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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TAHREEL MALEEK TOWNSEND
Appellant No. 2112 EDA 2014
Appeal from the PCRA Order of July 1, 2014
In the Court of Common Pleas of Lehigh County
Criminal Division at No.: CP-39-CR-0003136-2008
BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY WECHT, J.: FILED FEBRUARY 20, 2015
Tahreel Maleek Townsend appeals the July 1, 20141 order that
dismissed his pro se petition for relief pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.
The PCRA court provided the following history of this case:
On October 1, 2009, following a jury trial that was conducted
from September 28, 2009, through October 1, 2009, [Townsend]
was found guilty of Murder of the First Degree[, 18 Pa.C.S.A.
§ 2502(a),] and Criminal Conspiracy to Commit Criminal
Homicide[, 18 Pa.C.S.A. § 903(a)(1).] Thereafter, on October
30, 2009, [Townsend] was sentenced to a term of life
imprisonment in a state correctional institution on the charge of
Murder of the First Degree. On the same date, [Townsend] was
sentenced to a term of imprisonment of not less than ten (10)
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1
Although the order was dated June 26, 2014, it was not filed and
docketed until July 1, 2014. We have amended the appeal paragraph
accordingly.
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years nor more than twenty (20) years on the charge of Criminal
Conspiracy to Commit Criminal Homicide. This sentence was
ordered to run consecutively to the sentence[] imposed on the
charge of Murder of the First Degree. Subsequently, on
November 19, 2009, [Townsend] filed a notice of Appeal with
the Superior Court of Pennsylvania. By Order dated August 11,
2011, the Superior Court of Pennsylvania affirmed this Court’s
judgment of sentence. Then, on or about September 12, 2011,
[Townsend] filed a Petition for Allowance of Appeal. On March
15, 2012, the Supreme Court of Pennsylvania denied
[Townsend’s] petition. Subsequently, [Townsend] filed a timely
pro se Motion for Post Conviction Collateral Relief.
Consequently, on June 25, 2012, [the PCRA court] appointed
Robert Long, Esquire, to represent [Townsend] on his Motion for
Post Conviction Collateral Relief. On July 27, 2012 and October
11, 2012, Attorney Long filed an Amended Petition for Post
Conviction Collateral Relief and a Second Amended Petition for
Post Conviction Collateral Relief, respectively. An evidentiary
hearing relative to [Townsend’s] motion was conducted before
[the PCRA court] on October 18, 2012. On November 9, 2012,
[the PCRA court] denied [Townsend’s] Motion for Post Conviction
Collateral relief.[2] Then, on May 27, 2014, [Townsend] filed a
second Motion for Post Conviction Collateral Relief. . . .
PCRA Court Opinion , 8/4/2014, at 1-2 (footnotes omitted).
On June 2, 2014, the PCRA court filed and served a notice of intent to
dismiss Townsend’s second PCRA petition pursuant to Pa.R.Crim.P. 907. The
basis for the notice was that Townsend’s petition was untimely. Townsend
filed a response in which he asserted that he had invoked the newly-
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2
On November 29, 2012, Townsend appealed the denial of his PCRA
petition to this Court. On September 25, 2013, we affirmed the PCRA court.
Commonwealth v. Townsend, 3271 EDA 2012 (Pa. Super. September 25,
2013) (unpublished memorandum). On October 23, 2013, Townsend filed a
petition for allowance of appeal with the Pennsylvania Supreme Court. On
March 25, 2014, it was denied. Commonwealth v. Townsend, 87 A.3d
816 (Pa. 2014).
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discovered fact exception to the PCRA time bar. On July 1, 2014, the PCRA
court dismissed Townsend’s petition.
On July 14, 2014, Townsend filed a notice of appeal. On July 18,
2014, the PCRA court ordered Townsend to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). On July 30, 2014,
Townsend timely complied. On August 4, 2014, the PCRA court issued its
Pa.R.A.P. 1925(a) opinion, which incorporated the rationale set forth in its
June 2, 2014 Rule 907 notice.
Townsend raises the following issues for our review:
1. Whether counsel provided ineffective assistance of counsel by
filing a defective P.C.R.A. Brief which did not support or
substantiate the legal claims in which [Townsend] sought
relief on as well as the raising of ineffective assistance of
counsel which is guaranteed by the U.S. Const. and the 6 th
Amend. and Art. 1 Sec. 9 of the Pa Const.
2. Whether trial counsel provided [Townsend] ineffective
assistance of counsel during trial and at sentencing.
3. Whether [the] sentencing court erred when it sentenced
[Townsend] to an illegal sentence of life in prison without
parole under 42 Pa.C.S. sec. 9715 without any statutory
authorization to impose and add a sentence condition which
was illegal.
4. Whether [the] trial court violated [Townsend’s] procedural
and substantive due process violation [sic] when it failed to
follow the mandated rules and provisions of 42 Pa.C.S. sec.
9715(B), 42 Pa.C.S. sec. 9711, 42 Pa.C.S. sec. 9721(A), 18
Pa.C.S. sec. 1102(a) and Pa.R.Crim.P. rule 802 and
Pa.R.Crim.P. rule 808.
