J-S10007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES EVERETT                              :
                                               :
                       Appellant               :   No. 3992 EDA 2017

                 Appeal from the PCRA Order November 7, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0100251-1986


BEFORE:      GANTMAN, P.J.E., STABILE, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                                Filed March 19, 2019

       Appellant, James Everett (hereinafter “Appellant” or “Everett”), pro se,

appeals from the order of the Court of Common Pleas of Philadelphia County,

entered November 7, 2017, that dismissed his seventh petition filed under the

Post Conviction Relief Act (“PCRA”)1 without a hearing. We affirm.

       This Court has previously summarized the procedural history of this

action as follows:

       On April 4, 1987, [Everett] was convicted of murder of the first
       degree and possessing an instrument of crime. On January 27,
       1988, [Everett] was sentenced to life imprisonment for murder of
       the first degree and a concurrent term of two and one-half (2½)
       to five (5) years for the weapons offense.

       Following a direct appeal in which his conviction was affirmed by
       the Superior Court on November 2, 1988, [Everett] filed a petition
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1   42 Pa.C.S. §§ 9541–9546.



*    Retired Senior Judge assigned to the Superior Court.
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     under the [PCRA], in which he alleged that his trial counsel was
     ineffective for filing boiler plate post-verdict motions.   That
     petition was denied; the Superior Court affirmed the decision on
     June 6, 1994.

     [Everett] filed a pro se petition for writ of habeas corpus, which
     the United States District Court for the Eastern District of
     Pennsylvania denied. The denial was affirmed by the Third Circuit
     Court of Appeals in October 1995. [Everett] then filed a pro se
     Writ of Coram Nobis, which the Court of Common Pleas of
     Philadelphia treated as a second PCRA petition. The denial of the
     requested relief was affirmed by the Superior Court on July 1,
     1997. The Supreme Court denied a Petition for Allowance of
     Appeal in October 1997.

     [Everett] then filed a pro se omnibus collateral application for
     permission to appeal nunc pro tunc. The trial court treated this
     petition as a third PCRA petition and denied relief without a
     hearing on May 22, 1998. However, no notice of the court’s
     intention to dismiss the petition without an evidentiary hearing
     was given to the petitioner. On September 16, 1999, the Superior
     Court vacated the order of May 22, 1998, and remanded the case
     for the purpose of providing the notice required by then
     Pennsylvania Rule of Criminal Procedure 1507.

     Following proper notice, the petition was dismissed as untimely on
     October 12, 2000. The dismissal was affirmed by the Superior
     Court on May 12, 2002. After proceedings in the United States
     District Court for the Eastern District of Pennsylvania and the Third
     [C]ircuit Court of Appeals, the United States Supreme Court
     denied certiorari and a petition for reconsideration on March 7,
     2005.

     On May 6, 2005, [Everett] filed a counseled fourth PCRA petition
     in which he alleged that the time-bar in 42 Pa.C.S.A. § 9545(b) is
     unconstitutional and amounts to governmental interference so far
     as the application of the time-bar is concerned, particularly with
     reference to claims of ineffective assistance of counsel. Th[e PCRA
     c]ourt dismissed the petition without a hearing.           [Everett]
     appealed, and an opinion was filed. The Superior Court affirmed
     the dismissal on May 31, 2007. [Everett’s] Petition for Allowance
     of Appeal was denied on May 22, 2008.

     Thereafter, on January 11, 2010, [Everett] filed a fifth pro se
     petition for post-conviction collateral relief. After conducting a
     review of the record, [Everett’s] reply to the Commonwealth’s

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       Motion to Dismiss and response to the court’s notice of dismissal
       pursuant to Rule 907, th[e PCRA c]ourt dismissed [Everett’s]
       motion on April 15, 2011.

Commonwealth v. Everett, No. 1315 EDA 2011, unpublished memorandum

at 1-3 (Pa. Super. filed May 1, 2012) (citation omitted). This Court affirmed

the dismissal of Appellant’s fifth PCRA petition on May 1, 2012. Id. at 1.

       On May 18, 2012, Everett, pro se, filed [his sixth] PCRA Petition
       . . . Everett subsequently filed two Amended Petitions, one in July
       2012, and one in August 2013. . . . The PCRA court dismissed
       Everett’s Petition as untimely filed on December 4, 2015.

Commonwealth v. Everett, No. 228 EDA 2016, unpublished memorandum

at 1-2 (Pa. Super. filed November 23, 2016) (footnote omitted). This Court

affirmed the dismissal of Appellant’s sixth PCRA petition on November 23,

2016. Id. at 1.

       On July 21, 2017, Appellant filed his seventh, pro se, PCRA petition,

arguing that the prosecution lacked jurisdiction to prosecute him and that the

trial court lacked subject matter jurisdiction. PCRA Pet., 7/21/2017, at 10.2

       On October 6, 2017, the PCRA court entered a notice of intent to dismiss

all claims without a hearing pursuant to Pa.R.Crim.P. 907 (“Rule 907 Notice”).

