J-S46028-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DARRYL LANGERSTON
Appellant No. 108 EDA 2016
Appeal from the PCRA Order December 15, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0002149-2006
BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED JULY 06, 2016
Darryl Langerston appeals, pro se, from the order entered December
15, 2015, in the Court of Common Pleas of Montgomery County, denying, as
untimely filed, his sixth petition filed pursuant to the Pennsylvania Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Langerston seeks
relief from the judgment of sentence of a term of 20 to 40 years’
imprisonment imposed on November 14, 2006, following his convictions of
third-degree murder and possessing an instrument of a crime.1 On appeal,
Langerston argues: (1) the PCRA court erred in dismissing his petition as
untimely filed when he demonstrated the facts supporting his claim were
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
See 18 Pa.C.S. §§ 2502(c) and 907(a), respectively.
J-S46028-16
unknown to him until recently; (2) trial counsel was ineffective for failing to
challenge a sentence outside the sentencing guideline range and failing to
challenge inadmissible hearsay evidence; and (3) the trial court had no
jurisdiction because the criminal statutes he was convicted under are
unconstitutional. See Langerston’s Brief at ii. Based upon the following, we
affirm.
The PCRA court aptly summarized the facts and procedural history
underlying this appeal and we adopt the PCRA court’s summary of the
background of this case.2 See PCRA Court Opinion, 2/16/2016 at 2-4.
As noted above, the PCRA court concluded Langerston’s petition was
untimely filed. “The PCRA timeliness requirement … is mandatory and
jurisdictional in nature.” Commonwealth v. Taylor, 67 A.3d 1245, 1248
(Pa. 2014) (citation omitted), cert. denied, Taylor v. Pennsylvania, 134
S.Ct. 2695 (2014). Therefore, we must determine the timeliness of the
petition before reviewing Langerston’s substantive claims. Id. Generally, all
PCRA petitions must be filed within one year of the date the judgment of
sentence becomes final, unless the petition alleges, and the petitioner
proves, that one of the three enumerated exceptions to the time for filing
____________________________________________
2
On January 6, 2016, the PCRA court ordered Langerston to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Langerston complied with the PCRA court’s directive, and filed a concise
statement on January 22, 2016.
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requirement is met. See 42 Pa.C.S. § 9545(b)(1). The PCRA exceptions
that allow for review of an untimely petition are as follows: (1)
governmental interference; (2) the discovery of previously known facts; and
(3) a newly recognized constitutional right. See 42 Pa.C.S. §9545(b)(1)(i)-
(iii).
Our review of the record confirms that the PCRA court properly
determined Langerston’s petition, filed December 9, 2015, was untimely,
and that Langerston failed to prove the “unknown facts” exception to the
PCRA’s one year time bar. See PCRA Court Opinion, 2/16/2016 at 6-10
(finding: Langerston conceded petition was untimely; the information
contained in the recently acquired Sentencing Guideline form was not “new,”
as it was available at the time of his sentencing hearing; “[t]he Sentencing
Guideline form is nothing but a new source of information that Langerston
heard first hand at his sentencing hearing[;]” and in any event, Langerston
did not demonstrate the form could not have been acquired sooner had he
exercised due diligence). Therefore, we adopt the discussion of the PCRA
court as dispositive of his first issue on appeal.
With regard to his remaining claims, we note that they are substantive
challenges to either trial counsel’s stewardship or the jurisdiction of the trial
court. See Langerston’s Brief at ii. However, it is well established that
“[t]he 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.” Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. Super. 2012)
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(citation omitted). Accordingly, we are precluding from addressing the
remaining claims on appeal.3
Order affirmed.4
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2016
____________________________________________
3
We note Langerston does not argue that any of the statutory exceptions to
the one-year time bar applies to his claims that counsel failed to challenge
hearsay evidence and that the criminal statutes he was convicted under are
unconstitutional. Moreover, Langerston’s challenge regarding purported
hearsay evidence was rejected in his first PCRA petition. See
Commonwealth v. Langerston, 981 A.2d 315 (Pa. Super. 2009)
(unpublished memorandum). Accordingly, even if his petition was timely
filed, that particular claim would be unreviewable as previously litigated.
