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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
GREGORY REEVES :
:
Appellant : No. 734 EDA 2019
Appeal from the PCRA Order Entered February 4, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1206832-1993
BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED MARCH 04, 2020
Gregory Reeves appeals from the denial of his Post Conviction Relief
Act1 (“PCRA”) petition. The PCRA court dismissed the petition as untimely. We
affirm.
In 1994, a jury convicted Reeves of second-degree murder. The trial
court sentenced Reeves to life imprisonment and we affirmed the judgment of
sentence. See Commonwealth v. Reeves, 671 A.2d 772 (Table) (Pa.Super.
1995). The Pennsylvania Supreme Court denied allowance of appeal on
February 29, 1996.2 Commonwealth v. Reeves, 673 A.2d 333 (Pa. 1996).
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1 42 Pa.C.S.A. §§ 9541-9546.
2 The PCRA court states that the Supreme Court denied allowance of appeal
on November 9, 1995. The discrepancy does not affect our decision, as in
either case, the petition was untimely.
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Reeves filed the instant PCRA petition in August 2012 seeking relief
under Miller v. Alabama, 567 U.S. 460 (2012). See PCRA Petition, filed
8/12/12. Miller held that imposition of a mandatory sentence of life
imprisonment without possibility of parole is unconstitutional as applied to
defendants who at the time of their crimes were under the age of 18. See
Miller, 567 U.S. at 465.
Reeves then filed a pro se motion for leave to amend his PCRA petition,
but the court never ruled on the motion. Reeves nevertheless filed pro se
amended PCRA petitions in February and August 2016. Subsequently, in June
2017, the PCRA court appointed counsel. In August 2017, Reeves filed another
pro se amended PCRA petition.
The following month, in September 2017, counsel filed a Turner/Finley
letter and a motion to withdraw.3 See Turner/Finley Letter, filed 9/14/17.
The PCRA court held a Grazier4 hearing where Reeves requested and the
court granted Reeves’ request to proceed pro se. See Written Waiver of
Counsel, dated 11/14/17.
Reeves then filed another amended petition on January 5, 2018, titled,
“Motion for Permission to File Amended Petition for Post Conviction Relief,”
which the court granted. Order, filed 1/12/18. The PCRA court issued notice
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3Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
4 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).
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of intent to dismiss the petition without a hearing and ultimately dismissed
the petition. See Pa.R.Crim.P. 907 Notice, filed 1/4/19; Order, filed 2/5/19.
Reeves filed a notice of appeal and the PCRA court entered an order
directing Reeves to file a Pa.R.A.P. 1925(b). The PCRA court states in its
opinion that “Reeves filed . . . a statement of matters complained of on appeal
on April 3rd” and also listed the issues from the statement as follows:
[D]oes not the Pennsylvania Supreme Court’s interpretation
of Pa. Construction of Statutes that are not severable and
that, as a result Pennsylvania’s sentence statute 18 Pa. C.S.
§1102(a) (1979)’s mitigating factors must be written in the
indictment based on the recent statutory decision of the
Pennsylvania Supreme Court in Commonwealth v. Batts,
163 A.3d 410 (Pa. 2017) (finding the defendant’s age at the
time of his offense qualified as a statutory mitigating factor),
citing Commonwealth v. Wolfe, 140 A.3d 600-601
(2016), reaffirming its decision in Hopkins, 117 A.3d at
249, as it relates to another similarly worded mandatory
minimum sentencing statute, 42 Pa. C.S.A. § 9718).
***
Second, in Commonwealth v. Burton, 683 Pa. 687 (Pa.
2017), the Pennsylvania Supreme Court has recently
reaffirmed that the presumption that the presumption [sic]
that information which is of public record cannot be deemed
unknown for the purposes of the Post Conviction Relief Act,
42 Pa. C.S. § 9545 (b) (1) (i) (ii), does not apply to pro se
[sic] prisoner petitioner’s [sic] as the application of the
public record presumption to pro se [sic] petitioner’s [sic] is
contrary to the plain language of § 9545 (b) (1) (i) (ii).
Petitioner’s constitutional allegations bring his claim within
the ambit of sections (b) (1) (i) (ii), he must still prove that
it meets the requirements therein. Under subsections (b)
(1) (i) (ii), he must also prove 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 of the United States; or (ii) the facts
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upon which the claim is predicated were unknown to the
petitioner and could not have been ascertained by the
exercise of due diligence.” Such questions require further
fact-finding and the PCRA court, acting as fact finder, should
determine whether Petitioner met the “proof” requirement
under 42 Pa. C.S. § 9545(b) (1) (i) (ii).
***
Due process requires that this Court permit Petitioner to
vindicate his right by reviewing the structural errors
inherent in his conviction that are presented by this Petition.
The refusal to allow Petitioner means to vindicate his
constitutional right would violate petitioner’s state and
federal right to due process. Heisner v. Ryan, 951 F.2d
599 (3rd Cir. 1991) (state post-conviction procedures are to
be monitored for violation of litigant’s right to due process);
Carter v. Vaughn, 62 F.3d 591 (3rd Cir. 1995) (same). This
Petition, filed within 60 days of the revelation of new
evidence of the previous administration of the Philadelphia
District Attorney’s Officer policy and practice of prosecutors
not being attuned to their constitutional and ethical
disclosure responsibility, which raises newly available
evidence in support of important claims about the
unconstitutionality of the process by which Petitioner came
to be convicted of second degree murder and sentenced to
life, should be considered timely-filed, to allow Petitioner
post-conviction review in a manner consistent with both
state and federal due process rights.
