Opinion
No. 1375 MDA 2013
03-28-2014
COMMONWEALTH OF PENNSYLVANIA, Appellee v. WAYNE CURTIS KELLY, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order June 18, 2013
in the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0005141-2001
BEFORE: BENDER, P.J.E., DONOHUE and STRASSBURGER, JJ. MEMORANDUM BY STRASSBURGER, J.:
Retired Senior Judge assigned to the Superior Court.
Wayne Curtis Kelly (Appellant) appeals pro se from the order entered on June 18, 2013, denying his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
The background underlying this matter can be summarized as follows. A jury convicted Appellant of, inter alia, second-degree murder. For that conviction, the trial court sentenced Appellant to life in prison on February 3, 2003. This Court affirmed Appellant's judgment of sentence on March 30, 2004. Commonwealth v. Kelly, 850 A.2d 10 (Pa. Super. 2004) (unpublished memorandum). Appellant filed a petition for allowance of appeal to our Supreme Court. The Court denied the petition on October 29, 2004. Commonwealth v. Kelly, 863 A.2d 1144 (Pa. 2004) (table).
On August 24, 2012, Appellant, acting pro se, filed a PCRA petition. The PCRA court appointed counsel to represent him. On April 23, 2013, PCRA counsel sought to withdraw his representation of Appellant pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On May 22, 2013, the PCRA court allowed counsel to withdraw and issued notice pursuant to Pa.R.Crim.P. 907 that it intended to dismiss Appellant's PCRA petition without holding an evidentiary hearing because Appellant untimely filed the petition. Appellant filed a response to the Rule 907 notice. The PCRA court's docket reflects that, on June 17, 2013, it entered an order dismissing Appellant's petition.
According to the PCRA court's docket, Appellant filed his pro se notice of appeal on July 29, 2013. Appellant dated his notice of appeal July 14, 2013. The certified record also contains a document from this Court's prothonotary. That document is date-stamped as "RECEIVED BY SUPERIOR COURT" on July 22, 2013. It states, "Returned are the materials received in the Superior Court of Pennsylvania Prothonotary's Office, unfiled, for the following reason(s)[.]" The document then notes that the materials received by the Court were returned because, inter alia, a copy of a notice of appeal was received directly from Appellant. See Pa.R.A.P. 905(a)(1) ("Two copies of the notice of appeal ... shall be filed with the clerk of the trial court.").
The PCRA court did not direct Appellant to comply with Pa.R.A.P. 1925(b). On August 28, 2013, the PCRA court filed an opinion in support of its order. In terms of the timeliness of Appellant's notice of appeal, the court asserted as follows.
Initially, [Appellant] mistakenly filed his Notice of Appeal with the Prothonotary of the Superior Court. Taking into account the Prisoners' Mailbox Rule and the date [Appellant] filed his notice of appeal with the Superior Court Prothonotary, it appears that [Appellant], at least, attempted to timely file his Notice of Appeal. Therefore, the [c]ourt will accept [Appellant's] Notice of Appeal as timely and address [Appellant's] appeal on the merits.PCRA Court Opinion, 8/28/2013, at 1 n.1.
In his pro se brief, Appellant asks us to consider the following questions:
1.) Did the [PCRA court] err[] when it dismissed [Appellant's] PCRA [petition] without a hearing?Appellant's Brief at 4 (suggested answers omitted).
2.) Did the Berks County District Attorney's Office [withhold] evidence from [Appellant] in violation of Brady that would have changed the outcome of [Appellant's] trial if this exculpatory evidence would [have] been introduced and [Appellant] would [have] been found not guilty?
3.) Did the Berks County District Attorney's Office commit prosecutorial misconduct that resulted in Appellant being convicted and sentenced to life in prison?
4.) Did the [PCRA court] violate[] Appellant['s] 6th and 14th Amendment rights when [it] appointed ineffective assistance of counsel[] [that] so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place, and the improper obstruction of government officials of [Appellant's] right to appeal where a meritorious appealable issue existed and was properly preserved in the trial
court in violation of the due process and equal protection clause[s]?
Brady v. Maryland, 373 U.S. 83 (1963).
We first will address the timeliness of Appellant's appeal. Pennsylvania Rule of Appellate Procedure 903(a) provides that a notice of appeal "shall be filed within 30 days after the entry of the order from which the appeal is taken." In this case, the PCRA court filed its order dismissing Appellant's petition on June 17, 2013; however, the certified record indicates that the clerk of courts did not serve that order on the parties until June 18, 2013. Thus, for purposes of computing when Appellant was required to file his notice of appeal, the order was entered on June 18, 2013. Pa.R.A.P. 108(a)(1). Accordingly, Appellant had to file his notice of appeal by July 18, 2013.
We have corrected the caption to reflect that the PCRA court entered its order dismissing Appellant's PCRA petition on June 18, 2013.
Appellant's notice of appeal was not docketed as having been filed until July 29, 2013. He, however, mistakenly filed his notice of appeal in this Court on July 22, 2013. Consequently, Appellant's notice of appeal is deemed to have been filed on July 22, 2013. Pa.R.A.P. 905(a)(4).
