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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DEREYK L. MORRIS, : No. 79 EDA 2016
:
Appellant :
Appeal from the PCRA Order, December 16, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-1103311-1995
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED October 6, 2016.
Dereyk L. Morris appeals pro se from the order of December 16,
2015, issued by the Court of Common Pleas of Philadelphia County that
dismissed his serial PCRA1 petition without a hearing.
On February 25, 1997, appellant entered a negotiated plea and was
consecutively sentenced to 10 to 20 years’ imprisonment for third-degree
murder, 10 to 20 years’ imprisonment for robbery, and 5 to 10 years for
criminal conspiracy for an aggregate sentence of 25 to 50 years’
imprisonment.2 The sentences were to be served concurrently with a 17-
* Former Justice specially assigned to the Superior Court.
1
Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
2
18 Pa.C.S.A. § 2502(c), 18 Pa.C.S.A. § 3701(a)(1), and 18 Pa.C.S.A.
§ 903(a), respectively.
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year federal sentence for carjacking3 that appellant was serving at the time.
Appellant did not file a direct appeal.
On December 14, 2009, appellant filed a PCRA petition that challenged
his guilty plea on the basis that he did not want to plead guilty to robbery
but did so because his counsel advised that he would get a lesser sentence.
The PCRA court dismissed the petition as untimely. On July 13, 2011,
appellant filed a second PCRA petition and claimed that trial counsel was
ineffective for failure to examine the file. In an amended PCRA petition filed
on November 18, 2011, appellant claimed that the common pleas court
lacked subject matter jurisdiction. On December 17, 2012, appellant filed
an affidavit in which he claimed to have newly discovered evidence and also
leveled allegations of ineffective assistance of counsel. On May 14, 2013,
appellant filed a motion to correct an illegal sentence and alleged that his
murder and robbery convictions should have merged for sentencing
purposes. The PCRA court dismissed this PCRA petition as untimely on
October 6, 2014. The PCRA court also ruled that it lacked jurisdiction to rule
on the motion to correct an illegal sentence which was treated as an
untimely PCRA petition.
On August 27, 2015, appellant filed the current PCRA petition which
was entitled “Motion to Correct Illegal Sentence-Merger Issues”4 in which he
3
18 U.S.C.A. § 2119.
4
The legality of a sentence is subject to review within the PCRA.
Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999).
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argued that the sentence he received was illegal because of the Double
Jeopardy Clause of the Fifth Amendment to the United States Constitution
and because he should not have been sentenced separately for offenses
which merged.
On November 6, 2015, the PCRA court issued a dismissal notice
pursuant to Pa.R.Crim.P. 907. Appellant filed a pro se response in which he
asserted that his petition was mailed on August 27, 2015, but it was not
marked “received” by the PCRA unit until October 5, 2015. The PCRA court
corrected the date of filing. On December 16, 2015, the PCRA court
dismissed the petition as untimely.
Appellant raises the following issues for this court’s review:
1.) Did [the PCRA court] error [sic] by dismissing
[appellant’s] petition as untimely?
A.) Is [appellant’s] sentence illegal
where the court failed to merge for
sentencing purposes?
B.) Does [appellant’s] claim on Double
Jeopardy have arguable merit?
C.) Does [appellant’s] claim prove
[and] meet requirements to
establish counsel’s ineffectiveness?
D.) Is [appellant] eligible for time
credit pursuant to 42 Pa.C.S.[A.]
[§] 9760?
E.) Does [appellant] have a right to be
appointed counsel?
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F.) Did [appellant] pass [and] meet
timeliness requirements pursuant
to 42 Pa.C.S.[A.] [§] 9545(b)(1)?
Appellant’s brief at 4.
In PCRA appeals, our scope of review “is limited to the findings of the
PCRA court and the evidence on the record of the PCRA court’s hearing,
viewed in the light most favorable to the prevailing party.”
Commonwealth v. Sam, 952 A.2d 565, 573 (Pa. 2008) (internal quotation
omitted). Because most PCRA appeals involve questions of fact and law, we
employ a mixed standard of review. Commonwealth v. Pitts, 981 A.2d
875, 878 (Pa. 2009). We defer to the PCRA court’s factual findings and
credibility determinations supported by the record. Commonwealth v.
Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc). In contrast, we
review the PCRA court’s legal conclusions de novo. Id.
“When reviewing the grant or denial of post-conviction relief, the
appellate court is limited to determining whether the lower court’s findings
are supported by the record and its order is otherwise free of legal error.
