Opinion
364 WDA 2021 J-A02014-22
04-19-2022
COMMONWEALTH OF PENNSYLVANIA v. ANGELO RANDOLPH, Appellant
Joseph D. Seletyn, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered January 4, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0000922-2003
Joseph D. Seletyn, Esq.
BEFORE: OLSON, J., MURRAY, J., and PELLEGRINI, J. [*]
MEMORANDUM
OLSON, J.
Appellant, Angelo Randolph, appeals from an order entered on January 4, 2021 in the Criminal Division of the Court of Common Pleas of Allegheny County dismissing, as untimely, his fifth petition filed pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
At the conclusion of trial in December 2004, Appellant was found guilty of criminal attempt (homicide), three counts of aggravated assault, carrying a firearm without a license, and persons not to possess a firearm. On April 21, 2005, the trial court imposed its sentence. For attempted homicide, Appellant received 11 to 22 years' imprisonment, followed by an 18-year period of probation. The court sentenced Appellant to serve two and one-half to five years' imprisonment, followed by five years' probation, for persons not to possess a firearm. Lastly, Appellant received one and one-half to three years' incarceration, plus four years' probation, for carrying a firearm without a license. The court directed that all of Appellant's sentences should run consecutively; hence, Appellant received an aggregate sentence of 15 to 30 years' imprisonment, followed by 27 years' probation.
Prior to trial, defense counsel successfully moved to sever the charge of persons not to possess a firearm and the court served as the factfinder for that offense. Appellant's remaining offenses were tried to a jury.
Appellant filed post-sentence motions on August 16, 2005, after the trial court granted leave allowing Appellant to seek post-sentence relief nunc pro tunc. The trial court denied Appellant's motions on August 17, 2005 and a timely direct appeal followed. This Court affirmed Appellant's judgment of sentence on June 7, 2006 and our Supreme Court denied further review on November 9, 2006. See Commonwealth v. Randolph, 905 A.2d 1047 (Pa. Super. 2006) (unreported decision), appeal denied, 911 A.2d 934 (Pa. 2006). In the ensuing years, Appellant filed four unsuccessful petitions for collateral relief after the conclusion of his direct appeal.
Appellant filed his latest PCRA petition, his fifth, on June 12, 2020. The PCRA court concluded that the petition was untimely and dismissed it by order entered on January 4, 2021. This appeal followed, in which Appellant raises several substantive claims. Before we reach the merits of Appellant's issues, however, we consider two issues which implicate our jurisdiction. First, we examine the timeliness of this appeal. Next, we review the timeliness of Appellant's petition for collateral relief. Ultimately, we conclude that, while Appellant validly invoked appellate jurisdiction by filing a timely notice of appeal, the PCRA court correctly dismissed Appellant's petition as untimely.
On March 11, 2021, the PCRA court ordered Appellant to file and serve a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant did not comply with the court's order.
The certified record reflects that Appellant filed his current PCRA petition on June 12, 2020, followed by an amended submission filed on September 21, 2020. The Commonwealth answered Appellant's petition on November 16, 2020. After issuing a Rule 907 notice of intention to dismiss without a hearing, the PCRA court entered an order dismissing Appellant's petition as untimely on January 4, 2021. Although the PCRA court's docket sheet recorded the date on which service of the dismissal order was effectuated for the Allegheny County District Attorney's Office, no service date was recorded for Appellant, as required by Pa.R.Crim.P. 114(C)(2)(c) and Pa.R.Crim.P. 907(4).
Appellant filed a response to the PCRA court's Rule 907 notice on December 17, 2020.
In relevant part, Pa.R.Crim.P. 114(C)(2)(c) provides that docket entries promptly shall be made and shall contain "the date of service of the order or court notice." Pa.R.Crim.P. 114(C)(2)(c).
When a PCRA petition is dismissed without a hearing, as in this case, the court must, inter alia, file and serve its dismissal order as provided in Rule 114. Pa.R.Crim.P. 907(4).
Appellant filed a document entitled "petition for review" on January 19, 2021. Although this submission was not captioned as a "notice of appeal," it requested review as follows:
[T]he September 23, 2020 denial concerning a decision of the Common Pleas of Allegheny County, that was recorded on January 4, 2020 in which gives [Appellant] thirty (30) days to appeal.
Appellant's references to the date "January 4, 2020" appears to be a typographical error. We read this date as referring to "2021."
Petition for Review, 1/19/2021.
In the ensuing period, Appellant filed a second "petition for review" on February 25, 2021 and, thereafter, a "notice of appeal" on March 5, 2021. Because Appellant's notice of appeal was facially untimely, this Court issued a rule to show cause on April 14, 2021. Appellant timely responded on April 23, 2021, arguing that he filed a petition for review dated January 15, 2021 (and docketed on January 19, 2021) which referenced the dismissal order filed by the PCRA court on January 4, 2021. Response to Rule to Show Cause Order, 4/23/21. We discharged the rule by order entered on April 29, 2021.
