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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JOHN JERMAINE BOYD :
:
Appellant : No. 1083 EDA 2020
Appeal from the PCRA Order Entered March 18, 2020
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0000773-2012
BEFORE: PANELLA, P.J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY McCAFFERY, J.: Filed: January 21, 2021
John Jermaine Boyd (Appellant) appeals pro se from the order entered
in the Lehigh County Court of Common Pleas, denying and dismissing his
second Post Conviction Relief Act1 (PCRA) petition as untimely filed. On
appeal, Appellant does not challenge the PCRA court’s finding of untimeliness,
but instead presents an assortment of undeveloped, vague claims. We affirm.
A prior panel of this Court summarized the pertinent procedural history.
See Commonwealth v. Boyd, 3479 EDA 2015 (unpub. memo. at 1-3) (Pa.
Super. May 18, 2017) (first PCRA petition), appeal denied, 415 MAL 2017 (Pa.
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* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
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Dec. 13, 2017). On January 15, 2014, Appellant entered a negotiated guilty
plea to two counts of third-degree murder.2 On March 4, 2014, the trial court
imposed two consecutive terms of 20 to 40 years’ imprisonment. Appellant
did not file post-sentence motions nor a direct appeal.
On December 16, 2014, Appellant filed a timely, pro se PCRA petition.
We note the petition averred, inter alia, that in imposing sentence, the court
did not consider Appellant’s rehabilitative needs, and that the sentence
violated Alleyne v. United States, 570 U.S. 99 (2013). The PCRA court
appointed counsel, who then filed a petition to withdraw from representation.
The PCRA court dismissed the petition, and on appeal, this Court affirmed on
May 18, 2017. On December 13, 2017, the Pennsylvania Supreme Court
denied Appellant’s petition for allowance of appeal.
Appellant filed the pro se instant PCRA petition, his second, on
November 13, 2019. The petition presented several vague and unclear
claims: (1) this case “suffers from a chain of violations [relating to] procedural
fairness;” (2) Alleyne “required . . . the sentencing factors be separated from
the ‘element’ concerning the legal prescribed range of the penalty affixed to
the crime;” (3) “[t]he element of his offense that increase[s] the floor and
ceiling of his sentence, outside his prior record score, was never furnished in
the complaint, information/indictment [sic];” (4) “20-40 years incarcerated
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2 18 Pa.C.S. § 2502(c).
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constitute a severe excessive punishment for one count of Murder;” (5) the
trial court imposed maximum range sentences “without incorporating the
‘element’ which heightens loss of liberty associated with the crimes;” (6)
“[s]entences that fall[ ] outside the realms of the complaint and information”
are “void” by law; and (7) the trial court did not consider Appellant’s
rehabilitative needs. Appellant’s Post Conviction Relief Act, 11/13/19, at 1-3
(unpaginated). While Appellant recurrently referred to an “element,” he did
not identify nor further explain this “element.” Finally, Appellant invoked the
PCRA timeliness exception at 42 Pa.C.S. § 9545(b)(1)(ii). While we note this
exception pertains to newly discovered facts, Appellant did not specify any
newly discovered fact, but instead merely argued “this information became
available to [him] on October 26, 2019, [at the] SCI-Houtzdale law library,”
following more than a year in solitary confinement “in another facility.”
Appellant’s Post Conviction Relief Act at 4.
On January 29, 2020, the PCRA court issued Pa.R.Crim.P. 907 notice of
intent to dismiss Appellant’s petition without a hearing. The court reasoned
the petition was untimely filed and, in any event, Appellant’s claim of an illegal
sentence was previously litigated in his first PCRA petition. Order, 1/29/20
(Rule 907 Notice), at 1 n.1. On February 20th, Appellant filed a pro se
response, seeking permission to amend his petition. On March 18th, the court
filed the underlying order denying and dismissing the petition.
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Appellant filed a timely notice of appeal on April 9, 2020. On May 20th,
the PCRA court issued an order directing Appellant to “file of record and serve
on [the] court” a Pa.R.A.P. 1925(b) statement within 21 days, or by June 10th.
Order, 5/20/20. The order directed Appellant “to file of record and serve on
[the] court a concise statement of the errors complained of on appeal within
21 days,” and advised “that any issue not properly included it the statement
shall be deemed waived.” Order, 5/20/20. The docket entry for this order
indicates that on May 21st, the order was served by “regular” mail on
Appellant and by “E-mail” on the District Attorney’s office. Criminal Docket at
26. However, Appellant did not file any Rule 1925(b) statement. The PCRA
court did not issue an opinion, but instead filed an order on June 25th, pointing
out that Appellant did not file a Rule 1925(b) statement and reiterating the
PCRA petition was untimely filed.
Appellant presents the following two issues on appeal:3
1. Instantly Appellant contends that the lower courts error [sic]
by not recognizing this case is a clear showing of a miscarriage of
justice based on abandonment claims alone.
2. Appellant suffers from a continuance practice of
unconstitutional hardship that[’]s constitutional based on
untimeliness principle [sic].
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3 We quote these two issues from Appellant’s “Summary of the Arguments”
section; his brief does not include a statement of questions involved. See
Pa.R.A.P. 2111(a)(4), (6) (appellant’s brief “shall consist of the following
matters, separately and distinctly entitled . . . : Statement of the questions
involved [and] Summary of argument”).
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Appellant’s Brief at 4.
