Com. v. Shabazz, Z.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ZAID SHABAZZ, : No. 3694 EDA 2017
:
Appellant :
Appeal from the PCRA Order, October 18, 2017,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0006606-2011
BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 09, 2019
Zaid Shabazz appeals from the October 18, 2017 order entered by the
Court of Common Pleas of Philadelphia County denying appellant’s first
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546. After careful review, we affirm.
The relevant procedural history of this case is as follows:
On January 22, 2013, [appellant pled] guilty to
attempted murder and possession of an instrument of
crime (“PIC”) . . . . On March 7, 2013, [the trial court]
imposed a sentence of eight to sixteen years of
confinement for attempted murder, followed by two
consecutive years of probation for PIC. On March 19,
2013, [appellant] filed an untimely Post-Sentence
Motion which the [trial] court denied on July 8, 2013.
[Appellant] did not file a direct appeal on this matter.
[Appellant] filed an untimely pro se petition pursuant
to the [PCRA]. David Rudenstein, Esq. was appointed
to represent [appellant]. Mr. Rudenstein filed an
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amended PCRA petition. [The PCRA court] issued a
[Pa.R.Crim.P.] 907 Notice to [appellant] advising him
that his PCRA petition would be denied/dismissed
within twenty days because the [PCRA court] found
his pro se PCRA petition was without merit or had
been waived, to which no response was received. On
October 18, 2017, [the PCRA court] held an
evidentiary hearing and dismissed [appellant’s] PCRA
Petition. [Appellant] filed a timely appeal and [the
PCRA court] entered an Order requiring [appellant] to
file a Statement of Matters Complained of on Appeal
[pursuant to Pa.R.A.P. 1925(b)]. [Appellant]
complied.
PCRA court opinion, 5/17/18 at 1-2. The PCRA court filed an opinion pursuant
to Pa.R.A.P. 1925(a).
Appellant raises the following issue for our review:
Did the Honorable PCRA Court err when it dismissed
the Pro Se Petition without granting a hearing and all
where [appellant] pled, and would have been able to
prove, that he was entitled to relief?
Appellant’s brief at 3.
The PCRA requires that any petition for collateral relief be filed within
one year of the date that the judgment of sentence becomes final.
42 Pa.C.S.A. § 9545(b)(1). “[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 expiration of
time for seeking the review.” Commonwealth v. Callahan, 101 A.3d 118,
122 (Pa.Super. 2014), quoting 42 Pa.C.S.A. § 9545(b)(3). A petitioner may
only timely file a PCRA petition beyond one year of the date the judgment of
sentence becomes final if:
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(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)(i)-(iii).
“[T]he time limitations pursuant to . . . the PCRA are
jurisdictional.” Commonwealth v. Fahy, [] 737 A.2d
214, 222 ([Pa.] 1999). “[Jurisdictional time]
limitations are mandatory and interpreted literally;
thus, a court has no authority to extend filing periods
except as the statute permits.” Id. “If the petition is
determined to be untimely, and no exception has been
pled and proven, the petition must be dismissed
without a hearing because Pennsylvania courts are
without jurisdiction to consider the merits of the
petition.” Commonwealth v. Perrin, 947 A.2d
1284, 1285 (Pa.Super. 2008).
Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa.Super. 2011), appeal
denied, 47 A.3d 845 (Pa. 2012).
Here, appellant filed an untimely post-sentence motion on March 19,
2013. We have previously held the following pertaining to untimely
post-sentence motions:
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An untimely post-sentence motion does not toll the
appeal period. Commonwealth v. Green, 862 A.2d
613, 618 (Pa.Super .2004) (en banc ) (“[T]he time
for filing an appeal can be extended beyond 30 days
after the imposition of sentence only if the defendant
files a timely post-sentence motion.”).
....
Under Commonwealth v. Dreves, 839 A.2d 1122,
1128 (Pa.Super. 2003) (en banc), a post-sentence
motion nunc pro tunc may toll the appeal period, but
only if two conditions are met. First, within 30 days
of imposition of sentence, a defendant must request
the trial court to consider a post-sentence motion
nunc pro tunc. “The request for nunc pro tunc
relief is separate and distinct from the merits of the
underlying post-sentence motion.” Id. at 1128-29.
Second, the trial court must expressly permit the filing
of a post-sentence motion nunc pro tunc, also within
30 days of imposition of sentence. Id. at 1128 & n.6.
“If the trial court does not expressly grant nunc pro
tunc relief, the time for filing an appeal is neither
tolled nor extended.” Id. at 1128. Moreover, “[t]he
trial court's resolution of the merits of the late post-
sentence motion is no substitute for an order
expressly granting nunc pro tunc relief.” Id. at
1129.
Commonwealth v. Capaldi, 112 A.3d 1242, 1244 (Pa.Super. 2015).
Based on our review of the record, appellant did not request nunc pro
tunc relief in his post-sentence motion, and the trial court disposed of the
motion on its merits. Our holding in Capaldi requires us to find that the time
for filing a direct appeal was not tolled by appellant’s untimely post-sentence
motion. Accordingly, pursuant to the PCRA, appellant’s judgment of sentence
became final on April 6, 2013. 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a).
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Therefore, appellant’s final day to file a timely petition pursuant to the PCRA
was April 7, 2014.1 42 Pa.C.S.A. § 9545(b)(1).
In this case, appellant filed his pro se PCRA petition on May 6, 2014.
An amended PCRA petition was filed on December 27, 2016. Therein,
appellant does not plead any of the three exceptions to the PCRA time-bar.
Because appellant filed an untimely PCRA petition and did not plead nor prove
any of the three exceptions to the PCRA time bar, we do not have jurisdiction
to consider the merits of appellant’s appeal.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/9/19
1 April 6, 2014 fell on a Sunday. Therefore, appellant’s deadline for filing a
timely petition was extended to the following business day. See 1 Pa.C.S.A.
§ 1908.
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