Appellant filed a response. The response does not request to amend the PCRA

petition.




____________________________________________


2 The petition did not plead any of the exceptions to the timeliness
requirements pursuant to 42 Pa.C.S. § 9545(b)(1). See generally PCRA Pet.,
7/21/2017.



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       On November 7, 2017, the PCRA court dismissed Appellant’s petition.

On November 22, 2017, Appellant filed this timely appeal.3

       Appellant presents the following issues for our review:

       Whether the Hon. Judge Steven R. Geroff violated his oath of
       office , due process/equal protection, and a grave error of law in
       failing to hold evidentiary hearing , compelling the states attorney
       to bring froth the proof of law and facts to established the
       nature/cause of Appellant/Petitioner’s past/present, and unlawful
       restraint of his liberty, from a void judgment, in that:

       Trial Court/District Attorney Office:

          a. Lacked Subject Matter/Persona Jurisdiction over the
          matter #8601-0025-26-27, CC-CR-51-CP-0100251-1986
          as established by the Pennsylvania Constitution.

          b. Utilized Unlawful, Inapplicable Stateus, (ie. Title 18Pa.
          CSA §§ 2502(a)-907(a) for the purpose of establishing an
          illegal jurisdiction over the matter in violation of
          Pennsylvania Constitution.

          c. The Late Hon. Juanita K. Stout, further lacked Statutory
          Authority to impose LIFE IMPRISONMENT, where sentencing
          Statutes (i.e. 1102(a)-1311(d) of Title 42 Pa. CSA were
          unconstitutional on there face, at the time of
          Appellant/Petitioners Sentence, January 27, 1988. [sic]

Appellant’s Brief at 4 (emphasis in original) (some unnecessary capitalization

omitted).

       In reviewing an appeal from the denial of PCRA relief, “this Court is

limited to ascertaining whether the evidence supports the determination of

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3 Appellant simultaneously filed a concise statement of errors complained of
on appeal. However, on December 27, 2017, the PCRA court entered an order
instructing Appellant to file a concise statement of errors complained of on
appeal. On January 29, 2018, Appellant filed another concise statement of
errors complained of on appeal, different from the one that he filed with his
notice of appeal. The PCRA court entered its opinion on June 11, 2018.

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the PCRA court and whether the ruling is free of legal error.” Commonwealth

v. Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017) (citation omitted).

       The    timeliness     of   a   post-conviction   petition   is   jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

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

of sentence is final, unless the petition alleges and the petitioner proves one

of the three exceptions to the time limitations for filing the petition set forth

in section 9545(b) of the statute. See 42 Pa.C.S. § 9545(b)(1).4 Any petition

attempting to invoke these exceptions “shall be filed within 60 days of the

date the claim could have been presented.” Id. § 9545(b)(2).5 In the current

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4   The three exceptions to the timeliness requirement are:

       (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).
5Section 3 of Act 2018, Oct. 24, P.L. 894, No. 146, changed the timeframe of
42 Pa.C.S. § 9545(b)(2) from 60 days to one year. The change was effective



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appeal, the PCRA court concluded that it lacked jurisdiction over Appellant’s

seventh PCRA petition, because the petition was untimely and failed to satisfy

an exception to the PCRA’s time bar. PCRA Court Opinion, filed June 11, 2018,

at 2-3.

       Judgment of sentence becomes final thirty days after this Court affirmed

the judgment of sentence. Pa.R.A.P. 1113. This Court affirmed Appellant’s

judgment of sentence on November 2, 1988.          As he did not petition the

Supreme Court of Pennsylvania for allowance of appeal, his judgment of

sentence therefore became final on December 2, 1988.

       Appellant had one year thereafter to file a PCRA petition – i.e., until

December 4, 1989.6 42 Pa.C.S. § 9545(b)(1). Appellant filed the current

petition on July 21, 2017 -- over a quarter of a century late.      Therefore,

appellant’s petition was patently untimely, and he has not pleaded a timeliness

exception to the requirements of the PCRA. Consequently, the PCRA court

was without jurisdiction to review the merits of Appellant’s claim and properly

dismissed his petition.


____________________________________________


on December 24, 2018, and applied retroactively to claims arising on
December 24, 2017, or thereafter. Appellant’s seventh PCRA petition was
filed on July 21, 2017. Thus, the expansion of time to file a claim to one year
does not apply to the instant petition.
6 December 2, 1989, was a Saturday; the next business day was Monday,
December 4, 1989. See 1 Pa.C.S. § 1908 (“Whenever the last day of any
such period shall fall on Saturday or Sunday, or on any day made a legal
holiday by the laws of this Commonwealth or of the United States, such day
shall be omitted from the computation.”).

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     Having discerned no error of law, we affirm the order below.   See

Andrews, 158 A.3d at 1263.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/19/2019




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