J-S63017-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ERNEST L. MORRISON,
Appellant No. 175 EDA 2016
Appeal from the PCRA Order December 11, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003258-2007
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 21, 2016
Appellant, Ernest L. Morrison, appeals from the order denying his serial
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546. We affirm.
The PCRA court set forth the relevant facts and procedural history of
this matter as follows:
On July 23, 2007, [Appellant] entered a negotiated [plea
of] guilty to first degree murder and this court imposed a
mandatory life sentence. Per the plea agreement, the
Commonwealth did not seek [the] death penalty, and [Appellant]
agreed to file no appeals or post-sentence motions.
Despite this agreement, which was made part of the
record, [Appellant] filed a pro se PCRA petition, alleging that his
guilty plea was not made knowingly, voluntarily and intelligently.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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PCRA counsel was appointed and subsequently filed an amended
petition requesting that [Appellant’s] appeal rights be reinstated
nunc pro tunc because trial counsel did not file an appeal despite
being instructed to do so. On January 21, 2010, after reviewing
the record and pleadings, this court denied relief1.
1
Prior to dismissing the PCRA petition, this court
sent a twenty (20) day Notice of Intent to Dismiss
pursuant to Pa.R.Crim.P. 907.
[Appellant] filed an appeal in the Pennsylvania Superior
Court. On February 11, 2011, the Superior Court affirmed this
court’s Order denying PCRA relief. Commonwealth v. Morrison,
No. 435 EDA 2010. [Appellant] did not seek allocator in the
Pennsylvania Supreme Court.
[Appellant] filed a second pro se PCRA petition on August
23, 2012, and an amended petition on October 7, 2015. On
December 11, 2015, after reviewing the record and pleadings,
this court dismissed the instant PCRA petition as untimely2. This
timely pro se appeal follows3.
2
Prior to dismissing the PCRA petition, this court
sent a twenty (20) day Notice of Intent to Dismiss
pursuant to Pa.R.Crim.P. 907.
3
Petitioner did not file his appeal with the County
Clerk. Rather, he sent a pro se Notice of Appeal and
a 1925(B) Statement directly to judicial chambers.
PCRA Court Opinion, 1/11/16, at 1-2.1
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1
While the PCRA court notes in its opinion that Appellant mailed his notice of
appeal directly to the PCRA court’s chamber, the notice of appeal lists the
PCRA court, the District Attorney, and the Clerk of Courts on the certificate
of service. Notice of Appeal, 1/7/16, Certified Record at Docket Entry 19. It
is unclear from the record whether it was the PCRA court that forwarded
Appellant’s notice of appeal to the First Judicial District’s Criminal Appeals
Unit, or whether Appellant mailed a copy directly. Nevertheless, the record
reflects that, ultimately, the notice of appeal was properly and timely filed.
Additionally, we observe that the PCRA court did not direct Appellant to file a
(Footnote Continued Next Page)
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On appeal, Appellant purports to raise the following issues for this
Court’s consideration, which we reproduce, verbatim, below:
1) DID DEFENSE COUNSEL INTENTIONALLY PROVIDE DEFICIENT
PERFORMANCE TO PREJUDICE HIS CLIENTS CASE BY
SANDBAGGING THE CONSTITUTIONAL REQUIREMENTS
UNDER THE SIXTH AMENDMENT
2) IS PETITIONER ENTITLED TO REINSTATEMENT OF HIS
APPELLATE RIGHTS WHERE DEFAULT WAS DUE TO
CONSTITUTIONALLY INEFFECTIVE ASSISTANCE OF
APPOINTED COUNSEL IN VIOLATION OF PETITIONER’S
RIGHTS UNDER THE PENNSYLVANIA AND UNITED STATES
CONSTITUTION
Appellant’s Brief at iii.
Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination and whether the PCRA
court’s determination is free of legal error. Commonwealth v. Phillips, 31
A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877
A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the certified record.
Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
2001)).
