J-S40035-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    NICHOLAS EDWARDS                           :
                                               :
                      Appellant                :   No. 2760 EDA 2016

                   Appeal from the PCRA Order August 9, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1006311-2003


BEFORE:      OTT, DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.:                                     FILED JULY 06, 2017

        Nicholas Edwards appeals pro se from the order entered August 9,

2016, in the Court of Common Pleas of Philadelphia County, that dismissed

his second petition under the Post-Conviction Relief Act (PCRA).1 A jury

convicted Edwards of murder of the first degree,2 conspiracy,3 and related

crimes, and Edwards received a mandatory sentence of life imprisonment.

In this appeal, Edwards raises 10 issues, including whether the petition is

untimely, whether he is entitled to habeas corpus relief, whether prior

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541–9546.
2
    18 Pa.C.S. § 2502.
3
    18 Pa.C.S. § 903.
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counsel were ineffective for various reasons, and whether the trial court

committed reversible error. Based upon the following, we affirm.

       The facts of this case are fully summarized in this Court’s decision

affirming the judgment of sentence.            See Commonwealth v. Edwards,

981 A.2d 917 (Pa. Super. 2009) (unpublished memorandum), appeal

denied, 989 A.2d 7 (Pa. February 5, 2010). The procedural history of this

case is set forth in this Court’s decision regarding Edwards’ appeal from the

denial of relief on his first PCRA petition.          See Commonwealth v.

Edwards, 120 A.3d 1043 (Pa. Super. 2015) (unpublished memorandum),

appeal denied, 119 A.3d 350 (Pa. July 29, 2015).

       On August 21, 2014, while Edwards’ appeal from the denial of relief on

his first PCRA petition was pending in this Court, Edwards filed a habeas

corpus petition, alleging that he was being unlawfully detained due to the

lack of a written sentencing order in contravention of 42 Pa.C.S. §

9764(a)(8).     On March 2, 2015, this Court affirmed the denial of relief on

Edwards’ first PCRA petition and, on July 29, 2015, the Pennsylvania

Supreme Court denied Edwards’ petition for allowance of appeal.4




____________________________________________


4
  Commonwealth v. Edwards, 120 A.3d 1043 (Pa. Super. 2015)
(unpublished memorandum), appeal denied, 119 A.3d 350 (Pa. July 29,
2015).




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       On December 29, 2015, Edwards filed pro se the instant PCRA petition

– his second. On April 26, 2016, the PCRA court issued a Pa.R.Crim.P. 907

notice of intent to dismiss, explaining the PCRA petition was untimely and

Edwards’ claim for habeas corpus relief also failed.         On May 10, 2016,

Edwards filed a pro se response to the Rule 907 notice, contending that

PCRA statutory exceptions applied to his petition. On August 9, 2016, the

PCRA court dismissed Edwards’ PCRA petition and denied the habeas corpus

petition. This appeal followed.5

       In the first issue raised in this appeal, Edwards challenges the PCRA

court’s determination that the instant petition is untimely.

       Our standard of review over the denial of a PCRA petition is well-
       settled. “In reviewing the denial of PCRA relief, we examine
       whether the PCRA court’s determination ‘is supported by the
       record    and free of legal error.’” Commonwealth v. Taylor,
       620 Pa. 429, 67 A.3d 1245, 1248 (Pa. 2013) (quoting
       Commonwealth v. Rainey, 593 Pa. 67, 928 A.2d 215, 223 (Pa.
       2007)).

Commonwealth v. Mitchell, 141 A.3d 1277, 1283-84 (Pa. 2016).

       “It is well-settled that the PCRA’s time restrictions are jurisdictional in

nature.”    Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016).

Under the PCRA, any petition for post-conviction relief, including a second or

subsequent one, must be filed within one year of the date the judgment of

____________________________________________


5
  The PCRA court did not order Edwards to filed a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal.




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sentence becomes final, unless one of the following exceptions set forth in

42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--

      (1) Any petition under this subchapter, including a second or
      subsequent petition, shall be filed within one year of the date the
      judgment becomes final, unless the petition alleges and the
      petitioner proves that:

         (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 attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Here, Edwards’ judgment of sentence became final for PCRA purposes

on May 6, 2010, ninety days after the Pennsylvania Supreme Court’s




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February 5, 2010 denial of allowance of appeal in his direct appeal, 6 when

the time for filing a petition for writ of certiorari in the United States

Supreme Court expired.            See 42 Pa.C.S. 9545(b)(3) (“[A] 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.).          U.S.

Sup. Ct. R. 13. Therefore, Edwards had until May 6, 2011, to file a timely

petition.   Since the instant petition was filed on December 29, 2015, it is

patently untimely and cannot be reviewed unless one of the statutory

exceptions applies.

       Edwards, in his response to the PCRA court’s Rule 907 notice and in

his brief to this Court, cites the PCRA exceptions set forth at 42 Pa.C.S. §

9545(b)(1)(i) and (ii). The PCRA court analyzed Edwards’ petition in light of

these statutory exceptions, as follows:

       Although [Edwards’] instant petition contains language reciting
       portions of the PCRA’s statutory time-bar, he failed to
       meaningfully plead any of the exceptions enumerated within it.
       Instead, [Edwards] primarily presented allegations of counsel
       malfeasance sparsely interwoven with fragmented, undeveloped
       references to the time-bar. [Edwards’] attempt to raise layered
       claims of ineffectiveness was therefore insufficient to satisfy his
       burden     of    proof   under     section   9545(b)(1).        See
       Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005)
       (“[I]t is well settled that allegations of ineffective assistance of
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6
  See Commonwealth v. Edwards, 981 A.2d 917 (Pa. Super. 2009)
(unpublished memorandum), appeal denied, 989 A.2d 7 (Pa. February 5,
2010).



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       counsel will not overcome               the   jurisdictional   timeliness
       requirements of the PCRA.”).

       Moreover, despite accurately echoing our Supreme Court’s
       uneasiness regarding the difficulty of challenging PCRA counsel’s
       performance in practice, [Edwards’] contention that his petition
       should be deemed timely filed because he is challenging the
       effectiveness of his original post-conviction counsel has been
       unequivocally rejected. See Commonwealth v. Robinson,
       139 A.3d 178, 186 (Pa. 2016) (“This Court has never suggested
       that the right to effective PCRA counsel can be enforced via an
       untimely filed PCRA petition.”).

       Finally, even if counsel malfeasance composed the timeliness
       exception, [Edwards] failed to file his instant petition within sixty
       days from the conclusion of appellate review on July 29, 2015.[7]
       See 42 Pa. Cons. Stat. § 9545(b)(2) (requiring any petition
       invoking one or more of these exceptions must be filed within 60
       days from the date that the claim could have been presented).
       [Edwards] therefore failed to sufficiently invoke an exception to
       the PCRA’s statutory time-bar.

PCRA Court Opinion, 11/10/2016, at 4–5 (footnotes omitted).

       Based on our review of the record and the arguments of Edwards, we

agree with the PCRA court’s well-reasoned assessment. Accordingly, we

conclude Edwards’ petition fails to overcome the PCRA time-bar.




____________________________________________


7
   Edwards claims that on August 4, 2015 — within 60 days of the
Pennsylvania Supreme Court’s July 29, 2015 denial of allowance of appeal
on his first PCRA petition — he mailed a second PCRA petition that was lost
in the mail. Edwards relies on the “prisoner mail box rule” to argue his
petition “is deemed timely regardless if it reaches the court.” Edwards’ Brief
at 5.    This assertion, however, does not help Edwards since he failed to
satisfy any PCRA statutory exception.




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       In his second issue, Edwards maintains the PCRA court erred in

denying him habeas corpus relief.8 Our standard of review regarding a writ

of habeas corpus is well-settled:

       Our standard of review of a trial court’s order denying a petition
       for writ of habeas corpus is limited to abuse of discretion. Thus,
       we may reverse the court’s order where the court has misapplied
       the law or exercised its discretion in a manner lacking
       reason. As in all matters on appeal, the appellant bears the
       burden of persuasion to demonstrate his entitlement to the relief
       he requests.

Rivera v. Pa. Dep't of Corr., 837 A.2d 525, 528 (Pa. Super. 2003)

(citations omitted).

       Edwards claims his detention is unlawful because “there [are] no

records that exist relating to a lawful [] sentencing order[.]” Edwards’ Brief

at 8. See also Edwards’ Petition for Writ of Habeas Corpus, 8/21/2014, at

¶8. Edwards cites 42 Pa.C.S. § 9764(a)(8), which provides:

       § 9764. Information required upon commitment and
       subsequent disposition

       (a) General rule. -- Upon commitment of an inmate to the
       custody of the Department of Corrections, the sheriff or
       transporting official shall provide to the institution’s records
       officer or duty officer, in addition to a copy of the court
       commitment form DC-300B generated from the Common Pleas

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8
  Contrary to the claim in Edwards’ brief that the PCRA court “changed” his
petition for writ of habeas corpus “to a post-conviction relief act petition,”
the PCRA court’s orders and opinion reflect the PCRA court treated the
habeas corpus petition as the proper vehicle for Edwards’ illegal detention
claim. Edwards’ Brief at 8.




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     Criminal Court Case Management System of the unified judicial
     system, the following information:

     …

     (8) A copy of the sentencing order and any detainers filed
     against the inmate which the county has notice.

42 Pa.C.S. § 9764(a)(8).

     In Joseph v. Glunt, 96 A.3d 365 (Pa. Super. 2014), this Court

rejected the very same argument:

     The language and structure of section 9764, viewed in context,
     make clear that the statute pertains not to the DOC’s authority
     to detain a duly-sentenced prisoner, but, rather, sets forth the
     procedures and prerogatives associated with the transfer of an
     inmate from county to state detention. None of the provisions of
     section 9764 indicate an affirmative obligation on the part of the
     DOC to maintain and produce the documents enumerated in
     subsection 9764(a) upon the request of the incarcerated person.
     Moreover, section 9764 neither expressly vests, nor
     implies the vestiture, in a prisoner of any remedy for
     deviation from the procedures prescribed within.

Id. at 371 (emphasis added).    The Joseph Court found persuasive cases

that “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. In

Joseph, the criminal docket of the trial court and the transcript of the

sentencing hearing confirmed the appellant’s sentence. Id. at 372.

     Here, as in Joseph, the certified record confirms Edwards’ judgment

of sentence.   As the PCRA court explained:   “Upon reviewing the criminal

docket through the Common Pleas Case Management System, the sentence



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imposed by the Honorable Kathryn Lewis on February 3, 2006 was

accurately docketed by the Clerk of Courts of [the Court of Common Pleas of

Philadelphia County.].    PCRA Court Opinion, 11/10/2016, at 6.   Therefore,

Edwards’ argument fails to warrant habeas corpus relief.

     Having concluded the PCRA petition is untimely, and that no exception

applies to overcome the PCRA time-bar, there is no jurisdiction to address

Edwards’ remaining claims. Accordingly, we affirm.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2017




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