The opinion
J-S21032-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN LEBRON,
Appellant No. 2850 EDA 2014
Appeal from the PCRA Order September 12, 2014
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: MC-51-CR-0444561-2001
BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MAY 05, 2015
Appellant, John Lebron,1 appeals pro se from the order of September
12, 2014, dismissing, without a hearing, his second petition pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Because the
petition is untimely, we affirm.2
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Throughout the certified record, Appellant’s last name appears as both
“Lebron” and “Lebrom.”
2
“[W]e are not limited by the trial court’s rationale and [ ] we may affirm on
any basis.” Blumenstock v. Gibson, 811 A.2d 1029, 1033 (Pa.Super.
2002), appeal denied, 828 A.2d 349 (Pa. 2003).
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We take the underlying facts and procedural history in this matter
from the PCRA court’s opinion of September 12, 2014 and our own
independent review of the record.3
On November 11, 2001, Appellant entered a guilty plea to charges of
unlawful taking, theft by receiving stolen property, corrupting the morals of
a minor, theft from a motor vehicle, criminal mischief, and criminal
conspiracy in case MC-51-CR-0444561-2001. On February 20, 2002, the
trial court sentenced Appellant to a term of twenty-four months of probation.
Appellant did not file a direct appeal.
During the next two years, the police arrested Appellant three times
for similar crimes. A jury convicted Appellant on certain charges and
Appellant pleaded guilty to additional charges arising from two separate
incidents in consolidated cases CP-51-CR-1105911-2001 and CP-51-CR-
1110311-2002. On February 6, 2003, the trial court sentenced Appellant on
the consolidated charges to a term of incarceration of not less than eight nor
more than seventeen years. This Court affirmed the judgment of sentence
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3
In his PCRA petition, Appellant included three cases, MC-51-CR-0444561-
2001, CP-51-CR-1105911-2001 and CP-51-CR-1110311-2002. (See PCRA
petition, 10/11/13, at 1). However, in his notice of appeal, Appellant only
noted case MC-51-CR-0444561-2001. (See Notice of Appeal, 9/29/14, at
unnumbered page one). Therefore, the PCRA court did not forward the
certified record from consolidated cases CP-51-CR-1105911-2001 and CP-
51-CR-1110311-2002. We note that both Appellant and the Commonwealth
discuss all three cases in their respective briefs. (See Appellant’s Brief, at
vii, 2-7; Commonwealth’s Brief, at 2-6, 8-11). Therefore, we will reference
all three cases in our decision.
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on April 7, 2006. (See Commonwealth v. Lebron, No. 3123 EDA 2004,
unpublished memorandum at 1-18 (Pa. Super. filed April 7, 2006)).
Appellant did not seek leave to appeal to the Pennsylvania Supreme Court.
On February 17, 2004, the trial court in case MC-51-CR-0444561-2001
revoked Appellant’s probation and sentenced him to an aggregate term of
incarceration of not less than six nor more than twelve years to be served
consecutively to the sentence in cases CP-51-CR-1105911-2001 and CP-51-
CR-1110311-2002. This Court affirmed the judgment of sentence on
January 20, 2006. (See Commonwealth v. Lebron, No. 987 EDA 2004,
unpublished memorandum at 1-6 (Pa. Super. filed, January 20, 2006)).
Appellant did not seek leave to appeal to the Pennsylvania Supreme Court.
On August 31, 2006, Appellant filed a timely pro se first PCRA petition
in case MC-51-CR-0444561-2001. Following appointment of counsel, the
PCRA court issued notice of its intent to dismiss the petition pursuant to
Pennsylvania Rule of Criminal Procedure 907. Appellant responded on June
1, 2007. For reasons not apparent from the record, the PCRA court did not
issue an order dismissing the petition, until May 7, 2012. On March 20,
2013, this Court affirmed the dismissal of the PCRA petition. (See
Commonwealth v. Lebrom, No. 1344 EDA 2012, unpublished
memorandum at 1-9 (Pa. Super. filed March 20, 2013)). On October 3,
2013, the Pennsylvania Supreme Court denied leave to appeal. (See
Commonwealth v. Lebron, 76 A.3d 539 (Pa. 2013)).
