J. S04039/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                   v.                   :
                                        :
LARRY E. FUTRELL,                       :         No. 1182 MDA 2017
                                        :
                        Appellant       :


                   Appeal from the PCRA Order, July 5, 2017,
               in the Court of Common Pleas of Dauphin County
               Criminal Division at No. CP-22-CR-0000615-1997


BEFORE: SHOGAN, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED FEBRUARY 22, 2018

      Appellant, Larry E. Futrell, appeals from the July 5, 2017 order of the

Court of Common Pleas of Dauphin County dismissing without a hearing his

fourth pro se petition filed pursuant to the Post-Conviction Relief Act

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

affirm.

      The PCRA court provided the following procedural history:

           On January 3, 1997, [appellant] was charged with
           one (1) count Rape, one (1) count Involuntary
           Deviate    Sexual   intercourse,   one   (1)   count
           Aggravated Indecent Assault, one (1) count Indecent
           Assault, one (1) count Statutory Sexual Assault, and
           one (1) count Corruption of Minors.[1 Appellant] was
           arrested by the Swatara Township Police on that
           date.     A jury trial was conducted between

1 18 Pa.C.S.A. §§ 3121(a), 3123(a), 3125(a), 3126(a), 3122.1, and
6301(a), respectively.
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             November 18 and November 20, 1997 before the
             Honorable Lawrence F. Clark Jr., now retired.
             [Appellant] was represented by John M. Shugars,
             Esquire. [Appellant] was found guilty by the jury on
             all counts and sentenced to an aggregate term of
             fifteen (15) years to life incarceration at a State
             Correctional Institute.    On February 17, 1998,
             [appellant] filed a post sentence motion which was
             denied on March 2, 1998.

             On June 22, 1998, [appellant] filed a pro se PCRA
             petition.   On October 11, 199[9], Judge Clark
             granted a resentencing in light of the Pennsylvania
             Supreme Court holding in Commonwealth v.
             Williams, 733 A.2d 593 (Pa. 1999). All other issues
             raised in [appellant’s] PCRA petition were denied.
             On November 15, 1999, [appellant] was resentenced
             to an aggregate term of fifteen (15) to sixty (60)
             years[’] incarceration in a State Correctional
             Institute. [Appellant] appealed to the Superior Court
             who affirmed the judgment of sentence on July 28,
             2000,[2] and the Supreme Court of Pennsylvania
             denied his petition for allowance of appeal on
             December 20, 2000.[3]

             On December 26, 2003, [appellant] filed a second
             pro se PCRA petition.          After conducting an
             independent review the court found [appellant’s]
             claims [to be] without merit and accordingly
             dismissed his petition on June 28, 2004.

             On April 25, 2011, [appellant] filed a third pro se
             PCRA petition.     Attorney Jonathan W. Crisp was
             appointed as PCRA counsel for [appellant].
             Attorney Crisp filed a Petition to Withdraw, along
             with a letter of “no merit” pursuant to
             Commonwealth v. Turner, 544 A.2d 927 (Pa.
             1988), and Commonwealth v. Finley, 550 A.2d
             213 (Pa.Super. 1988). On December 28, 2011, the

2 Commonwealth v. Futrell, No. 90 MDA 2000, unpublished memorandum
(Pa.Super. filed July 28, 2000).

3   Commonwealth v. Futrell, 764 A.2d 49 (Pa. 2000).


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            Court granted Attorney Crisp’s Motion to Withdraw,
            and gave its notice of intent to dismiss the PCRA
            petition.  On April 10, 2012, [appellant’s] PCRA
            petition was dismissed.

            On December 1, 2016, [appellant] filed a fourth
            pro se PCRA petition. In his petition, [appellant]
            challenges the legality of his sentence. [Appellant]
            alleges the trial court imposed a mandatory sentence
            under 18 Pa.C.S.A. § 7508 which was facially void
            pursuant to Alleyne v. United States, 133 S.Ct.
            2151 (2013), and Commonwealth v. Newman,
            [99 A.3d 86 (Pa.Super. 2014) (en banc)].

PCRA court opinion, 3/3/17 at 1-2.

