Com. v. Kennedy, S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STEPHEN KENNEDY
Appellant No. 215 EDA 2013
Appeal from the PCRA Order November 18, 2005
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0108491-2004
BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY MUNDY, J.: FILED JUNE 01, 2015
Appellant, Stephen Kennedy, appeals pro se nunc pro tunc from the
November 18, 2005 order, dismissing his first petition for relief filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546. After careful review, we quash this appeal.
On September 23, 2004, the trial court imposed an aggregate
sentence of 23½ to 47 years’ imprisonment after Appellant was found guilty
of attempted murder, carrying a firearm without a license, possessing an
instrument of a crime, and aggravated assault.1 Appellant did not file a
direct appeal with this Court. As a result, Appellant’s judgment of sentence
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 901, 6106, 907, and 2702, respectively.
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became final on October 25, 2004, when the filing period for a notice of
appeal to this Court expired.2 See generally 42 Pa.C.S.A. § 9545(b)(3);
Pa.R.A.P. 903(c).
Appellant filed a timely PCRA petition on March 22, 2005. The PCRA
court appointed counsel, who filed a petition to withdraw along with a “no-
merit” letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc), and their progeny. On November 18, 2005, the PCRA court entered
an order dismissing Appellant’s PCRA petition without a hearing, and
granting PCRA counsel’s petition to withdraw. Appellant did not file a notice
of appeal with this Court, which was due within 30 days, by December 19,
2005.3 See generally Pa.R.A.P. 903(a).
On May 14, 2009, Appellant filed his second PCRA petition. 4 On
December 10, 2012, the PCRA court entered an order granting Appellant’s
PCRA petition, limited to reinstating his appeal rights nunc pro tunc from the
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2
We note that the 30th day was Saturday, October 23, 2004. Because the
last day to file fell on a weekend, Appellant had until Monday, October 25,
2004, to timely file a notice of appeal. See generally 1 Pa.C.S.A. § 1908.
3
We note the 30th day was Sunday, December 18, 2005. See generally 1
Pa.C.S.A. § 1908.
4
We treat May 14, 2009, as the filing date under the prisoner mailbox rule,
as the certified record contains the postmark from the envelope in which the
petition was mailed. See generally Commonwealth v. Chambers, 35
A.3d 34, 38 (Pa. Super. 2011) (citation omitted), appeal denied, 46 A.3d
715 (Pa. 2012).
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November 18, 2005 order dismissing his first PCRA petition. Appellant filed
a notice of appeal on January 7, 2013.
Instantly, the Commonwealth avers that Appellant’s appeal should be
quashed, as the PCRA court lacked jurisdiction to grant Appellant relief
because his second PCRA petition was untimely filed. Commonwealth’s Brief
at 6; see also, e.g., Commonwealth v. Huddleston, 55 A.3d 1217, 1220-
1222 (Pa. Super. 2012) (addressing the Commonwealth’s argument that the
PCRA court lacked jurisdiction to reinstate the defendant’s direct appeal
rights nunc pro tunc), appeal denied, 63 A.3d 774 (Pa. 2013). As noted
above, Appellant’s judgment of sentence became final on October 25, 2004.
Therefore, his second PCRA petition filed on May 14, 2009 was facially
untimely. See generally 42 Pa.C.S.A. § 9545(b)(1).
However, in his petition, Appellant averred that two time-bar
exceptions apply. Appellant first argued that the government interference
exception applied because he had “been in the Restricted Housing Unit
(RHU) since May 17, 2009[.]” Appellant’s PCRA Petition, 5/14/09, at 3. This
Court has held that RHU housing does not satisfy the government
interference exception to the time-bar. Commonwealth v. Barrett, 761
A.2d 145, 148 (Pa. Super. 2000).
Appellant also argued that the newly-discovered fact exception
applied. First, Appellant argued that he “suffers from learning and mental
difficulties which prevented him from [discovering] the operative facts [of his
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PCRA petition].” Appellant’s PCRA Petition, 5/14/09, at 3. Second,
Appellant argues that PCRA counsel abandoned him, which under
Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007), would satisfy the
time-bar exception. Appellant’s PCRA Petition, 5/14/09, at 3.
It is axiomatic that the newly-discovered fact exception requires that
the petitioner plead and prove there were facts previously unknown to him.
Commonwealth v. Brown, 111 A.3d 171, 177 (Pa. Super. 2015); see also
generally 42 Pa.C.S.A. § 9545(b)(1)(ii). Here, Appellant’s petition on its
face did not identify what the new operative facts were, for the purposes of
the time-bar exception. Furthermore, to the extent Appellant argued that
Bennett applied, we note that PCRA counsel did not abandon Appellant, but
rather was legally permitted to withdraw as counsel under Turner/Finley.
Therefore, we conclude the PCRA court lacked jurisdiction to restore
Appellant’s PCRA appeal rights nunc pro tunc. As a result, Appellant’s
January 7, 2013 notice of appeal was patently untimely, as it was filed 2,607
days after the PCRA court entered its November 18, 2005 order dismissing
his first PCRA petition.
Based on the foregoing, we conclude the PCRA court lacked jurisdiction
to restore Appellant’s PCRA appeal rights nunc pro tunc, rendering
Appellant’s notice of appeal untimely. Accordingly, we conclude that we are
without jurisdiction, and quash this appeal.
Appeal quashed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/1/2015
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