J-S21003-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
IVES ARTIS,
Appellant No. 1939 EDA 2014
Appeal from the PCRA Order May 23, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1300162-2006, CP-51-CR-1300163-
2006
BEFORE: BOWES, JENKINS, and PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED APRIL 10, 2015
Ives Artis appeals from the order entered May 23, 2014, denying his
serial post-conviction relief petition filed pursuant to the Post-Conviction
Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, as untimely. We affirm.
Appellant pled guilty to third-degree murder, robbery, and two firearm
violations on September 10, 2007, and was sentenced that same day. The
facts giving rise to the charges involved the July 17, 2006 shooting of Leis
Desir at 2:43 a.m. while he was fueling his cab at a gas station. The
following morning, at approximately 1:54 a.m., Philadelphia Police Officer
Michael Bolli saw Appellant asleep in the passenger seat of an illegally
parked vehicle. There was a gun inside of a shoe on the floor of the vehicle
beside Appellant. Appellant attempted to flee, but was arrested.
*
Retired Senior Judge assigned to the Superior Court.
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Appellant waived his Miranda rights and admitted that he had
demanded the victim give him his money. He continued that the victim
refused and sprayed him with gasoline. Appellant then removed a gun from
his pocket and fired a single shot, hitting the victim in the head. Ballistics
evidence concluded that bullet fragments from the victim’s head were fired
from the weapon located in Appellant’s shoe.
Pursuant to the plea agreement, the court sentenced Appellant to
thirty-five to seventy years imprisonment. Specifically, the court sentenced
Appellant to twenty to forty years incarceration for the murder charge, ten
to twenty years for the robbery count, and two and one-half to five years
each for the firearms violations. Appellant did not appeal; however, on
September 15, 2008, he filed a timely pro se PCRA petition. The court
appointed counsel, who filed an amended petition. The PCRA court denied
that petition. Appellant appealed, and counsel filed a Turner/Finley no-
merit brief and motion to withdraw on appeal. This Court affirmed and
permitted counsel to withdraw. Commonwealth v. Artis, 30 A.3d 551
(Pa.Super. 2011) (unpublished memorandum).
Thereafter, Appellant filed the underlying serial PCRA petition on
October 9, 2013. The court issued a Pa.R.Crim.P. 907 notice of dismissal on
May 1, 2014, and filed its final order denying Appellant’s petition on May 23,
2014. This timely appeal ensued. The PCRA court authored an opinion,
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indicating that Appellant’s petition was untimely and that he did not
establish a timeliness exception. Appellant raises six issues for our review.
1. Whether the [c]ourt below erred in dismissing Post-
Conviction Relief Act Petition (PCRA) as being un-timely filed?
2. Whether the sentencing [c]ourt erred in sentencing the
petitioner in violation of his right to due process by not
conducting a pre-sentencing report investigation and factoring
[m]ental [h]ealth issues into mitigation process?
3. Whether sentencing counsel was ineffective for failing to
conduct any investigation during mitigation phase?
4. Whether the [c]ourt below erred in [d]ismissing petitioner[’s]
Post Conviction [R]elief Act petition (PCRA) for “[n]ewly
[d]iscovered” evidence as untimely?
5. Whether [the] [s]entencing [c]ourt and [s]entencing counsel
erred/ineffective in forcing the petitioner to accept/take a
guilty plea under false pretenses that he was facing the
[d]eath penalty, [f]irst degree, and second [d]egree, when
the [d]ocket records clearly show the petitioner was only held
for trail [sic] for 3rd [d]egree [m]urder?
6. Whether the claim of [a]ctual innocence, [sic] should allow
the court to hear petitioner’s [p]etition?
Appellant’s brief at unnumbered page 8.
Preliminarily, we address the timeliness of Appellant’s petition as it
implicates our jurisdiction. Commonwealth v. Taylor, 67 A.3d 1245, 1248
(Pa. 2013). A petitioner has one year from the finality of his judgment of
sentence to file a timely PCRA petition. 42 Pa.C.S. § 9545(b)(1). Judgment
of sentence is final upon the completion of direct review. 42 Pa.C.S. §
9545(b)(3). Since Appellant did not file a direct appeal, his judgment of
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sentence was final thirty days from his sentencing, which was October 10,
2007. Appellant filed the instant petition on October 9, 2013. Thus, the
petition was facially untimely.
Here, Appellant could only file a timely petition by asserting one of
three timeliness exceptions. Those exceptions include interference by
government officials, newly-discovered facts that were unknown to the
petitioner and which could not have been ascertained with due diligence, or
a new constitutional right held to apply retroactively. 42 Pa.C.S. §§
9545(b)(1)(i)-(iii). Any claim arguing an exception to the time-bar must be
filed within sixty days of the date it could have been first presented. 42
Pa.C.S. § 9545(b)(2).
Appellant’s brief is largely incomprehensible, but it appears that he is
maintaining that he discovered his own mental health records and filed his
petition within sixty days of that discovery. The mental health records
attached to Appellant’s petition were a letter from a healthcare provider
indicating that he had attention deficit disorder and a personality disorder in
1997-1998. Since Appellant’s mental health records were available at the
time of his plea, he cannot show that he exercised due diligence in
discovering his own medical records approximately six years after he
entered his plea. Appellant’s claim is patently meritless. The PCRA court
correctly determined that Appellant’s petition was untimely.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/10/2015
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