Opinion
J-A21030-15 No. 23 EDA 2015
08-12-2015
COMMONWEALTH OF PENNSYLVANIA Appellee v. MYLES RAMZEE Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order November 26, 2014
In the Court of Common Pleas of Carbon County
Criminal Division at No(s): CP-13-CR-0000047-1998
BEFORE: ALLEN, J., MUNDY, J., and FITZGERALD, J. MEMORANDUM BY MUNDY, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Myles Ramzee, appeals from the November 26, 2014 order dismissing as untimely his sixth petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful consideration, we affirm based on the thorough and well-supported opinion of the Honorable Steven R. Serfass.
The PCRA court has fully and accurately summarized the factual and procedural history of this case in its February 12, 2015 opinion, which we adopt and need not restate here in its entirety. Briefly, Appellant was convicted of first-degree murder and related offenses and sentenced to life in prison on May 17, 1999. As held by a panel of this Court in an earlier appeal, "[A]ppellant's judgment of sentence became final on [] February 12, 2001, which was ninety days after our Supreme Court denied allocatur on direct appeal and the date upon which the time expired for requesting a writ of certiorari with the United States Supreme Court." Commonwealth v. Ramzee , 890 A.2d 1104 (Pa. Super. 2005) (unpublished memorandum at 2) (citations omitted) ( Ramzee III ). Appellant filed a pro se "petition for Writ of Habeas Corpus" on May 21, 2012, which the PCRA court treated as Appellant's sixth PCRA petition. The PCRA court appointed counsel to represent Appellant, and Counsel filed a "First Amended Petition for Post-Conviction Relief" on August 30, 2012. Following oral argument and briefing by the parties, the PCRA court, on November 26, 2014, denied Appellant's petition as untimely. Appellant filed a timely notice of appeal on December 18, 2014.
Appellant and the PCRA court have complied with Pennsylvania Rule of Appellate Procedure 1925.
On appeal, Appellant raises the following question for our review.
I. Should the petition for writ of habeas corpus (pursuant to 42 Pa.C.S. Section 6502-6503) as previously filed by [Appellant] on May 21, 2012, and the first amended petition for post-conviction relief as filed on August 30, 2012, be addressed on their merits as multiple miscarriages of justice occurred in this case and recognized exceptions to the otherwise one (1) year filing deadline set out at 42 Pa.C.S.A. Section 9545(b) apply here and to not do so would result in a gross injustice?Appellant's Brief at 6.
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. This Court treats the findings of the PCRA court with deference if the record supports those findings. It is an appellant's burden to persuade this Court that the PCRA court erred and that relief is due.Commonwealth v. Feliciano , 69 A.3d 1270, 1274-1275 (Pa. Super. 2013) (citation omitted).
Instantly, the PCRA court dismissed Appellant's sixth PCRA petition as untimely. "[I]t is well-settled that ... a question of timeliness implicates the jurisdiction of our Court." Commonwealth v. Gandy , 38 A.3d 899, 902 (Pa. Super. 2012) (internal quotation marks and citation omitted), appeal denied, 49 A.3d 442 (Pa. 2012). "Because these timeliness requirements are mandatory and jurisdictional in nature, no court may properly disregard or alter them in order to reach the merits of the claims raised in a PCRA petition that is filed in an untimely manner." Commonwealth v. Lopez , 51 A.3d 195, 196 (Pa. 2012) (internal quotation marks and citation omitted). The PCRA "confers no authority upon this Court to fashion ad hoc equitable exceptions to the PCRA time-bar[.]" Commonwealth v. Watts , 23 A.3d 980, 983 (Pa. 2011) (citation omitted). This is to "accord finality to the collateral review process." Id. (citation omitted). "It is well settled that [a]ny and all PCRA petitions must be filed [in a timely manner] unless one of three statutory exceptions applies." Commonwealth v. Garcia , 23 A.3d 1059, 1061-1062 (Pa. Super. 2011) (internal quotation marks and citations omitted), appeal denied, 38 A.3d 823 (Pa. 2012). "We have repeatedly stated it is the appellant's burden to allege and prove that one of the timeliness exceptions applies. Whether [the a]ppellant has carried his burden is a threshold inquiry prior to considering the merits of any claim." Commonwealth v. Edmiston , 65 A.3d 339, 346 (Pa. 2013) (citation omitted), cert. denied, Edmiston v . Pennsylvania , 134 S. Ct. 639 (2013).
The Act provides for the following possible exceptions to the timeliness requirement.
§ 9545. Jurisdiction and proceedings
...
(b) Time for filing petition.—
(1) Any petition under this subchapter, including a second or subsequent petition, shall be [timely] filed ... unless the petition alleges and the petitioner proves 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;
(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).
(2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.