We grant great deference to findings of the PCRA court.” Commonwealth
v. Stark, 658 A.2d 816, 818 (Pa.Super. 1995) (citations omitted).
Pennsylvania law makes clear no court has
jurisdiction to hear an untimely PCRA petition.
Commonwealth v. Robinson, 575 Pa. 500, 508,
837 A.2d 1157, 1161 (2003). The most recent
amendments to the PCRA, effective January 16,
1996, provide a PCRA petition, including a second or
subsequent petition, shall be filed within one year of
the date the underlying judgment becomes final.
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42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.
Bretz, 830 A.2d 1273, 1275 (Pa.Super. 2003);
Commonwealth v. Vega, 754 A.2d 714, 717
(Pa.Super. 2000). A judgment is deemed 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(b)(3).
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010).
Subsequent PCRA petitions beyond a petitioner’s first petition are
subject to the following standard:
A second or subsequent petition for post-conviction
relief will not be entertained unless a strong
prima facie showing is offered to demonstrate that
a miscarriage of justice may have occurred.
Commonwealth v. Allen, 557 Pa. 135, 141, 732
A.2d 582, 586 (1999). A prima facie showing of
entitlement to relief is made only by demonstrating
either that the proceedings which resulted in
conviction were so unfair that a miscarriage of
justice occurred which no civilized society could
tolerate, or the defendant’s innocence of the crimes
for which he was charged. Allen, at 142, 732 A.2d
at 586. Our standard of review for an order denying
post-conviction relief is limited to whether the trial
court’s determination is supported by evidence of
record and whether it is free of legal error.
Commonwealth v. Jermyn, 551 Pa. 96, 709 A.2d
849, 856 (1998).
A PCRA petition, including a second or subsequent
petition, must be filed within one year of the date
that judgment of sentence becomes final. 42 Pa.C.S.
§ 9545(b)(1). A judgment becomes final for
purposes of the PCRA “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.
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§ 9545(b)(3). PCRA time limits are jurisdictional in
nature, implicating a court’s very power to
adjudicate a controversy. Commonwealth v. Fahy,
558 Pa. 313, 737 A.2d 214 (1999). Accordingly, the
“period for filing a PCRA petition is not subject to the
doctrine of equitable tolling,” instead, the time for
filing a PCRA petition can be extended only if the
PCRA permits it to be extended, i.e., by operation of
one of the statutorily enumerated exceptions to the
PCRA time-bar. Id. at 329, 737 A.2d at 222.
Commonwealth v. Ali, 86 A.3d 173, 176-177 (Pa. 2014), cert. denied,
135 S.Ct. 707 (2014).
The three statutory exceptions to the timeliness
provisions in the PCRA allow for very limited
circumstances under which the late filing of a
petition will be excused. 42 Pa.C.S.A. § 9545(b)(1).
To invoke an exception, a petition must allege and
prove:
(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.
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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). “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.
Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783
(2000); 42 Pa.C.S.A. § 9545(b)(2).
Monaco, 996 A.2d at 1079-1080.
Here, appellant’s conviction became final on March 27, 1997, when his
ability to file a direct appeal ended. In order to timely file a PCRA petition,
appellant had to file the petition within one year of March 27, 1997. The
current petition was not filed until August 27, 2015, which was clearly
untimely. In order for the PCRA court to properly consider the current
petition, appellant must establish that the petition meets one of the three
exceptions to the one-year requirement.
Appellant argues that the PCRA court is the government official who
has interfered with the presentation of his claim because it has ruled that
the motion to correct an illegal sentence must be treated as a PCRA petition
and was untimely. As the PCRA court states, the Pennsylvania Supreme
Court has held that “[a]lthough legality of sentence is always subject to
review within the PCRA, claims must still first satisfy the PCRA’s time limits
or one of the exceptions thereto.” Fahy, 737 A.2d at 223. Appellant cannot
claim governmental interference when a common pleas court judge correctly
applies the law regarding a timely petition.
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Appellant also asserts that he did not become aware that the PCRA
court could correct an unlawful sentence until March 15, 2013, and he filed
his motion to correct an illegal sentence on May 14, 2013. The current
petition was not filed until 2015, so this assertion is irrelevant. The PCRA
court did not err when it dismissed the petition as untimely. 5 Besides,
whether his sentence was illegal is not an “after-discovered fact” that would
satisfy an exception to the one-year time bar.
Order affirmed.
Judgment Entered.
JosephD.Seletyn,Esq.
Prothonotary
Date: 10/6/2016
5
Because of the disposition of the timeliness issue, this court need not
address appellant’s remaining issues.
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Com. v. Morris, D.
Combined Opinion