See 42 Pa.C.S. § 9543(a)(3) (petitioner only eligible for PCRA relief if the
allegation of error has not been previously litigated or waived).
4
In the event of further proceedings, the parties are directed to attach the
PCRA court’s February 16, 2016 opinion to this memorandum.
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Circulated 06/22/2016 02:30 PM
...
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA CP-46-CR-OOO 214 9-2 006
V.
DARRYL LANGERSTON 108 EDA 2016
OPINION
CARPENTER J. FEBRUARY 16, 2016
FACTUAL AND PROCEDURALHISTORY
Appellant, Darryl Langerston ("Langerston"), appeals from a final
order of dismissal dated December 15, 2015, dismissing his untimely sixth pro
se petition, seeking post-conviction relief pursuant to the Post-Conviction Relief
Act ("PCRA"), 42 Pa.CS.A. §§9541-9546. While Langerston acknowledged the
facially untimeliness of his most recent PCRA petition, Langerston attempted to
invoke the newly-discovered facts exception at Section 9545(b)(l)(ii), arguing
that he exercised due diligence in requesting a copy of the Pennsylvania
Commission on Sentencing Guideline Sentence Form from the Montgomery·
County Clerk of Courts on September 16, 2015 at which time he realized he was
sentenced to "a sentence greater than the lawful maximum for a standard range
sentence." See, PCRA petition 11/12/15, p. II. However, this Court determined
that Langerston could not establish that the facts upon which his claim was
predicated were unknown to him and that they could not have been ascertained
r
by the exercise of due diligence. Therefore, this Court concluded that the newly-
discovered facts exception was unavailable to Langerston. Accordingly, the
underlying merits of this untimely fifth PCRA petition were not reviewed based
upon this Court's lack of jurisdiction.
By way of a brief background, on August 23, 2006, a jury convicted
Appellant of third degree murder and possession of an instrument of crime for
the February 7, 2006, stabbing death of Roderick Jackson. On November 14,
2006, Appellant was sentenced to a term of 20 to 40 years' imprisonment. A
timely direct appeal was not filed; however, Langerston's direct appeal rights
were reinstated and a nunc pro tune direct appeal was filed. On November 26,
2007, the Pennsylvania Superior Court affirmed Langerston's judgment of
sentence.
On March 24, 2008, Langerston filed a timely first PCRA petition.
Counsel was appointed, and finding no meritorious issues to pursue, counsel
filed a no-merit letter. After proper notice pursuant to Pa.R.Crim.P. 907, a final
order dismissing Langerston's PCRA petition was issued on July 10, 2008.
Langerston appealed. On June 16, 2009, the Pennsylvania Superior Court
affirmed the dismissal and the Pennsylvania Supreme Court denied
Langerston's petition for allowance of appeal.
On February 8, 2010, Langerston filed an untimely second PCRA
petition. He filed a response to the pre-dismissal notice styled as a writ of
habeas corpus ad subjiciendum. On May 20, 2010, the writ of habeas corpus
was dismissed. On June 2, 2010, the untimely second PCRA petition was also
2
,.
dismissed. Langerston appealed both orders, but later withdrew the appeal
from the denial of his habeas corpus petition. The Pennsylvania Superior Court
affirmed the dismissal of his second PCRA petition on February 25, 2011, and
subsequently the Pennsylvania Superior Court denied Langerston's petition for
allowance of appeal.
On October 28, 2011, Langerston filed an untimely third PCRA
petition, which was ultimately dismissed on January 11, 2012. The dismissal
was appealed, and on August 29,· 2012, the Pennsylvania Superior Court
affirmed the dismissal.
