Com. v. Clark, M.

J-S30044-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL JOHN CLARK :
:
Appellant : No. 223 WDA 2020
Appeal from the PCRA Order Entered February 13, 2020
In the Court of Common Pleas of Jefferson County Criminal Division at
No(s): CP-33-CR-0000268-2009
BEFORE: MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 10, 2020
Appellant, Michael John Clark, appeals pro se from the February 13,
2020, order entered in the Court of Common Pleas of Jefferson County, which
dismissed Appellant’s petition filed under the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, without an evidentiary hearing, on the
basis it was untimely filed.1 After a careful review, we affirm.
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* Former Justice specially assigned to the Superior Court.
1 Appellant filed the present appeal prematurely on January 29, 2020, before
the entry of the PCRA court’s February 13, 2020, final order denying PCRA
relief. See Pa.R.A.P. 910 (“An order granting, denying, dismissing, or
otherwise finally disposing of a petition for post-conviction relief shall
constitute a final order for purposes of appeal.”). Nevertheless, given that a
final order denying PCRA relief has been entered by the PCRA court, we decline
to quash this appeal. Rather, we will regard as done that which ought to have
been done, and consider this appeal as taken from the PCRA court’s final
order. See Pa.R.A.P. 105(a); Commonwealth v. Allen, 420 A.2d 653
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The relevant facts and procedural history have been set forth previously
by this Court, in part, as follows:
On December 16, 2009, [Appellant] entered a guilty plea to
delivery of a controlled substance, 35 P.S. § 780-113(a)(30), and
was sentenced to five years in the Jefferson County Intermediate
Punishment Program, including 6 months’ partial confinement,
with work release in the Jefferson County Jail. On November 2,
2011, [Appellant] was found to be in violation of the conditions of
his probation. The court extended his sentence in the County
Intermediate Punishment [P]rogram for two years, including six
additional months of partial confinement and 90 days of electronic
monitoring. On November 14, 2012, [Appellant] was again found
to be in violation of his probation, after which the revocation court
re-sentenced [Appellant] to two years in the State Intermediate
Punishment Program.
[Appellant] appeared for yet another revocation hearing on
June 23, 2014, at which it was determined that [Appellant] had
been administratively expelled from the State Intermediate
Punishment Program due to various infractions. Thereafter, the
revocation court revoked [Appellant’s] participation in the State
Intermediate Punishment Program, and resentenced him to four
to fifteen years of incarceration, with credit for time served.
[Appellant] filed a motion to reduce sentence, which the court
denied. [A] timely appeal followed.
Commonwealth v. Clark, 1195 WDA 2014, at 1-2 (Pa.Super. filed 10/26/15)
(unpublished memorandum).
On direct appeal, Appellant challenged the discretionary aspects of his
sentence and, after finding Appellant was not entitled to relief, a panel of this
Court affirmed Appellant’s judgment of sentence on October 26, 2015.
____________________________________________
(Pa.Super. 1980) (stating that we regard as done that which ought to have
been done, i.e., entry upon trial court docket of final PCRA order).
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Appellant did not file a petition for allowance of appeal with our Supreme
Court.2
On December 2, 2019, Appellant filed a pro se document entitled “Petition
for Transcripts”3 wherein he alleged, inter alia, that his sentence was illegal.
The lower court properly treated this petition as a first PCRA petition4 and
appointed counsel to represent Appellant.
On January 3, 2020, counsel filed a petition to withdraw his
representation, and on January 13, 2020, the PCRA court provided Appellant
with notice of its intent to dismiss Appellant’s petition without an evidentiary
hearing. The PCRA court also granted counsel’s petition to withdraw. Appellant
____________________________________________
2 On or about August 21, 2017, Appellant filed a pro se petition for writ of
habeas corpus contending the Pennsylvania Board of Probation and Parole
(“PBPP”) miscalculated his sentence. The trial court denied the petition. See
Com., Department of Corrections v. Reese, 774 A.2d 1255 (Pa.Super.
2001).
3 Although Appellant’s pro se petition was docketed in the lower court on
December 4, 2019, we shall deem it to have been filed on December 2, 2019,
when it was handed to prison authorities. See Pa.R.A.P. 121(a) (“A pro se
filing submitted by a prisoner incarcerated in a correctional facility is deemed
filed as of the date it is delivered to prison authorities for purposes of mailing
or placed in the institutional mailbox[.]”).
4 This Court has held that, notwithstanding the title of a pro se petition, the
petition falls under the auspices of the PCRA where it raises issues that are
cognizable thereunder. Commonwealth v. Taylor, 65 A.3d 462, 465
(Pa.Super. 2013). Legality of sentencing claims, such as those raised in
Appellant’s pro se petition, are cognizable under the PCRA. Commonwealth
v. Fahy, 558 Pa. 313, 737 A.2d 214 (1999).
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filed a notice of appeal on January 29, 2020, and on February 13, 2020, the
PCRA court entered its final order denying Appellant’s PCRA petition.
