J-S11028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

HOWARD OMAR POWELL

                         Appellant                 No. 1374 MDA 2014


                 Appeal from the PCRA Order July 14, 2014
             In the Court of Common Pleas of Schuylkill County
            Criminal Division at No(s): CP-54-CR-0001079-2000


BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                              FILED APRIL 10, 2015

      Howard Omar Powell appeals from the order entered in the Court of

Common Pleas of Schuylkill County, on July 14, 2014, denying him relief on

his seventh petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S. § 9541 et seq. The PCRA court determined, without a hearing,

that the petition was untimely and no timeliness exception applied. After a

thorough review of the submissions by the parties, relevant law, and the

certified record, we affirm.

      Powell was convicted by a jury of attempted first-degree murder;

aggravated assault, infliction of serious bodily injury by use of a deadly

weapon (firearm); robbery, infliction of serious bodily injury; conspiracy to
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commit robbery; and related charges.1                These charges arose from the

robbery and shooting of a gas station attendant, Nirmal Singh, in the late

night hours of March 7, 2000. Although Powell was subject to a five-year

mandatory      minimum sentence          for   the   above-mentioned charges, he

received an aggregate sentence of 27 to 54 years’ incarceration.2          Powell

filed a direct appeal and six prior PCRA petitions, none of which afforded him

any relief. The instant petition is his seventh. He has raised three issues in

his petition, claiming his sentence is illegal because he was not charged with

possession of a handgun in the bill of information, was not charged with

attempted murder under 18 Pa.C.S. § 1102(c), and the mandatory minimum

aspect of his sentence is void pursuant to Alleyne v. United States, 133

S.Ct. 2151 (2013).

        As noted above, the PCRA court determined his petition was patently

untimely and he was not entitled to any of statutory timeliness exceptions.

Powell has raised six issues in this appeal, but we need to substantively

address only the timeliness issue.



____________________________________________


1
    18 Pa.C.S. §§ 901/2502, 2702, 3701 and 903/3701, respectively.
2
  This is comprised of 20-40 years for attempted murder followed by 7 to 14
years for robbery and a concurrent 7-14 year sentence for conspiracy. All
sentences were well above the mandatory minimum sentence and were
standard range sentences.



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     In reviewing the denial of PCRA relief, we examine whether “the
     PCRA court's determinations are supported by the record and are
     free of legal error.” Commonwealth v. Robinson, 82 A.3d 998,
     1005 (Pa. 2013) (quotation and quotation marks omitted). See
     Commonwealth v. Strong, 761 A.2d 1167, 1170 n. 3 (Pa.
     2000) (“Since most PCRA appeals involve ... issues raising mixed
     questions of fact and law, our standard of review is whether the
     findings of the PCRA court are supported by the record and free
     of legal error.”) (citations omitted). “The PCRA court's credibility
     determinations, when supported by the record, are binding on
     this Court; however, we apply a de novo standard of review to
     the PCRA court's legal conclusions.” Commonwealth v. Roney,
     79 A.3d 595, 603 (Pa. 2013) (citation omitted).

Commonwealth v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014).

     Instantly, the salient question is whether this petition is timely.

     [T]he time limitations pursuant to ... the PCRA are jurisdictional.
     [Jurisdictional time] limitations are mandatory and interpreted
     literally; thus, a court has no authority to extend filing periods
     except as the statute permits. If the petition is determined to be
     untimely, and no exception has been pled and proven, the
     petition must be dismissed without a hearing because
     Pennsylvania courts are without jurisdiction to consider the
     merits of the petition.

Commonwealth v. Reed, 107 A.3d 137, 140 (Pa. Super. 2014) (citation

omitted).

     Initially, “[a] PCRA petition is timely if it is ‘filed within one year of the

date the judgment [of sentence] becomes final.’ 42 Pa.C.S.A. § 9545(b)(1).”

Commonwealth v. Callahan, 101 A.3d 118, 121-22 (Pa. Super. 2014).




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There is no dispute that this petition, filed April 10, 2014, has been filed well

past the one-year initial time limit.3

       “However, an untimely petition may be received when the
       petition alleges, and the petitioner proves, that any of the three
       limited exceptions to the time for filing the petition, set forth at
       42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are met.”
       Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014)
       (citation omitted). The PCRA provides, in relevant part, as
       follows.

       § 9545. Jurisdiction and proceedings

                                               ...