      On March 3, 2017, the PCRA court filed a notice of intent to dismiss

appellant’s PCRA petition without a hearing pursuant to Pennsylvania Rule of

Criminal Procedure 907(1).     On July 5, 2017, the PCRA court dismissed

appellant’s petition.   Appellant filed a notice of appeal to this court on

July 27, 2017. The PCRA court ordered appellant to file a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) and

appellant timely complied.   The PCRA court filed a statement in lieu of an

opinion pursuant to Pa.R.A.P. 1925(a) in which it incorporated the language

of its March 3, 2017 opinion filed with its notice of intent to dismiss

appellant’s PCRA petition.

      Appellant raises the following issues for our review:

            1.    Was the appellant sentenced to a harsher
                  sentence due to his mental illness a sentence
                  that would not of been given to a normal
                  person? [sic]




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            2.     Did the sentence given by the Dauphin County
                   Court of Common Please [sic] contain the
                   same format as multiple other statutes that
                   were struck down as unconstitutional?

Appellant’s brief at 5.

      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, 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.
            § 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 the expiration of
            time for seeking the review.”            42 Pa.C.S.
            § 9543(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 can be extended only if the
            PCRA permits it to be extended, i.e., by operation of


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              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). Before addressing appellant’s issues on the merits,

we must first determine if we have jurisdiction to do so.

         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 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 (Pa.
              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).

         In the instant case, the trial court denied appellant’s post-sentence

motion on March 2, 1998.       Appellant did not file a direct appeal with this

court.     Accordingly, appellant’s judgment of sentence became final on


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April 1, 1998.4     Appellant filed the instant petition on December 1, 2016—

more than 17 years after his judgment became final and more than 16 years

after a PCRA petition could be considered timely.            See 42 Pa.C.S.A.

§ 9545(b)(1).

      As noted above, the PCRA does enumerate exceptions to the one-year

requirement. A petitioner may file a petition under the PCRA after one year

has passed from the final judgment of sentence for any of the following

reasons:

            (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.


4 The fact that appellant’s first PCRA petition was successful, resulting in a
resentencing is inapposite here. “[A] successful first PCRA petition does not
‘reset the clock’ for the calculation of the finality of the judgment of sentence
for purposes of the PCRA where the relief granted in the first petition . . .
affected [the petitioner’s] sentence only.” Commonwealth v. McKeever,
947 A.2d 782, 785 (Pa.Super. 2008), citing Commonwealth v. Dehard,
730 A.2d 991, 994 n.2 (Pa.Super. 1999), appeal denied, 745 A.2d 1218
(Pa. 1999).


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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 the instant appeal, appellant fails to demonstrate any of the

exceptions to the PCRA time-bar. For his first issue, appellant appears to be

challenging the discretionary aspects of his sentence while also alleging

“interference by government officials with the presentation of the claim.”

(Appellant’s brief at 6.)   Appellant fails to provide any information as to

when the alleged interference by government officials ceased to exist.

Moreover, this allegation is belied by the certified record before us, which

reflects that appellant filed three PCRA petitions prior to the instant appeal.

Accordingly, we do not have jurisdiction to consider this issue on its merits.

      For his second issue, appellant appears to be averring that his

sentence was based on a finding-of-fact by the sentencing court that

appellant suffered from mental illness. Appellant specifically cites two cases

from the Supreme Court of the United States, Apprendi v. New Jersey,

530 U.S. 466 (2000), and Harris v. United States, 536 U.S. 545 (2002).

Assuming, arguendo, that the Supreme Court did recognize a new

constitutional right that it held to be retroactive, appellant had 60 days from




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the date of the Court’s decision in Harris to file a PCRA petition.5     See

42 Pa.C.S.A. § 9545(b)(2).    The Supreme Court announced its decision in

Harris on June 24, 2002.      Accordingly, in order to successfully plead an

exception to the PCRA time-bar, appellant would have had to file his petition

by August 23, 2002. Therefore, we find that we do not have jurisdiction to

consider appellant’s second issue on its merits.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/22/2018




5 We note that the holding in Harris was overruled by the Supreme Court in
Alleyne v. United States, 570 U.S. 99 (2013), on June 17, 2013. Even if
appellant had framed his issue as an Alleyne argument, he would have
been required to file his PCRA petition by August 16, 2013, to successfully
plead an exception to the PCRA time-bar.


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