Com. v. Jackson, A.

J. S62037/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ANTHONY JACKSON, : No. 2930 EDA 2017
:
Appellant :
Appeal from the PCRA Order, August 11, 2017,
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos. CP-51-CR-0014203-2007,
CP-51-CR-0014205-2007, CP-51-CR-0014206-2007
BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 02, 2018
Anthony Jackson appeals, pro se, from the August 11, 2017 order
denying appellant’s third petition filed pursuant to the Post Conviction Relief
Act (“PCRA”)1 entered by the Court of Common Pleas of Philadelphia County.
Appellant was convicted of one count each of attempted murder, carrying a
firearm without a license, possessing an instrument of crime, recklessly
endangering another person, and two counts each of aggravated assault and
criminal conspiracy.2 After careful review, we affirm.
1 42 Pa.C.S.A. §§ 9541-9546.
2 18 Pa.C.S.A. §§ 901(a), 6106(a), 907(a), 2705, 2702(a), and 903(a),
respectively.
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The relevant procedural history of this case is as follows: On
August 15, 2008, a jury convicted appellant of the above-referenced crimes.
The trial court sentenced appellant to an aggregate term of 15-30 years’
imprisonment. Following sentencing, appellant filed a post-sentence motion
which the trial court denied on November 20, 2008.
On June 2, 2009, appellant filed a petition pursuant to the PCRA. The
PCRA court granted appellant’s petition on December 18, 2009, and
reinstated appellant’s direct appellate rights. Appellant filed a timely notice
of appeal from the judgment of sentence, which this court affirmed on
January 19, 2011. Commonwealth v. Jackson, 23 A.3d 1084 (Pa.Super.
2011) (unpublished memorandum). Our supreme court denied appellant’s
petition for allowance of appeal on August 30, 2011. Commonwealth v.
Jackson, 27 A.3d 223 (Pa. 2011). Appellant did not file a writ of certiorari
with the Supreme Court of the United States.
On August 9, 2012, appellant filed his first petition pursuant to the
PCRA.3 The PCRA court dismissed appellant’s petition on December 16,
2013. This court affirmed the PCRA court’s order on April 24, 2015.
Commonwealth v. Jackson, 121 A.3d 1140 (Pa.Super. 2015)
3 In cases where a defendant’s first PCRA petition results in the
reinstatement of direct appellate rights, a subsequently filed PCRA petition is
treated as a “first petition.” Commonwealth v. Vega, 754 A.2d 714,
716 n.3 (Pa.Super. 2000), citing Commonwealth v. Priovolos, 746 A.2d
621, 624 (Pa.Super. 2000), appeal denied, 758 A.2d 1198 (Pa. 2000);
Commonwealth v. Lewis, 718 A.2d 1262, 1263-1264 (Pa.Super. 1998),
appeal denied, 737 A.2d 1224 (Pa. 1999).
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(unpublished memorandum). Appellant filed a second PCRA petition on
June 17, 2015, which the PCRA dismissed on August 11, 2016. This court
affirmed the PCRA court’s order on September 7, 2016. Commonwealth v.
Jackson, 158 A.3d 168 (Pa.Super. 2016) (unpublished memorandum).
Appellant filed a post-sentence motion to modify his sentence on
August 4, 2017, on the grounds that the PCRA court entered an illegal
judgment of sentence. The PCRA court treated appellant’s motion as a PCRA
petition and denied the petition on August 11, 2017. On September 1,
2017, appellant filed a notice of appeal to this court. The PCRA court
ordered appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b) on September 11, 2017, and appellant
timely complied on September 13, 2017. On November 17, 2017, the PCRA
court filed an opinion pursuant to Pa.R.A.P. 1925(a).
Because appellant labeled his appeal as an appeal from a denial of a
post-sentence motion, this court issued an order on November 17, 2017,
directing appellant to show cause why his appeal should not be quashed as
untimely. Appellant complied with this court’s order, filing a response on
December 4, 2017. On December 11, 2017, this court issued a per curiam
order deferring the issue of the timeliness of appellant’s appeal to this panel.