A PCRA petition must be filed within one year of the date that the
judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time
requirement is mandatory and jurisdictional in nature, and the court may not
_______________________
(Footnote Continued)
Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Rather,
Appellant attached this document to his notice of appeal.
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ignore it in order to reach the merits of the petition. Commonwealth v.
Cintora, 69 A.3d 759, 762 (Pa. Super. 2013). A judgment of sentence
“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. § 9545(b)(3).
However, an untimely petition may be received when the petition
alleges, and the petitioner proves, that any of the three limited exceptions to
the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),
and (iii), is met.2 A petition invoking one of these exceptions must be filed
within sixty days of the date the claim could first have been presented. 42
Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions to the
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2
The exceptions to the timeliness requirement are:
(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)(i), (ii), and (iii).
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PCRA’s one-year filing deadline, “the petitioner must plead and prove
specific facts that demonstrate his claim was raised within the sixty-day time
frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.
Our review of the record reflects that Appellant was sentenced on July
23, 2007. Appellant did not file a direct appeal, and therefore, his judgment
of sentence became final thirty days later on August 22, 2007. Pa.R.A.P.
903. Thus, Appellant had until August 22, 2008, to file a timely PCRA
petition. 42 Pa.C.S. § 9545(b)(3).
On July 18, 2008, Appellant filed a timely first PCRA petition. Counsel
was appointed, and counsel filed an amended PCRA petition on July 29,
2009. On January 21, 2010, the PCRA court denied Appellant’s PCRA
petition. On February 12, 2010, Appellant filed a timely notice of appeal,
and this Court affirmed the PCRA court’s order denying Appellant’s PCRA
petition on February 7, 2011. Commonwealth v. Morrison, 435 EDA
2010, 24 A.3d 446 (Pa. Super. filed February 7, 2011) (unpublished
memorandum).
More than nineteen months after this Court affirmed the PCRA court’s
order denying Appellant’s first PCRA petition, Appellant filed his second PCRA
petition on August 23, 2012. As we noted above, however, Appellant had
until August 22, 2008, to file a timely PCRA petition. 42 Pa.C.S. §
9545(b)(3). Thus, Appellant’s instant PCRA petition is patently untimely.
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As previously stated, if a petitioner does not file a timely PCRA
petition, his petition may nevertheless be received under any of the three
limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.
§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file
his petition within sixty days of the date that the exception could be
asserted. 42 Pa.C.S. § 9545(b)(2).
In his brief, Appellant argues only that he is eligible for relief because
of his diminished capacity and the cumulative ineffectiveness of prior
counsel. Appellant’s Brief at 1-5. However, Appellant failed to plead, much
less prove, an exception to the PCRA’s timeliness requirement. Accordingly,
Appellant’s PCRA petition was untimely, and no exceptions apply.
Consequently, because the instant PCRA petition was untimely and no
exceptions apply, the PCRA court lacked jurisdiction to address the claims
presented and grant relief. See Commonwealth v. Fairiror, 809 A.2d
396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to
hear untimely petition). Likewise, we lack the authority to address the
merits of any substantive claims raised in the PCRA petition. See
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007)
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(“[J]urisdictional time limits go to a court’s right or competency to adjudicate
a controversy.”).3
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2016
____________________________________________
3
We note that in Appellant’s underlying PCRA petition, he claimed that he
was entitled to PCRA relief pursuant to Miller v. Alabama, 132 S.Ct. 2455
(2012). PCRA Petition, 8/23/12, Certified Record at Docket Entry 14. In
Miller, the United States Supreme Court held that mandatory sentences of
life imprisonment without possibility of parole imposed upon individuals who
were juveniles at the time they committed the murder were unconstitutional.
However, we need not delve into this issue any further than to observe that
Appellant abandoned this issue on appeal. Moreover, Miller is inapplicable
because Appellant was thirty-seven years old and not a juvenile on January
13, 2007, when he committed the murder.
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