On March 6, 2013, Langerston filed an untimely fourth PCRA
petition. It was dismissed on April 1, 2013. Langerston did not appeal.
A fifth untimely PCRA petition was filed on October 8, 2014. It was
dismissed on November 10, 2014, after Langerston withdrew it.
Most recently on December 9, 2015, Langerston filed an untimely
sixth PCRA petition, which is currently at issue in this appeal. Therein,
Langerston acknowledged its untimeliness, but attempted to invoke the newly-
discovered facts exception at Section 9545(b)(l)(ii), arguing that he exercised
due diligence in requesting a copy of his Pennsylvania Commission on
Sentencing Guideline Sentence Form ("Sentencing Guideline form") from the
Montgomery County Clerk of Courts on September 16, 2015, at which time he
realized he was sentenced to "a sentence greater than the lawful maximum for
a standard range sentence." A more detailed understanding of his timeliness
exception claim comes from Langerston's attached memorandum of law and his
3
I
argument in support of his ineffectiveness of counsel claim where he explains
that the undersigned, as the sentencing judge, intended to only sentence him to
the standard range sentence but that the Commonwealth submitted an
erroneous Sentencing Guideline form which caused this Court to sentence him
to the statutory maximum and not the standard range. See. PCRA petition
12/9/15, attached Memorandum of Law, p. 1.
On November 19, 2015, this Court issued a pre-dismissal notice,
notifying Langerston of this Court's intention to dismiss his current PCRA
petition because it was untimely and no timeliness exceptions to applied and of
his right to respond to the notice. On December 9, 2015, Langerston did file a
response. He asserted in his response that the Sentencing Guideline form was
not a matter of record prior to his September 16, 2015, request, and that this
Court improperly determined that the newly discovered evidence exception did
not apply. No further explanation was provided. On December 15, 2015, this
Court issued a final dismissal order, dismissing Langerston's untimely sixth
PCRA petition. Langerston filed a timely appeal. This 1925(a) Opinion follows.
ISSUE
I. Whether this Court properly dismissed Langerston's fifth PCRA petition
as untimely. when he failed to prove that the timeliness exception at
Section 9545(b)(l)(ii), 42 Pa.CS.A. applied.
DISCUSSION
I. This Court properly dismissed langerston's second PCRA petition as
untimely, when he failed to prove that the timeliness exception at Section
9545(b)(l)(ii), 42 Pa.CS.A. applied.
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Our appellate court, when reviewing the propriety of an order
dismissing a PCRA petition on timeliness grounds, determines whether the
decision of the trial court is supported by the evidence of record and is free of
legal error. Commonwealth v. Williamson, 21 A.3d 236, 240 (Pa.Super. 2011).
The trial court's findings with regard to the timeliness of a PCRA petition will
not be disturbed unless there is no support for those findings in the certified
record. Id.
The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Robinson, 12 A.3d 477, 479 (Pa.Super. 2011). "Jurisdictional
time limits go to a court's right or competency to adjudicate a controversy." Id.
(quoting Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)). "If 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. Jackson, 30 A.3d 516, 519 (Pa.Super. 2011)
(quoting Commonwealth v. Perrin, 947 A.2d 1284, 1285 (Pa.Super. 2008))
Any PCRA petition, including a second and subsequent one, must
be filed within one year of the date the judgment of sentence becomes final. 42
Pa.C.S.A. §9545(b)(l). A judgment of sentence becomes final at the conclusion
of direct review, or when the time for seeking such review expires. 42 Pa.C.S.A.
§9545(b)(3).
