Opinion
J-S57021-17 No. 549 EDA 2017
12-05-2017
COMMONWEALTH OF PENNSYLVANIA v. SHALAMAR R. CARMON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order dated January 23, 2017
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0003283-2004 BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J. MEMORANDUM BY SOLANO, J.:
Appellant, Shalamar R. Carmon, appeals pro se from the order dismissing his third petition filed under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. We affirm.
On October 3, 2006, a jury convicted Appellant of first-degree murder, and he was sentenced that same day to life imprisonment without parole. He filed a direct appeal, and this Court affirmed his judgment of sentence on January 4, 2008. Commonwealth v. Carmon , 947 A.2d 822 (unpublished memorandum). On June 26, 2008, the Supreme Court denied his allocatur petition. Commonwealth v. Carmon , 951 A.2d 1160 (Pa. 2008). Appellant did not petition the United States Supreme Court for a writ of certiorari. Therefore, his judgment of sentence became final on September 24, 2008, ninety days after the Pennsylvania Supreme Court denied his allocatur petition. 42 Pa.C.S. § 9545(b)(3); U.S. Sup. Ct. Rule 13.
Appellant filed a timely PCRA petition, within one year, on June 12, 2009. The PCRA court appointed counsel, held an evidentiary hearing, and dismissed the petition. Appellant appealed, and this Court affirmed the denial of relief. Commonwealth v. Carmon , 29 A.3d 830 (Pa. Super. 2011) (unpublished). Appellant petitioned for collateral relief a second time on February 3, 2012. This time, the PCRA court denied relief on the ground that the petition was untimely. Appellant unsuccessfully appealed. Commonwealth v. Carmon , 62 A.3d 463 (Pa. Super. 2012) (unpublished).
Appellant filed the petition that is now before us, his third, on December 12, 2016. The PCRA court dismissed the petition as untimely by an order dated January 23, 2017. Appellant filed a timely appeal in which he raises five issues:
[1.] Whether Appellant is entitled to Post-Conviction Relief, when the evidence of record support[s] Appellant's claim that he is being detained illegally, in violation of due process of law, under an illegal sentence, where he was never sentenced by a judgment of the law of the land that lawfully authorizes the deprivation of his liberty, as required by the Due Process Clause of the Pa.Const. art.1 §9 and the 14 amendment of the U.S.Const.?
[2.] Whether 18 Pa.C.S.§ 1102(a)(1) could have ever lawfully authorized an imposition of a mandatory sentence of life imprisonment without the possibility of parole upon Appellant, as a result of his 1 degree murder conviction?
[3.] Whether the PCRA Court erred in dismissing Appellant's PCRA petition as untimely, when Appellant established his illegal
sentence claim within the plain language of the timeliness exception of 42 Pa.C.S.§ 9545(b)(1)(i) & § 9545(b)(2), where the evidence of record substantially supports the material fact that the Sentencing Judge's failure to satisfy the Due Process requirement of Notice, reasonably calculated, under all the circumstances pertaining to the judgment of sentence imposed upon Appellant, interfered with this illegal sentence claim being presented previously?Appellant's Brief at 4.
[4.] Whether the PCRA Court erred in dismissing Appellant's PCRA petition as untimely, when the evidence of record does not support the PCRA Court's conclusion that Appellant's argument, demonstrating that he did not know he was being illegally detained under an illegal sentence, within the plain language of 42 Pa.C.S.§ 9545(b)(1)(ii) & § 9545(b)(2), was unavailing, because Appellant was convicted of 1st degree murder, and on October 3, 2006, was sentenced to life imprisonment without the possibility of parole, which is a mandatory sentence, pursuant to 18 Pa.C.S.§ 1102(a)(1)?
[5.] Whether the PCRA Court erred in dismissing Appellant's PCRA petition as untimely, when the PCRA Court's jurisdiction to address the merits of Appellant's illegal sentence claim is clearly seen, where Appellant's judgment of sentence could have never become final, because the evidence of record support[s] Appellant's argument that the judgment of sentence imposed upon Appellant was never legally determined by a statute that lawfully authorized the deprivation of Appellant's liberty?
When reviewing the propriety of an order denying PCRA relief, this Court is limited to determining whether the evidence of record supports the conclusions of the PCRA court and whether the ruling is free of legal error. Commonwealth v. Robinson , 139 A.3d 178, 185 (Pa. 2016). The PCRA court's findings will not be disturbed unless there is no support for them in the certified record. Commonwealth v. Lippert , 85 A.3d 1095, 1100 (Pa. Super. 2014).
A PCRA petition must be timely. In order to be timely, it must be filed within one year of the date the petitioner's judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). A 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, an untimely petition may be considered when the petition alleges, and the petitioner proves, that one of the three limited exceptions to the time for filing the petition set forth at 42 Pa.C.S. § 9545(b)(1) is met. 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 proceed under an exception 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). Commonwealth v. Carr , 768 A.2d 1164, 1167 (Pa. Super. 2001).
Whether a PCRA petition is timely is a question of law; this Court's standard of review is de novo and our scope of review is plenary. Commonwealth v . Taylor , 65 A.3d 462, 468 (Pa. Super. 2013). It is well settled that "[t]he filing mandates of the PCRA are jurisdictional in nature and are strictly construed." Id. Consequently, "[a]n untimely petition renders this Court without jurisdiction to afford relief." Id.
Here, Appellant's judgment of sentence became final on September 24, 2008. He therefore had to file a timely petition by September 24, 2009. 42 Pa.C.S. § 9545(b)(1). Because Appellant filed the underlying petition on December 12, 2016, we agree with the PCRA court that the petition is untimely and we lack jurisdiction to review it. After a thorough review of the record, the applicable law, and the opinion of the Honorable Douglas G. Reichley, sitting as the PCRA court, we affirm on the basis of Judge Reichley's comprehensive and well-reasoned opinion, which holds that Appellant's third PCRA petition is untimely, and that "Appellant did not establish the existence of any applicable exception to the PCRA's time requirements," and states, "while the [PCRA court] does not have jurisdiction to address the merits, the [PCRA court] observes that Appellant's sentence [of life imprisonment for first degree murder in accordance with 42 Pa.C.S. § 9711] is not illegal." PCRA Court Opinion, 2/27/17, at 4-5 (unpaginated). In the event of future filings, the parties are instructed to attach a copy of the PCRA court's February 27, 2017 opinion.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/5/2017
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