Com. v. Chumley, R. (memorandum)

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J-S58037-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. RANDALL HOYT CHUMLEY, Appellant No. 627 WDA 2013 Appeal from the PCRA Order of March 6, 2013 In the Court of Common Pleas of Lawrence County Criminal Division at No(s): CP-37-CR-MD-0000375-1976 BEFORE: BENDER, P.J., GANTMAN AND OLSON, JJ. MEMORANDUM BY OLSON, J.: FILED DECEMBER 4, 2013 Appellant, Randall Hoyt Chumley, appeals pro se from the order entered on March 6, 2013, dismissing his fourth petition filed under the PostConviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm. On October 13, 1976, Appellant pleaded guilty to murder generally and, following a degree of guilt hearing, the trial court found Appellant guilty of second-degree murder. On November 2, 1976, the trial court sentenced Appellant to a term of life in prison. Commonwealth v. Chumley, 394 A.2d 497, 501 (Pa. 1978), certiorari denied, 440 U.S. 966 (1979). Our Supreme Court affirmed Appellant s judgment of sentence on November 18, 1978 and, on March 19, 1979, the United States Supreme Court denied Appellant s petition for a writ of certiorari. Id. As the PCRA court explained: J-S58037-13 On March 27, 1981, [Appellant] filed a pro se [petition for post-conviction collateral relief under Pennsylvania s PostConviction Hearing Act ( PCHA ),1 and claimed that his trial and direct appellate counsel were ineffective. Appellant] also requested to have counsel appointed. However, [on November 19, 1981,] the [PCHA c]ourt dismissed [Appellant s first petition for post-conviction collateral relief] without appointing counsel and without [holding] a hearing. . . . [Appellant] appealed [to the Superior Court and, on June 17, 1983, the Superior Court affirmed the PCHA court s order. Commonwealth v. Chumley, ___ A.2d ___, 1289 Pittsburgh 1981 (Pa. Super. 1983) (unpublished memorandum)]. PCRA Court Opinion, 5/3/13, at 2. From 1983 through 2012, Appellant filed two additional PCRA petitions and two petitions for habeas corpus relief in the federal courts. All attempts at relief failed. On May 18, 2012, Appellant filed the current PCRA petition, which constitutes Appellant s fourth petition for post-conviction collateral relief. Within this petition, Appellant claimed that during the proceedings on his first petition for post-conviction collateral relief the PCHA court erroneously refused to appoint counsel to act on Appellant s behalf. Further, Appellant claimed that his current PCRA petition fell under the newly recognized constitutional right exception to the PCRA s one-year time-bar. Specifically, Appellant claimed that he filed his petition within 60 days of the United ____________________________________________ 1 The PCHA was the predecessor to the PCRA. The PCHA was repealed in part, modified in part, and renamed the Post Conviction Relief Act [], effective April 13, 1988. Commonwealth v. Travaglia, 28 A.3d 868, 872 n.2 (Pa. 2011). -2- J-S58037-13 States Supreme Court s decision in Martinez v. Ryan. See Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012); Appellant s Fourth PCRA Petition, 5/18/12, at 3.2 In Martinez, the United States Supreme Court held: Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective. Martinez, ___ U.S. at ___, 132 S.Ct. at 1320. In other words, the Martinez Court held that, where counsel is ineffective in an initial state collateral review proceeding, and where the ineffectiveness caused the petitioner to procedurally default on a substantial substantive claim, the ineffectiveness may provide cause [to excuse a] procedural default in a [later] federal habeas proceeding. Martinez, ___ U.S. at ___, 132 S.Ct. at 1315 (emphasis added). On March 6, 2013, the PCRA court dismissed Appellant s petition without a hearing and, on April 4, 2013, Appellant filed a notice of appeal. We now affirm the dismissal of Appellant s patently untimely, serial PCRA petition. ____________________________________________ 2 The United States Supreme Court filed Martinez on March 20, 2012. -3- J-S58037-13 As our Supreme Court has held, we review an order granting or denying PCRA relief to determine whether the PCRA court s decision is supported by evidence of record and whether its decision is free from legal error. Commonwealth v. Liebel, 825 A.2d 630, 632 (Pa. 2003). The PCRA contains a jurisdictional time-bar, which is subject to limited statutory exceptions. This time-bar demands that any PCRA petition, 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 consider 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 -4- J-S58037-13 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, Appellant s judgment of sentence became final in 1979. As Appellant did not file his current petition until May 18, 2012, 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). Here, Appellant purports to invoke the newly recognized constitutional right exception to the time-bar. This statutory exception provides: (1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that: ... (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. ... -5- J-S58037-13 (2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented. 42 Pa.C.S.A. § 9545(b). According to Appellant, in Martinez v. Ryan, the United States Supreme Court recognized a new constitutional right and, in accordance with this new constitutional right, Appellant is now entitled to raise claims that his trial counsel, direct appellate counsel, and first PCRA counsel were all ineffective. This claim fails. The newly recognized constitutional right exception to the PCRA s time-bar is codified in 42 Pa.C.S.A. § 9545(b)(1)(iii). As our Supreme Court has explained: Subsection (iii) of Section 9545(b)(1) has two requirements. First, it provides that 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 provided in this section. Second, it provides that the right has been held by that court to apply retroactively. Thus, a petitioner must prove that there is a new constitutional right and that the right has been held by that court to apply retroactively. The language has been held is in the past tense. These words mean that the action has already occurred, i.e., that court has already held the new constitutional right to be retroactive to cases on collateral review. By employing the past tense in writing this provision, the legislature clearly intended that the right was already recognized at the time the petition was filed. Commonwealth v. Copenhefer, 941 A.2d 646, 649-650 (Pa. 2007), quoting Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002) (internal corrections omitted). Moreover, since the plain statutory language -6- J-S58037-13 of section 9545 demands that the PCRA petition allege all elements of the statutory exception, it is clear that to properly invoke the newly recognized constitutional right exception the petitioner must plead each of the above-stated elements in the petition. 42 Pa.C.S.A. § 9545(b)(1). As stated above, in Martinez, the Supreme Court held that, where counsel is ineffective in a prior, initial state collateral review proceeding, and where the ineffectiveness caused the petitioner to procedurally default on a substantive claim, counsel s ineffectiveness may provide cause [to excuse a] procedural default in a federal habeas proceeding. Martinez, ___ U.S. at ___, 132 S.Ct. at 1315. Yet, as the Martinez Court explicitly declared, it was not handing down a constitutional ruling and it was not recognizing a new constitutional right. 1320. Martinez, ___ U.S. at ___, 132 S.Ct. at 1319- Rather, the Martinez Court based its holding upon an equitable exception to a court-created doctrine that is applicable only in the federal courts. Id.; see also Coleman v. Thompson, 501 U.S. 722, 730-731 (1991) (in habeas proceedings, the doctrine of procedural default arises from the independent and adequate state ground doctrine which, in turn, is grounded in concerns of comity and federalism ); Martinez, ___ U.S. at ___, 132 S.Ct. at 1315. Since Martinez did not recognize a new constitutional right, Appellant s attempt to invoke the newly recognized constitutional right exception to the PCRA s one-year time-bar immediately fails. Further, since -7- J-S58037-13 Appellant has not attempted to plead any other exception to the time-bar, we conclude that Appellant s petition is time-barred and that 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 fourth PCRA petition without a hearing. Order affirmed. Jurisdiction relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/4/2013 -8-

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