Appellant raises the following issue for our review:
Whether the sentencing court has committed an
error of law in finding that [appellant’s] pro se
motion for reconsideration and modification of
sentence was untimely, and therefore, could not be
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considered[?] The court maintains the inherent
power to correct or modify a clear and patent error
in it’s [sic] sentence. The failure to merge
[appellant’s] sentence is a clear and patent error.
Appellant’s brief at 4.
Appellant framed the petition currently before us as a denial of a
post-sentence motion and a direct appeal therefrom, where such an appeal
would be patently untimely. However, the PCRA court correctly treated this
motion as appellant’s third petition pursuant to the PCRA. Indeed, the PCRA
provides that “persons serving illegal sentences may obtain collateral relief.”
42 Pa.C.S.A. § 9542. A petition filed under the PCRA is the “sole means of
obtaining collateral relief[.]” Id., see also Commonwealth v. Jackson,
30 A.3d 516, 518 (Pa.Super. 2011). Here, because appellant is raising
issues pertaining to the legality of his sentence, his post-sentence motion
must be treated as a petition pursuant to the PCRA.
Subsequent PCRA petitions beyond a petitioner’s first petition are
subject to the following standard:
A second or subsequent petition for post-conviction
relief will not be entertained unless a strong
prima facie showing is offered to demonstrate that
a miscarriage of justice may have occurred.
Commonwealth v. Allen, 732 A.2d 582, 586 (Pa.
1999). A prima facie showing of entitlement to
relief is made only by demonstrating either that the
proceedings which resulted in conviction were so
unfair that a miscarriage of justice occurred which no
civilized society could tolerate, or the defendant’s
innocence of the crimes for which he was charged.
Id. at 586. Our standard of review for an order
denying post-conviction relief is limited to whether
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the trial court’s determination is supported by
evidence of record and whether it is free of legal
error. Commonwealth v. Jermyn, 709 A.2d 849,
856 (Pa. 1998).
A PCRA petition, including a second or subsequent
petition, must be filed within one year of the date
that judgment of sentence becomes final. 42
Pa.C.S.[A.] § 9545(b)(1). A judgment becomes final
for purposes of the PCRA “at the conclusion of direct
review, including discretionary review in the
Supreme Court of the United States and the
Supreme Court of Pennsylvania, or the expiration of
time for seeking the review.” 42 Pa.C.S.[A.]
§ 9543(b)(3). PCRA time limits are jurisdictional in
nature, implicating a court’s very power to
adjudicate a controversy. Commonwealth v. Fahy,
737 A.2d 214 (Pa. 1999). Accordingly, the “period
for filing a PCRA petition can be extended only if the
PCRA permits it to be extended, i.e., by operation of
one of the statutorily enumerated exceptions to the
PCRA time bar. Id. at 222.
Commonwealth v. Ali, 86 A.3d 173, 176-177 (Pa. 2014), cert. denied,
135 S. Ct. 707 (2014). We must first determine whether the PCRA court
correctly dismissed appellant’s PCRA petition as untimely.
In the case at bar, our supreme court denied appellant’s petition for
allowance of appeal on August 30, 2011. Appellant did not file a writ of
certiorari to the Supreme Court of the United States. Accordingly,
appellant’s judgment of sentence became final on November 28, 2011.
Appellant filed the PCRA petition styled as a post-sentence motion at issue
on August 4, 2017—more than five years after his judgment of sentence
became final and more than four years after a PCRA petition could be
considered timely. See 42 Pa.C.S.A. § 9545(b)(1).
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As noted above, the PCRA does enumerate exceptions to the one-year
requirement. A petitioner may file a petition under the PCRA after one year
has passed from the final judgment of sentence for any of the following
reasons:
(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). Section 9545 also mandates that any
petition filed under these exceptions must be filed within 60 days of the date
the claim could have been presented. Id. at § 9545(b)(2).
In the appeal before us, appellant fails to plead any of the exceptions
to the PCRA time-bar. Rather, throughout his brief, appellant appears to
argue that the trial court erred when it did not merge his convictions for
sentencing purposes; however, appellant does not address any of the
enumerated exceptions to the PCRA time-bar to the extent he claims his
sentence is illegal, is still subject to the time bar. (Appellant’s brief at 7-13.)
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Therefore, we find that we do not have jurisdiction to consider the merits of
the issue raised by appellant on appeal.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/2/18
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