Com. v. James, A. (memorandum)

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J-S05002-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. ARTHUR JAMES A/K/A ANTHONY THOMPSON A/K/A ANTHONY SEABROOK, Appellant No. 834 EDA 2012 Appeal from the PCRA Order entered February 24, 2012, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No(s): CP-51-CR-0230651-1994, CP-51-CR-06068711993, CP-51-CR-0611321-1993, CP-51-CR-0717991-1993, CP-51-CR0719671-1993, CP-51-CR-0719681-1993 & CP-51-CR-1133561-1993. BEFORE: ALLEN, STABILE, and STRASSBURGER,* JJ. MEMORANDUM BY ALLEN, J.: FILED FEBRUARY 07, 2014 Arthur James a/k/a Anthony Thompson a/k/a Anthony Seabrook 46. We affirm. The pertinent facts and prolonged procedural history are as follows: [Appellant] participated in a robbery, which resulted in guilty plea to five counts of receiving stolen property, three counts of receiving stolen property, three counts of conspiracy to receive stolen property, one count of possession with intent to deliver, one count of robbery and one count of conspiracy to commit robbery. Pursuant to *Retired Senior Judge assigned to the Superior Court. J-S05002-14 his bargain with the Commonwealth, [Appellant] agreed to testify in the robbery/homicide prosecution of James Fiers additional charges against [Appellant] and to inform the testimony exonerated Fiers, which directly led to a verdict of acquittal. [Appellant] appeared for sentencing on January 31, 1996. At the sentencing hearing, the prosecutor informed the court that [Appellant] was in breach of his plea agreement. history, the sentencing court found [Appellant] to be a chronic liar and held that he was incapable of rehabilitation. The sentencing court subsequently imposed an aggregate term of imprisonment of forty-three to eighty-six years [of imprisonment]. This Court affirmed the judgment of sentence on May 5, 1997. Commonwealth v. Thompson, 695 A.2d 441 (Pa. Super. 1997) (unpublished memorandum). [Appellant] filed a petition for reargument, which was denied [on] May 13, 1997. [Appellant] did not file a petition for allowance of appeal with [our] Supreme Court. [Appellant] filed a pro se PCRA petition on March 3, 1998, and counsel was duly appointed. Counsel filed a Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). The PCRA court provided notice of its intent to dismiss the PCRA petition, and [Appellant] filed a timely response. The PCRA court directed prior counsel to supplement the record for the benefit of PCRA counsel. On intent to dismiss the petition, and [Appellant] timely responded. Upon review, the PCRA court concluded [that -meritorious and dismissed the petition on July 14, 1999. [Appellant] filed a appeal was dismissed on April 14, 2000, for failure to file a brief. -2- J-S05002-14 On July 18, 2000, [Appellant] filed a second PCRA petition followed by a supplemental counseled petition filed December 27, 2000. [Appellant] alleged he is the victim of an illegal sentence imposed in violation of due process of law. [Appellant] alternatively advanced his sentencing claims under color of a petition for writ of habeas corpus. untimely, that it was not saved by any of the exceptions to the timing requirements of the PCRA, and that [Appellant] is not eligible for habeas corpus relief. See PCRA Court Opinion, 9/28/01, at 5-7 (explaining the rationale for On August 8, 2001, the PCRA court provided notice of its intent to dismiss [the petition] without a hearing. [Appellant] did not respond. Accordingly, on September 7, 2001, the PCRA court dismissed the petition. Commonwealth v. James, 928 A.2d 1123 (Pa. Super. 2007), unpublished memorandum at 1-3. Appellant filed a timely appeal to this Court. On August 14, 2001, this petition as untimely. Commonwealth v. James, 809 A.2d 958 (Pa. Super. 2002) (unpublished memorandum). On January 28, 2003, our Supreme Cour Commonwealth v. James, 816 A.2d 1102 (Pa. 2003). On August 4, 2004, Appellant filed his third PCRA petition. On July 25, 2005, the PCRA court issued Pa.R.Crim.P. 907 notice of its intent to dismiss ition. Appellant filed a timely appeal to this serial request for post-conviction relief because the petition was untimely, -3- J-S05002-14 and Appellant failed to establish an exception to the See James, supra, unpublished memorandum at 8-9. On September 26, 2007, Commonwealth v. James, 932 A.2d 1286 (Pa. 2007). On October 27, 2009, Appellant filed the PCRA petition at issue, and the PCRA court appointed counsel. On February 8, 2013, PCRA counsel filed - Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Thereafter, PCRA counsel withdrew his Turner/Finley letter and, on May 31, 2011, filed an amended petition in which Appellant claimed that his trial counsel was ineffective for filing a presentence motion to withdraw his guilty plea. Although Appellant acknowledged that his latest PCRA petition was untimely, he claimed that followed. Both Appellant and the PCRA court have complied with Pa.R.A.P. 1925. petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, -4- J-S05002-14 1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a claim is patently frivolous and is without a trace of support in either the record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011 - subsequent post-conviction request for relief will not be entertained unless a strong prime facie showing is offered to demonstrate that a miscarriage of Commonwealth v. Burkhardt, 833 A.2d 233, 236 (Pa. Super. 2003) (en banc prime facie showing if he demonstrates that either the proceedings which resulted in his conviction were so unfair that a miscarriage of justice occurred which no civilized society could tolerate, or that he was innocent of Id. Before addressing the issue Appellant presents on appeal, we must latest petition for post-conviction relief was untimely. The timeliness of a post-conviction petition is jurisdictional. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation omitted). Thus, if a PCRA petition is untimely, neither an appellate court nor the PCRA court has jurisdiction over the petition. Id authority to address the Id. -5- J-S05002-14 Generally, a petition for relief under the PCRA, including a second or subsequent petition, must be filed within one year of the date the judgment becomes final unless the petition alleges, and the petitioner proves, an exception to the time for filing the petition. Commonwealth v. GamboaTaylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under been interference by government officials in the presentation of the claim; or (2) there exists after-discovered facts or evidence; or (3) a new Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition invoking one of these statutory exceptions Id. at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to the time restrictions of the PCRA must be pled in the petition, and may not be raised for the first time on appeal. Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007); see also This sentence Court previously became memorandum at 5. final in determined 1997. See th James, supra, unpublished Because Appellant filed the instant petition over ten years later, it is patently untimely unless he has satisfied his burden of pleading and proving that one of the enumerated exceptions applies. See Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999). -6- J-S05002-14 Appellant has failed to prove the applicability of any of the exceptions of unreasonable omissions by defense counsel from [section 9545(b)(i) of the counsel which does not fulfill any corresponding compelling state interest, rendering the entire [PCRA] statute unconstitutional under the Due Process which justifies the prohibition of meritorious claim Id. at 14. Pennsylvania appellate courts have repeatedly rejected constitutional challenges to the PCRA. See e.g., Burton, 936 A.2d at 527 (holding that jurisdictional time bar set forth in PCRA is constitutional). Appellant cites no authority to support his constitutionality claim. Thus, we will not consider this undeveloped claim further. See Commonwealth v. Tielsch, 934 A.2d 81, 93 (Pa. Super. 2007) (holding that undeveloped claims will not be considered on appeal). In to meet his burden of proof with regard to any exception to the timeliness latest petition for post-conviction relief. Order affirmed. -7- J-S05002-14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 2/7/2014 -8-

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