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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
DEVON BELL :
:
Appellant : No. 2461 EDA 2017
Appeal from the PCRA Order June 29, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0702871-1999
BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED July 20, 2018
Appellant, Devon Bell, appeals pro se from the order entered in the
Philadelphia County Court of Common Pleas, which dismissed as untimely his
serial petition filed under the Post Conviction Relief Act (“PCRA”), at 42
Pa.C.S.A. §§ 9541-9546. On August 10, 2001, the court convicted Appellant
of first-degree murder, aggravated assault, conspiracy, and possessing
instruments of crime. The court sentenced Appellant on December 10, 2001,
to life imprisonment for the murder conviction and lesser terms of
imprisonment for some of the remaining crimes. This Court affirmed the
judgment of sentence on September 10, 2004, and our Supreme Court denied
allowance of appeal on January 28, 2005. See Commonwealth v. Bell, 863
A.2d 1218 (Pa.Super. 2004), appeal denied, 582 Pa. 661, 868 A.2d 450
(2005).
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From 2005 to 2016, Appellant unsuccessfully litigated at least two PCRA
petitions. On February 17, 2017, Appellant filed the current pro se serial PCRA
petition. The court issued Pa.R.Crim.P. 907 notice on April 11, 2017, and
Appellant responded pro se on April 21, 2017. The court denied PCRA relief
on June 29, 2017. On July 25, 2017, Appellant timely filed a pro se notice of
appeal and voluntary concise statement per Pa.R.A.P. 1925(b).
Preliminarily, the timeliness of a PCRA petition is a jurisdictional
requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A
PCRA petition, including a second or subsequent petition, shall be filed within
one year of the date the underlying judgment of sentence becomes final. 42
Pa.C.S.A. § 9545(b)(1). A judgment of sentence 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). The
statutory exceptions to the PCRA time-bar allow for very limited circumstances
under which the late filing of a petition will be excused; a petitioner asserting
a timeliness exception must file a petition within 60 days of when the claim
could have been presented. 42 Pa.C.S.A. § 9545(b)(1-2).
Instantly, Appellant’s judgment of sentence became final on April 28,
2005, upon expiration of the time for filing a petition for writ of certiorari with
the U.S. Supreme Court. See U.S.Sup.Ct.R. 13. Appellant filed the current
PCRA petition on February 17, 2017, which is patently untimely. See 42
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Pa.C.S.A. § 9545(b)(1). Appellant attempts to invoke the “new constitutional
right” exception to the statutory time-bar per Section 9545(b)(1)(iii), claiming
he is entitled to relief under Johnson v. United States, ___ U.S. ___, 135
S.Ct. 2551, 192 L.Ed.2d 569 (2015) (holding “residual clause” of federal
Armed Career Criminal Act of 1984, which permits increased sentences for
individuals who have committed three or more “violent felonies,” including any
felony that involves conduct that presents serious potential risk of physical
injury to another, is unconstitutionally vague) and Welch v. United States,
___ U.S. ___, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016) (holding Johnson
announced new substantive rule that applies retroactively to cases on
collateral review). Nevertheless, our Supreme Court has held that Johnson
and Welch do not satisfy the new constitutional right exception to the PCRA
time-bar where the PCRA petitioner was sentenced under state statutes. See
Commonwealth v. Spotz, ____ Pa. ___, 171 A.3d 675 (2017) (holding
neither Johnson nor Welch affords appellant relief because he was not
sentenced under federal Armed Career Criminal Act; at this juncture, Johnson
and Welch apply only to federal prisoners sentenced under relevant federal
statute).1 Therefore, the court properly dismissed Appellant’s petition as
untimely.
Order affirmed.
____________________________________________
1 Appellant’s remaining claims fail to allege a timeliness exception, so we give
them no further attention.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2018
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