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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
KEVIN A. MAXWELL :
:
Appellant : No. 1834 EDA 2017
Appeal from the PCRA Order May 3, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012238-2010,
CP-51-CR-0012242-2010
BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 09, 2018
Following his conviction by a jury of two counts each of rape and sexual
assault and one count of involuntary deviate sexual intercourse (“IDSI”),1
Appellant, Kevin A. Maxwell, appeals pro se from the May 3, 2017 order
denying his first petition for relief filed pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546. We affirm.
We previously summarized the facts of the crimes and the initial
procedural history as follows:
In December 2008 and January 2009, Appellant raped two
prostitutes. In both cases, Appellant found his victims while
driving his pickup truck. Appellant offered to pay the victims for
sex and drove each woman to the back of a nearby cemetery.
After parking his vehicle, Appellant refused to pay his victims,
threatened them with violence, and raped them. Appellant left
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1 18 Pa.C.S. §§ 3121, 3124.1, and 3123, respectively.
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each victim naked in the cemetery. Appellant also took nude
photographs of one of the victims, and he demanded money or a
cell phone from the other victim.
On February 15, 2012, a jury convicted Appellant of two
counts each of rape and sexual assault and one count of IDSI. At
the conclusion of the proceedings, the court ordered a pre-
sentence investigation (“PSI”) report and deferred sentencing.
With the benefit of the PSI report, the court conducted Appellant’s
sentencing hearing on November 16, 2012. For the rape
convictions, the court sentenced Appellant to consecutive terms
of six (6) to twelve (12) years[ of] imprisonment.2 The court
imposed a concurrent term of six (6) to twelve (12) years[ of]
imprisonment for the IDSI conviction, and it imposed no further
penalty for the sexual assault convictions. Thus, the court
sentenced Appellant to an aggregate term of twelve (12) to
twenty-four (24) years[ of] imprisonment.
2 With a prior record score of zero (0) and an offense
gravity score of twelve (12), the standard range for
Appellant’s rape convictions was forty-eight (48) to
sixty-six (66) months, plus or minus twelve (12)
months for aggravating or mitigating circumstances.
Commonwealth v. Maxwell, 93 A.3d 499, 3446 EDA 2012 (Pa. Super. filed
December 4, 2013) (unpublished memorandum at 1–2).
Appellant timely filed a motion for reconsideration of sentence on
November 26, 2012, claiming the court imposed aggravated-range sentences
for the rape convictions without proper consideration of mitigating factors.
The trial court eventually entered an order denying the post-sentence motion
by operation of law. Appellant filed a notice of appeal, and both Appellant and
the trial court complied with Pa.R.A.P. 1925.
We affirmed Appellant’s judgment of sentence on December 4, 2013.
Maxwell, 3446 EDA 2012. Our Supreme Court denied Appellant’s petition for
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allowance of appeal on May 22, 2014. Commonwealth v. Maxwell, 92 A.3d
811, 1 EAL 2014 (Pa. filed May 22, 2014). Appellant did not seek further
review in the United States Supreme Court.
On September 18, 2015, Appellant filed a pro se PCRA petition. The
PCRA court appointed counsel, who sought to withdraw on January 31, 2017,
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc),
asserting that the PCRA petition was untimely. The PCRA court issued a
Pa.R.Crim.P. 907 notice of intent to dismiss the petition on February 1, 2017.
On February 21, 2017, Appellant, pro se, wrote a letter to the PCRA court
stating, “I realize and accept that my appeal and PCRA [were] denied. All I’m
looking for now is to be credited with the time I did in Philadelphia Count[y]
jail.” Motion for Credit for Time Served, 2/21/17, at 2. The PCRA court
dismissed Appellant’s petition on May 3, 2017, and permitted PCRA counsel
to withdraw. Appellant filed the instant timely appeal pro se on May 30, 3017.
Both the PCRA court and Appellant complied with Pa.R.A.P. 1925.
Appellant raises the following issues on appeal:
1. Whether or not the trial attorney for the petitioner was
ineffective during any of the proceedings?
2. Whether the trial court erred by imposing an illegal sentence
on the petitioner and/or the sentence exceeded the lawful
maximum?
3. Whether the trial court erred in not correctly computing
sentence and giving the petitioner his proper time credit for time
served?
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4. Whether the trial court erred in imposing an unconstitutional
sentence?
Appellant’s Brief at v.
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. 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. Robinson, 139 A.3d 178, 185 (Pa.
