Com. v. Marshall, Q.

J-S01028-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
QUINZELL MARSHALL :
:
Appellant : No. 444 EDA 2019
Appeal from the PCRA Order Entered January 16, 2019,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0336001-1985,
CP-51-CR-0336111-1985, CP-51-CR-0500391-1985.
BEFORE: BOWES, J., KUNSELMAN, J., and STRASSBURGER, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED SEPTEMBER 22, 2020
Quinzell Marshall appeals from the order that denied his first petition
filed pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-46. We
affirm.
The PCRA court summarized the pertinent facts and procedural history
as follows:
On December 13, 1985, a jury found [Marshall] guilty of
three counts of Robbery, two counts of Rape, and one count
of Involuntary Deviate Sexual Intercourse (IDSI). The
evidence adduced at trial showed that on several occasions,
[Marshall] attacked women as they were entering their
vehicles, beat and robbed them, and then, in two instances,
raped them. [Marshall] was 16 years old at the time of the
offenses. The [trial court] sentenced [Marshall] to 10 to 20
years on each count of each charge, to run consecutively
with one another, for an aggregate term of 60 to 120 years
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* Retired Senior Judge assigned to the Superior Court.
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[of] state incarceration. [Marshall] filed post sentence
motions and appealed this judgment of sentence. The
Superior Court affirmed on September 23, 1987.
On April 13, 2018, [Marshall], through his counsel at the
Defenders Association, filed a “Motion for New Trial Based
Upon After Discovered Evidence, Alternatively, for Post-
Conviction Collateral Relief; or Alternatively, for a Writ of
Habeas Corpus.” As the trial [court] was no longer sitting,
this matter was assigned to this Court on April 16, 2018.
On November 14, 2018, the Commonwealth filed a
“Response to Petition for Post-Conviction Relief,”
acknowledging that [Marshall’s] petition must be denied
pursuant to Commonwealth v. Foust, 180 A.3d 416 (Pa.
Super. 2018).
On December 20, 2018 this Court sent [Marshall] a
Notice of Intent to Dismiss Pursuant to [Pa.R.Crim.P.] 907.
This was returned due to an incorrect address, and re-sent
to the correct address on December 30, 2018. [Marshall]
did not reply to the 907 Notice. On January 16, 2019, this
Court dismissed [Marshall’s] petition based on lack of merit.
PCRA Court Opinion, 5/10/19, at 1-2. This timely appeal followed. The PCRA
court did not require Pa.R.A.P. 1925 compliance.
Marshall now raises the following issues:
Does a sentence of 60 to 120 years [of] incarceration
constitute a de facto life sentence?
Does the fact that the 60-120 years [of] sentence was
composed of six consecutive 10-20 years [of] sentences
convert what would be an unconstitutional sentence into a
constitutional one?
Marshall’s Brief at 3.1
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1 On November 11, 2019, this Court issued a rule to show cause why this
appeal should not be quashed because Marshall filed a single notice of appeal
listing three separate docket numbers. See generally, Commonwealth v.
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Initially, we note that Marshall’s filing, despite its alternative title, was
properly treated as a PCRA petition. See 42 Pa.C.S.A. § 9542 (providing
“[t]he action established in this subchapter shall be the sole means of
obtaining collateral relief and encompasses all other common law and
statutory remedies”). This Court’s standard of review regarding an order
dismissing a petition under the PCRA is to ascertain 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.
Barndt, 74 A.3d 185, 191-92 (citations omitted).
Although Marshall challenges the legality of his sentence, this claim
must still be raised in a timely PCRA petition. See Commonwealth v. Fahy,
737 A.2d 214, 223 (Pa. 1999) (explaining that, “[a]lthough legality of
sentence is always subject to review within the PCRA, claims must first satisfy
the PCRA’s time limits or one of the exceptions thereto”). Thus, before
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Walker, 185 A.3d 969 (Pa. 2018). In his response, Marshall’s counsel
attached evidence that three separate notices of appeal were e-filed within
minutes of each other. Although Marshall included all three trial court docket
numbers on his separate appeals, this fact no longer requires quashal. See
Commonwealth v. Johnson, ___ A.3d ___, ___ (Pa. Super. 2020) (en
banc), Slip Opinion at 12 (partially overruling Commonwealth v. Creese,
216 A.3d 1142 (Pa. Super. 2019), to the extent that Creese interpreted
Walker as requiring Superior Court to quash appeals when appellant filed
multiple notices of appeal and each notice lists all of the appealed from docket
numbers). See also Commonwealth v. Larkin, ___ A.3d ___, ___ (Pa.