Preliminarily, we note our well-established standard of review:
This Court’s standard of review regarding an order denying a
petition under the PCRA is whether the determination of the PCRA
court is supported by the evidence of record and is free of legal
error. The PCRA court’s findings will not be disturbed unless there
is no support for the findings in the certified record.
Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007) (citations
omitted).
Pennsylvania law makes clear no court has jurisdiction to
hear an untimely PCRA petition. The most recent amendments to
the PCRA, effective January 16, 1996, provide a PCRA petition,
including a second or subsequent petition, shall be filed within one
year of the date the underlying judgment becomes final. 42
Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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.A. § 9545(b)(3).
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010)
(citations omitted).
[There are] three statutory exceptions to the timeliness
provisions in the PCRA [that] allow for the very limited
circumstances under which the late filing of a petition will be
excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a
petitioner must allege and prove:
(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
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(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.
Id. at 1079-80 (citing 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii)).
Any petition invoking a timeliness exception must be filed within one
year of the date the claim could have been presented.5 42 Pa.C.S.A. §
9545(b)(2). “We emphasize that it is the petitioner who bears the burden to
allege and prove that one of the timeliness exceptions applies.”
Commonwealth v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008)
(citation omitted).
In the case sub judice, Appellant filed a direct appeal, and we affirmed
his judgment of sentence on October 26, 2015. Appellant did not file a petition
for allowance of appeal with our Supreme Court. Accordingly, his judgment
of sentence became final on or about November 26, 2015, when the thirty-
day time period for filing a petition for allowance of appeal with our Supreme
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5 42 Pa.C.S.A. § 9545(b)(2) previously provided that a petition invoking a
timeliness exception was required to be filed within sixty days of the date the
claim could first have been presented. However, effective December 24,
2018, the legislature amended Subsection 9545(b)(2) to read: “Any petition
invoking an exception provided in paragraph (1) shall be filed within one year
of the date the claim could have been presented.” See 42 Pa.C.S.A. §
9545(b)(2) (effective December 24, 2018). The amendment to Subsection
9545(b)(2) only applies to “claims arising on [December] 24, 2017, or
thereafter.” See id., cmt. Assuming, arguendo, the amended version is
applicable to the instant matter, as indicated infra, we conclude Appellant has
not otherwise met his burden of pleading and proving any of the timeliness
exceptions.
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Court expired. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 1113. Appellant
had one year from that date, or until November 26, 2016, to file a timely PCRA
petition. See 42 Pa.C.S.A. § 9545(b). Accordingly, the instant PCRA petition,
which was filed on December 2, 2019, is patently untimely. See 42 Pa.C.S.A.
§ 9545(b)(1).
This does not end our inquiry, however, as Appellant attempts to invoke
the government interference exception set forth in Subsection 9545(b)(1)(i),
as well as the “newly-discovered facts” exception set forth in Subsection
9545(b)(1)(ii). Specifically, as to Subsection 9545(b)(1)(i), Appellant
suggests the PBPP “interfered” at his probation revocation hearing by
participating at the hearing. As to Subsection 9545(b)(1)(ii), Appellant
suggests that he was not prepared for the revocation hearing, and upon
reviewing the transcript from the June 23, 2014, hearing, it is evident to
Appellant the trial court should have inquired about Appellant’s lack of
preparation.
To establish the government interference exception, “Appellant was
required to plead and prove that his 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....” Commonwealth v. Chester,
586 Pa. 468, 895 A.2d 520, 523 (2006) (quotation marks and quotation
omitted) (emphasis in original).
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To establish the newly discovered fact timeliness exception
in [Sub]section 9545(b)(1)(ii), a petitioner must demonstrate he
did not know the facts upon which he based his petition and could
not have learned those facts earlier by the exercise of due
diligence. Due diligence demands that the petitioner take
reasonable steps to protect his own interests. A petitioner must
explain why he could not have learned the new fact(s) earlier with
the exercise of due diligence. This rule is strictly enforced.
Additionally, the focus of this exception is on the newly discovered
facts, not on a newly discovered or newly willing source for
previously known facts.
Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super. 2015) (citations
and quotation marks omitted).
In the case sub judice, Appellant’s government interference claim
relates to the PBPP’s participation during the June 23, 2014, hearing, at which
Appellant was present. Appellant has failed to explain what act or omission
by any government official is responsible for his delay in raising his claim with
regard thereto. We are, therefore, not convinced that the government
interference exception applies. See Chester, supra.
Further, Appellant’s “newly-discovered facts” claim relates to his alleged
discovery that he was not prepared for the June 23, 2014, hearing. However,
inasmuch as Appellant was present at the hearing, Appellant has failed to
demonstrate that he could not have discovered his “lack of preparation” earlier
by the exercise of due diligence. See Brown, supra.
For all of the foregoing reasons, we conclude Appellant has not met any
of the timeliness exceptions. Therefore, we conclude the PCRA court properly
dismissed Appellant’s instant PCRA petition on the basis it was untimely filed.
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Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/2020
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