2016). The PCRA court’s findings will not be disturbed unless there is no
support for them in the certified record. Commonwealth v. Lippert, 85 A.3d
1095, 1100 (Pa. Super. 2014).
Moreover, “[t]here is no absolute right to an evidentiary hearing on a
PCRA petition, and if the PCRA court can determine from the record that no
genuine issues of material fact exist, then a hearing is not necessary.”
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (quoting
Commonwealth v. Barbosa, 819 A.2d 81 (Pa. Super. 2003)). “[S]uch a
decision is within the discretion of the PCRA court and will not be overturned
absent an abuse of discretion.” Commonwealth v. Mason, 130 A.3d 601,
617 (Pa. 2015).
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Initially, we must determine whether the PCRA court had jurisdiction to
review the merits of Appellant’s issues. The timeliness of a PCRA petition is a
jurisdictional threshold that may not be disregarded in order to reach the
merits of the claims raised in a PCRA petition that is untimely.
Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citing
Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)). Here,
Appellant’s judgment of sentence became final on August 20, 2014, when the
time expired to seek relief in the United States Supreme Court.2 See 42
Pa.C.S. § 9545(b)(3) (for purposes of calculating the timeliness of a petition,
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”); U.S.Sup.Ct.R. 13 (petition for a writ of certiorari seeking review of
a judgment of a lower state court that is subject to discretionary review by
the state court of last resort is timely when it is filed with the Clerk within 90
days after entry of the order denying discretionary review). Therefore,
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2 In his Turner/Finley letter, PCRA counsel asserted that Appellant’s
judgment of sentence became final on May 22, 2014, upon denial of
Appellant’s petition for allowance of appeal. Counsel was incorrect. 42
Pa.C.S. § 9545(b)(3) (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.”) (emphasis added). Nevertheless, based
upon the correct application of 42 Pa.C.S. § 9545(b)(3), counsel’s conclusion
that Appellant’s petition was untimely is accurate.
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Appellant had until August 20, 2015, to file a timely PCRA petition. See 42
Pa.C.S. § 9545(b)(1) (A PCRA petition, “including a second or subsequent
petition, shall be filed within one year of the date the judgment becomes
final. . . .”). Appellant filed the instant PCRA petition on September 18, 2015.
Hence, the petition is facially untimely.
The jurisdictional time bar can be overcome only by satisfaction of one
of the three statutory exceptions codified at 42 Pa.C.S. § 9545(b)(1)(i)–(iii).3
Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017). Further, “[a]ny
petition invoking an exception . . . shall be filed within 60 days of the date the
claim could have been presented.” 42 Pa.C.S. § 9545(b)(2). The PCRA
petitioner bears the burden of proving the applicability of one of the
exceptions. Commonwealth v. Edmiston, 65 A.3d 339, 346 (Pa. 2013).
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3 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’s first issue asserts ineffective assistance of trial counsel, but
Appellant relates the claim to credit for time served on his sentence.
Appellant’s other issues all relate to his sentence as well. Thus, we address
the claims together.
On appeal, Appellant does not invoke any specific exception to the
PCRA’s time bar; indeed, he makes no argument concerning the timeliness of
the petition. Regarding his purported allegation of ineffective assistance of
counsel, Appellant suggests counsel “failed to conduct a thorough
investigation,” and “did not raise any of the claims of the Appellant.”
Appellant’s Brief at 1. He complains trial counsel did not “receive approval for
the brief being filed,” purportedly in Appellant’s direct appeal. Id.
To plead and prove the ineffective assistance of counsel (“IAC”), a
petitioner must establish: (1) that the underlying issue has arguable merit;
(2) counsel’s actions lacked an objective reasonable basis; and (3) actual
prejudice resulted from counsel’s act or failure to act. Commonwealth v.
Stewart, 84 A.3d 701, 706 (Pa. Super. 2013) (en banc). A claim of
ineffectiveness will be denied if the petitioner’s evidence fails to meet any one
of these prongs. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).
Counsel is presumed to have rendered effective assistance of counsel.
Commonwealth v. Montalvo, 114 A.3d 401, 410 (Pa. 2015). We have
explained that trial counsel cannot be deemed ineffective for failing to pursue
a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super.
