Com. v. Gregory, N.

J-S28004-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NORMAN E. GREGORY,
Appellant No. 722 WDA 2016
Appeal from the Order Entered April 21, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0007930-1982
CP-02-CR-0007997-1982
BEFORE: OLSON, MOULTON and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED MAY 3, 2017
Appellant, Norman E. Gregory, appeals pro se from the order entered
on April 21, 2016, which dismissed his serial petition filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On March 2, 1983, Appellant pleaded nolo contendere to a number of
charges, including rape, robbery, burglary, false imprisonment, and
terroristic threats. On February 15, 1984, the trial court sentenced
Appellant to serve an aggregate term of 17 ½ to 50 years in prison for his
convictions. Appellant did not file a direct appeal from his judgment of
sentence.
After Appellant’s judgment of sentence became final, Appellant filed
numerous petitions for post-conviction collateral relief – all of which were
dismissed. On December 7, 2015, Appellant filed a “Motion to Attend and
* Retired Senior Judge assigned to the Superior Court.
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Produce,” wherein Appellant requested that the PCRA court direct the
Commonwealth to produce certain pre-trial documents that were filed in
1982; Appellant also requested that the PCRA court schedule a hearing on
“any disputed issue of material fact.” See Appellant’s Current PCRA Petition,
12/7/15, at 1. The PCRA court properly construed Appellant’s “Motion to
Attend and Produce” to be a serial petition under the PCRA. See 42
Pa.C.S.A. § 9542 (the PCRA “is the sole means of obtaining collateral relief
and encompasses all other common law and statutory remedies . . .
including habeas corpus and coram nobis”); Commonwealth v. West, 938
A.2d 1034, 1043 (Pa. 2007) (“[t]he PCRA subsumes all forms of collateral
relief, including habeas corpus, to the extent a remedy is available under
such enactment”). Within Appellant’s serial PCRA petition, Appellant neither
acknowledged that his petition was untimely nor pleaded a statutory
exception to the PCRA’s one-year time-bar. See Appellant’s Current PCRA
Petition, 12/7/15, at 1-3.
On April 21, 2016, the PCRA court dismissed Appellant’s petition by
declaring that Appellant’s “Argument/Hearing scheduling Praecipe and Order
is denied.” PCRA Court Order, 4/21/16, at 1. On May 5, 2015, Appellant
filed a timely appeal from the PCRA court’s above-described order. See
Appellant’s Notice of Appeal, 5/5/15, at 1 and Attachment. We now affirm
the dismissal of Appellant’s patently untimely, serial PCRA petition.
The PCRA contains a jurisdictional time-bar, which is subject to limited
statutory exceptions. This time-bar demands that “any PCRA petition,
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including a second or subsequent petition, [] be filed within one year of the
date that the petitioner’s judgment of sentence becomes final, unless [the]
petitioner pleads [and] proves that one of the [three] exceptions to the
timeliness requirement . . . is applicable.” Commonwealth v. McKeever,
947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b). Further,
since the time-bar implicates the subject matter jurisdiction of our courts,
we are required to first determine the timeliness of a petition before we are
able to consider any of the underlying claims. Commonwealth v. Yarris,
731 A.2d 581, 586 (Pa. 1999). Our Supreme Court has explained:
the PCRA timeliness requirements are jurisdictional in
nature and, accordingly, a PCRA court is precluded from
considering untimely PCRA petitions. See, e.g.,
Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)
(stating that “given the fact that the PCRA's timeliness
requirements are mandatory and jurisdictional in nature, no
court may properly disregard or alter them in order to reach
the merits of the claims raised in a PCRA petition that is
filed in an untimely manner”); Commonwealth v. Fahy,
737 A.2d 214, 220 (Pa. 1999) (holding that where a
petitioner fails to satisfy the PCRA time requirements, this
Court has no jurisdiction to entertain the petition). [The
Pennsylvania Supreme Court has] also held that even where
the PCRA court does not address the applicability of the
PCRA timing mandate, th[e court would] consider the issue
sua sponte, as it is a threshold question implicating our
subject matter jurisdiction and ability to grant the requested
relief.
Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003).
In the case at bar, since Appellant did not file a direct appeal from his
judgment of sentence, his judgment of sentence became final at the end of
the day on March 16, 1984, which was 30 days after Appellant was
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sentenced in open court and the time for filing a direct appeal to this Court
expired. 42 Pa.C.S.A. § 9545(b)(3) (“A judgment becomes final at the
conclusion of direct review, including discretionary review in the Supreme
Court of the United States . . . , or at the expiration of time for seeking the
review”); see also Pa.R.A.P. 903(a). The PCRA explicitly requires that a
petition be filed “within one year of the date the judgment becomes final[.]”
42 Pa.C.S.A. § 9545(b)(1).1 As Appellant did not file his current petition
until December 14, 2015, the current petition is manifestly untimely and the
burden thus fell upon Appellant to plead and prove that one of the
enumerated exceptions to the one-year time-bar applied to his case. See
42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Perrin, 947 A.2d 1284,
1286 (Pa. Super. 2008) (to properly invoke a statutory exception to the one-
year time-bar, the PCRA demands that the petitioner properly plead and
prove all required elements of the relied-upon exception).
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As we have explained to Appellant in a prior memorandum:
Appellant does not benefit from a grace proviso provided for
petitioners whose judgments of sentence became final prior
to the effective date of § 9545. The proviso applies to first
PCRA petitions that [were] filed by January 16, 1997. See
Commonwealth v. Alcorn, 703 A.2d 1054, 1057 (Pa.
Super. 1997). . . .
Commonwealth v. Gregory, 87 A.3d 878 (Pa. Super. 2013) (unpublished
memorandum) at 6 n.5.
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Appellant did not attempt to plead any exception to the PCRA’s one-
year time-bar. Thus, Appellant’s petition is time-barred and our “courts are
without jurisdiction to offer [Appellant] any form of relief.” Commonwealth
v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011). Therefore, we affirm the
PCRA court’s order dismissing Appellant’s serial PCRA petition.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/3/2017
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