We conclude, under the circumstances, that Appellant has properly invoked our appellate jurisdiction by filing a timely appeal from a final order that dismissed his petition for collateral relief. After the PCRA court entered its order dismissing Appellant's PCRA petition on January 4, 2021, Appellant filed a "petition for review" on January 19, 2021. This filing came within 15 days of a final and appealable order dismissing his petition for collateral relief and, thus, within the applicable 30-day appeal period. See Pa.R.Crim.P. 910 ("An order granting, denying, dismissing, or otherwise finally disposing of a petition for post-conviction collateral relief shall constitute a final order for purposes of appeal."); see also Pa.R.A.P. 903 ("notice of appeal . . . shall be filed within 30 days after the entry of the order from which the appeal is taken"). Moreover, typographical error aside, Appellant's January 19, 2021 filing expressly identified the PCRA court's January 4, 2021 dismissal order as the subject of his appeal. Since Appellant was aware of the final and appealable dismissal order entered on January 4, 2021, and because he commenced an appeal within the applicable 30-day appeal period, we shall treat this appeal as timely filed.
As a technical matter, the appeal period in this case did not begin to run on January 4, 2021 because, with respect to Appellant, no date of service of the dismissal order is stated on the docket. See Pa.R.Crim.P. 114(C)(2)(c) (docket entries "shall contain" the "date of service of the order"); Pa.R.A.P. 108(a)(1), (d)(1) (appeal period only begins to run on the date the Clerk "mails or delivers copies of the order to the parties"). However, where, as here, an appellant appears to have actual knowledge of a final and appealable order and files an appeal within 30 days of the order, this Court routinely proceeds as if the court clerk included a service date on the docket, treats the ensuing appeal as timely, and foregoes quashal as a disposition. See, e.g., Commonwealth v. Carter, 122 A.3d 388, 391 (Pa. Super. 2015).
We now consider whether the PCRA court correctly dismissed Appellant's petition without a hearing. Our standard of review of the court's denial of a PCRA petition is well-settled:
Our standard of review of a PCRA court's dismissal of a PCRA petition is limited to examining whether the PCRA court's determination is supported by the record evidence and free of legal error. Before addressing the merits of Appellant's claims, we must first determine whether we have jurisdiction to entertain the underlying PCRA petition.Commonwealth v. Whitehawk, 146 A.3d 266, 269 (Pa. Super. 2016) (citations omitted).
After careful review, we conclude that Appellant's petition was untimely, that he failed to plead and prove an exception to the PCRA time-bar, and that no court possesses jurisdiction to adjudicate the collateral claims raised in Appellant's petition.
It is well-settled that:
A PCRA petition, including a second or subsequent one, must be filed within one year of the date the petitioner's judgment of sentence became final, unless he pleads and proves one of the three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A judgment becomes final at the conclusion of direct review by [the Pennsylvania Supreme] Court or the United States Supreme Court, or at the expiration of the time for seeking such review. [See] 42 Pa.C.S.[A.] § 9545(b)(3). The PCRA's timeliness requirements are jurisdictional; therefore, a court may not address the merits of the issues raised if the petition was not timely filed. The timeliness requirements apply to all PCRA petitions, regardless of the nature of the individual claims raised therein. The PCRA squarely places upon the petitioner the burden of proving an untimely petition fits within one of the three exceptions[.]Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations and footnote omitted).
Here, Appellant's judgment of sentence became final on February 7, 2007, at the expiration of the 90-day appeal period for filing a writ of certiorari with the United States Supreme Court. See U.S.Sup.Ct.R. 13 (allowing 90 days to file petition for writ of certiorari); 42 Pa.C.S.A. § 9545(b)(3). Therefore, he had one year from that date (or, February 7, 2008) to file a petition for collateral relief unless he pleaded and proved that a timing exception applied. See 42 Pa.C.S.A. § 9545(b)(1). Hence, Appellant's current petition, filed on June 12, 2020, is untimely on its face and we may only review its merits if he pleads and proves one of the statutory exceptions to the time-bar.
The three statutory exceptions to the timeliness provisions in the PCRA recognize very limited circumstances under which the late filing of a petition will be excused. [See] 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a petition must allege and the petitioner must prove:
(i) the failure to raise a claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or the law of this Commonwealth or the Constitution or law 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 Pennsylvania after the time period provide[d] in this section and has been held by that court to apply retroactively.
We emphasize that it is the petitioner who bears the burden to allege and prove that one of the timeliness exceptions applies.Whitehawk, supra at 269-70 (case citation and quotation marks omitted).
Further, "[i]f the petition is determined to be untimely, and no exception has been pled and proven, the petition must be dismissed without a hearing because Pennsylvania courts are without jurisdiction to consider the merits of the petition." Commonwealth v. Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012) (citation omitted). Also, a PCRA petition invoking one of these statutory exceptions must "be filed within one year of the date the claim could have been presented." 42 Pa.C.S.A. § 9545(b)(2).
Because Appellant's petition was patently untimely, and because he failed to address the timeliness of his petition, let alone plead and prove the applicability of a timeliness exception, we conclude that the PCRA court properly dismissed his petition without a hearing since the court lacked jurisdiction to consider the substance of Appellant's claims.
Order affirmed.
Judgment Entered.
[*] Retired Senior Judge assigned to the Superior Court.