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2003) (en banc). “We need not analyze the prongs of an ineffectiveness claim
in any particular order. Rather, we may discuss first any prong that an
appellant cannot satisfy under the prevailing law and the applicable facts and
circumstances of the case.” Commonwealth v. Johnson, 139 A.3d 1257,
1272 (Pa. 2016) (citing Commonwealth v. Albrecht, 720 A.2d 693, 701
(Pa. 1998)).
None of Appellant’s assertions are sufficient to assert counsel’s
ineffectiveness. Appellant does not identify the claims Appellant wished to
present that counsel failed to raise; he does not state how or why counsel’s
investigation was faulty. He cites no case law in support and fails to cite to
the record. We conclude that his purported allegations of ineffectiveness are
waived. Commonwealth v. Perez, 93 A.3d 829, 838 (Pa. 2014) (claims
failing to advance developed argument or citation to supporting authorities
and record are waived). Moreover, even if not waived, we note that a claim
of ineffective assistance of counsel does not save an otherwise untimely
petition for review on merits. Commonwealth v. Perrin, 947 A.2d 1284,
1287 (Pa. Super. 2008)).
Appellant’s other issues relate to his sentence. Appellant makes a
conclusory claim that his sentence was beyond the Sentencing Guidelines, but
he does not assert anything beyond that observation. Appellant’s Brief at 3.
He vaguely alludes to Alleyne v. United States, 570 U.S. 99 (2013), and
suggests he was sentenced to a mandatory minimum sentence. Id. at 3, 5.
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Appellant posits that he was never credited for time served for the period
November 17, 2009, to August 4, 2011. Id. at 3.
As we observed supra, Appellant fails to reference any of the exceptions
to the PCRA time bar. To the extent Appellant attempts to invoke the newly
discovered facts exception based upon the decision in Alleyne, we observe
that Appellant is contending that his sentence is illegal. To the extent
Appellant attempts to invoke the newly-recognized constitutional right
exception under section 9545(b)(1)(iii), we note that he filed the instant PCRA
petition more than sixty days after Alleyne was decided.4 42 Pa.C.S. §
9545(b)(2); see also Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa.
Super. 2007) (stating that “[w]ith regard to a[ newly]-recognized
constitutional right, this Court has held that the sixty-day period begins to run
upon the date of the underlying judicial decision.”).
Furthermore, it is well settled 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.” Commonwealth v.
Fowler, 930 A.2d 586, 592 (Pa. Super. 2007) (citations omitted). Moreover,
the decision in Alleyne does not invalidate a mandatory minimum sentence
when presented in an untimely PCRA petition. Commonwealth v. Miller,
102 A.3d 988, 995 (Pa. Super. 2014). Indeed, herein, Appellant was not
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4Alleyne was decided on June 17, 2013. Appellant filed the instant PCRA
petition on September 18, 2015.
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sentenced to a mandatory minimum sentence. Sentencing Order, 11/16/12.
To the extent Appellant suggests he received an illegal sentence that was
“beyond the prescribed fixed penalty associated with the offense,” Appellant’s
Brief at 3, Appellant is wrong. The trial court did not impose a sentence
beyond the statutory maximum penalty for the crime of rape. Id. Finally,
Appellant previously raised and this Court addressed the propriety of his
aggravated-range sentences for rape in his direct appeal. Maxwell, 3446
EDA 2012. For all of these reasons, Appellant’s attempts to invalidate his
sentence fail.
Appellant also maintains that he did not receive proper credit for time
served. If Appellant’s challenge is to the trial court’s failure to award credit
for time spent in custody prior to sentencing, such a challenge involves the
legality of sentence and is cognizable. Commonwealth v. Menezes, 871
A.2d 204 (Pa. Super. 2005). Such a claim, however, still must first satisfy the
PCRA’s time limits, Commonwealth v. Fahy, 237 A.2d 214 (Pa. 1999), and
Commonwealth v. Fowler, 930 A.2d 586 (Pa. Super. 2007), and as
explained, Appellant did not.5
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5 If Appellant is suggesting he was not credited for the correct period,
Appellant’s Brief at 3, such a claim is properly addressed in an original action
in the Commonwealth Court. Commonwealth v. Heredia, 97 A.3d 392, 395
(Pa. Super. 2014); Commonwealth v. Hollawell, 604 A.2d 723, 725 (Pa.
Super. 1992).
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In conclusion, because Appellant’s PCRA petition was untimely and no
exceptions apply, the PCRA court correctly determined that it lacked
jurisdiction to address the issues 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) (“[J]urisdictional time limits go to a court’s right or competency to
adjudicate a controversy.”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/9/18
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