Com. v. Howard, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DONALD HOWARD :
:
Appellant : No. 495 WDA 2022
Appeal from the PCRA Order Entered April 1, 2022
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0000530-2010
BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: September 30, 2022
Donald Howard (Howard) appeals from the order of the Court of
Common Pleas of Erie County (PCRA court) dismissing his serial petition for
relief under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
After review, we affirm.
In February 2011, a jury found Howard guilty of second-degree murder,
robbery, theft by unlawful taking and burglary.1 After the trial court sentenced
him to life imprisonment, Howard filed a direct appeal that we later dismissed.
The PCRA court reinstated his direct appeal rights nunc pro tunc following
which he filed another direct appeal. In March 2013, we affirmed his judgment
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 2502(b), 3701(a)(1)(i), 3921(a) and 3502(a).
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of sentence. See Commonwealth v. Howard, 69 A.3d 181 (Pa. Super.
2013) (unpublished memorandum).
In February 2014, Howard filed his first PCRA petition raising two
ineffective assistance of counsel claims and a claim that he was denied the
right to confront a witness whose testimony was admitted into evidence
through a police witness. Howard refused the appointment of PCRA counsel
and amended his petition to raise additional claims. At the PCRA hearing, the
PCRA court conducted an on-the-record colloquy under Commonwealth v.
Grazier, 73 A.2d 81 (Pa. 1998) and Pa.R.Crim.P. 121, following which the
PCRA court determined that Howard validly waived his ruled-based right to
counsel in a first-time PCRA petition. After hearing testimony from both
Howard and his trial counsel, the PCRA court entered an order dismissing the
petition. After the dismissal, Howard filed a counseled appeal. In January
2016, this Court affirmed the PCRA court’s dismissal of Howard’s petition. See
Commonwealth v. Howard, 136 A.3d 1026 (Pa. Super. 2016) (unpublished
memorandum).
After unsuccessfully filing several more petitions, Howard filed this serial
petition for PCRA relief on January 31, 2022, which he labeled “Brady v.
Maryland Claim of Actual Innocence.” On March 10, 2022, the PCRA court
gave notice of its intent to dismiss the petition without hearing under
Pa.R.Crim.P. 907(1). In the notice, the PCRA court explained that Howard’s
petition was filed over eight years after his judgment of sentence became
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final, thus requiring him to plead and prove that his petition fell under the
three enumerated timeliness exceptions set forth under 42 Pa.C.S.
§§ 9545(b)(1)(i)-(iii). Finding that Howard failed to plead and prove any of
the exceptions, the PCRA court explained:
Although Howard raises claims of prosecutorial misconduct
that occurred at trial, he does not allege in his Petition that his
failure to timely raise the claim within the one-year time bar was
the result of government interference or misconduct, as required
under Section 9545(b)(1)(i), nor does he claim that any of the
alleged facts underlying his claims were unknown to him at the
time of trial or could not have been ascertained by the exercise of
due diligence. Neither does Howard make any claim concerning
the retroactive application of a constitutional right. Indeed, he
fails to even acknowledge that his Petition is filed beyond the one-
year time bar despite that fact that at least one prior PCRA Petition
at this docket was dismissed for that very reason. See Notice of
Intent to Dismiss PCRA Without Hearing Pursuant to Pa.R.Crim.P.
907(1), Docket No. 530-2010 (Erie. Co. April 22, 2020) (Mead,
J.). The PCRA’s statutory time bar remains just as applicable
today as it did then. Because Howard’s present Petition does not
allege an exception to the one-year time bar of Section
9545(b)(1), it is patently untimely and must be dismissed.
Rule 907 Notice, 3/10/22, at 2-3 (footnote omitted).
After receiving Howard’s response, the PCRA court entered its order
formally dismissing the serial petition without hearing on April 1, 2022.2
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2 Upon review of the trial court docket, we discovered that the there was no
entry for the PCRA court’s April 1, 2022 order dismissing the petition. Rather,
there was only an entry on that same date for a second notice of intent to
dismiss. Under Pa.R.A.P. 301(a)(1), an order is not appealable until it has
been entered upon the trial court docket. As a result, on July 15, 2022, we
entered an order directing the Erie County Clerk of Courts to docket the April
1, 2022 “Order” dismissing Howard’s serial PCRA petition and to forward this
(Footnote Continued Next Page)
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Howard subsequently filed this appeal to reassert the merits of the claims he
raised in his serial petition.3
Before considering the merits of Howard’s serial PCRA petition, we first
consider whether the PCRA court properly found that it was untimely under
the PCRA’s jurisdictional time-bar. A PCRA petition, “including a second or
subsequent petition, shall be filed within one year of the date the judgment
becomes final.” 42 Pa.C.S. § 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.” 42 Pa.C.S. § 9545(b)(3). Because
the timeliness requirements of the PCRA are jurisdictional in nature, courts
cannot address the merits of an untimely petition. See Commonwealth v.
Moore, 247 A.3d 990, 998 (Pa. 2021).
Here, Howard’s judgment of sentence became final in 2013 after he
declined to file a petition for allowance of appeal in our Supreme Court after
we affirmed his judgment of sentence. See 42 Pa.C.S. § 9545(b)(3) (“For
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Court a copy of the amended trial court docket, which was since been
completed.
3 We review the decision to deny PCRA relief to determine whether the decision
“is supported by evidence of record and whether it is free of legal error.”
Commonwealth v. Hart, 199 A.3d 475, 481 (Pa. Super. 2018) (citation
omitted). Where the PCRA court declined to hold an evidentiary hearing, we
consider whether the petition presented any genuine issues of material fact
that warranted a hearing. Id. We review the court’s legal conclusions de
novo. Id.-4-
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purposes of this subchapter, 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.”).
Howard’s serial petition was not filed until January 31, 2022, thus
making it patently untimely. To overcome the one-year time bar, “[i]t is
[Howard’s] burden to allege and prove that one of the timeliness exceptions
applies.” Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008)
(citation omitted). The timeliness exceptions include:
(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. § 9545(b)(1)(i)-(iii). Any petition invoking an exception must be
filed within one year of the date the claim could have been presented. Id. at
§ 9545(b)(2).
On appeal, Howard again fails to assert any of the timeliness exceptions
to the PCRA jurisdictional time-bar. In fact, Howard fails to even acknowledge
the basis for the PCRA court’s dismissal of his serial petition, even though, as
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noted, the court gave him notice that his petition was being dismissed for
failure to plead and prove any of the exceptions. Instead, Howard does on
appeal what he did in the PCRA court and goes forward with his argument as
if he is entitled to merits review regardless of the PCRA time-bar. However,
as stated above, the PCRA’s timeliness requirements are jurisdictional in
nature and cannot be overlooked. As a result, Howard’s continued failure to
even attempt to plead and prove any of the timeliness exceptions compels us
to affirm the PCRA court’s order dismissing his serial petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2022
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