Com. v. Leisure, J. II

J-A10015-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUNIUS P. LEISURE, II :
:
Appellant : No. 9 MDA 2022
Appeal from the PCRA Order Entered December 13, 2021
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0006046-2015
BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY PANELLA, P.J.: FILED: JUNE 10, 2022
Junius P. Leisure, II, appeals, pro se, from the order denying his petition
for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§ 9541-9546. We conclude Leisure’s PCRA petition is patently untimely, and
he failed to plead and prove an exception to the PCRA’s timeliness
requirement. We affirm.
On June 23, 2016, Leisure entered an Alford plea1 to two counts of
indecent assault – person less than 13 years of age and one count each of
corruption of minors and unlawful contact with a minor. Leisure waived his
right to delay sentencing until after the conclusion of his sexually violent
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1 See North Carolina v. Alford, 400 U.S. 25 (1970). “[A] person entering
an Alford plea claims innocence, but consents to the imposition of a prison
sentence.” Commonwealth v. Pasture, 107 A.3d 21, 23 n.1 (Pa. 2014).
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predator (“SVP”) assessment by the Sexual Offender Assessment Board, and
on the same date, the trial court sentenced Leisure to an aggregate term of 3
to 10 years in prison pursuant to the Alford plea agreement. The trial court
also imposed $1,000.00 in restitution and directed Leisure to pay the costs of
prosecution. Leisure did not file a direct appeal.
In the years that followed, Leisure filed numerous motions seeking
termination of deductions from his inmate account (often referred to as Act
84 deductions),2 and litigated the issue in the Pennsylvania Commonwealth
Court.
On February 6, 2020, Leisure filed a pro se PCRA petition. However,
“[u]nder the mistaken belief Leisure had related matters pending in the
Pennsylvania state appellate courts, the Clerk of Courts’ office did not forward
the February PCRA to the [PCRA court] ….” PCRA Court Opinion, 12/13/21, at
3-4. On October 26, 2020, Leisure filed an amended PCRA petition.
The PCRA court addressed the February and October filings in separate
orders issued on November 16, 2020. The PCRA court determined that the
February petition was properly considered another Act 84 motion, which the
court lacked subject matter jurisdiction to address. The PCRA court found that
the October petition was, in fact, filed pursuant to the PCRA and appointed
Leisure counsel. PCRA counsel did not file an amended PCRA petition on
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2 See 42 Pa.C.S.A. § 9728.
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Leisure’s behalf and instead filed a motion to withdraw from representation,
along with a Turner/Finley3 “no-merit” letter. Leisure filed a pro se response.
On February 23, 2021, the PCRA court issued notice of its intent to
dismiss Leisure’s PCRA petition without a hearing pursuant to Pa.R.Crim.P.
907. In response, Leisure filed a pro se amended PCRA petition and a pro se
“supplemental pleading.” On December 13, 2021, the trial court entered an
opinion and order granting counsel leave to withdraw and denying Leisure’s
PCRA petition as untimely filed. This timely appeal followed.
Prior to reaching the merits of Leisure’s claims, we must consider the
timeliness of his PCRA petition. See Commonwealth v. Miller, 102 A.3d 988,
992 (Pa. Super. 2014).
Because the time limitations established by the PCRA are
jurisdictional in nature, a court lacks jurisdiction to address the
claims raised in an untimely petition. The PCRA provides that a
petition for relief must be filed within one year of the date the final
judgment is entered. A judgment becomes final for purposes of
the PCRA at the conclusion of direct review or after the time
provided for seeking direct review has lapsed, if no direct review
has been taken.
Commonwealth v. Liebensperger, 904 A.2d 40, 45 (Pa. Super. 2006)
(internal citations omitted).
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3 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Here, Leisure’s judgment of sentence became final on July 25, 2016,
when the time for filing a direct appeal with this Court had expired.4 See
Pa.R.A.P. 903(a). Therefore, Leisure had until July 25, 2017 to file a timely
PCRA petition. Because Leisure did not file the instant PCRA petition until
October 26, 2020, the instant petition is patently untimely. 5 Accordingly, the
PCRA court lacked jurisdiction to review Leisure’s petition unless he was able
to plead and prove one of the statutory exceptions to the PCRA’s time-bar:
(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). A petitioner asserting one of these
exceptions must file a petition within one year of the date the claim first could
have been presented. See 42 Pa.C.S.A. § 9545(b)(2). “The PCRA squarely
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4The thirtieth day following the entry of Leisure’s judgment of sentence was
Saturday, July 23, 2016. See 1 Pa.C.S.A. § 1908 (providing that if the last
day of a statutory time period falls on a weekend or legal holiday, that day
shall be omitted from the computation of time).
5 We note that even if the February 6, 2020 petition was deemed a proper
PCRA petition, rather than an Act 84 motion, the filing would still be untimely
for PCRA purposes.
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places upon the petitioner the burden of proving an untimely petition fits
within one of the three exceptions.” Commonwealth v. Jones, 54 A.3d 14,
17 (Pa. 2012).