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On April 10, 2007, with the assistance of counsel, Appellant filed a
timely first PCRA petition in cases CP-51-CR-1105911-2001 and CP-51-CR-
1110311-2002. The PCRA court denied the petition on August 12, 2008.
On July 13, 2010, this Court affirmed the denial of the PCRA petition. (See
Commonwealth v. Lebron, No. 2562 EDA 2008, unpublished
memorandum at 1-8 (Pa. Super. filed, July 13, 2010)). Appellant did not
seek leave to appeal to the Pennsylvania Supreme Court.
Appellant subsequently filed a petition for a writ of habeas corpus in
the United States District Court for the Eastern District of Pennsylvania.
During the pendency of the habeas corpus proceedings, Appellant wrote a
series of letters to the Commonwealth and the federal courts, complaining
about a sentencing error in cases CP-51-CR-1105911-2001 and CP-51-CR-
1110311-2002. (See Exhibit to Appellant’s PCRA Petition, Letter from John
W. Goldsborough, Esq. to Natasha Lowe, Esquire, Supervisor, Post-Trial Unit,
Philadelphia Court of Common Pleas, 1/16/13, at 1). In the January 16,
2013 letter, the Commonwealth admitted that, because of two clerical errors
on a Court Commitment form, the form had accidentally added one-and-
one-half to three years to Appellant’s actual sentence. (See id. at 2).
Assistant District Attorney Goldsborough requested that Attorney Lowe
correct the errors. (See id. at 1). By order of February 21, 2014, the trial
court corrected the errors to reflect the sentence originally imposed in cases
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CP-51-CR-1105911-2001 and CP-51-CR-1110311-2002. (See
Commonwealth’s Brief, Appendix, Order, 2/21/14, at 1).
On October 11, 2013, Appellant filed the instant PCRA petition, pro
se.4 The PCRA court appointed counsel5 who filed a Turner/Finley6 “no
merit” letter and petitioned the court for permission to withdraw from further
representation. On August 4, 2014, the PCRA court issued notice of its
intent to dismiss the petition pursuant to Pennsylvania Rule of Criminal
Procedure 907.7 See Pa.R.Crim.P. 907(1). On September 12, 2014, the
PCRA court dismissed the petition.8
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4
Both Appellant and the Commonwealth reference a pro se amendment to
the PCRA petition, which Appellant allegedly filed in May or June of 2014.
(See Appellant’s Brief, at 2; Commonwealths’ Brief, at 5, respectively). That
amendment is not listed on the docket and is not contained in the certified
record.
5
The order appointing counsel is neither listed on the docket nor contained
in the certified record.
6
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
7
In its opinion dismissing Appellant’s PCRA petition, the PCRA court
references a response filed by Appellant to the Rule 907 notice. (See PCRA
Court Opinion, 9/12/14, at 4). Again, however, that response is not listed
on the docket and not contained in the certified record.
8
In its opinion, the court acknowledges that counsel’s motion to withdraw
and no-merit letter are “consistent with the requirements of”
Turner/Finley. (PCRA Ct. Op., 9/12/14, at 3). The PCRA court then
concludes that Appellant’s petition lacks merit. (See id. at 4-7). However,
it appears that the PCRA court inadvertently failed to include an order
granting counsel’s request to withdraw. (See id. at 7). Because this is a
(Footnote Continued Next Page)
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Appellant subsequently filed a timely pro se notice of appeal. The
PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal and did not issue any additional opinion. See
Pa.R.A.P. 1925.
Appellant raises one question on appeal:
(A.) Whether there was abuse of discretion for the [PCRA
court] to reconsider or modify the [A]ppellant[’s] sentence under
[n]ewly [d]iscovered [e]vidence [d]ealing with [m]andatory
sentences [r]uled illegal or unconstitutional and also the [PCRA
court] undermined the fundamental norms of the sentencing
process?
