Com. v. Tyson,A. (memorandum)

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J-S41026-14 NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. AARON TYSON, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 3176 EDA 2013 Appeal from the PCRA Order October 17, 2013, Court of Common Pleas, Monroe County, Criminal Division at No. CP-45-CR-0000817-2003 BEFORE: BOWES, DONOHUE and MUNDY, JJ. MEMORANDUM BY DONOHUE, J.: FILED JULY 16, 2014 pro se from the October 17, 2013 order entered by the Court of Common Pleas, Monroe County, dismissing his second petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541The PCRA court summarized the procedural history of this case as follows: On May 9, 2006, [Tyson] was found guilty of [f]irst[][d]egree [m]urder. On July 17, 2006, [Tyson] was sentenced to life in prison without the possibility of parole. On October 19, 2006, [Tyson] filed Post Sentence Motions. On February 15, 2007, this Court denied [Tyson] filed a direct appeal with the Superior Court on March 19, 2007. On January 11, 2008, the J-S41026-14 Superior Court denied [Tyson]'s appeal and affirmed the judgment of sentence. On February 19, 2009, [Tyson] filed a pro se Petition for Allowance of Appeal Nunc Pro Tunc, alleging that his attorney abandoned him during his direct appeal. On April 28, 2009, the Supreme Court granted [Tyson]'s Petition Nunc Pro Tunc and directed his attorney to file a Petition within thirty (30) days, which was filed on May 27, 2009. The Supreme Appeal on February 23, 2010. On November 19, 2010, [Tyson] filed a Pro Se [PCRA petition] and his brief in support. By [o]rder dated November 29, 2010, this [c]ourt appointed counsel and granted leave to file an Amended Petition and a brief by December 29, 2010. This [c]ourt granted two separate motions filed by PCRA counsel requesting an extension of time, thereby allowing PCRA counsel to file an Amended Petition and a brief by March 31, 2011. [Tyson] filed a Supplemental PCRA Petition and Motion for Evidentiary Hearing on March 31, 2011. PCRA Petition on April 29, 2011. The evidentiary hearing was held on October 4, 2011. [Tyson] filed a brief in support of his PCRA Petition on November 14, 2011, and the Commonwealth filed a brief in opposition on November 30, 2011. On February 1, 2012, this [c]ourt denied [Tyson]'s [PCRA petition], and the [o]pinion was filed on March 22, 2012. On February 16, 2012, prior to the filing of this pro se Letter/Notice of Appeal with the Superior Court. On Appeal with the Superior Court. On March 2, 2012, this [c]ourt directed [Tyson] to file a Concise Statement pursuant to Pa.R.A.P. 1925(b), which was -2- J-S41026-14 filed by counsel on March 9, 2012. On April 17, 2012, this [c]ourt filed its statement pursuant to Pa.R.A.P. 1925(a). The Superior Court affirmed on February 1, 2013, Allowance of Appeal on September 11, 2013. Subsequently, [Tyson] filed a second PCRA [p]etition, pro se, on September 26, 2013. [The court] filed a Notice of Disposition Without Hearing on October 1, 2013. Prior to any Order and/or [Tyson] filed a Motion for Reconsideration on October 15, 2013, which we denied on October 17, 2013. Additionally, before this [c]ourt could issue a [Tyson] prematurely filed a pro se Letter/Notice of Appeal with the Superior Court on October 28, 2013. On November 1, 2013, [the court] ordered [Tyson] to submit a Concise Statement within twenty-one days. On November 18, 2013, [Tyson] filed a Concise Statement. PCRA Court Opinion, 11/22/13, at 1-3.1 On appeal, Tyson raises the following issues for our review: I. Whether [Tyson] was denied effective assistance of counsel for failing to challenge the fact that [the] prosecution obtain[ed] their [sic] conviction through false testimony[?] II. Whether [Tyson] was denied effective assistance of counsel for failing to object to [the] misleading jury instructions[?] 1 appealable order denying his second PCRA petition, we treat the notice of 905(a)(5). -3- J-S41026-14 III. Whether [Tyson] was denied effective assistance of counsel for denying [Tyson] his [r]ight to present evidence in his favor[?] IV. Whether [Tyson] was denied effective assistance of sentence[?] on] is timely V. -4. Our standard of review is well settled: In reviewing the denial of PCRA relief, we examine by the record and free of legal error. The PCRA timeliness requirement, however, is mandatory and jurisdictional in nature. The court cannot ignore a petition. Section 9545(b)(1) requires a petitioner to file a PCRA petition within one year of the date the judgment [became] final. Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013) (internal citations and quotations omitted). conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the 9545(b)(3). The judgment of sentence in the case before us became final on May 24, 2010 90 days after the Pennsylvania Supreme Court denied his request for allowance of appeal. See U.S.SUP.CT.R. 13 (stating that a writ of certiorari is timely if filed within 90 days of the entry of judgment by a state -4- J-S41026-14 court of last resort or a federal court of appeals). Thus, the instant PCRA petition, filed on September 26, 2013, is facially untimely. Section 9545(b)(1) provides three statutory exceptions to the timeliness provisions that allow for very limited circumstances under which the late filing of a PCRA petition will be excused: (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. 42 Pa.C.S.A. § 9545(b)(1). Tyson attempts to invoke the second exception, Brief at 13. The affidavit referred to by Tyson bears the date June 13, 2013. Id.; Affidavit of Robert Goodine, 6/13/13. The law requires that any PCRA 42 within 60 days Pa.C.S.A. § 9545(b)(2) (emphasis -5- J-S41026-14 was not filed until September 26, 2013, which was 105 days after the date the claim could have been presented. PCRA petition is facially untimely and he failed to file his petition within 60 days of the date his claim could have been presented, neither this Court nor the PCRA court has jurisdiction to decide the substantive claim raised. Taylor, 67 A.3d at 1248. We therefore find no without a hearing. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/16/2014 -6-

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