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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LONDELL BOND,
Appellant No. 3364 EDA 2016
Appeal from the PCRA Order October 4, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1104831-2003
BEFORE: BOWES and SHOGAN, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 06, 2017
Appellant, Londell Bond, appeals pro se from the October 4, 2016
order denying his second petition filed pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.
Following a jury trial that concluded on April 5, 2005, Appellant was
found guilty of second-degree murder,1 robbery,2 and possessing an
instrument of crime.3 On May 16, 2005, the trial court sentenced Appellant
to a term of life imprisonment for the murder conviction and a concurrent
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. § 2502.
2 18 Pa.C.S. § 3701.
3 18 Pa.C.S. § 907.
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term of two and one-half to five years of incarceration for possessing an
instrument of crime. N.T., Sentencing, 5/16/05, at 23-24. The trial court
concluded that robbery merged with second-degree murder for sentencing
purposes. Id.
Appellant filed a direct appeal, and this Court affirmed Appellant’s
judgment of sentence on February 26, 2008. Commonwealth v. Bond,
951 A.2d 1205, 1100 EDA 2006 (Pa. Super. filed February 26, 2008)
(unpublished memorandum). Appellant filed a petition for allowance of
appeal to the Supreme Court of Pennsylvania that was denied on July 30,
2008. Commonwealth v. Bond, 956 A.2d 431, 173 EAL 2008 (Pa. 2008).
Appellant did not pursue a writ of certiorari with the United States Supreme
Court.
On September 5, 2008, Appellant filed a timely PCRA petition pro se.
Counsel was appointed and filed an amended PCRA petition on October 22,
2009. On January 15, 2010, the PCRA court filed its notice of intent to
dismiss the PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907,
and on February 17, 2010, the PCRA court dismissed Appellant’s petition.
On March 18, 2010, Appellant filed a timely appeal.
On September 3, 2010, the PCRA court withdrew Appellant’s counsel’s
appointment and appointed new counsel to represent Appellant in his
appeal. Newly appointed counsel filed a brief on behalf of Appellant with this
Court on June 22, 2011. On January 18, 2012, our Court affirmed the
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dismissal of Appellant’s petition. Commonwealth v. Bond, 43 A.3d 521,
732 EDA 2010 (Pa. Super. filed January 18, 2012) (unpublished
memorandum). The Supreme Court of Pennsylvania denied Appellant’s
petition for allowance of appeal on August 1, 2012. Commonwealth v.
Bond, 49 A.3d 441, 69 EAL 2012 (Pa. 2012).
On August 20, 2012, Appellant, pro se, filed his second PCRA petition,
and on April 3, 2015, Appellant, still pro se, filed an amended PCRA petition.
On August 3, 2016, the PCRA court issued its Pa.R.Crim.P. 907 notice, and
on October 4, 2016, the PCRA court dismissed Appellant’s PCRA petition.
This timely appeal followed.4
On appeal, Appellant alleges that the attorney who represented him in
his first PCRA petition was ineffective due to a mental health issue.
Appellant’s Brief at 3. After review, we conclude that Appellant is entitled to
no relief.
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.
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4 It does not appear from the record that the PCRA court directed Appellant
to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
However, the PCRA court did file an opinion on December 30, 2016,
explaining that the underlying PCRA petition was dismissed because it was
untimely.
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2014) (en banc)). This Court is limited to determining whether the evidence
of record supports the conclusions of the PCRA court and whether the ruling
is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.
Super. 2012). We grant great deference to the PCRA court’s findings that
are supported in the record and will not disturb them unless they have no
support in the certified record. Commonwealth v. Rigg, 84 A.3d 1080,
1084 (Pa. Super. 2014).
Before we may reach the merits of the issue presented, we first
address whether Appellant satisfied the timeliness requirements of the
PCRA. A PCRA petition “including a second or subsequent petition, shall be
filed within one year of the date the judgment becomes final.” 42 Pa.C.S. §
9545(b)(1). 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). This time
requirement is mandatory and jurisdictional in nature, and the court may not
ignore it in order to reach the merits of the petition. Commonwealth v.
Cintora, 69 A.3d 759, 762 (Pa. Super. 2013).
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),
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and (iii), is met.5 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 establish an exception to the 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). Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa.
Super. 2001).
Appellant’s judgment of sentence became final on October 28, 2008,
ninety days after the Supreme Court of Pennsylvania denied his petition for
allowance of appeal and the time for seeking a writ of certiorari in the
Supreme Court of the United States expired. U.S. Sup.Ct.R. 13. Thus, in
order for Appellant’s petition to be considered timely under the PCRA,
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5 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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Appellant was required to file the PCRA petition on or before October 28,
2009. Appellant did not file the underlying PCRA petition until August 20,
2012, nearly four years after his judgment of sentence became final.
Accordingly, the instant PCRA petition is patently untimely.
As stated, if a petitioner does not file a timely PCRA petition, his
petition nevertheless may 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).
Here, Appellant attempts to invoke the newly discovered facts
exception based upon information concerning prior PCRA counsel’s mental
health issues. Appellant’s Brief at 9. Appellant’s claim is meritless.
After reviewing the record, we conclude that Appellant filed the instant
PCRA petition more than sixty days after prior counsel’s mental health issues
were revealed. As the Commonwealth points out, Appellant’s prior counsel’s
mental health issues were first disclosed publicly on October 19, 2012.
Commonwealth’s Brief at 8-9; see also Disciplinary Board of the Supreme
Court of Pennsylvania (Joint Stipulation of Fact, Law, Exhibits), 180 DB
2011.
Although Appellant filed his second PCRA petition on August 20, 2012,
nothing in that petition mentioned counsel’s mental health. Rather, it was
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not until nearly three years later on April 3, 2015, when Appellant filed an
amendment to his second PCRA petition that this issue was presented.
We agree with the Commonwealth that through due diligence, this
information concerning prior counsel’s health issues could have been
discovered as early as October of 2012, and at the latest on November 13,
2014. It was on November 13, 2014, when the Supreme Court of
Pennsylvania suspended Appellant’s prior counsel from the practice of law
and issued an opinion that included the findings and recommendation issued
by the Disciplinary Board of the Supreme Court Of Pennsylvania. Supreme
Court Disciplinary Order, 180 DB 2011, 11/13/14.6 Moreover, Appellant
cannot now claim that he was unaware of the disciplinary action because
Appellant was directly involved in those proceedings, and he was named
specifically in the joint stipulation of facts in that disciplinary action. Id.
(Attached Report and Recommendations of the Disciplinary Board of the
Supreme Court of Pennsylvania, Appendix A, at ¶¶ 7-86). As such,
Appellant’s “newly discovered evidence” of prior counsel’s health concern
was not presented within sixty days of the date Appellant could have learned
this information with the exercise of due diligence. 42 Pa.C.S. §
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6See Commonwealth v. Feliciano, 69 A.3d 1270, 1277-1278 (Pa. Super.
2013) (explaining that disciplinary orders of the Supreme Court of
Pennsylvania are matters of public record).
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9545(b)(1)(ii). Therefore, Appellant has failed to satisfy an exception to the
PCRA time-bar.
Accordingly, because Appellant’s PCRA petition was untimely and no
exceptions apply, the PCRA court correctly denied 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) (“[J]urisdictional time limits go to a court’s right or competency
to adjudicate a controversy.”).
Order affirmed.
P.J.E. Stevens joins the Memorandum.
Judge Bowes concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2017
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