(Appellant’s Brief, at vi).
Appellant appeals from the denial of his PCRA petition. To be eligible
for relief pursuant to the PCRA, Appellant must establish that his conviction
or sentence resulted from one or more of the enumerated errors or defects
found in 42 Pa.C.S.A. § 9543(a)(2). He must also establish that the issues
raised in the PCRA petition have not been previously litigated or waived.
See 42 Pa.C.S.A. § 9543(a)(3). An allegation of error “is waived if the
petitioner could have raised it but failed to do so before trial, during unitary
review, on appeal or in a prior state postconviction proceeding.” 42
_______________________
(Footnote Continued)
second PCRA petition and because the PCRA court dismissed it without a
hearing, Appellant has no right to counsel. See Pa.R.Crim.P. 904(D). In the
interest of judicial economy we will regard as done what ought to have been
done and deem the trial court’s opinion dismissing Appellant’s PCRA petition
as also granting PCRA counsel’s request to withdraw. See Zitney v.
Appalachian Timber Products, Inc., 72 A.3d 281, 285 (Pa. Super. 2013).
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Pa.C.S.A. § 9544(b). Our standard of review for an order denying PCRA
relief is well settled:
This Court’s standard of review regarding a PCRA court’s
order is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Great deference is granted to the findings of the PCRA court, and
these findings will not be disturbed unless they have no support
in the certified record.
Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011), appeal
denied, 72 A.3d 600 (Pa. 2013) (citations and quotation marks omitted).
However, “if a PCRA [p]etition is untimely, a trial court has no jurisdiction to
entertain the petition.” Commonwealth v. Hutchins, 760 A.2d 50, 53 (Pa.
Super. 2000) (citations omitted).
Here, Appellant filed his PCRA petition on October 11, 2013. The PCRA
provides that “[a]ny petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the judgment
becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1). A judgment becomes final for
PCRA purposes “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.A. § 9545(b)(3).
Here, in case MC-51-CR-0444561-2001, following the violation of
probation hearing, this Court affirmed the judgment of sentence on January
20, 2006. Therefore, Appellant’s judgment of sentence became final on
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February 20, 2006,9 after the thirty-day period to seek leave to appeal to
the Pennsylvania Supreme Court expired. See Pa.R.A.P. 1113(a).
In cases CP-51-CR-1105911-2001 and CP-51-CR-1110311-2002, this
Court affirmed the judgment of sentence on April 7, 2006. Therefore,
Appellant’s judgment of sentence became final on May 8, 2006,10 after the
thirty-day period to seek leave to appeal to the Pennsylvania Supreme Court
expired.11 See Pa.R.A.P. 1113(a).
Because Appellant did not file his petition until October 11, 2013, the
petition is facially untimely. Thus, to obtain PCRA relief, he must plead and
prove that his claim falls under one of the statutory exceptions to the one-
year time bar provided at section 9545(b). See 42 Pa.C.S.A. §
9545(b)(1)(i)-(iii).
Section 9545 provides that the court can still consider an untimely
petition where the petitioner successfully pleads and proves that:
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9
The thirtieth day, February 19, 2006, was a Sunday.
10
The thirtieth day, May 7, 2006, was a Sunday.
11
We briefly note that the PCRA is not the proper vehicle for challenging an
error in the computation of a sentence. See Commonwealth v. Heredia,
97 A.3d 392, 394-95 (Pa. Super. 2014), appeal denied, 104 A.3d 524 (Pa.
2014). Further, in Pennsylvania the sentencing order signed by the trial
court and entered into the docket overrides the commitment form and is
therefore, determinative of the sentence imposed. See id. at 395 n.5.
Thus, the order correcting the error was not a resentencing and did not reset
the clock for purposes of the PCRA. See id. at 395 n.6.
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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.
Further, a petitioner who wishes to invoke any of the above exceptions
must file the petition “within 60 days of the date the claim could have been
presented.” Id. at § 9545(b)(2). The Pennsylvania Supreme Court has
repeatedly stated that it is an appellant’s burden to plead and prove that one
of the above-enumerated exceptions applies. See, e.g., Commonwealth
v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008), cert. denied, 555 U.S. 916
(2008).
