J-S24018-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAMOND GROVER
Appellant No 994 WDA 2016
Appeal from the PCRA Order May 13, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0005610-1994
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAMOND GROVER
Appellant No. 1129 WDA 2016
Appeal from the PCRA Order July 11, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0005610-1994
BEFORE: PANELLA, STABILE, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED JUNE 12, 2017
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S24018-17
Appellant Damond Grover pro se appeals from the May 13, 2016 and
July 11, 2016 orders of the Court of Common Pleas of Allegheny County
(“PCRA court”), which dismissed as untimely his serial petitions for collateral
relief under the Post Conviction Relief Act (the “Act”), 42 Pa.C.S.A. §§ 9541-
46. Upon review, we affirm.
The facts and procedural history of this case are undisputed. As
recounted by the PCRA court:
On January 11, 1995, [Appellant] was found guilty of
second-degree murder, robbery, criminal conspiracy and of
carrying a firearm without a license. [He] was sentenced to the
mandatory sentence of life without the possibility of parole in
addition to a sentence of eight to sixteen years which was to run
concurrent with the sentence of life. [Appellant] filed an appeal
to the Superior Court, which affirmed the judgment of sentence
on June 28, 1996. On March 17, 1997, the Pennsylvania
Supreme Court denied [Appellant’s] petition for allowance of
appeal. [Appellant] did not seek review by the United States
Supreme Court and, accordingly, his judgment of sentence
became final on June 16, 1997. [At docket number 994 WDA
2016, Appellant] filed the instant petition for coram nobis on
September 14, 2015,[1] more than eighteen years after his
judgment of sentence had become final.
____________________________________________
1
Section 9542 of the PCRA provides in that the PCRA “shall be the sole
means of obtaining collateral relief and encompasses all other common law
and statutory remedies for the same purpose that exist when this
subchapter takes effect, including habeas corpus and coram nobis.” 42
Pa.C.S.A. § 9542 (emphasis added). Thus, the PCRA statute subsumes the
writ of coram nobis. See Commonwealth v. Turner, 80 A.3d 754, 770
(Pa. 2013) (“The PCRA at Section 9542 subsumes the remedies of habeas
corpus and coram nobis.”); accord Commonwealth v. Descardes, 136
A.3d 493, 501 (Pa. 2016). Accordingly, the trial court properly treated
Appellant’s writ of coram nobis as a PCRA petition.
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PCRA Court Opinion, 9/19/16, at 2-3. At docket number 1129 WDA 2016,
Appellant pro se filed a “motion to modify and correct sentence” on March 1,
2016. Treating Appellant’s writ of coram nobis as a PCRA petition, the PCRA
court denied Appellant relief on May 13, 2016.2 Similarly, treating it as a
PCRA petition, on July 11, 2016, the PCRA court dismissed as untimely
Appellant’s motion to modify and correct sentence. Appellant pro se timely
appealed from both orders.3 Following Appellant’s filing of a Pa.R.A.P.
1925(b) statement of errors complained of on appeal, the trial court issued a
Pa.R.A.P. 1925(a) opinion, concluding that Appellant’s PCRA petitions were
untimely and that he failed to plead and prove any exceptions to the PCRA’s
time-bar.
On appeal,4 Appellant raises six issues for our review:
[I.] Did the [trial c]ourt’s action(s) violate the due process
protections afforded by the 14th Amendment of the United
States Constitution?
____________________________________________
2
By way of background, on May 13, 2003, a panel of this Court affirmed the
dismissal of Appellant’s first PCRA petition, agreeing with the PCRA court
that it was untimely. The panel noted that Appellant’s PCRA petition “had to
be filed by June 16, 1998, but was not filed until March 3, 2000.”
Commonwealth v. Grover, No. 684 WDA 2002, unpublished memorandum
at 2 (Pa. Super. filed May 13, 2003).
3
On September 12, 2016, we sua sponte consolidated the appeals at docket
numbers 994 WDA 2016 and 1129 WDA 2016.
4
“On appeal from the denial of PCRA relief, our standard of review requires
us to determine whether the ruling of the PCRA court is supported by the
record and free of legal error.” Commonwealth v. Widgins, 29 A.3d 816,
819 (Pa. Super. 2011).
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[II.] Did the sentencing court abuse its discretion thereby
committing error by changing sentencing statute to 42 Pa.C.S.A.
§ 9711?
[III.] Does the statute at 42 Pa.C.S.A. § 9711 possess statutory
authorization to support a sentence of life imprisonment for
second degree murder?
[IV.] Does the lower court’s amended order adhere to the plain
language of 42 Pa.C.S.A. § 9545(b)(1)(ii)?
[V.] Did the lower court override or misapply the law when
changing Appellant’s sentencing statute?
[VI.] Did the lower court err when it changed Appellant’s coram
nobis to a Post Conviction Relief Act petition?
Appellant’s Brief at 7 (sic). At the core, Appellant appears to challenge the
legality of his sentence of life imprisonment for second degree murder.
As a threshold matter, we must determine whether the PCRA court
erred in dismissing as untimely Appellant’s PCRA petitions. The PCRA
contains the following restrictions governing the timeliness of any PCRA
petition.
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
(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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(2) Any petition invoking an exception provided in paragraph (1)
shall be filed within 60 days of the date the claim could have
been presented.
(3) For purposes of this subchapter, 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.
42 Pa.C.S.A. § 9545(b). Section 9545’s timeliness provisions are
jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).
Additionally, we have emphasized repeatedly that “the PCRA confers no
authority upon this Court to fashion ad hoc equitable exceptions to the PCRA
time-bar in addition to those exceptions expressly delineated in the Act.”
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations
omitted).
Here, as stated earlier, the record reflects that Appellant’s judgment of
sentence became final on June 16, 1997. See 42 Pa.C.S.A. § 9545(b)(3);
Pa.R.A.P. 903(a). Appellant, therefore, had until June 16, 1998 to file a
timely PCRA petition. The current filings are facially untimely given they
were filed on September 14, 2015 and March 1, 2016, respectively.
The one-year time limitation, however, can be overcome if a petitioner
alleges and proves one of the three exceptions set forth in Section
9545(b)(1)(i)-(iii) of the PCRA. Here, Appellant has failed to allege, let
alone prove, any exceptions to the one-year time bar. Accordingly, the
PCRA court did not err in dismissing as untimely Appellant’s PCRA petitions
for want of jurisdiction.
Orders affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/12/2017
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