Com. v. Booker, R.

J-S08045-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RONALD BOOKER
Appellant No. 2818 EDA 2014
Appeal from the PCRA Order September 11, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0017214-1999
BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED FEBRUARY 03, 2015
Appellant Ronald Booker appeals pro se from the order entered in the
Montgomery County Court of Common Pleas which dismissed his petition
seeking relief pursuant to the Post Conviction Relief Act (“PCRA”). 1 We
affirm.
The trial court sets forth most of the relevant facts and procedural
history of this appeal as follows:
On May 23, 2000, a jury convicted Appellant of robbery,
theft, criminal conspiracy, recklessly endangering another
person, terroristic threats, false imprisonment, possessing
a concealed weapon and firearms not to be carried without
a license[2] for the July 23, 1999, armed robbery of Buddy
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1
42 Pa.C.S. §§ 9541-9546.
2
18 Pa.C.S. §§ 3701(a)(1), 3921(a), 903(a)(1), 2705, 2706, 2903, 907(b),
and 6106(a), respectively.
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Bear Jewelry store in Merion, Montgomery County. On
October 23, 2000[,] Appellant was sentenced to an
aggregate term of 15½ to 49 years’ imprisonment.
Appellant filed a direct appeal, and on June 15, 2001, the
Pennsylvania Superior Court affirmed his judgment of
sentence. Appellant did not file a petition for allowance of
appeal with the Pennsylvania Supreme Court.
On November 14, 2002, Appellant filed his first pro se
PCRA petition, albeit untimely. Counsel was appointed,
and finding that the petition was untimely and
substantively meritless, he filed a no-merit letter. This
[c]ourt provided pre-dismissal notice pursuant to Pa.R.A.P.
907, and ultimately issued a final order of dismissal,
dismissing Appellant’s untimely PCRA petition. Appellant
appealed, and his appeal was denied by the Pennsylvania
Superior Court on December 4, 2003. On May 18, 2004,
Appellant’s petition for allowance of appeal was denied by
the Pennsylvania Supreme Court.
Appellant filed a second untimely PCRA petition, which was
also dismissed on March 10, 2010. Appellant did not
appeal.
On August 19, 2014, Appellant filed his third PCRA
petition, at issue in this appeal.
PCRA Court Opinion, filed October 27, 2014, p. 2.
On August 22, 2014, the PCRA court issued a Rule 907 notice of intent
to dismiss the petition without a hearing. On September 11, 2014, the court
dismissed the petition.3 Appellant timely filed a notice of appeal on
September 26, 2014. On October 1, 2014, the court ordered Appellant to
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3
Because Appellant objected to the Rule 907 notice on September 17, 2014,
after the court had already dismissed the petition, the court again denied
relief and dismissed the petition on September 22, 2014.
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file a concise statement of errors complained of on appeal, pursuant to
Pa.R.A.P. 1925(b), and he timely complied on October 20, 2014.
Appellant raises the following issues for review:
WHETHER [APPELLANT] WAS ENTITLED TO [PCRA] RELIEF
AS A RESULT OF PENNSYLVANIA SENTENCE SCHEME
UNDER 42 PA.C.S. § 9714 AND [BECAUSE] MCMILLIAN
V. PENNSYLVANIA IS CONTRARY TO ALLEYNE[?]
WHETHER [APPELLANT] WAS ENTITLED TO [PCRA] RELIEF
[BECAUSE] THE LEGALITY OF SENTENCE QUESTION [IS]
NOT WAIVABLE AND MAY BE RAISED SUA SPONTE BY THE
COURT [AT] ANY TIME[?]
Appellant’s Brief, p. 4.
Before we address the merits of Appellant’s claims, we must determine
whether his PRCA petition was timely. The timeliness of a PCRA petition
implicates the jurisdiction of both this Court and the PCRA court.
Commonwealth v. Williams, 35 A.3d 44, 52 (Pa.Super.2011), appeal
denied, 50 A.3d 121 (Pa.2012). “Pennsylvania law makes clear that no
court has jurisdiction to hear an untimely PCRA petition.” Id. To “accord
finality to the collateral review process[,]” the PCRA “confers no authority
upon [appellate courts] 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
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Supreme Court of Pennsylvania, or at the expiration of
time for seeking the review.
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010)
(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011);
see also 42 Pa.C.S. § 9545. 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:
(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, 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).
Additionally, 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
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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). Further, 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).
Here, Appellant’s judgment of sentence became final on July 16, 2001,
when Appellant’s time for seeking review with our Supreme Court expired.4
See Monaco, supra. Therefore, he had until July 16, 2002 to timely file a
PCRA petition. Appellant filed the instant pro se PCRA petition over twelve
years later, on August 19, 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).
Appellant’s petition does not claim, plead, or prove any of the
exceptions to the PCRA time limitation. Further, Appellant makes no effort
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4
This period would have expired on July 15, 2001. However, as July 15,
2001 fell on a Sunday, Appellant had until July 16, 2001 to file a petition for
allowance of appeal to our Supreme Court.
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to explain why he did not bring his claims in a timely manner. The PCRA
court reasoned:
Appellant does not acknowledge [his petition’s]
untimeliness, and even if this [c]ourt could read his
pleadings as an attempt to invoke one of the statutory
exceptions to the time-bar by relying on Alleyne,5 namely
‘the right asserted was recognized by the United States
Supreme Court or the Pennsylvania Supreme Court as a
constitutional right after the petitioner’s case was decided
and the right has been upheld to apply retroactively,’ 42
[Pa.C.S.] §9545(b)(1)(iii), Alleyne is not applicable in this
case, as Appellant was not sentenced under a mandatory
minimum statute.
PCRA Court Opinion, pp. 5-6.
Appellant’s petition is time-barred, and the PCRA court properly denied
it. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/3/2015
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5
Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed. 2d 314 (2013).
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