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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
DARRYL PITTS, :
:
Appellant : No. 1895 EDA 2014
Appeal from the PCRA Order June 2, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-1206131-1997
CP-51-CR-1206141-1997
BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED FEBRUARY 25, 2015
Appellant, Darryl Pitts, appeals pro se from the order entered in the
Philadelphia County Court of Common Pleas, dismissing his “Motion to
Vacate Illegal Sentences” as an untimely second Post Conviction Relief Act 1
(“PCRA”) petition. Appellant contends the PCRA court erred: (1) in
dismissing his motion to vacate his illegal sentences; (2) in denying him due
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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process; and (3) in converting his motion to vacate illegal sentences to a
PCRA petition.2 We affirm and deny Appellant’s motion for sanctions.
The PCRA court summarized the facts and procedural history of this
case:
On June 16, 1999, following a three-day trial, a jury
found [Appellant] guilty of two counts of burglary, two
counts of theft by unlawful taking, and one count of
robbery. Sentencing having been deferred, this court
sentenced [Appellant] to an aggregate term of
incarceration of forty to eighty years on October 22, 1999.
Shortly thereafter, on October 27, 1999, the original
sentences were vacated and [he] was sentenced to an
aggregate term of thirty to sixty years. This sentencing
was affirmed on direct appeal by the Superior Court on
November 6, 2000. [Commonwealth v. Pitts, 71 EDA
2000 (unpublished memorandum) (Pa. Super. Nov. 6,
2000).] [Appellant’s] petition for allowance of appeal was
denied by our Supreme Court on April 16, 2001.
[Commonwealth v. Pitts, 746 EAL 2000] (Pa. 2001).
On May 30, 2001, [Appellant] filed a timely pro se
[PCRA petition]. As it was [his] first PCRA petition,
counsel was appointed. After reviewing the petition,
counsel concluded the petition was wholly frivolous.
Accordingly, counsel filed a “no merit” letter pursuant to
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. [ ]
1988) asking to be permitted to withdraw his
representation of [Appellant]. Following an independent
review, this court agreed with counsel and on December
17, 2002, notified [Appellant] of its intent to dismiss his
petition. On January 28, 2002, counsel was permitted to
withdraw and [Appellant’s] PCRA petition was dismissed as
meritless.
Subsequent to the dismissal, [Appellant] filed an
appeal. Thereafter, the Superior Court remanded the
2
The Commonwealth did not file a brief. Appellant filed a “Motion for
Sanction on Appellee’s” for failure to file a brief.
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matter finding counsel’s Finley letter did not sufficiently
address all of the issues [Appellant] wished to raise.
Those issues where whether trial counsel had picked a
biased jury and whether [Appellant’s] subsequent
attorneys had been ineffective for not raising that claim.
Shortly after remand, new counsel was appointed and filed
an amended PCRA petition addressing [Appellant’s] issues
concerning jury bias.
On April 7, 2004, after an independent review of the
record, this court notified [Appellant] of its intent to
dismiss the amended petition and on May 7, 2004,
dismissed the petition. On June 4, 2004, [Appellant]
appealed the dismissal of his amended PCRA petition. On
August 25, 2005, the dismissal was affirmed by the
Superior Court in a published opinion. [Commonwealth]
v. Pitts, 884 A.2d 251 (Pa. Super. [ ] 2005). On May 31,
2006, [Appellant’s] petition for allowance of appeal to our
Supreme Court was denied. [Commonwealth] v. Pitts,
[681 EAL 2005] (Pa. 2006).
On June 11, 2013, [Appellant] filed the instant pro se
PCRA petition styled as a “Motion to Vacate Illegal
Sentences.” . . .
* * *
By order dated June 2, 2014, this court dismissed the
instant PCRA petition as untimely. . . .
PCRA Ct. Op., 7/28/14, at 1-3, 4 (footnote omitted).3
3
We note that Appellant has attached a “Motion to Set Aside Unlawful
Sentence” as an exhibit to his brief. This motion is not part of the certified
record on appeal. This Court in Parr v. Ford Motor Co., ___ A.3d ___,
2014 WL 7243152 (Pa. Super. 2014) stated:
The fundamental tool for appellate review is the official
record of the events that occurred in the trial court. To
ensure that an appellate court has the necessary records,
the Pennsylvania Rules of Appellate Procedure provide for
the transmission of a certified record from the trial court to
the appellate court. The law of Pennsylvania is well settled
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This timely appeal followed. Appellant was not ordered to filed a
Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The PCRA
court filed a Pa.R.A.P. 1925(a) opinion.
Appellant raises the following issues for our review:
I: Did the lower court err in dismissing the motion to
correct illegal sentence, under the standards pursuant to
42 Pa.C.S.A. § 9545[?]
II. Did the lower court deny the Appellant due process
under Pennsylvania Constitution at Article 1 Section 9 as
well as the United States Constitution at the Fourteenth
Amendment[?]
