J-S18027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

VINCENT MUNDY

                            Appellant                   No. 537 EDA 2016


              Appeal from the PCRA Order dated January 19, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1208861-1986

BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.:                                FILED JUNE 23, 2017

        Appellant Vincent Mundy appeals pro se from the order dismissing his

serial petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-46. We affirm.1

        Recitation of the facts of Appellant’s conviction is not necessary for our

disposition. To summarize the relevant procedural facts, Appellant was

convicted in 1987 of third-degree murder and possessing an instrument of

crime.2 We affirmed his judgment of sentence on July 11, 1991, and the

____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
  The order in question also denies Appellant’s request for habeas corpus
relief based on the alleged absence of a written sentencing order. Appellant
makes no argument on appeal regarding this portion of the order, and
therefore we do not review the issue.
2
    18 Pa.C.S. §§ 2502 and 907, respectively.
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Pennsylvania Supreme Court denied allocatur on January 14, 1992. See

PCRA Ct. Op., 8/9/16, at 1-2.3

       Appellant filed his first PCRA petition in 1992, which was denied by the

PCRA court in 1997. PCRA Ct. Op. at 2. Following a lengthy journey through

our courts, this Court finally affirmed the denial of relief on the merits of

Appellant’s first PCRA petition in 2001. Id.

       Appellant filed the instant PCRA petition pro se on November 25, 2014.

PCRA Ct. Op. at 3. In it, Appellant alleged that his mandatory sentence is

unlawful because the sentencing guidelines under which he was sentenced

were declared void and unconstitutional in Commonwealth v. Sessoms,

532 A.2d 775 (Pa. 1987). See PCRA Pet., 11/25/14, at 3.

       Appellant also filed a supplemental petition on July 13, 2015. In that

petition, he classified his newfound understanding of Sessoms as a “newly

discovered fact,” and therefore claimed that his petition falls under the

exception to the PCRA’s filing deadlines in 42 Pa.C.S. § 9545(b)(1)(ii)

(allowing for the filing of a PCRA petition after the normal one-year deadline

if there is proper pleading and proof of newly discovered facts). See PCRA

Pet., 7/13/15, at 3. Appellant also contended that a trial court has

continuing jurisdiction to correct an illegal sentence. See PCRA Pet.,

11/25/14, at 15; PCRA Pet., 7/13/15, at 7.
____________________________________________
3
 Appellant has filed a multitude of pro se motions and petitions. For clarity’s
sake, we mention only those filings which have some bearing on the order
under review.


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       On December 3, 2015, the PCRA court issued a notice of its intention

to dismiss Appellant’s PCRA petition without a hearing, due                to its

untimeliness. PCRA Ct. Op. at 3.4 Appellant did not respond to the notice. On

January 19, 2016, the PCRA court dismissed Appellant’s PCRA petition as

untimely. Id.5

       Appellant filed a timely notice of appeal, and raises the following

issues for our review, as reproduced verbatim from his brief:

          (A). Did the Lower Court commit reversible error, in the
          dismissal of Appellant’s P.C.R.A. Petition, without a hearing
          where evidence of Record, manifests Double Jeopardy
          Sentence clause, Constitutional Violation, with Unlawful-
          Imprisonment therein?

          (B). Did the Lower Court commit reversible error in the
          dismissal of Appellant’s P.C.R.A. Petition without a hearing,
          in its failure to apply the jurisdictional P.C.R.A. Statute 42
          Pa.C.S.A. § 9542, to review and correct, constitutional
          violations of claims of an Illegal-Sentence and Unlawful
          Imprisonment, existing in question?