5. Whether [the] trial court erred when it sentenced [Townsend]
to an illegal sentence of life imprisonment which is to be
illegally carried out immediately in the state corr. without a
signed notarized authenticated or even an “existing”
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sentencing order specifying the sentence imposed pursuant to
42 Pa.C.S. sec. 9764.
6. Whether trial counsel was ineffective for giving erroneous
advice to withdraw [a plea to] 3rd degree murder because
he’d guaranteed and assure [Townsend’s] freedom but
instead [Townsend] ended up getting a life sentence plus 10-
20 yrs.
7. Whether [Townsend] had raised and established a clear cut
case of manifest injustice when here he shows he’d invoked
the exception and met all of the requirements that were
needed to invoke the exception to the timeliness rule under
Pa.R.A.P. 720(C) after discovered evidence where he showed
and has presented abundance of facts and evidence pursuant
to the Lehigh County own clerk’s admission that the
documents requested “does not even exist” as mandated
triggering the provision of 42 Pa.C.S. 9545(B)(1)(ii) which
were indeed unknown to him during sentencing.
Townsend’s Brief at 12 (minor modification to capitalization, spelling, and
punctuation for clarity).
Before reaching the merits of Townsend’s appeal, we must ensure that
we have jurisdiction.
The filing mandates of the PCRA are jurisdictional in nature and
are strictly construed. Commonwealth v. Stokes, 959 A.2d
306, 309 (Pa. 2008). The question of whether a petition is
timely raises a question of law. See Commonwealth v. Fahy,
959 A.2d 312, 316 (Pa. 2008). Where the petitioner raises
questions of law, our standard of review is de novo and our
scope of review plenary. Commonwealth v. Colavita, 993
A.2d 874, 886 (Pa. 2010). An untimely petition renders this
Court without jurisdiction to afford relief. Commonwealth v.
Gandy, 38 A.3d 899 (Pa. Super. 2012).
Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citations
modified).
To be filed timely, a petition must comply with the following criteria:
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(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, 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.
(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.
(3) For purposes of this subchapter, a judgment 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.A. § 9545.
On direct appeal, the Pennsylvania Supreme Court denied Townsend’s
petition for allowance of appeal on March 15, 2012. He did not seek review
in the United States Supreme Court. Therefore, his judgment of sentence
became final on June 13, 2012 when time to seek such review expired.
Thus, he had until on or about June 13, 2013 to file a timely PCRA petition.
Townsend filed his second PCRA petition on May 27, 2014 and, therefore, it
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is facially untimely. To invoke the PCRA court’s and our jurisdiction,
Townsend must plead and prove one of the exceptions to the time bar
enumerated in section 9545(b). See Commonwealth v. Cintora, 69 A.3d
759, 763 (Pa. Super. 2013).
Townsend argues that he has satisfied the newly-discovered fact
exception pursuant to section 9545(b)(1)(ii). Townsend asserts that,
sometime after March 25, 2014, he discovered that no signed sentencing
order existed in his case. Townsend also asserts that he could not have
discovered this fact earlier and that he filed his petition within sixty days of
learning that there was no signed sentencing order.
First, Townsend is factually mistaken that there are no signed
sentencing orders in the record. The certified record contains two signed
and dated sentencing sheets3 reflecting Townsend’s sentence.4 Further, the
sentence was pronounced in open court. Notes of Testimony, 10/30/2009,
at 20-21. The docket reflects the same sentence. There is no question that
Townsend was sentenced, even if no order existed. See Joseph v. Glunt,
96 A.3d 365, 372 (Pa. Super. 2014) (finding sufficient authority to maintain
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3
Although titled a sentencing sheet, the documents have all the
hallmarks of an order. Each lists a charge for which Townsend was convicted
and his related sentence. They are dated and bear the signature of the
presiding judge. They are also docketed as sentencing orders.
4
While the documents appear to be photocopies, each is signed and
stamped by the clerk of judicial records, attesting that it is a true and
correct copy of the original.
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a prisoner’s detention, even in the absence of a sentencing order, when
docket and sentencing transcript reflect sentence).
Further, our Supreme Court has held that, “for purposes of 42 Pa.C.S.
§ 9545(b)(1)(ii), information is not ‘unknown’ to a PCRA petitioner when the
information was a matter of public record.” Commonwealth v. Chester,
895 A.2d 520, 523 (Pa. 2006). The record in Townsend’s case is a public
record and is available for inspection. He could have discovered at any time
that the sentencing sheets were in the record along with the docket and
transcript that reflect his sentence.
To meet this exception, the newly-discovered fact could not have been
discoverable earlier through the exercise of due diligence. See 42 Pa.C.S.A.
§ 9545(b)(1)(ii). Townsend contends that he did not became aware of the
lack of sentencing order until he received a copy of his sentencing sheet with
a post-it stating that there was no sentencing order. Townsend does not
explain why he could not have discovered this alleged flaw prior to his
current PCRA petition.
Finally, Townsend has the burden to demonstrate that he filed his
claim within sixty days of its discovery. See 42 Pa.C.S.A. § 9545(b)(2).
Townsend baldly asserts that he filed his PCRA petition within sixty days of
the receipt of his sentencing sheet, but he does not provide any information
about the date of receipt or proof, such as a copy of the note or post-marked
envelope. Therefore, Townsend has not met his burden to prove that the
newly-discovered fact exception to the time bar applies. Thus, his PCRA
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petition was untimely and this Court is without jurisdiction to review its
merits.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/20/2015
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