Com. v. Blanchett, J. (memorandum)

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J-S78018-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. JEROME BLANCHETT Appellant No. 816 MDA 2014 Appeal from the PCRA Order April 14, 2014 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0004472-2008, CP-22-CR-0004473-2008, CP-22-CR-0004477-2008 BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J. MEMORANDUM BY JENKINS, J.: FILED DECEMBER 17, 2014 Jerome Blanchett (“Appellant”) appeals from the order dismissing his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm. On April 2, 2009, a jury convicted Appellant of four counts of robbery,1 three counts of criminal conspiracy to commit robbery,2 and two counts of aggravated assault.3 On April 22, 2009, the trial court sentenced Appellant to an aggregate sentence of 52 to 104 years’ incarceration. ____________________________________________ 1 18 Pa.C.S. § 3701. 2 18 Pa.C.S. § 903. 3 18 Pa.C.S. § 2702. J-S78018-14 On April 29, 2009, Appellant filed a Motion for Modification of Sentence, which the trial court denied on May 7, 2009. Appellant appealed, and this Court affirmed on April 16, 2010. The Pennsylvania Supreme Court denied Appellant’s petition for allowance of appeal on September 13, 2010. On January 19, 2011, Appellant filed a Motion to Withdraw Plea, which the lower court treated as a PCRA petition. The PCRA court appointed counsel and directed counsel to file an amended PCRA petition on Appellant’s behalf. Following a number of extensions, on November 9, 2011, PCRA counsel filed a Turner/Finley4 no merit letter in the form of a motion to withdraw. The PCRA court filed a Pa.R.Crim.P. 907 notice of intent to dismiss the petition on November 10, 2011, and dismissed the petition on December 6, 2011. Appellant did not appeal. On February 7, 2014, Appellant filed the instant PCRA petition, his second. On March 19, 2014, the PCRA court filed a Memorandum Opinion and Order notifying Appellant of the court’s intent to dismiss the petition in accordance with Pa.R.Crim.P. 907. On April 14, 2014, the PCRA court dismissed Appellant’s second PCRA petition. Appellant filed his notice of appeal together with his Pa.R.A.P. 1925(b) statement on May 8, 2014. The PCRA court filed its Pa.R.A.P. 1925(a) opinion on July 3, 2014. On appeal, Appellant presents the following issues for our review: ____________________________________________ 4 Commonwealth v. Turner, 544 A.2d 927 (Pa.1988) Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988) (en banc). -2- and J-S78018-14 1. Whether the Appellant is entitled to a discharge, or any alternative relief with respect to his convictions because the trial court failed to provide a Signed Written Judgment of Sentencing Order? 2. Whether Trial counsel provided ineffective assistance during sentencing proceedings, failing to preserve this claim, and PCRA counsel was ineffective for failing to raise the ineffective assistance of direct appeal and trial counsels? 3. Whether the trial/PCRA judge denied appellant his right to due process of law and to a fair PCRA proceeding in violation of Code of Judicial Conduct Canons 1, and 2(A)? 4. Whether the Pennsylvania Superior Court have the Judicial Authority allowing Appellant to raise newly discovered evidence issues in his brief? Appellant’s Brief, p. 5 (verbatim). In reviewing an order denying PCRA relief, our well-settled standard of review is “to determine 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, 191-192 (Pa.Super.2013) (internal quotations and citations omitted). We must first consider the timeliness of the petition. “It is undisputed that a PCRA petition must be filed within one year of the date that the judgment of sentence becomes final.” Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa.Super.2013); 42 Pa.C.S. § 9545(b)(1). “This time requirement is mandatory and jurisdictional in nature, and the court may not ignore it in order to reach the merits of a petition.” Hernandez, 79 A.3d at 651 (citing Commonwealth v. Murray, 753 A.2d 201, 203 (Pa.2000)). A -3- J-S78018-14 judgment of sentence “becomes final 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. § 9545(b)(3). However, a facially untimely petition may be received where any of the PCRA’s three limited exceptions to the time for filing the petition are met. Hernandez, 79 A.3d at 651 (footnote omitted). These exceptions include: (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. § 9545(b)(1)(i)-(iii). As our Supreme Court has repeatedly stated, the petitioner maintains the burden of pleading and proving that one of these exceptions applies. Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa.2008), cert. denied, 555 U.S. 916 (2008). Further, [a] petition invoking one of these exceptions must be filed within sixty days of the date the claim could first have been presented. 