          (C). Did the Lower Court commit reversible error in the
          dismissal of Appellant’s properly filed Writ of Habeas
          Corpus in the denial, of a Habeas Corpus-hearing with
____________________________________________
4
 The PCRA court issued the notice pursuant to Pa.R.Crim.P. 1507, which has
been renumbered as Pa.R.Crim.P. 907.
5
  The PCRA court’s Pa.R.A.P. 1925(a) opinion states that the petition
underlying the instant appeal was filed on August 6, 2014. However, the
court’s January 19, 2016 order does not state the filing date of the PCRA
petition under its consideration, and the court’s December 3, 2015 Rule 907
Notice states instead that the petition it intends to dismiss was filed on
November 25, 2014, and amended on July 13, 2015. Some confusion may
have been caused by the fact that the PCRA court’s Rule 1925(a) opinion
was written by a different judge than the judge who issued the order in
question.


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          claims of an Illegal Sentence and Unlawful-detention, filed
          therein, for review for relief under the 42 Pa.C.S.A § 9542-
          P.C.R.A. Jurisdiction Statute, applied for relief[?]

          (D). Was Appellate Constitutional Rights to due Process
          and Equal Protection of the law violated under the
          guaranteed rights of the U.S. Constitutional Supremacy
          clause, governing State and Federal Constitutional Laws,
          Acts Statutes, Rules, and Provisions applied in the instant
          case?

Appellant’s Brief at 3 (some spacing added; quotation marks and emphasis

omitted). Because we dispose of this appeal on the basis of the untimeliness

of Appellant’s petition, we do not address the merits of Appellant’s

arguments.

       When we review an order dismissing a petition under the PCRA, our

standard is “to determine whether the determination of the PCRA court is

supported by the evidence of record and is free of legal error. The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record.” Commonwealth v. Barndt, 74 A.3d 185,

192 (Pa. Super. 2013) (citations and internal quotation marks omitted).

       The    timeliness     of   a   post-conviction   petition   is   jurisdictional.

Commonwealth v. Furgess, 149 A.3d 90, 92 (Pa. Super. 2016). We have

explained:

          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 is final[6] unless the petition
____________________________________________
6
   According to 42 Pa.C.S. § 9545(b)(3), a judgment of sentence becomes
final “at the conclusion of direct review, including discretionary review in the
(Footnote Continued Next Page)

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          alleges and the petitioner proves one of the three
          exceptions to the time limitations for filing the petition set
          forth in Section 9545(b)(1) of the statute.

Id. (footnote omitted). The three exceptions are:

          (i) the failure to raise the claim previously was the result
          of interference of 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).

      Before the PCRA court, Appellant argued that his PCRA petition is

timely in light of his discovery of an argument under the Sessoms decision,

but he does not repeat that argument in this Court. Instead, Appellant

claims that his PCRA petition is timely because (1) a court never relinquishes

its jurisdiction to correct an illegal sentence (citing Commonwealth v.

Vasquez, 744 A.2d 1280 (Pa. 2000)), (2) an unconstitutional statute is

ineffective from its enactment (citing Glen-Gery Corp. v. Zoning Hearing

Bd. of Dover Twp., 907 A.2d 1033 (Pa. 2006)), and (3) the legality of a

                       _______________________
(Footnote Continued)
Supreme Court of the United States and the Supreme Court of Pennsylvania,
or at the expiration of time for seeking the review.”


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sentence is not waivable and may be raised sua sponte by an appellate court

(citing Commonwealth v. Hopkins, 67 A.3d 817 (Pa. Super.), appeal

denied, 78 A.3d 1090 (Pa. 2013)). See Appellant’s Brief at 5.

      When a petitioner asserts that a PCRA petition is timely based on the

issuance of a judicial decision, only the third Section 9545 timeliness

exception applies, as “[o]ur Courts have expressly rejected the notion that

judicial decisions can be considered newly-discovered facts which would

invoke the protections afforded by section 9545(b)(1)(ii).” Commonwealth

v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013) (citing Commonwealth v.

Watts, 23 A.3d 980, 986 (Pa. 2011)); see also Commonwealth v.

