Commonwealth v. Lebron, J-S21032-15

• Decision Date: 05 May 2015
• Docket Number: J-S21032-15,No. 2850 EDA 2014,2850 EDA 2014
• Parties: COMMONWEALTH OF PENNSYLVANIA, Appellee v. JOHN LEBRON, Appellant
• Court: Pennsylvania Superior Court

COMMONWEALTH OF PENNSYLVANIA, Appellee v. JOHN LEBRON, Appellant

J-S21032-15

No. 2850 EDA 2014

SUPERIOR COURT OF PENNSYLVANIA

MAY 5, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order September 12, 2014 in the Court of Common Pleas of Philadelphia County

Criminal Division at No.: MC-51-CR-0444561-2001

BEFORE: BOWES, J., JENKINS, J., and PLATT, J.^*

MEMORANDUM BY PLATT, J.:

Appellant, John Lebron,¹ appeals pro se from the order of September 12, 2014, dismissing, without a hearing, his second petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Because the petition is untimely, we affirm.²

We take the underlying facts and procedural history in this matter from the PCRA court's opinion of September 12, 2014 and our own independent review of the record.³

On November 11, 2001, Appellant entered a guilty plea to charges of unlawful taking, theft by receiving stolen property, corrupting the morals of a minor, theft from a motor vehicle, criminal mischief, and criminal conspiracy in case MC-51-CR-0444561-2001. On February 20, 2002, the trial court sentenced Appellant to a term of twenty-four months of probation. Appellant did not file a direct appeal.

During the next two years, the police arrested Appellant three times for similar crimes. A jury convicted Appellant on certain charges and Appellant pleaded guilty to additional charges arising from two separate incidents in consolidated cases CP-51-CR-1105911-2001 and CP-51-CR-1110311-2002. On February 6, 2003, the trial court sentenced Appellant on the consolidated charges to a term of incarceration of not less than eight nor more than seventeen years. This Court affirmed the judgment of sentenceon April 7, 2006. (See Commonwealth v. Lebron, No. 3123 EDA 2004, unpublished memorandum at 1-18 (Pa. Super. filed April 7, 2006)). Appellant did not seek leave to appeal to the Pennsylvania Supreme Court.

On February 17, 2004, the trial court in case MC-51-CR-0444561-2001 revoked Appellant's probation and sentenced him to an aggregate term of incarceration of not less than six nor more than twelve years to be served consecutively to the sentence in cases CP-51-CR-1105911-2001 and CP-51-CR-1110311-2002. This Court affirmed the judgment of sentence on January 20, 2006. (See Commonwealth v. Lebron, No. 987 EDA 2004, unpublished memorandum at 1-6 (Pa. Super. filed, January 20, 2006)). Appellant did not seek leave to appeal to the Pennsylvania Supreme Court.

On August 31, 2006, Appellant filed a timely pro se first PCRA petition in case MC-51-CR-0444561-2001. Following appointment of counsel, the PCRA court issued notice of its intent to dismiss the petition pursuant to Pennsylvania Rule of Criminal Procedure 907. Appellant responded on June 1, 2007. For reasons not apparent from the record, the PCRA court did not issue an order dismissing the petition, until May 7, 2012. On March 20, 2013, this Court affirmed the dismissal of the PCRA petition. (See Commonwealth v. Lebrom, No. 1344 EDA 2012, unpublished memorandum at 1-9 (Pa. Super. filed March 20, 2013)). On October 3, 2013, the Pennsylvania Supreme Court denied leave to appeal. (See Commonwealth v. Lebron, 76 A.3d 539 (Pa. 2013)).

On April 10, 2007, with the assistance of counsel, Appellant filed a timely first PCRA petition in cases CP-51-CR-1105911-2001 and CP-51-CR-1110311-2002. The PCRA court denied the petition on August 12, 2008. On July 13, 2010, this Court affirmed the denial of the PCRA petition. (See Commonwealth v. Lebron, No. 2562 EDA 2008, unpublished memorandum at 1-8 (Pa. Super. filed, July 13, 2010)). Appellant did not seek leave to appeal to the Pennsylvania Supreme Court.