PCRA Court Opinion (“PCO”), filed 4/23/19, at 2, 5-6, 6-7, 7-8. However,
Reeves’ Rule 1925(b) statement is not in the certified record and the docket
does not reflect that it was filed. It appears that Reeves sent the Rule 1925(b)
statement to the PCRA judge but never filed it with the clerk of courts.
Reeves’ brief asserts the following issues:
I. Whether petitioner’s [sic] is entitled to relief from his
conviction and sentence because the Commonwealth
failed to disclosed [sic] relevant Brady material in a
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manner depriving him of his rights under the Sixth
and Fourteenth amendments of the U.S. Constitution.
II. Whether petitioner’s [sic] is entitled to relief from his
conviction and sentence because the trial court
severed Pennsylvania’s minimum sentencing statute
in a manner depriving him of his rights under the
Eighth and Fourteenth amendments of the
Constitution and the corresponding provisions of the
Pennsylvania Constitution.
Reeves’ Br. at 1.
We need not resolve the confusing questions of which petition is the
operative petition and whether Reeves’ Rule 1925(b) statement preserved his
claims on appeal because his PCRA petition was untimely. “Our standard of
review of the denial of a PCRA petition is limited to examining whether the
evidence of record supports the court’s determination and whether its decision
is free of legal error.” Commonwealth v. Beatty, 207 A.3d 957, 960-61
(Pa.Super. 2019). We also defer to the factual findings of the PCRA court so
long as those findings are supported by the record. Id. at 961.
A petitioner has one year from the time the judgment of sentence is
final to file a PCRA petition. 42 Pa.C.S.A. § 9545(b)(1). A judgment of
sentence is 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.” Id. at §
9545(b)(3). If the petition is not filed before the one-year deadline expires,
the petitioner must plead and prove at least one of the three time-bar
exceptions. These exceptions are:
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(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.
Id. at § 9545(b)(1)(i)-(iii). When a petitioner raises a time-bar exception, he
or she must raise it within 60 days of the date the petitioner could have first
raised the exception. 42 Pa.C.S.A. § 9545(b)(2).5
Here, Reeves’ judgment of sentence became final on May 29, 1996,
when the time to file a writ of certiorari with the United States Supreme Court
expired. See U.S. Ct. Rule 13. Therefore, he had until May 29, 1997, to file a
timely PCRA petition. Thus, the instant petition filed in January 2018 was
patently untimely and Reeves bore the burden of pleading and proving at least
one of the time-bar exceptions.
In his petition, Reeves claimed the governmental interference
exception:
Accordingly, to satisfy the governmental official interference
exception, Petitioner must demonstrate (1) that
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542 Pa.C.S.A. § 9545(b)(2) has since been amended to allow a petitioner one
year to file a petition. The amendment applies to claims arising on or after
December 24, 2017, and thus does not apply to Reeves.
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interference by government officials prevented him from
discovering the unlawful severance of the statutes in this
case and bring severance claim sooner, and (2) that he
could not have known of the governmental interference
earlier through the exercise of reasonable diligence. There
is no question in this case that the [t]rial [c]ourt sentenced
him to what have now been determined to be
unconstitutional provisions of 42 Pa. C.S. § 9711 (requiring
sentencing factors to be determined by the trial court by a
preponderance of the evidence) are unseverable, and that
the statutes at issue are unconstitutional.
PCRA Petition, filed 1/5/18, at 7.
In order to satisfy the governmental interference exception, Reeves had
to plead and prove that his “failure to raise the claim [or claims] previously
was the result of interference by government officials with the presentation of
the claim [or claims] in violation of the Constitution or laws of this
Commonwealth or the Constitution or laws of the United States . . .”
Commonwealth v. Chester, 895 A.2d 520, 523 (Pa. 2006) (quoting 42
Pa.C.S.A. § 9545(b)(1)(i)).
Here, Reeves argues that we should vacate his judgment of sentence
because “the [t]rial [c]ourt sentenced him to mandatory life without parole
pursuant to what have now been determined to be unconstitutional provisions
of 42 Pa. C.S. § 9711 (requiring sentencing factors to be determined by the
trial court by a preponderance of the evidence) are unseverable, and that the
statutes at issue are unconstitutional.” PCRA Petition at 7. In support of this
claim, Reeves cites to Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017)
(Batts II). Id. at 5. Reeves’ argument is meritless for several reasons.
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First, Batts II is inapplicable to this case, as Batts II involved the
sentencing of a juvenile offender to life imprisonment without the possibility
of parole. Here, Reeves was not a juvenile at the time of the murder, but
rather 24 years old.
Second, Section 9711 has not been held unconstitutional and the
imposition of a life sentence without possibility of parole on Reeves was not
illegal. See 18 Pa.C.S.A. § 1102(b). The PCRA court did not err in dismissing
Reeves’ PCRA petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/4/20
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