There are three statutory exceptions to the timeliness requirements
of the PCRA, which provide very limited circumstances to excuse the late filing
5
.,
of a petition. To invoke an exception, a petition must allege and the petitioner
must prove that (1) the failure to raise the claim earlier was due to the
interference of government officials; (2) the claim is predicated on facts that
were unknown to the petitioner and could not have been discovered with due
diligence or (3) the right asserted was recognized by the United States Supreme
Court or the Pennsylvania Supreme Court as a constitutional right after the
petitioner's case was decided and the right has been upheld to apply
retroactively. 42 Pa.CS.A. §9545(b)(l)(i)-(iii). A petition alleging one of these
exceptions must be filed within sixty days of the date that the claim could have
been presented. 42 Pa.CS.A. §9545(b)(2). The 60-day rule requires a petitioner
to plead and prove that the information on which he relies could not have been
obtained earlier, despite the exercise of due diligence. Commonwealth v.
Marshall, 596 Pa. 587, 947 A.2d 714, 720 (2008). "As such, when a PCRA
petition is not filed within one year of the expiration of direct review, or not
eligible for one of the three limited exceptions, or entitled to one of the
exceptions, but not filed within 60 days of the date that the claim could have
been first brought, the trial court has no power to address the substantive
merits of a petitioner's PCRA claims." Commonwealth v. Robinson, 12 A.3d 477,
4 79 (Pa.Super. 2011) (quoting Commonwealth v. Gamboa-Taylor, 753 A.2d 780,
783 (Pa. 2000)).
In this case, Langerston conceded that his current PCRApetition is
facially untimely. This is not at issue. Rather, at issue is whether the Sentencing
Guideline form can avail him of the newly-discovered facts exception.
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·1
The exception at Section 9545(b)(l)(ii) has been explained in
Commonwealth v. Brown, 111 A.3d 171 (Pa.Super. 2015) in detail as follows:
The timeliness exception set forth in Section
9545(b)(l)(ii) requires a petitioner to demonstrate he
did not know the facts upon which he based his
petition and could not have learned those facts earlier
by the exercise of due diligence. Commonwealth v.
Bennett, 593 Pa. 382, 395, 930 A.2d 1264, 1271 (2007).
Due diligence demands that the petitioner take
reasonable steps to protecthis own interests.
Commonwealth v. Carr, 768 A.2d 1164, 1168
(Pa.Super.2001). A petitioner must explain why he
could not have learned the new fact(s) earlier with the
exercise of due diligence. Commonwealth v. Break.iron,
566 Pa. 323, 330-31, 781 A.2d 94, 98 (2001);
Commonwealth v. Monaco, 996 A.2d 1076, 1080
(Pa.Super.2010). This rule is strictly enforced. Id.
Additionally, the focus of this exception "is on the
newly discovered facts, not on a newly discovered or
newly willing source for previously known facts."
Commonwealth v. Marshall, 596 Pa. 587, 596, 947 A.2d
714, 720 (2008) (emphasis in original).
The timeliness exception set forth at Section
9545(b)(l)(ii) has often mistakenly been referred to as
the "after-discovered evidence" exception. Bennett,
supra at 393, 930 A.2d at 1270. "This shorthand
reference was a misnomer, since the plain language of
subsection (b)(l)(ii) does not require the petitioner to
allege and prove a claim of 'after-discovered
evidence."' Id. Rather, as an initial jurisdictional
threshold, Section 9545(b)(l)(ii) requires a petitioner to
allege and prove that there were facts unknown to him
and that he exercised due diligence in discovering
those facts. See42 Pa.C.S.A. § 9545(b)(l)(ii); Bennett,
supra. Once jurisdiction is established, a PCRA
petitioner can present a substantive after-discovered-
evidence claim. See42 Pa.C.S.A. § 9543(a)(2)(vi)
(explaining that to be eligible for relief under PCRA,
petitioner must plead and prove by preponderance of
evidence that conviction or sentence resulted from,
inter alia, unavailability at time of trial of exculpatory
7
...
evidence that has subsequently become available and
would have changed outcome of trial if it had been
introduced). In other words, the "new facts" exception
at::
[S]ubsection (b)(l)(ii) has two components, which must
be alleged and proved. Namely, the petitioner must
establish that: 1) the facts upon which the claim was
predicated were unknown and 2) could not have been
ascertained by the exercise of due diligence. If the
petitioner alleges and proves these two components,
then the PCRA court has jurisdiction over the claim
under this subsection.
