J-S59042-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GREGORY REEVES                             :
                                               :
                       Appellant               :   No. 734 EDA 2019

             Appeal from the PCRA Order Entered February 4, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-1206832-1993


BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                           FILED MARCH 04, 2020

        Gregory Reeves appeals from the denial of his Post Conviction Relief

Act1 (“PCRA”) petition. The PCRA court dismissed the petition as untimely. We

affirm.

        In 1994, a jury convicted Reeves of second-degree murder. The trial

court sentenced Reeves to life imprisonment and we affirmed the judgment of

sentence. See Commonwealth v. Reeves, 671 A.2d 772 (Table) (Pa.Super.

1995). The Pennsylvania Supreme Court denied allowance of appeal on

February 29, 1996.2 Commonwealth v. Reeves, 673 A.2d 333 (Pa. 1996).




____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
2 The PCRA court states that the Supreme Court denied allowance of appeal
on November 9, 1995. The discrepancy does not affect our decision, as in
either case, the petition was untimely.
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       Reeves filed the instant PCRA petition in August 2012 seeking relief

under Miller v. Alabama, 567 U.S. 460 (2012). See PCRA Petition, filed

8/12/12. Miller held that imposition of a mandatory sentence of life

imprisonment without possibility of parole is unconstitutional as applied to

defendants who at the time of their crimes were under the age of 18. See

Miller, 567 U.S. at 465.

       Reeves then filed a pro se motion for leave to amend his PCRA petition,

but the court never ruled on the motion. Reeves nevertheless filed pro se

amended PCRA petitions in February and August 2016. Subsequently, in June

2017, the PCRA court appointed counsel. In August 2017, Reeves filed another

pro se amended PCRA petition.

       The following month, in September 2017, counsel filed a Turner/Finley

letter and a motion to withdraw.3 See Turner/Finley Letter, filed 9/14/17.

The PCRA court held a Grazier4 hearing where Reeves requested and the

court granted Reeves’ request to proceed pro se. See Written Waiver of

Counsel, dated 11/14/17.

       Reeves then filed another amended petition on January 5, 2018, titled,

“Motion for Permission to File Amended Petition for Post Conviction Relief,”

which the court granted. Order, filed 1/12/18. The PCRA court issued notice


____________________________________________


3Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

4   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).

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of intent to dismiss the petition without a hearing and ultimately dismissed

the petition. See Pa.R.Crim.P. 907 Notice, filed 1/4/19; Order, filed 2/5/19.

      Reeves filed a notice of appeal and the PCRA court entered an order

directing Reeves to file a Pa.R.A.P. 1925(b). The PCRA court states in its

opinion that “Reeves filed . . . a statement of matters complained of on appeal

on April 3rd” and also listed the issues from the statement as follows:

         [D]oes not the Pennsylvania Supreme Court’s interpretation
         of Pa. Construction of Statutes that are not severable and
         that, as a result Pennsylvania’s sentence statute 18 Pa. C.S.
         §1102(a) (1979)’s mitigating factors must be written in the
         indictment based on the recent statutory decision of the
         Pennsylvania Supreme Court in Commonwealth v. Batts,
         163 A.3d 410 (Pa. 2017) (finding the defendant’s age at the
         time of his offense qualified as a statutory mitigating factor),
         citing Commonwealth v. Wolfe, 140 A.3d 600-601
         (2016), reaffirming its decision in Hopkins, 117 A.3d at
         249, as it relates to another similarly worded mandatory
         minimum sentencing statute, 42 Pa. C.S.A. § 9718).

                                      ***

         Second, in Commonwealth v. Burton, 683 Pa. 687 (Pa.
         2017), the Pennsylvania Supreme Court has recently
         reaffirmed that the presumption that the presumption [sic]
         that information which is of public record cannot be deemed
         unknown for the purposes of the Post Conviction Relief Act,
         42 Pa. C.S. § 9545 (b) (1) (i) (ii), does not apply to pro se
         [sic] prisoner petitioner’s [sic] as the application of the
         public record presumption to pro se [sic] petitioner’s [sic] is
         contrary to the plain language of § 9545 (b) (1) (i) (ii).
         Petitioner’s constitutional allegations bring his claim within
         the ambit of sections (b) (1) (i) (ii), he must still prove that
         it meets the requirements therein. Under subsections (b)
         (1) (i) (ii), he must also prove 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 of the United States; or (ii) the facts


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         upon which the claim is predicated were unknown to the
         petitioner and could not have been ascertained by the
         exercise of due diligence.” Such questions require further
         fact-finding and the PCRA court, acting as fact finder, should
         determine whether Petitioner met the “proof” requirement
         under 42 Pa. C.S. § 9545(b) (1) (i) (ii).

                                      ***

         Due process requires that this Court permit Petitioner to
         vindicate his right by reviewing the structural errors
         inherent in his conviction that are presented by this Petition.
         The refusal to allow Petitioner means to vindicate his
         constitutional right would violate petitioner’s state and
         federal right to due process. Heisner v. Ryan, 951 F.2d
         599 (3rd Cir. 1991) (state post-conviction procedures are to
         be monitored for violation of litigant’s right to due process);
         Carter v. Vaughn, 62 F.3d 591 (3rd Cir. 1995) (same). This
         Petition, filed within 60 days of the revelation of new
         evidence of the previous administration of the Philadelphia
         District Attorney’s Officer policy and practice of prosecutors
         not being attuned to their constitutional and ethical
         disclosure responsibility, which raises newly available
         evidence in support of important claims about the
         unconstitutionality of the process by which Petitioner came
         to be convicted of second degree murder and sentenced to
         life, should be considered timely-filed, to allow Petitioner
         post-conviction review in a manner consistent with both
         state and federal due process rights.