Here, Appellant contends that he qualifies under the newly discovered
facts exception. (See Appellant’s Brief, at 2-4). However, Appellant fails to
explain or point to any newly discovered facts. (See id.). To the extent
that Appellant appears to be claiming that several decisions by both this
Court and the United States Supreme Court constitute newly discovered
facts, (see id. at 4-5), it is well-settled that a new judicial opinion does not
constitute a newly discovered fact for purposes of 42 Pa.C.S.A. §
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9545(b)(1)(ii). See Commonwealth v. Watt, 23 A.3d 980, 987 (Pa.
2011). Thus, his claim is meritless.
Further, Appellant appears to contend that his petition should be
considered timely because he challenges the legality of his sentence and
such a challenge can never be waived. (See Appellant’s Brief, at 3-7). It is
not clear if Appellant is referring to the clerical error in cases CP-51-CR-
1105911-2001 and CP-51-CR-1110311-2002, an issue that is moot because
the trial court corrected the error. (See Commonwealth’s Brief, Appendix,
Order, 2/21/14, at 1). Appellant also appears to believe mistakenly that his
sentence is illegal because mandatory minimum sentences are illegal. (See
Appellant’s Brief, at 4). However, as the Commonwealth correctly notes, the
trial court did not sentence Appellant to a mandatory minimum sentence.
(See Commonwealth’s Brief, at 9 n.5).
In any event, in Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999),
the Pennsylvania Supreme Court rejected Appellant’s contention. The Fahy
Court stated, “[a]lthough legality of sentence is always subject to review
within the PCRA, claims must still first satisfy the PCRA’s time limits or one
of the exceptions thereto.” Fahy, supra at 223 (citation omitted). Thus,
Appellant cannot evade the PCRA timeliness requirements based on a claim
on an illegal sentence. See id.
Appellant also argues that we should address the merits of his claims
because his sentence is harsh and excessive. (See Appellant’s Brief, at 4-
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7). However, “[r]equests for relief with respect to the discretionary aspects
of sentence are not cognizable in PCRA proceedings.” Commonwealth v.
Wrecks, 934 A.2d 1287, 1289 (Pa. Super. 2007) (citation omitted).
Appellant also appears to argue that he received ineffective assistance
of counsel in both this PCRA proceeding and in earlier proceedings. (See
Appellant’s Brief, at 2-7). Appellant does not present an exception to the
time-bar by claiming ineffective assistance of counsel. See
Commonwealth v. Davis, 816 A.2d 1129, 1135 (Pa. Super. 2003), appeal
denied, 839 A.2d 351 (Pa. 2003) (“[A]ttempts to utilize ineffective
assistance of counsel claims as a means of escaping the jurisdictional time
requirements for filing a PCRA petition have been regularly rejected by our
courts.”) (citations omitted). Moreover, an appellant cannot raise claims of
PCRA counsel’s ineffectiveness for the first time on appeal.12 See
Commonwealth v. Ford, 44 A.3d 1190, 1200-01 (Pa. Super. 2012). Thus,
Appellant’s ineffective assistance of counsel claims do not serve as an
exception to the time bar. See Davis, supra at 1135.
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12
Appellant may have raised ineffective assistance of counsel claims in his
alleged response to the Rule 907 notice. (See PCRA Ct. Op., 9/12/14, at 4).
However, as noted above, that response was not docketed and is not
contained in the certified record. This Court has clearly stated that it is the
Appellant’s responsibility to ensure that the certified record contains all
documents necessary to ensure that this Court is able to review his claims.
See Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa. Super. 2008) (en
banc); Pa.R.A.P. 1926; Pa.R.A.P. 1931.
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Thus, because the record demonstrates that Appellant’s PCRA petition
is untimely with none of the statutory exceptions to the time bar proven, we
affirm the order of the trial court dismissing Appellant’s second PCRA
petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/5/2015
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