Appellant subsequently filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. During the pendency of the habeas corpus proceedings, Appellant wrote a series of letters to the Commonwealth and the federal courts, complaining about a sentencing error in cases CP-51-CR-1105911-2001 and CP-51-CR-1110311-2002. (See Exhibit to Appellant's PCRA Petition, Letter from John W. Goldsborough, Esq. to Natasha Lowe, Esquire, Supervisor, Post-Trial Unit, Philadelphia Court of Common Pleas, 1/16/13, at 1). In the January 16, 2013 letter, the Commonwealth admitted that, because of two clerical errors on a Court Commitment form, the form had accidentally added one-and-one-half to three years to Appellant's actual sentence. (See id. at 2). Assistant District Attorney Goldsborough requested that Attorney Lowe correct the errors. (See id. at 1). By order of February 21, 2014, the trial court corrected the errors to reflect the sentence originally imposed in casesCP-51-CR-1105911-2001 and CP-51-CR-1110311-2002. (See Commonwealth's Brief, Appendix, Order, 2/21/14, at 1).

On October 11, 2013, Appellant filed the instant PCRA petition, pro se.⁴ The PCRA court appointed counsel⁵ who filed a Turner/Finley⁶ "no merit" letter and petitioned the court for permission to withdraw from further representation. On August 4, 2014, the PCRA court issued notice of its intent to dismiss the petition pursuant to Pennsylvania Rule of Criminal Procedure 907.⁷ See Pa.R.Crim.P. 907(1). On September 12, 2014, the PCRA court dismissed the petition.⁸

Appellant subsequently filed a timely pro se notice of appeal. The PCRA court did not order Appellant to file a concise statement of errors complained of on appeal and did not issue any additional opinion. See Pa.R.A.P. 1925.

Appellant raises one question on appeal:

(A.) Whether there was abuse of discretion for the [PCRA court] to reconsider or modify the [A]ppellant['s] sentence under [n]ewly [d]iscovered [e]vidence [d]ealing with [m]andatory sentences [r]uled illegal or unconstitutional and also the [PCRA court] undermined the fundamental norms of the sentencing process?

(Appellant's Brief, at vi).

Appellant appeals from the denial of his PCRA petition. To be eligible for relief pursuant to the PCRA, Appellant must establish that his conviction or sentence resulted from one or more of the enumerated errors or defects found in 42 Pa.C.S.A. § 9543(a)(2). He must also establish that the issues raised in the PCRA petition have not been previously litigated or waived. See 42 Pa.C.S.A. § 9543(a)(3). An allegation of error "is waived if the petitioner could have raised it but failed to do so before trial, during unitary review, on appeal or in a prior state postconviction proceeding." 42Pa.C.S.A. § 9544(b). Our standard of review for an order denying PCRA relief is well settled:

This Court's standard of review regarding a PCRA court's order is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have no support in the certified record.

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011), appeal denied, 72 A.3d 600 (Pa. 2013) (citations and quotation marks omitted). However, "if a PCRA [p]etition is untimely, a trial court has no jurisdiction to entertain the petition." Commonwealth v. Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted).

Here, Appellant filed his PCRA petition on October 11, 2013. The PCRA provides that "[a]ny petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final[.]" 42 Pa.C.S.A. § 9545(b)(1). A judgment becomes final for PCRA purposes "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).

Here, in case MC-51-CR-0444561-2001, following the violation of probation hearing, this Court affirmed the judgment of sentence on January 20, 2006. Therefore, Appellant's judgment of sentence became final onFebruary 20, 2006,⁹ after the thirty-day period to seek leave to appeal to the Pennsylvania Supreme Court expired. See Pa.R.A.P. 1113(a).

In cases CP-51-CR-1105911-2001 and CP-51-CR-1110311-2002, this Court affirmed the judgment of sentence on April 7, 2006. Therefore, Appellant's judgment of sentence became final on May 8, 2006,¹⁰ after the thirty-day period to seek leave to appeal to the Pennsylvania Supreme Court expired.¹¹ See Pa.R.A.P. 1113(a).

Because Appellant did not file his petition until October 11, 2013, the petition is facially untimely. Thus, to obtain PCRA relief, he must plead and prove that his claim falls under one of the statutory exceptions to the one-year time bar provided at section 9545(b). See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

Section 9545 provides that the court can still consider an untimely petition where the petitioner successfully pleads and proves that:

(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.

Id.

Further, a petitioner who wishes to invoke any of the above exceptions must file the petition "within 60 days of the date the claim could have been presented." Id. at § 9545(b)(2). The Pennsylvania Supreme Court has repeatedly stated that it is an appellant's burden to plead and prove that one of the above-enumerated exceptions applies. See, e.g., Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008), cert. denied, 555 U.S. 916 ...