J. S55039/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   v.                    :
                                         :
WILLIAM L. BREEDEN,                      :          No. 555 EDA 2018
                                         :
                        Appellant        :


                 Appeal from the PCRA Order, April 5, 2017,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0009137-2007


BEFORE: OLSON, J., STABILE, J., AND FORD ELLIOTT, P.J.E.


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

      William L. Breeden, appeals pro se from the April 5, 2017 order

dismissing his second petition filed pursuant to the Post Conviction Relief Act

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

      The PCRA court provided the following synopsis of the procedural

history of this case:

            The charges filed against [appellant] arose out of an
            incident that occurred on December 12, 2006, during
            which [appellant] and Brian Burns committed an
            armed     robbery    of  Anthony     DeShields   and
            Azeem Jordan. During the incident, Mr. Jordan was
            shot and killed. Upon being arrested, [appellant]
            confessed to the crime.

            Following the imposition of sentence, [appellant]
            appealed to the Superior Court, which on June 25,
            2010,    affirmed the   judgment    of  sentence.
            Commonwealth v. Breeden, [4 A.3d 699
            (Pa.Super. 2010) (unpublished memorandum)].
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            [Appellant] thereafter filed a petition for allowance of
            appeal, which the Pennsylvania Supreme Court
            denied on December 10, 2010.[1]

            On August 22, 2011, [appellant] timely filed a
            pro se PCRA petition following which counsel was
            appointed to represent him. On April 13, 2012,
            appointed counsel filed an amended petition. After
            supplying [appellant] with a Pa.R.Crim.P. 907 notice,
            [the PCRA court] denied [appellant] PCRA relief
            without a hearing on March 1, 2013. Subsequent
            thereto, [appellant] filed a timely notice of appeal as
            well as a requested Pa.R.A.P. 1925(b) notice. On
            January 23, 2014, the Superior Court affirmed the
            order     denying       [appellant]    PCRA      relief.
            [Commonwealth v. Breeden, 96 A.3d 1090
            (Pa.Super. 2014 (unpublished memorandum).]
            Appellant thereafter filed a petition for allowance of
            appeal which the Pennsylvania Supreme Court
            denied on June 20, 2014.         [Commonwealth v.
            Breeden, 94 A.3d 1007 (Pa. 2014).]

            On January 5, 2016, [appellant] filed a document
            entitled “Concise statement in support of this matter
            complained on the PCRA”, which [the PCRA court]
            treated as a second PCRA petition. In it, [appellant]
            appears to be arguing that his current petition
            should be treated as a timely nunc pro tunc PCRA
            filing because he first learned on November 10,
            2015, that his second PCRA petition, which he claims
            he mailed to the [PCRA court] in March of 2015, had
            not been filed. He adds that because his most recent
            filing was filed within sixty days of November 10,
            2015, his most recent filing was timely filed and that
            he should be permitted to litigate his claim that
            PCRA counsel provided him with ineffective
            assistance of counsel on his claim that trial counsel
            deprived him of his right to testify.[Footnote 3]

                  [Footnote 3] That claim was raised by
                  PCRA counsel and was determined to be
                  lacking in merit by [the PCRA court], a

1   Commonwealth v. Breeden, 13 A.3d 474 (Pa. 2010).


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                    decision affirmed by the Superior Court.
                    [Appellant] currently appears to be
                    arguing    that   PCRA    counsel   was
                    ineffective because the argument set
                    forth in support of the claim was
                    erroneous.

              In his [petition, appellant] raises several claims of
              ineffectiveness and alleges that [the PCRA court]
              erred by not granting him hearings on those claims.
              He also contends that [the PCRA court] erred by not
              vacating the concurrent sentence of ten to twenty
              years imposed on the robbery bill because that
              charge merged with the life sentence imposed on the
              second-degree murder charge.

              On March 23, 2016, [appellant] filed an amended
              PCRA petition wherein he asserted that when he
              committed the killing he was twenty[ ]years old and
              had a deprived childhood. He argues that because of
              that and delayed development the cases of Miller v.
              Alabama, 567 U.S. 460 (2012), and Montgomery
              v. Louisiana,       U.S.   , 136 S.Ct. 718 (2016),
              require that his life sentence without parole be
              vacated and that he be resentenced.[2]

PCRA court opinion, 5/1/17 at 1-3 (footnotes 1 and 2 omitted).

        On March 6, 2017, the PCRA court issued a notice of intent to dismiss

appellant’s second PCRA petition pursuant to Pa.R.Crim.P. 907.        Appellant

did not file a response, and the PCRA court dismissed appellant’s petition on

April 5, 2017. On April 20, 2017, appellant filed a timely notice of appeal to

this court.     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).




2   Appellant did not raise this issue on appeal.


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On   May   1,   2017,   the   trial   court   issued   an   opinion   pursuant   to

Pa.R.A.P. 1925(a).

      In reviewing appellant’s brief, we note that appellant failed to include a

statement of questions involved pursuant to Pa.R.A.P. 2116.             The issue

appellant appears to raise is whether PCRA counsel provided him with

effective assistance of counsel.

      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, [] 141, 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
            that    judgment    of   sentence   becomes     final.
            42 Pa.C.S.[A.] § 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 at the expiration
            of time for seeking the review.” 42 Pa.C.S.[A.]


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           § 9545(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 is not subject to the
           doctrine of equitable tolling;” instead, the time 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).

     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 for
           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
           (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).


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     In the case before us, this court affirmed appellant’s judgment of

sentence on June 25, 2010. Our supreme court denied appellant’s petition

for allowance of appeal on December 10, 2010. Appellant did not file a writ

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

appellant’s judgment of sentence became final on March 10, 2011.         See

U.S.Sup.Ct.R. 13. Appellant filed the instant petition on January 5, 2016—

nearly four years after a PCRA petition could be considered facially timely.

See 42 Pa.C.S.A. 9545(b)(1).

     A petitioner may nevertheless overcome the one-year time-bar under

the PCRA after one year has passed from the final judgment of sentence if

he or she pleads and proves any of the following reasons:

           (i)     [T]he 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)    [T]he 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)   [T]he 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.




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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 his sole issue on appeal, appellant alleges ineffective assistance of

counsel on the part of his PCRA counsel, Janis Smarro, Esq., during the

litigation of his first petition filed pursuant to the PCRA.

      Appellant does not plead any of the enumerated exceptions to the

PCRA’s time-bar. Throughout his brief, he appears to allege interference on

the part of the Commonwealth pursuant to 42 Pa.C.S.A. § 9545(b)(1)(i) in

the litigation of his habeas corpus petition filed with the United States

District Court for the Eastern District of Pennsylvania.         Any alleged

interference on the part of the Commonwealth in federal habeas corpus

litigation would have no impact on any serial PCRA petitions appellant would

wish to file.   “There is no reason why federal habeas petitions and serial

state collateral petitions cannot proceed simultaneously. . . . The PCRA does

not require or authorize such delay; nor do [the Supreme] Court’s

procedural Rules.” Commonwealth v. Porter, 35 A.3d 4, 17 (Pa. 2012).

      Accordingly, appellant has not pled or proven any of the enumerated

exceptions to the PCRA time-bar.          Therefore, the PCRA court properly

dismissed appellant’s petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 10/23/18




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