Burton, No. 9 WAP 2016, 2017 WL 1149203 at *14 (Pa. Mar. 28, 2017)

(differentiating Section 9545(b)(1)(ii), the second timeliness exception,

which requires an assessment of the petitioner’s knowledge of and diligence

in discovering facts, from Section 9545(b)(1)(iii), the third exception, which

requires a petitioner to file a petition within sixty days of a decision creating

a newly-recognized constitutional right). Therefore, a petitioner asserting the

third exception must always file his or her petition within sixty days of the

announcement of the judicial decision, rather than within sixty days of the

date the petitioner became aware of that decision. See Cintora, 69 A.3d at

763 (citing 42 Pa.C.S. § 9545(b)(2)).

      Moreover, “[a]lthough legality of sentence is always subject to review

within the PCRA, claims must still first satisfy the PCRA’s time limits or one


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of the exceptions thereto.” Commonwealth v. Fahy, 737 A.2d 214, 223

(Pa. 1999). While a trial court retains perpetual jurisdiction “to correct

obvious and patent mistakes in its orders, judgments, and decrees”,

Commonwealth v. Holmes, 933 A.2d 57, 65 (Pa. 2007), “it is the

obviousness of the illegality, rather than the illegality itself, that triggers the

court’s inherent power.” Id. at 66-67. “[A]n alleged error must qualify as a

clear clerical error (or a patent and obvious mistake) in order to be

amenable to correction.” Commonwealth v. Borrin, 12 A.3d 466, 473 (Pa.

Super. 2011), aff’d, 80 A.3d 1219 (Pa. 2013).

       As the Pennsylvania Supreme Court denied allocatur of Appellant’s

direct appeal on January 14, 1992, Appellant’s judgment of sentence

became final ninety days later, on April 13, 1992, when the time period

during which Appellant could have sought review in the Supreme Court of

the United States ended. See U.S. Sup. Ct. 13; 42 Pa.C.S. § 9545(b)(3).

Appellant had one year from that date, until April 13, 1993, to file a PCRA

petition. The instant PCRA petition, filed on November 25, 2014, is therefore

facially untimely.7

____________________________________________
7
  “The 1995 amendments to the [PCRA], which adopted the time-bar, also
provide that if the judgment of sentence became final before the January 16,
1996 effective date of the amendments, a PCRA petition will be considered
timely if it is filed within one year of that date, or by January 16, 1997. But
this grace period only applies to first post-conviction petitions filed as of
right, not serial petitions.” Commonwealth v. Lesko, 15 A.3d 345, 361
(Pa. 2011). This grace period has no bearing on the instant case, as
Appellant filed a first timely PCRA petition in 1992 (before the amendments),
(Footnote Continued Next Page)

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      Appellant has failed to plead and prove that any of the timeliness

exceptions apply. Appellant’s encounter of the holding of Sessoms cannot

be construed as a newly discovered “fact” rending Appellant’s petition timely

under the second exception. Cintora, 69 A.3d at 763.8 Moreover, Appellant

has abandoned this argument on appeal. Further, the sentence imposed on

Appellant contained no patent or clerical error that would implicate the trial

court’s   jurisdiction     to   amend,     regardless   of   the   PCRA’s   timeliness

restrictions. Holmes, 933 A.2d at 65-67; Borrin, 12 A.3d at 473. We

therefore hold the PCRA court did not err by holding it lacked jurisdiction to

consider the merits of Appellant’s untimely PCRA petition, and thus we affirm

its dismissal. Barndt, 74 A.3d at 192.

      Order affirmed.




                       _______________________
(Footnote Continued)
and did not file the instant petition until 2014 (after the tolling period
ended).
8
  And, even if this Court were to construe Appellant’s discovery of the
Sessoms decision as a “fact” encompassed by the second timeliness
exception, and even if we were to assume that he discovered the decision
through the exercise of due diligence, Appellant did not file his instant
petition within sixty days of his discovery pursuant to 42 Pa.C.S. §
9545(b)(2). See PCRA Ct. Op. at 6 (noting that Appellant cited Sessoms in
a motion in 2001).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/23/2017




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