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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DEANTHONY KIRK
Appellant No. 247 WDA 2017
Appeal from the PCRA Order January 12, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0010539-2010
BEFORE: BOWES, RANSOM, JJ. and STEVENS,P.J.E.*
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 28, 2017
DeAnthony Kirk appeals pro se from the order denying his second
PCRA petition as untimely. We affirm.
Appellant was convicted of three counts of first-degree murder and
several related charges for his role in the shooting deaths of Jahard
Poindexter, Angela Sanders, and Tre Madden during the armed robbery of
Mr. Poindexter’s apartment. On November 1, 2011, he was sentenced to
three concurrent terms of life imprisonment, and two terms of five to ten
years imprisonment for the attempted murder of two other victims, Marcus
Madden and Brittany Poindexter, who survived the shooting.
The PCRA court succinctly summarized the subsequent procedural
history as follows:
* Former Justice specially assigned to the Superior Court.
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The judgment of sentence was affirmed on August 2, 2013 and
[Appellant’s] subsequent Petition for Allowance of Appeal was
denied by our Supreme Court on November 26, 2013.
No further action was taken until June 23, 2014, when
[Appellant] filed a pro se Post Conviction Relief Act Petition.
Counsel was appointed to represent [Appellant], but he
eventually filed a Turner "no-merit" letter and sought
permission to withdraw from the representation. After giving the
appropriate notice, this Court dismissed the Petition without a
hearing on October 15, 2014. [Counsel was granted permission
to withdraw]. [Appellant] appealed to the Superior Court . . .
however, the appeal was dismissed . . . on February 17, 2016[,
due to] his failure to file [a] brief.
No further action was taken until July 28, 2016, when
[Appellant] filed his second pro se Post Conviction Relief Act
Petition, averring that prison officials failed to mail his direct
[PCRA] appeal brief in a timely fashion. In support of his claim,
he attached a prison cash slip for mailing (unspecified) legal
documents to the Superior Court dated January 19, 2016 and
stamped by prison officials on March 16, 2016. After giving the
appropriate notice, this Court dismissed [Appellant’s] second
PCRA Petition on January 12, 2017. This appeal followed.
PCRA Court Opinion, 5/5/17, at 2-3.
Appellant presents one question for our review, which we restate for
clarity as follows: Whether the instant PCRA petition is time-barred when
Appellant atimely filed the appellate brief in the appeal from his prior PCRA
petition pursuant to the prisoner mailbox rule. For the reasons explained
infra, no relief is due.
We review a PCRA court order to determine whether the PCRA court’s
determination is supported by the certified record and is free of legal error.
Our Supreme Court has stated, “[a]n appellate court reviews the PCRA
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court's findings of fact to determine whether they are supported by the
record, and reviews its conclusions of law to determine whether they are
free from legal error." Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.
2014). “The scope of review is limited to the findings of the PCRA court and
the evidence of record, viewed in the light most favorable to the prevailing
party at the trial level.” Id.
All PCRA petitions must be filed within one year of the date a
defendant's judgment becomes final, unless an exception to the one-year
time restriction applies. 42 Pa.C.S. § 9545(b)(1). If a PCRA petition is
untimely, “neither this Court nor the trial court has jurisdiction over the
petition.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014).
(citation omitted). We review that legal conclusion de novo. Id. Appellant’s
sentence became final during February 2014, when the period to file a
petition for writ of certiorari with the United States Supreme Court expired.
Thus, the instant petition filed on July 28, 2016, is timely only if one of the
statutory exceptions applies.
Section 9545 provides the following three exceptions that allow for
review of an untimely PCRA petition: (1) petitioner’s inability to raise a claim
as a result of governmental interference; (2) the discovery of previously
unknown facts that could not have been ascertained by the exercise of due
diligence; and (3) a newly-recognized constitutional right that has been held
to apply retroactively. 42 Pa.C.S. § 9545 (b)(1)(i)-(iii). Any exception must
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be raised within sixty days of the date the claim first could have been
presented. 42 Pa.C.S. § 9545(b)(2).