We further observe that, because he is a pro se prisoner, Appellant benefits from the "prisoner mailbox rule." "[I]n the interest of fairness, the prisoner mailbox rule provides that a pro se prisoner's document is deemed filed on the date he delivers it to prison authorities for mailing." Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011). The rule allows this Court "to accept any reasonably verifiable evidence of the date that the prisoner deposits the appeal with the prison authorities....." Commonwealth v. Perez, 799 A.2d 848, 851 (Pa. Super. 2002).
Instantly, Appellant's notice of appeal is dated July 14, 2013, which arguably supports that PCRA court's conclusion that Appellant timely filed his notice of appeal. Moreover, there is nothing of record that would indicate that Appellant did not file his notice of appeal on or shortly after he dated the notice. Thus, for the purposes of this matter, we conclude that Appellant timely filed his notice of appeal.
We now must determine whether the PCRA court properly dismissed Appellant's petition as untimely filed. Our standard of review of the denial of a PCRA petition is limited to examining whether the court's rulings are supported by the evidence of record and free of legal error. Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010).
Under the PCRA, all petitions must be filed within one year of the date that the petitioner's judgment became final, unless one of three statutory exceptions applies. 42 Pa.C.S. § 9545(b)(1); Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006). For purposes of the PCRA, a judgment becomes final at the conclusion of direct review. 42 Pa.C.S. § 9545(b)(3). "The PCRA's time restrictions are jurisdictional in nature." Chester, 895 A.2d at 522. "Thus, '[i]f a PCRA petition is untimely, neither this Court nor the trial court has jurisdiction over the petition. Without jurisdiction, we simply do not have the legal authority to address the substantive claims.'" Id. (quoting Commonwealth v. Lambert, 884 A.2d 848, 851 (Pa. 2005)).
Appellant clearly filed his petition well over one year after his judgment became final. Thus, he untimely filed the petition, unless the petition alleged and Appellant offered to prove that:
(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;42 Pa.C.S. § 9545(b)(1).
(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.
While addressing in his "no merit" letter the "interference by governmental officials" exception found at subsection 9545(b)(1)(i), PCRA counsel stated that Appellant's "claim that he filed his request for post-conviction [relief] years late because his trial counsel was ineffective is not cognizable under the PCRA. In particular, the PCRA provides that 'for purposes of this chapter, 'governmental officials' shall not include defense counsel, whether appointed or retained.'" No Merit Letter, 4/23/2013, at 7 (citation omitted). The PCRA court essentially agreed with counsel's assessment. PCRA Court Order and Notice of Intent to Dismiss, 5/22/2013, at 5.
Appellant's pro se PCRA petition did not mention a claim of ineffective assistance of counsel or explicitly address the PCRA's timeliness exceptions. The petition did assert that, at the time of the murder of which he was convicted of committing, Appellant was only twenty-three years old. PCRA counsel and the PCRA court concluded that Appellant was attempting to invoke the exception found at 42 Pa.C.S. § 9545(b)(1)(iii) by claiming that, pursuant to Miller v. Alabama, 132 S.Ct. 2455 (2012), his sentence was unconstitutional. Both PCRA counsel and the PCRA court concluded that Miller does not apply to Appellant. Appellant does not challenge this conclusion on appeal.
In his brief to this Court, Appellant asserts that trial counsel never informed him that the Supreme Court denied his petition for allowance of appeal in 2004. Appellant's Brief at 7. Appellant claims that, but for counsel's alleged ineffectiveness in this regard, he would have timely filed his PCRA petition. Id. Appellant seems to attempt to tie this claim to the "interference by a governmental officials" timeliness exception. However, as PCRA counsel and the PCRA court concluded, for purposes of the PCRA, defense counsel cannot be considered as "government officials." 42 Pa.C.S § 9545(b)(4).
To the extent that Appellant is attempting to invoke the timeliness exception found at subsection 9545(b)(1)(ii) by claiming that he only learned that counsel abandoned him when he recently discovered that the Supreme Court denied his petition for allowance of appeal in 2004, he fails to address why he could not have earlier ascertained the status of his petition for allowance of appeal through the exercise of due diligence. 42 Pa.C.S. § 9545(b)(1)(ii). He also fails to identify when he learned of the status of his petition for allowance of appeal, making it impossible to discern whether he filed his PCRA petition within sixty days of discovering the status of his petition for allowance of appeal. 42 Pa.C.S. § 9545(b)(2); cf. Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007) (holding that Bennett satisfied 42 Pa.C.S. § 9545(b)(1)(ii) and (b)(2) by sufficiently alleging that he acted with due diligence in discovering that his appeal had been dismissed and by filing his petition within sixty days of discovering this fact).
Appellant has failed to persuade us that the PCRA court erred by dismissing his PCRA petition as untimely filed. We, therefore, need not address Appellant's remaining questions. Accordingly, we affirm the court's order.
Order affirmed. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary