J. S62043/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                  v.                   :
                                       :
WILL ARMSTEAD,                         :         No. 3623 EDA 2017
                                       :
                       Appellant       :


              Appeal from the PCRA Order, October 10, 2017,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0403191-2004


BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED OCTOBER 23, 2018

     Will Armstead appeals, pro se, from the October 10, 2017 order of the

Court of Common Pleas of Philadelphia County dismissing without a hearing

his second pro se petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.1

     The PCRA court provided the following procedural history:

           On June 23, 2004, [appellant] pled guilty to
           aggravated assault, attempted murder, and two
           counts of possession of an instrument of crime
           before the Honorable Carolyn Engel Temin.       On
           August 18, 2004, [appellant] was sentenced to 15 to
           30 years of imprisonment for the attempted murder

1 On August 24, 2018, the Commonwealth filed a notice pursuant to
Pennsylvania Rule of Professional Conduct 1.12(c)(2), informing both
appellant and this court that Philadelphia County First Assistant District
Attorney Carolyn Temin had previously participated as a trial judge in this
case and “has disqualified herself and screened herself from any
participation in this matter.”
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           bill to run consecutively with five (5) to ten (10)
           years of imprisonment for the aggravated assault
           bill. [Appellant], subsequently, filed a direct appeal
           and on June 13, 2005, the Pennsylvania Superior
           Court affirmed the trial court’s judgment of
           sentence.[Footnote 2] The Pennsylvania Supreme
           Court,    subsequently,    denied     allocatur    on
           December 7, 2005.[Footnote 3]

                 [Footnote 2]  Commonwealth     v.
                 Armstead, 881 A.2d 977 (Pa.Super.
                 2004).

                 [Footnote  3]   Commonwealth       v.
                 Armstead, 8[9]0 A.2d 1055 (Pa. 2005).

           On June 26, 2006, [appellant] filed a pro se petition
           pursuant to the [PCRA.] Counsel was appointed and
           after an evidentiary hearing, the PCRA court
           dismissed the petition on May 4, 2007. The Superior
           Court affirmed the dismissal of the petition on June
           25, 2008, followed by the Pennsylvania Supreme
           Court’s denial of allocatur on October 29,
           2008.[Footnote 4]

                 [Footnote   4]    Commonwealth  v.
                 Armstead, 959 A.2d 456 (Pa.Super.
                 2008)    (unpublished memorandum),
                 appeal denied, 960 A.2d 454 (Pa.
                 2008).

           On August 10, 2015, [appellant] filed the instant
           pro se PCRA petition, styled as a writ of habeas
           corpus. An amended petition was filed on April 10,
           2017. [The PCRA] court sent a notice of its intent to
           dismiss the petition as untimely without exception on
           July 21, 2017. [Appellant] filed a response to the
           [Pa.R.Crim.P.] 907 notice on August 2, 2017. The
           PCRA petition was formally dismissed by [the PCRA]
           court on October 10, 2017. [Appellant] timely filed a
           notice of appeal to the Pennsylvania Superior Court
           on October 30, 2017.

PCRA court opinion, 2/2/18 at 1-2 (footnote 5 omitted).


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      The PCRA court did not order appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).        The PCRA

court filed an opinion pursuant to Pa.R.A.P. 1925(a) on February 2, 2018.

      Appellant raises the following issues for our review:

            [1.]   Whether the PCRA court erred in denying
                   appellant [sic] petition to withdraw his guilty
                   plea[?]

            [2.]   [Whether the] PCRA court further violated its
                   oath of office, substantive/procedural due
                   process rights by ignoring/refusing to grant
                   relief where sentence imposed of 20-40 years
                   lacked statutory authorization[?]

Appellant’s brief at 7 (full capitalization omitted).

      Subsequent PCRA petitions beyond a petitioner’s first petition are

subject to the following standard:

            A second or subsequent petition for post-conviction
            relief will not be entertained unless a strong
            prima facie showing is offered to demonstrate that
            a miscarriage of justice may have occurred.
            Commonwealth v. Allen, 732 A.2d 582, 586 (Pa.
            1999). A prima facie showing of entitlement to
            relief is made only by demonstrating either that the
            proceedings which resulted in conviction were so
            unfair that a miscarriage of justice occurred which no
            civilized society could tolerate, or the defendant’s
            innocence of the crimes for which he was charged.
            Id. at 586. Our standard of review for an order
            denying post-conviction relief is limited to whether
            the trial court’s determination is supported by
            evidence of record and whether it is free of legal
            error. Commonwealth v. Jermyn, 709 A.2d 849,
            856 (Pa. 1998).