Thus, the "new facts" exception at Section 9545(b)(l)(ii)
does not require any merits analysis of an underlying
after-discovered-evidence claim.' Id. at 395, 930 A.2d
at 1271.
Brown, 111 A.3d at 176-77 (emphasis in original).
Applying the law to the facts of this case, Langerston has not
established that the facts that he asserted as newly discovered, namely the
information contained in the Sentencing Guideline form, and he has not
established that these facts were unknown to him or that they could not have
been ascertained earlier by the exercise of due diligence. The crux of
Langerston's newly-discovered evidence exception argument is that he was
allegedly improperly sentenced and he did not know this until he uncovered the
Sentencing Guideline form. In support of this allegedly improper sentence
Langerston asserted that he was sentenced to "a sentence greater than the
lawful maximum for a standard range sentence." See, PCRA petition 11/12/15,
p. II. However he bases this argument on events that occurred at his November
14, 2006, sentencing hearing at which Langerston was present. See, PCRA
petition 11/12/15, attached memorandum of law, claim 1 p. 1. He was present
8
for the entire hearing, and supports his claim in part on the sentencing
transcripts and the following. He heard the Commonwealth request this Court
to "sentence the, defendant to the maximum possible punishment: 20 - 40 years
incarceration on the murder ... " (Sentencing 11/14/06 pp. 23 - 24). He also was
present when this Court in announcing his sentence stated, " ... and the
sentence I will impose will be in the standard range for third degree
, murder ... [o)n the crime of third-degree murder, he will undergo imprisonment
for not less than 20 nor more than 40 years." Id. at 27. Langerston does not
explain what information was newly discovered from the Sentencing Guideline
form that he had not heard at the sentencing hearing itself. The Sentencing
Guideline form is nothing more than a new source of information that
Langerston heard first hand at his sentencing hearing.
Assuming that somehow Langerston was able to establish that the
Sentencing Guideline form provided facts that he was previously unaware of,
Langerston would not be able to establish due diligence in uncovering the
Sentencing Guideline form. In his petition and in his response, Langerston
baldly asserts due diligence, but does not account for any actions he has taken
before his September 16, 2015, Sentencing Guideline form request to retrieve
that form. Nor can he explain his inaction in failing to previously request the
Sentencing Guideline form. He simply provides no further explanation.
Additionally, Langerston also stated in his response to the pre-
dismissal notice that the form wasn't a part of the record until the time he
requested it on September 16, 2015. However, he provides no evidence to
9
f ; ... ~
support that assertion, e.g., what previous attempts he made at securing the
Sentencing Guideline form to no avail or provide copies of previous docket
reports. In fact, a review of the docket belies his contention. The docket shows
that the Sentencing Guideline form was entered onto the docket on the day of
sentencing, November 14, 2006. Langerston does not explain why it took him
almost nine years to request the Sentencing Guideline form. Accordingly,
Langerston was unable to establish due diligence; therefore, he was unable to
avail himself o( the newly-discovered evidence timeliness exception.
CONCLUSION
Based on the forgoing analysis, the final order of dismissal dated
December 15, 2015, dismissing Langerston's untimely fifth PCRA petition
should be affirmed.
BY THE COURT:
WIL~~se~.· L
COURT OF COMMON PLEAS
MONTGOMERY COUNTY
PENNSYLVANIA
38rn JUDICIAL DISTRICT
Copies sent onFebruary 16, 2016
By Interoffice Mail to:
Court Administration
By First Class Mail to:
Darryl Langerston #GW2381
SCI Greene
1 75 Progress Drive
Wayneburg, PA 15370
10