The opinion
J-S24022-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES MILES, A/K/A JAMES MYLES,
Appellant No. 2678 EDA 2014
Appeal from the PCRA Order entered September 5, 2014,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0713191-1970
BEFORE: GANTMAN, P.J., ALLEN, and MUSMANNO, JJ.
MEMORANDUM BY ALLEN, J.: FILED APRIL 17, 2015
James Miles, a/k/a James Myles (“Appellant”) appeals pro se from the
order denying his serial petition for post-conviction relief filed pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We
affirm.
The PCRA court summarized the pertinent facts and protracted
procedural history as follows:
On February 26, 1972, [Appellant] was found guilty by
a jury presided over by the Honorable Victor DiNubile of
Murder, Rape, and Conspiracy. On December 18, 1972,
[Appellant] was sentenced to a term of [] life
imprisonment on the Murder charge, with concurrent
sentences of seven and [one-]half to fifteen years on the
Rape count, and one to two years on the Conspiracy count.
The Pennsylvania Supreme Court affirmed the judgment of
sentence on March 16, 1977.
On April 19, 1978, [Appellant] filed a counseled petition
pursuant to the Post Conviction Hearing Act (PCHA). After
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review, relief was denied on March 7, 1980. The dismissal
was affirmed by the Pennsylvania Superior Court on June
25, 1982.
On May 14, 1984, [Appellant] filed his second PCHA
petition, which was dismissed on October 29, 1985 and
affirmed by the Superior Court on August 19, 1986. The
Pennsylvania Supreme Court denied allocatur on March 2,
1987.
On November 10, 1994, [Appellant] filed a petition
pursuant to the [PCRA], which had gone into effect on April
13, 1988. This petition was denied on December 7, 1994,
and the dismissal [was] affirmed by the Superior Court on
August 12, 1997. [Appellant] also filed a writ of habeas
corpus on February 2, 2001. It was treated as a PCRA
petition and dismissed as untimely on May 9, 2001.
On March 27, 2003, [Appellant] filed a Motion for DNA
Testing pursuant to 42 Pa.C.S. § 9543.1. A hearing was
held and [Appellant’s] request was denied on August 26,
2004. The Superior Court affirmed the denial of the
motion on June 23, 2005.
On September 5, 2007, [Appellant] filed his fifth
petition for post conviction relief. It was dismissed [as
untimely] on October 7, 2009. The dismissal was affirmed
by the Superior Court on May 28, 2010. The Pennsylvania
Supreme Court denied allocatur on October 19, 2010.
[Appellant] filed the instant petition, his sixth, on
August 23, 2011. After conducting an extensive and
exhaustive review of these filings, the record and
applicable case law, this Court found that [Appellant’s
PCRA petition] was untimely filed. Therefore, this Court
did not have jurisdiction to consider [Appellant’s] PCRA
petition and[,after issuing Pa.R.Crim.P. 907 notice,] it was
dismissed.
PCRA Court Opinion, 11/12/14, at 1-2.
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Appellant filed a timely pro se appeal to this Court, in which he
challenges the PCRA court’s determination that he failed to establish an
exception to the PCRA’s time bar. The PCRA court did not require Pa.R.A.P.
1925 compliance.
This Court’s standard of review regarding an order dismissing a
petition under the PCRA is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA
court’s findings will not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,
1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a
hearing on the petition if the PCRA court determines that the petitioner’s
claim is patently frivolous and is without a trace of support in either the
record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011
(Pa. Super. 2001).
The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation
omitted). Thus, if a PCRA petition is untimely, neither an appellate court nor
the PCRA court has jurisdiction over the petition. Id. “Without jurisdiction,
we simply do not have the legal authority to address the substantive claims”
raised in an untimely petition. Id.
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Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
becomes final unless the petition alleges, and the petitioner proves, an
exception to the time for filing the petition. Commonwealth v. Gamboa-
Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under
these exceptions, the petitioner must plead and prove that: “(1) there has
been interference by government officials in the presentation of the claim; or
(2) there exists after-discovered facts or evidence; or (3) a new
constitutional right has been recognized.” Commonwealth v. Fowler, 930
A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition
invoking one of these statutory exceptions must “be filed within sixty days of
the date the claim first could have been presented.” Gamboa-Taylor, 753
A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to
the time restrictions of the PCRA must be pled in the petition, and may not
be raised for the first time on appeal. Commonwealth v. Burton, 936
A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not
raised before the lower court are waived and cannot be raised for the first
time on appeal.”).
Before addressing the timeliness of Appellant’s latest PCRA petition,
the PCRA court considered whether Appellant could seek the relief he
requested via a serial post-conviction petition. The PCRA court explained:
Before looking at the [PCRA’s timeliness exceptions], this
Court must determine whether [Appellant] can be afforded
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relief under the PCRA. [Appellant] claimed that he is
subject to an illegal sentence due to an incomplete
judgment of sentence. Specifically, [Appellant] claimed
that he is unlawfully being detained on a DC-300B Court
Commitment Form, rather than a sentencing order entered
by a judge. Upon review, this claim was not cognizable
under the PCRA. Because [Appellant’s] claim fell outside
the eligibility requirements of the PCRA, this court [treated
Appellant’s sixth PCRA petition as a] Petition for Writ of
Habeas Corpus [and addressed it] on the merits.