Super. 2020), Slip Opinion at 3 (accord).
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reaching the merits of Marshall’s issues, we must first determine whether his
PCRA petition was timely filed.
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
is final unless the petition alleges, and the petitioner proves, that an exception
to the time for filing the petition, set forth at 42 Pa.C.S.A. sections
9545(b)(1)(i), (ii), and (iii), is met.2 A PCRA petition invoking one of these
statutory exceptions must “be filed within one year of the date the claim could
have been presented.” 42 Pa.C.S.A. § 9545(b)(2).3 Asserted exceptions to
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2 The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference of 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), (ii), and (iii).
3 Previously, the PCRA required that a petition invoking a timeliness exception
be filed within sixty (60) days of the date the claim first could have been
raised. See Commonwealth v. Gamboa-Taylor, 753 A.2d 780 (Pa. 2000).
As of December 24, 2018, PCRA petitions invoking timeliness exceptions must
be filed within one year of the date the claim first could have been presented.
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the time restrictions for a PCRA petition must be included in the petition, and
may not be raised for the first time on appeal. Commonwealth v. Furgess,
149 A.3d 90 (Pa. Super. 2016).
Here, the trial court sentenced Marshall on March 14, 1986, and this
Court affirmed his judgment of sentence on September 23, 1987. Because he
did not file a petition for allowance of appeal, Marshall’s sentence became final
thirty days thereafter, or on October 23, 1987. See 42 Pa.C.S.A. §
9545(b)(3); Pa.R.A.P. 1113. Because Marshall’s petition over three decades
later, on April 13, 2018, it is patently untimely unless Marshall has pled and
proven and an exception to the PCRA’s time bar.
Marshall has failed to plead and prove any exception to the PCRA’s time
bar. Indeed, Marshall’s brief provides no timeliness analysis at all.4 Instead,
Marshall challenges the PCRA court’s conclusion that his de facto life sentence
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Act 2018, October 24, P.L. 894, No. 146, §§ 2 and 3. This amendment applies
to claims arising on or after December 24, 2017. Marshall filed the instant
petition on April 13, 2018, so the amendment applies to him.
4 Recently, in Commonwealth v. Nedab, 195 A.2d 957 (Pa. Super. 2018),
Nedab sought to overcome the PCRA’s time bar by arguing the newly
recognized constitutional right exception found at section 9545(b)(1)(iii), and
relying on some of the same cases Marshall relies upon in this appeal,
including Foust, supra. See Nedab, 195 A.3d at 961-62. Because Nedab
did not cite any United States or Pennsylvania Supreme Court cases that have
held the Foust holding applies retroactively, we rejected Nedab’s arguments
and concluded that his PCRA petition was time barred. Id. at 962. Although
Marshall made this same argument in his petition, he does not repeat it in his
brief.
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claim is without merit based on this Court’s decision in Foust, supra. See
PCRA Court Opinion, 5/10/19, at 2-5.
Because Marshall’s PCRA petition was untimely and no time-bar
exceptions applies, this Court lacks jurisdiction to consider his claim. See
Commonwealth v. Pew, 189 A.3d 486, 489 (Pa. Super. 2018) (reiterating
that Pennsylvania courts are without jurisdiction to consider the merits of an
untimely PCRA petition). On this basis, we must affirm the order of the PCRA
court denying him post-conviction relief.
Order affirmed.
Judge Bowes joins this memorandum.
Judge Strassburger joins and files a concurring memorandum in which
Judge Kunselman joins.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/22/2020
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