III. Did the lower court err when motion to set aside
unlawful sentence/motion to vacate illegal sentence were
converted to a PCRA petition[?]
Appellant’s Brief at v.
As a prefatory matter, we consider whether the PCRA court erred in
considering Appellant’s Motion to Vacate Illegal Sentences as a PCRA
that matters which are not of record cannot be considered
on appeal. Thus, an appellate court is limited to
considering only the materials in the certified record when
resolving an issue. In this regard, our law is the same in
both the civil and criminal context because, under the
Pennsylvania Rules of Appellate Procedure, any document
which is not part of the officially certified record is deemed
non-existent-a deficiency which cannot be remedied
merely by including copies of the missing documents in a
brief or in the reproduced record.
Id. at ___, 2014 WL 7243152 at *25 n.10 (citing Commonwealth v.
Preston, 904 A.2d 1, 6-8 (Pa. Super. 2006) (en banc) (citations omitted).
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petition. In Commonwealth v. Jackson, 30 A.3d 516 (Pa. Super. 2011),
this Court stated:
[The appellant’s] “motion to correct illegal
sentence” is a petition for relief under the PCRA. . . .
“We have repeatedly held that . . . any petition filed
after the judgment of sentence becomes final will be
treated as a PCRA petition.” Commonwealth v.
Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002). That
[the appellant] has attempted to frame his petition as a
“motion to correct illegal sentence” does not change the
applicability of the PCRA. See Commonwealth v.
Guthrie, 749 A.2d 502, 503 (Pa. Super. 2000) (appellant’s
“motion to correct illegal sentence” must be treated as
PCRA petition).
We base this conclusion on the plain language of the
PCRA, which states that “[the PCRA] provides for an action
by which . . . persons serving illegal sentences may obtain
collateral relief.” 42 Pa.C.S.A. § 9542; see
Commonwealth v. Hockenberry, [ ] 689 A.2d 283, 288
(1997) (legality of sentence is cognizable issue under
PCRA). Further, the Act provides that “[t]he [PCRA] shall
be the sole means of obtaining collateral relief and
encompasses all other common law and statutory
remedies for the same purpose. . . .” 42 Pa.C.S.A. §
9542; see Commonwealth v. Ahlborn, 699 A.2d 718,
721 ([Pa.] 1997) (petition filed under the PCRA cannot be
treated as a request for relief under the common law);
Commonwealth v. Peterkin, [ ] 722 A.2d 638, 640–41
(Pa. 1998) (statutory remedy not available where claim is
cognizable under PCRA). Therefore, [the appellant’s]
“motion to correct illegal sentence” is a PCRA
petition and cannot be considered under any other
common law remedy.
Because [the appellant’s] claim is cognizable
under the PCRA, [he] must comply with the time
requirements of section 9545. . . .
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Id. at 521-22 (emphases added). Therefore, the PCRA court did not err in
treating Appellant’s motion to vacate illegal sentences as a PCRA petition.
See id.
Before examining the merits of Appellant’s claims, we also consider
whether the PCRA court had jurisdiction to entertain the underlying PCRA
petition. See id. On appellate review of a PCRA ruling, “we determine
whether the PCRA court’s ruling is supported by the record and free of legal
error.” Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008).
We . . . turn to the time limits imposed by the PCRA,
as they implicate our jurisdiction to address any and all of
[an a]ppellant’s claims. To be timely, a PCRA petition
must be filed within one year of the date that the
petitioner’s judgment of sentence became final, unless the
petition alleges and the petitioner proves one or more of
the following statutory exceptions:
(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. § 9545(b)(1).
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We emphasize that it is the petitioner who bears the
burden to allege and prove that one of the timeliness
exceptions applies. In addition, a petition invoking any
of the timeliness exceptions must be filed within 60
days of the date the claim first could have been
presented. 42 Pa.C.S. § 9545(b)(2). A petitioner fails to
satisfy the 60–day requirement of Section 9545(b) if he or
she fails to explain why, with the exercise of due diligence,
the claim could not have been filed earlier.
Id. at 719-20 (emphases added) (some citations omitted).
Appellant’s judgment of sentence became final on July 16, 2001,
ninety days after the Pennsylvania Supreme Court denied his petition for
allowance of appeal. See 42 Pa.C.S. § 9545(b)(3) (providing “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[ ]”).
Appellant generally had until July 16, 2002, to file his PCRA petition. See 42
Pa.C.S. § 9545(b)(1) (providing PCRA petition must be filed within one year
of date judgment becomes final). Therefore, because he filed his PCRA
petition on June 11, 2013, his petition is patently untimely.
Appellant did not plead and prove any exception to the PCRA’s
timeliness requirement. See Marshall, 947 A.2d at 719-20. Thus, the
PCRA court did not err in dismissing his PCRA petition as untimely. See id.
Order affirmed. Motion for Sanction on Appellee’s denied.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/25/2015
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