Appellant's sixth PCRA petition is facially untimely. His sentence, as noted above, became final on February 12, 2001. Therefore, Appellant had until February 12, 2002, one year from that date, to file a first or any subsequent PCRA petition. See generally 42 Pa.C.S.A. § 9545(b)(3). As noted, it is required that Appellant pleads and proves one of the statutory exceptions to the PCRA's time limits to invoke the PCRA or this Court's jurisdiction to consider his petition. See Edmiston , supra.
Appellant advances a number of arguments why his PCRA petition should be deemed timely or reviewable notwithstanding the timeliness constraints of the PCRA. Appellant's Brief at 21-48. Appellant avers the PCRA court "failed to reconcile that case[]law establishes that what might otherwise be deemed an untimely [PCRA] [p]etition can nevertheless be characterized as timely for a reason expanding upon the [s]tatutory exceptions or for a reason outside of any of those exceptions." Id. at 32. Appellant's arguments center on his contention that his counsel, appointed by the PCRA court to represent him during his first timely PCRA, was ineffective and effectively abandoned him during his appeal from the PCRA court's denial of that petition. Id. at 24-26; see Commonwealth v. Ramzee , 847 A.2d 760 (Pa. Super. 2004) (unpublished memorandum). In particular, Appellant claims his counsel was ineffective before the PCRA court and this Court by failing to advance various PCRA claims and by "abandoning" him by withdrawing prior to filing a timely petition for allowance of appeal with our Supreme Court. Id.
Appellant's pro se petition for allowance of appeal was denied on December 22, 2004. Supreme Court Order, 153 MAL 2004, 12/22/04, at 1.
Appellant suggests the "abandonment" of PCRA counsel constitutes an unknown fact not ascertainable through due diligence, pursuant to Section 9545(b)(1)(ii), and consonant with Commonwealth v. Bennett , 930 A.2d 1264 (Pa. 2007) and Commonwealth v. Smith , 35 A.3d 766 (Pa. Super. 2011), appeal denied, 53 A.3d 757 (Pa. 2012). Id. at 32-33. Alternatively, Appellant argues that the decisions by this Court in Commonwealth v. Leasa , 759 A.2d 941 (Pa. Super. 2000), Commonwealth v. Peterson , 756 A.2d 687 (Pa. Super. 2000), and Commonwealth v. Robinson , 781 A.2d 152 (Pa. Super. 2001), reversed, 837 A.2d 1157 (Pa. 2003), treating claims of PCRA counsel ineffectiveness as extensions of prior timely PCRA petitions where PCRA counsel has failed to file an appellate brief, should be extended to his instant PCRA petition. Id. at 37-39. Finally, Appellant argues that based on the United States Supreme Court case of Martinez v. Ryan , 132 S. Ct. 1309 (2012), Appellant should be afforded a merits review of his ineffectiveness claims against initial PCRA counsel notwithstanding the time constraints of the PCRA. Id. at 40-42.
After careful review, we conclude that the trial court's February 12, 2015 Rule 1925(a) memorandum opinion fully sets forth Appellant's claims, identifies the proper standards of review, discusses the relevant law, and explains the bases for its conclusion that Appellant has failed to plead or prove an exception to the timeliness requirements, statutory or otherwise, of the PCRA. We have carefully reviewed the entire record and Appellant's arguments, and we conclude that the thorough and well-reasoned opinion of Judge Steven R. Serfass is in concert with our own views.
Specifically, we agree that Appellant's counsel during his first PCRA did not abandon Appellant by withdrawing after this Court affirmed the PCRA court's denial of Appellant's first PCRA on the merits and that Bennett and Smith are inapposite to this case. We also agree that Appellant's reliance on the holdings in Leasa , Peterson , and this Court's decision in Robinson is misplaced. Our Supreme Court reversed Robinson and therein held "the Superior Court's decisions in [] Leasa [], and [] Peterson [] are hereby expressly disapproved." Commonwealth v. Robinson , 837 A.2d 1157, 1163 (Pa. 2003). Finally, we agree with the PCRA court that, in light of this Court's decision in Commonwealth v. Saunders , 60 A.3d 162 (Pa. Super. 2013), appeal denied, 72 A.3d 603 (Pa. 2013), cert. denied, Saunders v. Pennsylvania , 134 S. Ct. 944 (2014), Martinez is inapplicable to the timeliness of Appellant's sixth PCRA petition and the jurisdiction of the PCRA court. Furthermore, this Court addressed and rejected Appellant's contentions relative to his entitlement to effective assistance of PCRA counsel, and his alleged inability to raise those issues in a timely fashion, in our disposition of his appeal from the denial of his second PCRA. See Ramzee III , supra.
Accordingly, we adopt the February 12, 2015 opinion of the Honorable Steven R. Serfass as our own for the purposes of our disposition of this appeal. We conclude the PCRA court committed no error in determining Appellant's sixth PCRA petition is untimely. Additionally, concluding the PCRA court and this Court are without jurisdiction to address the merits of Appellant's claims, we affirm the PCRA court's November 26, 2014 order dismissing his sixth PCRA petition.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/2015
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