the concession that a
conviction could properly be based solely on circumstantial
evidence. The Supreme Court of Pennsylvania denied
Allocatur on May 6, 2012.
On June 8, 2012, [Appellant] filed a second pro se PCRA
petition. This [c]ourt appointed Charles Pass, Esquire, to
represent [Appellant]. On July 23, 2012, Attorney Pass
filed with this [c]ourt a no merit letter and motion to
withdraw as counsel under [Commonwealth v. Turner,
544 A.2d 927 (Pa.1988)] and [Commonwealth v. Finley,
550 A.2d 213 (Pa.Super.1988)]. On July 30, 2012, this
[c]ourt granted counsel's motion, and simultaneously
provided [Appellant] notice of its intent to dismiss his
petition without a hearing, pursuant to Pa.R.Crim.P. 907.
This [c]ourt dismissed the petition as patently frivolous
and without support on the record on August 16, 2012.
[Appellant] filed a notice of appeal therefrom on
September 9, 2012.
In compliance with an [o]rder of this [c]ourt, [Appellant]
filed a Pa.R.A.P. 1925(b) statement of matters complained
of on appeal. Therein, [Appellant] did not raise any claims
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of ineffective assistance of counsel pertaining to the
representation provided to him by Mr. Patterson during
either the first PCRA proceedings or during the subsequent
appellate process. The Superior Court affirmed the
dismissal of the PCRA petition by memorandum opinion, on
October 18, 2013.
[Appellant] filed the instant pro se PCRA petition on
January 8, 2014. On January 14, 2014, this [c]ourt issued
a notice of intent to dismiss the petition without a hearing.
This [c]ourt ultimately dismissed the petition as frivolous
on April 11, 2014. A notice of appeal followed, on April 30,
2014.1
1
[Appellant] filed two appeals, the first of which,
docketed at No. 509 WDA 2014, was improperly filed
from this [c]ourt’s [n]otice of [i]ntent to [d]ismiss.
Thus, by [o]rder dated May 21, 2014, the Superior
Court dismissed the appeal as premature. The instant
appeal, at No. 719 WDA 2014, was allowed to
proceed.
Trial Court Opinion, filed September 8, 2014, at 1-3. On May 7, 2014, the
court ordered Appellant to file a concise statement of errors complained of
on appeal, pursuant to Pa.R.A.P. 1925(b), and Appellant complied on May
28, 2014.
Appellant raises the following issues on appeal:
WHETHER THE PCRA COURT COMMITTED ERROR WHEN
[IT] DENIED APPELLANT’S PCRA [PETITION] WITHOUT [A]
HEARING, BECAUSE MR. PATTERSON WAS INEFFECTIVE
WHEN HE FAILED TO ARGUE APPELLANT’S SUFFICIENCY
OF THE EVIDENCE CLAIM PROPERLY ON APPELLANT’S
FIRST DIRECT APPEAL AND DID NOT COMPLY WITH
PA.R.A.P. 2119(A) AND HAD APPELLANT’S SEXUAL
ASSAULT ISSUE WAIVED AND ABANDONED[?]
WHETHER ALAN R. PATTERSON WAS INEFFECTIVE FOR
[FAILING] TO RAISE APPELLANT’S PROSECUTORIAL
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MISCONDUCT [CLAIM] IN HIS AMENDED PCRA AND BRIEF
FOR APPELLANT’S DIRECT APPEAL[?]
Appellant’s Brief at 4.
Our review of a PCRA court’s decision “is limited to examining whether
the PCRA court’s findings of fact are supported by the record, and whether
its conclusions of law are free from legal error.” Commonwealth v.
Koehler, 36 A.3d 121, 131 (Pa.2012).
Before addressing the merits of Appellant’s claims, we must first
consider the timeliness of his PCRA petition because it implicates the
jurisdiction of both this Court and the PCRA court. Commonwealth v.
Williams, 35 A.3d 44, 52 (Pa.Super.2011) (citation omitted), appeal
denied, 50 A.3d 121 (Pa.2012). “Pennsylvania law makes clear that no
court has jurisdiction to hear an untimely PCRA petition.” Id. Further, to
“accord finality to the collateral review process[,]” the PCRA “confers no
authority upon this Court to fashion ad hoc equitable exceptions to the PCRA
timebar[.]” Commonwealth v. Watts, 23 A.3d 980, 983 (Pa.2011).
With respect to jurisdiction under the PCRA, this Court has further
explained:
The most recent amendments to the PCRA...provide a
PCRA petition, including a second or subsequent petition,
shall be filed within one year of the date the underlying
judgment becomes final. 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 Pennsylvania, or at the expiration of
time for seeking the review.
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Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010)
(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011).
This Court may review a PCRA petition filed more than one year after the
judgment of sentence becomes final only if the claim falls within one of the
following three statutory exceptions, which the petitioner must plead and
prove:
§ 9545. Jurisdiction and proceedings
* * *
(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 of sentence becomes final,
unless the petition alleges and the petitioner proves that:
(i) the failure to raise the claim 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). Further, even if a petition pleads one of these
exceptions, the petition will not be considered unless it is “filed within 60
days of the date the claim could have been presented.” 42 Pa.C.S. §
9545(b)(2).
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Finally, a heightened standard applies to a second or subsequent PCRA
petition to avoid “serial requests for post-conviction relief.”
Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa.2011). A second or
subsequent PCRA petition “will not be entertained unless a strong prima
facie showing is offered to demonstrate that a miscarriage of justice may
have occurred.” Commonwealth v. Hawkins, 953 A.2d 1248, 1251
(Pa.2006). In a second or subsequent post-conviction proceeding, “all
issues are waived except those which implicate a defendant’s innocence or
which raise the possibility that the proceedings resulting in conviction were
so unfair that a miscarriage of justice which no civilized society can tolerate
occurred.” Commonwealth v. Williams, 660 A.2d 614, 618
(Pa.Super.1995).
Instantly, Appellant’s judgment of sentence became final on August 6,
2012, when Appellant’s time for seeking review with the Supreme Court of
the United States had expired. See Monaco, supra. Appellant filed the
instant pro se PCRA petition more than a year later, on January 8, 2014.
Thus, his PCRA petition is facially untimely, and we must determine whether
Appellant has pled and proved any of the exceptions to the PCRA time
limitation. See 42 Pa.C.S. § 9545(b)(1).
Although Appellant checked the box on his PCRA form that indicated
he might attempt to invoke the governmental interference exception to the
PCRA time bar, he does not plead, prove, or even mention this exception
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anywhere else in his PCRA petition or his appellate brief. Further, Appellant
makes no effort to explain why he did not bring his claims in a timely
manner. Therefore, Appellant’s petition is time-barred, and the trial court
properly denied it. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/24/2014
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