Leisure cites to Commonwealth v. Harris and urges us to find his
judgment of sentence became final after the October 12, 2016 SVP hearing.
See Appellant’s Brief at 3-4 (citing 972 A.2d 1196, 1202 (Pa. Super. 2009)).
However, even from this date, Leisure’s PCRA petition would be patently
untimely.6
In a separate claim, Leisure contends the trial court erred by denying
his motion for transcripts of the SVP hearing, which he claims were necessary
to pursue a timely PCRA petition. See Appellant’s Brief at 7-8. From the
record, it appears this claim refers to the petition for transcripts Leisure filed
on September 21, 2017.
The trial court denied Leisure’s petition for transcripts because there
was no action pending at that time, and we conclude the trial court did not err
in its disposition of the petition. See Trial Court Order, 9/26/17;
Commonwealth v. Crider, 735 A.2d 730, 733 (Pa. Super. 1999) (“a court is
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6 Harris involved a substantially different procedural history. In Harris, this
Court affirmed the appellant’s judgment of sentence on direct appeal; later,
the Pennsylvania Supreme Court “reversed the trial court’s order insofar as it
found specified provisions of Megan’s Law unconstitutional[.]” 972 A.2d at
1199. On PCRA review, this Court concluded that for timeliness purposes
under the PCRA, “judgment” was not limited to the imposition of sentence and
included the Supreme Court’s decision. See id. at 1202.
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not required to comply with a defendant’s request for transcripts in order to
pursue relief in a PCRA proceeding where no such action is pending.”). Further,
the September 21, 2017 petition for transcripts was filed after the deadline
for filing a timely PCRA petition in this case and therefore could not aid Leisure
in pursuing a timely petition.7
Next, Leisure argues his trial counsel was ineffective and abandoned him
following the SVP hearing. See Appellant’s Brief at 5-6. Leisure cites the
newly-discovered evidence and newly-recognized constitutional right
exceptions set forth at 42 Pa.C.S.A. § 9545(b)(1)(ii) and (iii). However, his
argument on this issue ends there. Leisure fails to identify any “facts” that
were unknown to him at the time or to explain why he could not ascertain
counsel’s alleged deficiencies through the exercise of due diligence. See
Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017) (stating that the
newly-discovered fact exception “requires the petitioner to allege and prove
that there were facts that were unknown to him and that he could not have
ascertained those facts by the exercise of due diligence.”) (citation and
quotation marks omitted); see also PCRA Court Opinion, 12/13/21, at 9-10
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7 We also note that the certified record before us includes the transcript of the
SVP hearing. Nevertheless, as stated above, the date of the SVP hearing does
not affect the timeliness of Leisure’s PCRA petition. Leisure additionally
attempts to raise the governmental interference exception at 42 Pa.C.S.A. §
9545(b)(1)(ii), by again asserting the trial court erred by denying his motion
for transcripts. See Appellant’s Brief at 9-10. For the reasons previously
stated, this claim also fails.
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(“Any facts underlying an ineffective assistance of counsel claim based on the
alleged failure of trial counsel to file an appeal or to discuss appellate rights
with Leisure would have been immediately known to Leisure, or at the very
least would have been apparent within one year from the date the judgment
of sentence was finalized.”). Nor does Leisure identify a particular
constitutional right that has been held to apply retroactively. “Further, it is
well-settled that couching a petitioner’s claims in terms of ineffectiveness will
not save an otherwise untimely filed petition from the application of the time
restrictions of the PCRA.” Commonwealth v. Robinson, 139 A.3d 178, 186
(Pa. 2016). Accordingly, this claim fails.
Finally, Leisure claims his PCRA counsel was ineffective for failing to
present claims on his behalf. See Appellant’s Brief at 10-11. He argues he
should be appointed new counsel to file a second PCRA petition challenging
counsel’s effectiveness. See id.In support of his claim, Leisure cites our Supreme Court’s recent
decision in Commonwealth v. Bradley, issued during these PCRA
proceedings. In Bradley, the Court held “a PCRA petitioner may, after a PCRA
court denies relief and after obtaining new counsel or acting pro se, raise
claims of PCRA counsel’s ineffectiveness at the first opportunity to do so, even
if on appeal.” 261 A.3d 381, 401 (Pa. 2021) (footnote omitted). However,
Bradley, unlike the instant case, involved a timely first PCRA petition.
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We also recognize the Bradley Court’s conclusion that an
ineffectiveness claim raised for the first time on appeal may require an
appellate court to remand for development of the record. See id. at 402.
However, the Court clarified, “to advance a request for remand, a petition
would be required to provide more than mere boilerplate assertions of PCRA
counsel’s ineffectiveness.” Id. (citation and quotation marks omitted).
Instantly, Leisure provides only the bare allegation that PCRA counsel failed
to present meritorious claims. Leisure has failed to identify any material facts
at issue concerning the effectiveness of his PCRA counsel’s representation;
therefore, his final claim entitles him to no relief.
Accordingly, as Leisure has failed to plead and prove an exception to the
PCRA’s time-bar, we affirm the PCRA court’s order denying his untimely
petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/10/2022
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