42 Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions to the PCRA’s one-year filing deadline, the petitioner must plead and prove specific facts that demonstrate his claim was raised within the sixty-day time frame under section 9545(b)(2). -4- J-S78018-14 Hernandez, 79 A.3d at 651-652 (internal quotations omitted). Finally, a heightened standard applies to a second or subsequent PCRA petition. A second or subsequent PCRA petition “will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred.” Commonwealth v. Austin, 712 A.2d 375, 377 (Pa.Super.1998); Commonwealth v. Williams, 660 A.2d 614, 618 (Pa.Super.1995). Additionally, in a second or subsequent post- conviction proceeding, “all issues are waived except those which implicate a defendant’s innocence or which raise the possibility that the proceedings resulting in conviction were so unfair that a miscarriage of justice which no civilized society can tolerate occurred”. Williams, 660 A.2d at 618. On September 13, 2010, our Supreme Court denied Appellant’s petition for allowance of appeal from this Court’s affirmation of his judgment of sentence. Appellant did not file for a writ of certiorari to the Supreme Court of the United States, and his sentence became final at the expiration of his time to seek review ninety days later, on December 13, 2010.5 See 42 Pa.C.S. § 9545(b)(3); U.S. Sup.Ct. Rule 13. Accordingly, Appellant had until December 13, 2011 to timely file a PCRA petition. ____________________________________________ 5 The ninetieth day technically fell on December 12, 2010, a Sunday. Accordingly, Appellant had until the following business day, Monday, December 13, 2011, to timely file for a writ of certiorari to the Supreme Court of the United States. See U.S. Sup.Ct. Rule 30. -5- J-S78018-14 Appellant filed the instant petition on February 7, 2014, over two years after the expiration of his PCRA time limitation. Accordingly, Appellant’s petition is facially untimely. Thus, he must plead and prove that his petition falls under one of the Section 9545 exceptions set forth in the PCRA. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Appellant’s instant PCRA petition, however, makes no attempt to plead or prove any of the three limitations exceptions. To the extent Appellant’s brief refers to the PCRA’s newly discovered evidence time bar exception, Appellant was required to plead and prove the time bar exception in his PCRA petition. See Abu-Jamal, 941 A.2d at 1268. The PCRA petition itself includes no discussion whatsoever applicability of any of the PCRA’s time bar exceptions. of the Instead, Appellant waited until his appellate brief to plead a Section 9545(b)(1)(ii) time bar exception.6 See Appellant’s Brief, pp. 5, 10. As a result, Appellant has waived this time-bar-exception claim. See Commonwealth v. Burton, 936 A.2d 521, 525 (Pa.Super.2007) (“exceptions to the [PCRA] time bar must be pled in the PCRA petition, and may not be raised for the first time on appeal”); see also Pa.R.A.P. Rule 302(a) (issues not raised in the lower ____________________________________________ 6 To overcome the PCRA’s time bar, Appellant’s brief states as follows: [Appellant] invokes the exception set forth in title 42 Pa.C.S. § 9545(b)(1)(ii), the newly discovered facts exception. Petitioner is correct. Appellant’s Brief, p. 10. -6- J-S78018-14 court are waived and cannot be raised for the first time on appeal). Accordingly, the petition remains time-barred. Additionally, the sole claim contained in the instant PCRA petition – that Appellant’s due process rights were violated by the trial court’s failure to enter a written judgment of sentence order7 – neither implicates Appellant’s actual innocence nor raises the possibility that the proceedings were so unfair that a miscarriage of justice which no civilized society can tolerate occurred. See Williams, supra. Further, although our decision does not require a review of Appellant’s underlying claims, we have studied the records and the briefs in this matter, as well as the applicable law. After careful review, we conclude that the Pa.R.A.P. 1925(a) opinion authored by the Honorable John F. Cherry correctly explains that the PCRA petition’s underlying claim is untimely and otherwise meritless. See PCRA Court Opinion, July 3, 2014, pp. 4-7. The PCRA court’s discussion requires no expansion. Because Appellant filed the instant PCRA petition over two years after the expiration of the limitations period and cannot avail himself of any of the PCRA’s time bar exceptions, the PCRA court did not err in dismissing this petition as untimely. ____________________________________________ 7 See PCRA petition, February 7, 2014, p. 2. -7- J-S78018-14 Order affirmed. Appellant’s September 10, 2014 application for remand denied.8 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/17/2014 ____________________________________________ 8 Appellant’s application for remand seeks remand so that Appellant might raise a claim that “the sentencing judge’s actions were inconsistent with the provisions of the sentencing code and was contrary to the fundamental norms that underlie the sentencing process.” Motion for Remand, p. I. Appellant attempts to somehow attach this discretionary aspects of sentencing claim to the Supreme Court of the United States’ decision in Alleyne v. United States, 133 S.Ct. 2151 (2013), wherein the Supreme Court held that a fact that, by law, increases a penalty is an element of the crime that must be determined by the jury beyond a reasonable doubt. See Motion for Remand, p. 4. We note, however, that Appellant has already litigated his sentencing claim on direct appeal. See Commonwealth v. Blanchett, 996 MDA 2009 (April 16, 2010) (unpublished memorandum). Further, his sentence does not implicate Alleyne because it did not involve the imposition of any mandatory minimum sentence. Finally, we note that neither the Supreme Court of the United States nor the Pennsylvania Supreme Court has held Alleyne to apply retroactively to matters on collateral appeal. -8- Circulated 12/08/2014 01:19 PM Circulated 12/08/2014 01:19 PM Circulated 12/08/2014 01:19 PM Circulated 12/08/2014 01:19 PM Circulated 12/08/2014 01:19 PM Circulated 12/08/2014 01:19 PM Circulated 12/08/2014 01:19 PM Circulated 12/08/2014 01:19 PM

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