          (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

____________________________________________


3
  Powell’s judgment of sentence became final on July 3, 2002, when his
sentence was affirmed on direct appeal and the 30-day limit to file a petition
for allowance of appeal to the Pennsylvania Supreme Court expired.
Accordingly, the one-year limit to file a timely PCRA petition expired on July
2, 2003.



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            (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.

      (2) 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.A. § 9545(b)

Commonwealth v. Miller, 102 A.3d 988, 993 (Pa. Super. 2014).

      Here, Powell argues a hybrid of exceptions (b)(1)(i) and (ii).

Specifically, he argues that United States v. Alleyne, supra, represents

newly discovered evidence and the government interfered with his ability to

discover that case by failing to make timely updates to the prison library.

This claim is unavailing for a number of reasons.

      First, as the PCRA court correctly noted, a judicial opinion does not

qualify as a previously unknown fact. See generally, Commonwealth v.

Watts, 23 A.3d 980 (Pa. 2011). Therefore, Powell has invoked the incorrect

exception. The proper exception is found at Section 9545(b)(1)(iii), a newly

asserted constitutional right.

      Accepting Powell has properly invoked one of the three timeliness

exceptions, we must also determine if he filed his petition within 60 days of

the date the claim could have been presented. The Alleyne decision was

issued on June 17, 2013. Accordingly, 60 days from that date was August


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16, 2013.        Powell’s PCRA petition was dated April 8, 2014, approximately

eight months past the 60-day deadline.

      However, Powell claims the government interfered with his ability to

find Alleyne in that prison officials did not update the prison law library in a

timely manner. To support this assertion, Powell has included a statement

from a person purporting to be a prison library official, Mrs. Price, librarian

assistant, stating as of March 16, 2014, the library had been last updated on

February        24, 2014.        This    allegation   does   not   support   a    claim   of

governmental interference.              The prison library is under no obligation to

timely update its materials.            See Commonwealth v. Baldwin, 798 A.2d

728, 731 (Pa. Super. 2001) (Neither the court system nor the correctional

system is obliged to educate or update prisoners concerning changes in the

law; untimely updating of library materials is not cognizable.)

      Even if Powell’s claim had been timely, he would not be entitled to

relief. The rule in Alleyne was entitled to retroactive application only to the

extent it applied to pending cases. “The new rule [Alleyne] is to be applied

retroactively to cases where the issue in question is properly preserved at all

stages     of     adjudication     up     to   and    including    any   direct   appeal.”

Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc).

Powell’s direct appeal had been resolved years prior to the Alleyne decision.

He is not entitled to retroactive application of the Alleyne rule.




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       Powell’s only argument regarding the application of a timeliness

exception addressed the Alleyne argument. Accordingly, to the extent his

other claims raise different issues, neither the PCRA court nor our Court has

the jurisdiction to address the merits of those claims. Additionally, Powell

has complained the PCRA court did not grant him a hearing on his petition.

However, there is no right to a PCRA hearing; if the PCRA court determines

the claims are patently frivolous, it may deny a hearing on the petition. See

Miller, 102 A.3d at 993.         The PCRA court did not abuse its discretion or

commit an error of law by denying Powell a hearing on a patently untimely,

and therefore, frivolous, petition. Finally, Powell has claimed the PCRA court

erred in failing to appoint counsel so that the petition could be advanced in

acceptable legal terms. There is no constitutional right to counsel for PCRA

representation. Rather, by rule, a petitioner is entitled to appointed counsel

for   his   first   PCRA     petition.         Pa.R.Crim.P.   904(C).4   See   also

Commonwealth v. Turner, 80 A.3d 754, 766 (Pa. 2013). This is Powell’s
____________________________________________


4
    Under Pa.R.Crim.P. 904(D), an indigent petitioner is entitled to
appointment of counsel for a second or subsequent PCRA petition when an
evidentiary hearing is necessary. While Powell is indigent, no hearing on the
petition was necessary. Therefore, this subsection is not applicable to
Powell. Rule 904(E) allows for the appointment of counsel in the interest of
justice. Powell’s petition is frivolous, and despite Powell’s claim of being a
foreigner, illiterate in the lack of education, and suffering from a mental
illness, his petition and brief are both understandable. Accordingly the
interest of justice did not require the appointment of counsel.




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seventh petition.   He was not entitled to appointed counsel and the PCRA

court did not err in refusing Powell’s request.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/10/2015




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