That said, this court found [Appellant’s] claims to be
completely without merit. The Honorable Judge DiNuble
[sic] entered a sentencing order in this matter on
December 18, 1972. The original sentencing order is
being maintained by the Clerk of Courts of this court as
part of [Appellant’s] file in this matter. Therefore,
[Appellant’s] Petition for Writ of Habeas Corpus for lack of
a sentencing order was demonstrably frivolous and was
therefore denied.
PCRA Court Opinion, 11/12/14, at 3 (footnote omitted). We agree.
As this Court has recently noted, our Supreme Court has held “that a
claim that a defendant’s sentence is illegal due to the inability of the
[Department of Corrections] to ‘produce a written sentencing order related
to [his] judgment of sentence’ constitutes a claim legitimately sounding in
habeas corpus.” Joseph v. Glunt, 96 A.3d 365, 368 (Pa. Super. 2014)
(citation omitted). In Joseph, after reviewing relevant case law, we
determined that “courts confronting this issue in the past have deemed a
record of the valid imposition of a sentence as sufficient authority to
maintain a prisoner’s detention notwithstanding the absence of a written
sentencing order under 42 Pa.C.S. § 9764(a)(8).” Id. at 372. Here, as in
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Joseph, a review of the record contains a legitimate sentencing order.
Thus, Appellant is not entitled to habeas corpus relief.
In response to the PCRA court’s Pa.R.Crim.P. 907 notice of intent to
dismiss, Appellant maintained that his claim should be considered under the
PCRA and that he established an exception to the PCRA’s time bar. We
disagree.
Because Appellant did not file a petition for writ of certiorari with the
United States Supreme Court following our Supreme Court’s denial of
allocatur, for PCRA purposes, Appellant’s judgment of sentence became final
ninety days thereafter, on June 14, 1977. 42 Pa.C.S.A. § 9545(b)(3);
U.S.Sup.Ct.R. 20 (repealed). Appellant filed the instant PCRA petition over
three decades later. As a result, his PCRA petition is patently untimely
unless he has satisfied his burden of pleading and proving that one of the
enumerated exceptions applies. See Commonwealth v. Beasley, 741
A.2d 1258, 1261 (Pa. 1999).
Appellant has failed to prove the applicability of any of the exceptions
to the PCRA’s time restrictions. Appellant asserts that he recently
discovered that his “judgment of sentence order is not [] binding in being
authorized by a signed and sealed official document, that constitutes [an]
illegal sentence[.]” Appellant’s Brief at 5 (emphasis removed). According to
Appellant, discovery of this fact rendered his latest petition timely under
section 9545(b)(1)(ii). This exception requires that “the facts upon which
the claim is predicated were unknown to the petitioner and could not have
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been ascertained by the exercise of due diligence.” 42 Pa.C.S.A. §
9545(b)(1)(ii).
The PCRA court rejected Appellant’s claim, and reasoned:
[Appellant] claimed that his petition was timely since
the petition was filed within 60 days of receiving the
judgment of sentencing from the Clerk of Courts, which he
states was on July 26, 2011. [Appellant] is mistaken.
Even if [Appellant’s] petition had been considered under
the PCRA, [Appellant] would not have been afforded relief.
To be timely, the statue clearly states that a petition
invoking one of the exceptions must be submitted within
60 days of when it first could have been presented. 42
Pa.C.S.A. § 9545(b)(2). In this instance, [Appellant’s]
judgment of sentence and DC-300 B Commitment Form
have been discoverable since the 1970s, and [presenting]
this claim over 30 years later did not meet the 60-day
requirement.
PCRA Court Opinion, 11/12/14, at 4.
Our review of the record readily supports the PCRA court’s conclusion
that Appellant did not timely raise his claim of newly discovered evidence.
Additionally, because Appellant’s sentence is a matter of public record, his
eligibility for the time-bar exception fails.1 See Commonwealth v.
Edmiston, 65 A.3d 339, 352 (Pa. 2013) (holding that to qualify for the
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1
Within his brief, Appellant raises a claim that all prior counsel were
ineffective for failing to discover the defect in his “sentencing order.” See
Appellant’s Brief at 8-9. Because Appellant inappropriately raises this claim
for the first time on appeal, it is waived. See generally, Pa.R.A.P. 302. In
addition, claims of ineffectiveness do not constitute interference by
governmental officials under the PCRA. 42 Pa.C.S.A. § 9545(b)(4).
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newly-discovered exception under the PCRA, the facts must be unknown to
the petitioner, not discoverable through reasonable diligence, and not part of
the public record); see also Commonwealth v. Heredia, 97 A.3d 392,
395, n.6 (explaining that PCRA petitioner could not assert the newly-
discovered facts exception to the PCRA’s time bar based on a DC-300B
commitment form because the information contained therein was not new).
In sum, the PCRA court correctly determined that Appellant is not
entitled to habeas corpus relief, and that it would lack jurisdiction to
consider Appellant’s latest petition under the PCRA. We therefore affirm the
PCRA court’s order denying Appellant post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/17/2015
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