Preliminarily, we consider the PCRA court’s suggestion that Appellant
has waived all appellate issues for failing to file a court-ordered Rule 1925(b)
statement. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the
Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.”); Commonwealth v. Lord, 719 A.2d 306, 309
(Pa. 1988) (“[I]n order to preserve their claims for appellate review,
Appellants must comply whenever the trial court orders them to file a
Statement of Matters Complained of on Appeal pursuant to Rule 1925[; a]ny
issues not raised in a 1925(b) statement will be deemed waived.”). However,
we note that in the “statement of the case” section of his appellate brief,
Appellant asserts, “No 1925(b) is [sic] requested from [A]ppellant.”
Appellant’s Brief at 3. The Commonwealth has not addressed this issue. See
Commonwealth’s Brief at 7-9. We decline to find waiver under Rule 1925(b),
and instead we affirm the dismissal of Appellant’s PCRA petition on the ground
it was untimely filed.
“When reviewing the denial of a PCRA petition, we must determine
whether the PCRA court’s order ‘is supported by the record and free of legal
error.’” Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016)
(citation omitted).
Generally, any petition under the PCRA, “including a second or
subsequent petition, shall be filed within one year of the date the judgment
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becomes final.” 42 Pa.C.S. § 9545(b)(1). “[A] judgment becomes final at the
conclusion of direct review, including discretionary review in . . . the Supreme
Court of Pennsylvania, or at the expiration of time for seeking the review.” 42
Pa.C.S. § 9545(b)(3). Nevertheless, an untimely petition may be considered
if one of the three timeliness exceptions applies. Pursuant to the newly
discovered facts exception, a PCRA court may review a facially untimely
petition if the petitioner demonstrates “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.” 42 Pa.C.S. § 9545(b)(1)(ii). A
petition invoking a timeliness exception must be filed “within one year of the
date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).4 A
claim of an illegal sentence is subject to these filing requirements.
Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999). “We have
construed the PCRA’s timing provisions as jurisdictional in nature, and no court
may entertain an untimely PCRA petition.” Commonwealth v. Small, 238
A.3d 1267, 1280 (Pa. 2020).
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4 The prior version of this subsection provided petitioners 60 days, from the
date the claim could have been presented, to invoke a timeliness exception.
42 Pa.C.S. § 9545(b)(2). The subsection was amended, effective December
24, 2018, to provide petitioners with one year to invoke a timeliness exception
regarding “claims arising on Dec. 24, 2017 or thereafter.” 42 Pa.C.S. §
9545(b)(2); Section 3 of Act 2018, Oct. 24, P.L. 894, No. 146, effective in 60
days. Because the instant petition was filed on November 13, 2019, we cite
the amended version of subsection 9545(b)(2).
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As stated above, Appellant was sentenced on March 4, 2014, and he did
not file a post-sentence motion or a direct appeal. Thus, for PCRA purposes,
his judgment of sentence became final when the 30-day period for filing a
notice of appeal expired — on April 3, 2014. See 42 Pa.C.S. § 9545(b)(3);
Pa.R.A.P. 903(a) (notice of appeal shall be filed within 30 days after entry of
the order from which the appeal is taken). Appellant then had one year, or
until April 3, 2015, to file a PCRA petition. See 42 Pa.C.S. § 9545(b)(1). The
instant petition was filed more than four years later, on November 13, 2019.
We thus review whether the petition properly invoked any of the timeliness
exceptions.
Appellant’s PCRA petition referred to the timeliness exception at
subsection 9545(b)(1)(ii). His entire discussion was:
21. Lastly, this information became available to [Appellant on]
October 26, 2019, in attendance with SCI-Houtzdale law library
[sic] [. Prior to Appellant’s] attendance here, he [was] in solitary
confinement over a year in another facility until his transfer at
SCI-Houtzdale. See Commonwealth v. Burton, [158 A.3d 618
(Pa. 2017).] Also, outside of the retroactive aspects here, this
Court can invoke sec. 9545(b)(1)(ii)[ ] exception to the time bar
under circumstances that is beyond his control to have review to
which he is entitled to. See Commonwealth v. Peterson, 192
A.3d 1123 [(Pa. 2018).]
Appellant’s Post Conviction Relief Act at 4.
Appellant’s petition did not identify nor discuss any newly-discovered
fact. Additionally, the petition failed to provide any explanation why the fact
was unknown to Appellant “and could not have been ascertained by the
exercise of due diligence.” See 42 Pa.C.S. § 9545(b)(1)(ii). We thus agree
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with the PCRA court that Appellant’s petition was untimely, and we conclude
the court lacked jurisdiction to review it. See Small, 238 A.3d at 1280; Rule
907 Notice at 1 n.1.
Furthermore, we note that on appeal, Appellant makes no reference to,
and does not dispute, the PCRA court’s timeliness conclusion. Instead, his
one and a half-page argument presents various undeveloped and somewhat
unclear claims: (1) “the bound[a]ry between trial and appella[te] counsel
naturally falls . . . at the notice of appeal,” but this Court should “draw the
line when the trial court orally pronounces the sentence,” as “this is when the
error-correcting stage begins;” (2) the PCRA court had jurisdiction over his
2014 PCRA petition; (3) “The Alleyne decision determine[d] that any
sentence imposed outside of defendants[’] prior record score is [an] element
and must be [a part] of the information/indictment;” (4) Alleyne progeny
cases “focus on the element in the plea agreement;” and (5) “Put another
way, even if it was the court[’]s belief that the nature of the offense required
such a sent[e]nce it is still in violation of the law and statute because the
legislature had already considered these grounds in fas[h]ioning the
sentencing guidelines.” See Appellant’s Brief at 5-6. None of these claims
address the PCRA court’s conclusion that his petition was untimely filed.
We affirm the order denying and dismissing Appellant’s PCRA petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/21/21
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