PCRA Court Opinion (“PCO”), filed 4/23/19, at 2, 5-6, 6-7, 7-8. However,

Reeves’ Rule 1925(b) statement is not in the certified record and the docket

does not reflect that it was filed. It appears that Reeves sent the Rule 1925(b)

statement to the PCRA judge but never filed it with the clerk of courts.

      Reeves’ brief asserts the following issues:

         I.    Whether petitioner’s [sic] is entitled to relief from his
               conviction and sentence because the Commonwealth
               failed to disclosed [sic] relevant Brady material in a



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               manner depriving him of his rights under the Sixth
               and Fourteenth amendments of the U.S. Constitution.

         II.   Whether petitioner’s [sic] is entitled to relief from his
               conviction and sentence because the trial court
               severed Pennsylvania’s minimum sentencing statute
               in a manner depriving him of his rights under the
               Eighth and Fourteenth amendments of the
               Constitution and the corresponding provisions of the
               Pennsylvania Constitution.

Reeves’ Br. at 1.

      We need not resolve the confusing questions of which petition is the

operative petition and whether Reeves’ Rule 1925(b) statement preserved his

claims on appeal because his PCRA petition was untimely. “Our standard of

review of the denial of a PCRA petition is limited to examining whether the

evidence of record supports the court’s determination and whether its decision

is free of legal error.” Commonwealth v. Beatty, 207 A.3d 957, 960-61

(Pa.Super. 2019). We also defer to the factual findings of the PCRA court so

long as those findings are supported by the record. Id. at 961.

      A petitioner has one year from the time the judgment of sentence is

final to file a PCRA petition. 42 Pa.C.S.A. § 9545(b)(1). A judgment of

sentence is 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.” Id. at §

9545(b)(3). If the petition is not filed before the one-year deadline expires,

the petitioner must plead and prove at least one of the three time-bar

exceptions. These exceptions are:



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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. at § 9545(b)(1)(i)-(iii). When a petitioner raises a time-bar exception, he

or she must raise it within 60 days of the date the petitioner could have first

raised the exception. 42 Pa.C.S.A. § 9545(b)(2).5

       Here, Reeves’ judgment of sentence became final on May 29, 1996,

when the time to file a writ of certiorari with the United States Supreme Court

expired. See U.S. Ct. Rule 13. Therefore, he had until May 29, 1997, to file a

timely PCRA petition. Thus, the instant petition filed in January 2018 was

patently untimely and Reeves bore the burden of pleading and proving at least

one of the time-bar exceptions.

       In    his    petition,   Reeves   claimed   the   governmental   interference

exception:

            Accordingly, to satisfy the governmental official interference
            exception,    Petitioner   must   demonstrate       (1)    that
____________________________________________


542 Pa.C.S.A. § 9545(b)(2) has since been amended to allow a petitioner one
year to file a petition. The amendment applies to claims arising on or after
December 24, 2017, and thus does not apply to Reeves.

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         interference by government officials prevented him from
         discovering the unlawful severance of the statutes in this
         case and bring severance claim sooner, and (2) that he
         could not have known of the governmental interference
         earlier through the exercise of reasonable diligence. There
         is no question in this case that the [t]rial [c]ourt sentenced
         him to what have now been determined to be
         unconstitutional provisions of 42 Pa. C.S. § 9711 (requiring
         sentencing factors to be determined by the trial court by a
         preponderance of the evidence) are unseverable, and that
         the statutes at issue are unconstitutional.

PCRA Petition, filed 1/5/18, at 7.

      In order to satisfy the governmental interference exception, Reeves had

to plead and prove that his “failure to raise the claim [or claims] previously

was the result of interference by government officials with the presentation of

the claim [or claims] in violation of the Constitution or laws of this

Commonwealth or the Constitution or laws of the United States . . .”

Commonwealth v. Chester, 895 A.2d 520, 523 (Pa. 2006) (quoting 42

Pa.C.S.A. § 9545(b)(1)(i)).

      Here, Reeves argues that we should vacate his judgment of sentence

because “the [t]rial [c]ourt sentenced him to mandatory life without parole

pursuant to what have now been determined to be unconstitutional provisions

of 42 Pa. C.S. § 9711 (requiring sentencing factors to be determined by the

trial court by a preponderance of the evidence) are unseverable, and that the

statutes at issue are unconstitutional.” PCRA Petition at 7. In support of this

claim, Reeves cites to Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017)

(Batts II). Id. at 5. Reeves’ argument is meritless for several reasons.



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      First, Batts II is inapplicable to this case, as Batts II involved the

sentencing of a juvenile offender to life imprisonment without the possibility

of parole. Here, Reeves was not a juvenile at the time of the murder, but

rather 24 years old.

      Second, Section 9711 has not been held unconstitutional and the

imposition of a life sentence without possibility of parole on Reeves was not

illegal. See 18 Pa.C.S.A. § 1102(b). The PCRA court did not err in dismissing

Reeves’ PCRA petition as untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/20




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