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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ANGELO LENELL DAVIS
Appellant No. 2202 MDA 2015
Appeal from the PCRA Order November 16, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0003275-2006
BEFORE: GANTMAN, P.J., BOWES AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED AUGUST 23, 2016
Angelo Lenell Davis appeals from the November 16, 2015 order
denying him PCRA relief. We affirm.
At approximately 3:00 a.m. on October 30, 2005, Harrisburg police
responded to a 911 call about a disturbance in Appellant’s residence. When
they arrived, police heard a woman screaming for help and sounds of a
physical altercation occurring inside. Police broke down the door and
observed Appellant assaulting a female. The victim was crying and covered
in blood and was treated at an emergency room for a closed head injury and
broken nose. On November 15, 2006, a jury convicted Appellant of
aggravated and simple assault. He was sentenced on January 30, 2007, to
three and one-half to ten years imprisonment. On December 26, 2007, we
* Retired Senior Judge assigned to the Superior Court.
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affirmed the judgment of sentence, rejecting his challenge to the sufficiency
of the evidence. Commonwealth v. Davis, 945 A.2d 759 (Pa.Super. 2007)
(unpublished memorandum).
On May 22, 2008, Appellant filed a timely pro se PCRA petition and
raised claims of ineffective assistance of counsel. PCRA counsel was
appointed, and, thereafter, petitioned for withdrawal pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). After
Appellant responded to the withdraw request, counsel’s petition was granted
and PCRA relief was denied. On appeal, we affirmed. Commonwealth v.
Davis, 15 A.3d 540 (Pa.Super. 2010) (unpublished memorandum).
Appellant filed various additional petitions for relief while the first PCRA
petition was pending on appeal. He appealed the denial of one of those
petitions, which contained a request for credit for time served, and that
appeal was quashed due to defects in Appellant’s brief that precluded us
from reviewing the merits of his positions. Commonwealth v. Davis, 87
A.3d 894 (Pa.Super. 2013) (unpublished memorandum).
On January 22, 2015, Appellant filed three habeas corpus petitions,
which were all denied by order dated May 14, 2015. In the meantime, on
May 7, 2015, Appellant filed a second PCRA petition, which was dismissed by
order dated November 16, 2015. This appeal was filed on December 14,
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2015 from the November 16, 2015 order. Appellant presents these issues
for our review:
1. Whether the Court err[ed] in denying all three (3) of
Petitioner’s Petitions for habeas corpus challenging his
confinement and detention in violation of Pa. Rule of Crim.
P. Rule 600 Speedy Trial, Sixth Amendment U.S.
Constitution, Artic[le] 1 § 9 Pennsylvania Constitution;
Double Jeopardy, Fifth Amendment U.S. Constitution,
Artic[le] 1 § 10 Pennsylvania Constitution, Illegal
Sentence violation of Due Process no Sentence Order was
ever issued?
2. Whether the court err[ed] and caused an “inordinate
delay” in Petitioner’s timely filing of the PCRA within (60)
days of when he became aware of the fact that no
sentence order was issued by the trial or sentencing court
in his case?
3. Whether the court err[ed] when it denied Petitioner of the
timely filed request for extension of time in which to file
his timely response to the court[’]s memorandum opinion
giving (20) day’s and not (30) to answer with other court
deadlines due that the court was made known of and was
fully aware of?
Appellant’s brief at 4.
We first outline our standard of review of a PCRA court’s ruling:
Under the applicable standard of review, we must
determine whether the ruling of the PCRA court is supported by
the record and is free of legal error. Commonwealth v.
Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008). The PCRA
court's credibility determinations, when supported by the record,
are binding on this Court. Commonwealth v. Johnson, 600 Pa.
329, 966 A.2d 523, 532, 539 (2009). However, this Court
applies a de novo standard of review to the PCRA court's legal
conclusions. Commonwealth v. Rios, 591 Pa. 583, 920 A.2d
790, 810 (2007).
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Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011).
Initially, we note that we lack jurisdiction over Appellant’s first issue.
Therein, Appellant complains about the dismissal of his three habeas corpus
petitions, which were denied on May 14, 2015. An appeal must be filed
within thirty days after entry of an order. Pa.R.A.P. 903(a). This appeal was
filed on December 14, 2015, more than thirty days after the May 14, 2015
final order dismissing the three habeas corpus petitions. Hence, we cannot
consider the merits of Appellant’s first claim.
Before we can address Appellant’s remaining two positions, which
relate to the denial of the May 7, 2015 PCRA petition, we must determine
whether that petition was timely filed as that issue also implicates our
jurisdiction. Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014). If
a PCRA petition is untimely, “neither this Court nor the trial court has
jurisdiction over the petition.” Id. at 992 (citation omitted); see
Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006) (“[I]f a PCRA
petition is untimely, neither this Court nor the trial court has jurisdiction
over the petition. Without jurisdiction, we simply do not have the legal
authority to address the substantive claims.”).
Any PCRA petition has to be filed within one year of the date the
defendant’s judgment becomes final unless an exception to the one-year
time restriction applies. 42 Pa.C.S. § 9545(b)(1). Accordingly, we first must
determine when Appellant’s judgment of sentence became final. “A
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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.” 42 Pa.C.S. § 9545(b)(3). Since Appellant did not file a petition for
allowance of appeal from our December 26, 2007 affirmance of his January
30, 2007 judgment of sentence, that sentence became final under the PCRA
on January 25, 2008, which was thirty days after our decision. Appellant
had until January 25, 2009 to file a timely PCRA petition, and the present
May 7, 2015 petition is untimely. There are three exceptions to the one-
year time bar of § 9545:
(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-iii). “Any petition invoking an exception provided
in paragraph (1) shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
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Appellant obliquely invokes one exception to the one-year filing
deadline in his second question presented on appeal. Specifically, Appellant
avers that the court erred and caused the delay in the filing of the May 7,
2015 petition. He maintains that the petition was filed within sixty days of
when he became aware of the fact that no sentencing order was entered in
this case. This argument suggests that the May 7, 2015 petition was timely
under the newly discovered facts exception outlined in § 9545(b)(ii). “The
timeliness exception set forth in Section 9545(b)(1)(ii) requires a petitioner
to demonstrate he did not know the facts upon which he based his petition
and could not have learned those facts earlier by the exercise of due
diligence.” Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super.
2015); see Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007).
However, our Supreme Court has clearly articulated that “to constitute facts
which were unknown to a petitioner and could not have been ascertained by
the exercise of due diligence,” so as to qualify for the newly discovered facts
exception, “the information must not be of public record[.]”
Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa. 2013).
In the present case, the criminal record of this matter, which is of
public record, clearly revealed that a sentencing order was purportedly
lacking. Therefore, Appellant’s discovery of that documents alleged absence
is not a newly discovered fact falling within the invoked exception. Thus,
Appellant’s May 7, 2015 PCRA petition remains untimely.
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Appellant’s third claim is that he was not given sufficient time to reply
to the court’s intent to dismiss the May 7, 2015 PCRA petition. The petition
was untimely, and Appellant fails to establish that it fell within an exception
to the one-year time bar. Thus, his inability to respond to the court’s intent
to dismiss the petition was of no moment in this matter.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2016
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Com. v. Davis, A.
Combined Opinion