Appellant invokes the governmental interference exception. As stated
in Commonwealth v. Jones, 700 A.2d 423 (Pa. 1997) and Smith v.
Pennsylvania Board of Probation and Parole, 683 A.2d 278 (Pa. 1996),
pursuant to the prisoner mailbox rule, a document is considered filed when
delivered to prison authorities for mailing. Instantly, Appellant argues that,
on January 19, 2016, he submitted to prison authorities for mailing the
appellate brief challenging the order denying his first, timely PCRA petition;
however, the prison failed to transmit the documents to this Court until
March 16, 2016. In the interim, on February 17, 2016, we dismissed
Appellant’s appeal due to his failure to file a brief. Thus, Appellant asserts
that, by neglecting to mail the appellate brief in a timely fashion, the prison
officials interfered with the presentation of his timely PCRA claims. He seeks
to have his PCRA appellate rights reinstated. No relief is due.
Initially, we note that the PCRA court determined that Appellant failed
to file his current PCRA petition within sixty days of the date Appellant could
have first presented his claim. See PCRA Court Opinion, 5/5/17, at 4-5. It
determined that this Court dismissed Appellant's appeal from the prior PCRA
appeal on February 17, 2016, but Appellant did not file his current PCRA
petition until July 28, 2016 “well outside of that deadline.” Id. at 5. While
we must adjust the PCRA court’s determination of the date that the sixty-
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day period began to accrue, we agree with its conclusion that Appellant’s
attempt to invoke the governmental interference exception in this case fails
because he did not present the claim within sixty days of when it could have
been presented.
As noted, the PCRA instructs that “any petition invoking an exception”
to the timeliness requirement “shall be filed within 60 days of the date the
claim could have been presented.” 42 Pa.C.S. 9434 (b)(2) (emphasis
added). Appellant does not state the precise date that he discovered the
February 17, 2016 order dismissing his appeal. However, on April 4, 2016,
Appellant mailed correspondence to the Assistant Prothonotary of this Court
wherein he invoked the prisoner mailbox rule and requested assistance with
the reinstatement of his appellate rights. We deemed the correspondence to
be an application for reconsideration and denied relief on April 6, 2016,
because, as of the date of the request, we lacked jurisdiction to disturb the
order filed on February 17, 2016. Appellant did not seek allowance of appeal
with the Supreme Court. More than three and one-half months later, he
filed the present, untimely PCRA petition.
While the PCRA court determined that Appellant could have first
asserted the government interference exception on February 17, 2016, we
omit the period that Appellant sought reconsideration in this Court from our
computation of time for the purpose of § 9545(b)(2). Stated plainly,
Appellant could not file a second PCRA petition until review of the first
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petition had been finally resolved. See Commonwealth v. Lark, 746 A.2d
585, 588 (Pa. 2000) (when appeal of PCRA petition is pending, petitioner is
precluded from filing subsequent PCRA petition until appeal has been
resolved by highest state court in which review is sought, or upon expiration
of time for seeking such review.) Accordingly, Appellant had sixty days from
the date we denied his request for reconsideration to comply with §
9545(b)(2). Nevertheless, since Appellant did not file the instant PCRA
petition invoking governmental interference until July 27, 2016, more than
sixty days after we declined reconsideration of the order dismissing his
appeal for failure to file a brief, it is clear that the PCRA court lacked
jurisdiction to review the merits of Appellant’s untimely PCRA petition.1 See
42 Pa.C.S. § 9545(b)(2).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/28/2017
____________________________________________
1 Likewise, to the extent that Appellant’s discovery of our February 17, 2016
order dismissing his appeal could serve as a newly discovered fact, that
claim fails for the identical reason. Plainly, Appellant cannot satisfy either
exception to the PCRA time-bar because he neglected to raise it within the
sixty-day window set forth in § 9545(b)(2).
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