            A PCRA petition, including a second or subsequent
            petition, must be filed within one year of the date


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           that judgment of sentence becomes final. 42 Pa.C.S.
           § 9545(b)(1).      A judgment becomes final for
           purposes of the PCRA “at the conclusion of direct
           review, including discretionary review in the
           Supreme Court of the United States and the
           Supreme Court of Pennsylvania, or the expiration of
           time for seeking the review.”            42 Pa.C.S.
           § 9543(b)(3). PCRA time limits are jurisdictional in
           nature, implicating a court’s very power to
           adjudicate a controversy. Commonwealth v. Fahy,
           737 A.2d 214 (Pa. 1999). Accordingly, the “period
           for filing a PCRA petition can be extended only if the
           PCRA permits it to be extended, i.e., by operation of
           one of the statutorily enumerated exceptions to the
           PCRA time-bar. Id. at 222.

Commonwealth v. Ali, 86 A.3d 173, 176-177 (Pa. 2014), cert. denied,

135 S.Ct. 707 (2014). We must first determine if the PCRA court properly

dismissed appellant’s PCRA petition as untimely.

     As noted above, a PCRA petitioner has one year from the date his or

her judgment of sentence becomes final in which to file a PCRA petition.

This court has held the following regarding when a judgment becomes final:

           The plain language of the PCRA provides that a
           judgment of sentence becomes final at the
           conclusion of direct review or when the time seeking
           direct review expires.            See 42 Pa.C.S.A.
           § 9545(b)(3).     In fixing the date upon which a
           judgment of sentence becomes final, the PCRA does
           not refer to the conclusion of collateral review or the
           time for appealing a collateral review determination.
           Thus, the plain language of the PCRA statute shows
           that a judgment of sentence becomes final
           immediately upon expiration of the time for seeking
           direct review, even if other collateral proceedings are
           still ongoing.     As this result is not absurd or
           unreasonable, we may not look for further
           manifestations     of   legislative   intent.      See
           Commonwealth v. Hall, 80 A.3d 1204, 1211 (Pa.


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           2013) (internal quotation marks omitted) (We may
           “look beyond the plain language of the statute only
           when words are unclear or ambiguous, or the plain
           meaning would lead to a result that is absurd,
           impossible of execution, or unreasonable.”).

Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa.Super. 2014).

     In the instant case, our supreme court denied appellant’s petition for

allowance of appeal on December 7, 2005. Appellant did not file a writ of

certiorari to the Supreme Court of the United States.              Accordingly,

appellant’s judgment of sentence became final on March 7, 2006. Appellant

filed the instant petition on August 10, 2015—more than nine years after his

judgment of sentence became final and more than eight years after a PCRA

petition could be considered timely. See 42 Pa.C.S.A. § 9545(b)(1).

     As noted above, the PCRA does enumerate exceptions to the one-year

requirement. A petitioner may file a petition under the PCRA after one year

has passed from the final judgment of sentence for any of the following

reasons:

           (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


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                  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.A. § 9545(b)(1)(i)-(iii).   Section 9545 also mandates that any

petition filed under these exceptions must be filed within 60 days of the date

the claim could have been presented. Id. at § 9545(b)(2).

      In the instant appeal, appellant fails to demonstrate any of the

exceptions to the PCRA time-bar. Rather, appellant appears to argue that

his guilty plea was involuntary and unlawfully induced.      (Appellant’s brief

at 12.) Therefore, we cannot consider appellant’s appeal on its merits.2

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 10/23/18




2Even if we were to consider appellant’s appeal, his claim would nonetheless
not be cognizable under the PCRA, as it has been previously litigated.
42 Pa.C.S.A. § 9544(a)(2)-(3).          Appellant raised an issue of the
voluntariness of his guilty plea on direct appeal and in his first PCRA petition
as part of an ineffective assistance of counsel claim. See Commonwealth
v. Armstead, 881 A.2d 877 (Pa.Super. 2004) (unpublished memorandum),
appeal denied, 890 A.2d 1055 (Pa. 2005); Commonwealth v. Armstead,
959 A.2d 456 (Pa.Super. 2008) (unpublished memorandum), appeal
denied, 960 A.2d 454 (Pa. 2008).


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