J-S95030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MARVIN GILMORE

                            Appellant                 No. 1115 EDA 2016


                    Appeal from the PCRA Order March 18, 2016
               In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0705281-2000


BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                            FILED APRIL 21, 2017

       Marvin Gilmore appeals from the March 18, 2016 order entered by the

Philadelphia County Court of Common Pleas dismissing as untimely his

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

Pa.C.S.A. §§ 9541-9546. We affirm.

       On December 13, 2002, Gilmore pled guilty to charges of carrying a

firearm without a license, resisting arrest, and two counts of attempted

murder.1      On April 21, 2003, the trial court resentenced Gilmore to an

aggregate term of 30 to 69 years’ incarceration.2 Gilmore thereafter filed a

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       1
           18 Pa.C.S. §§ 6106, 5104, and 2502, respectively.
       2
       The trial court originally sentenced Gilmore to an aggregate term of
36 to 89 years’ incarceration on March 27, 2013. Gilmore filed a motion to
modify sentence, which the court granted, acknowledging a sentencing error
(Footnote Continued Next Page)
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motion to withdraw his guilty plea, which the trial court denied on May 7,

2003. On July 15, 2003, Gilmore filed a pro se PCRA petition. Gilmore was

appointed counsel, who filed an amended petition alleging that trial counsel

was ineffective for failing to file a direct appeal.    On March 17, 2004, the

PCRA court denied the petition. Gilmore appealed, and this Court affirmed

the PCRA court’s decision on November 9, 2004.

      On April 13, 2005, Gilmore filed a second PCRA petition. On February

14, 2006, the PCRA court sent notice of its intent to dismiss Gilmore’s

petition pursuant to Pennsylvania Rule of Criminal Procedure 907.           On

February 24, 2006, Gilmore filed an objection to the trial court’s Rule 907

notice. On March 15, 2006, the PCRA court dismissed Gilmore’s petition as

untimely.     Gilmore appealed, and on November 16, 2006, this Court

affirmed. On October 25, 2007, Gilmore filed his third PCRA petition. The

PCRA court sent Gilmore a Rule 907 notice, and on June 17, 2008, it

dismissed Gilmore’s third petition as untimely.        Gilmore appealed, and on

October 14, 2009, this Court affirmed.

      On August 12, 2010, Gilmore filed the instant PCRA petition, his

fourth.3 On December 19, 2012, and June 11, 2015, Gilmore amended the
                       _______________________
(Footnote Continued)

and reducing one of Gilmore’s sentences for attempted murder from 16 to
40 years’ incarceration to 10 to 20 years’ incarceration.
      3
        We note that the period of time from the filing of Gilmore’s fourth
PCRA petition to its disposition by the PCRA court includes multiple
substitutions of counsel on Gilmore’s behalf.



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petition. The trial court thereafter sent a Rule 907 notice, and on March 18,

2016, it dismissed Gilmore’s petition as untimely. On April 6, 2016, Gilmore

filed a timely notice of appeal.

      Gilmore raises the following issue on appeal: “Did the PCRA Court err

and violate [Gilmore’s] Sixth and Fourteenth Amendment rights under the

U.S[.] and Pennsylvania Constitutions by finding that his PCRA petition was

untimely?” Gilmore’s Br. at 4.

      Our standard of review from the denial of PCRA relief “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).

       It is well settled that “the timeliness of a PCRA petition is a

jurisdictional requisite.”   Commonwealth v. Brown, 111 A.3d 171, 175

(Pa.Super.), app. denied, 125 A.3d 1197 (Pa. 2015).         A PCRA petition,

“including a second or subsequent petition, shall be filed within one year of

the date the judgment becomes final.”        42 Pa.C.S. § 9545(b)(1).       A

judgment 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 [] review.” 42 Pa.C.S.

§ 9545(b)(3).




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       Gilmore’s judgment of sentence became final on June 6, 2003.4        He

had one year from that date, that is, until June 6, 2004, to file a timely PCRA

petition. Therefore, his current petition filed on August 12, 2010, is facially

untimely.

       Courts may consider a PCRA petition filed more than one year after a

judgment of sentence became final only if the petitioner alleges and proves

one of the following three statutory exceptions:

           (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.


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       4
         “If post-sentencing motions are timely filed, . . . the judgment of
sentence does not become final for purposes of appeal until the trial court
disposes of the motion, or the motion is denied by operation of law.”
Commonwealth v. Rojas, 874 A.2d 638, 642 (Pa.Super. 2005) (quoting
Commonwealth v. Borrero, 692 A.2d 158, 159 (Pa.Super. 1997)).
Because the trial court denied Gilmore’s post-sentence motion on May 7,
2003, and Gilmore did not file a direct appeal, his judgment of sentence
became final 30 days later. See Pa.R.A.P. 903(a) (“[T]he notice of appeal
required by Rule 902 . . . shall be filed within 30 days after the entry of the
order from which the appeal is taken.”).




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42 Pa.C.S. § 9545(b)(1)(i)-(iii); see Brown, 111 A.3d at 175. In addition,

when invoking an exception to the PCRA time bar, the petition must “be filed

within 60 days of the date the claim could have been presented.” 42 Pa.C.S.

§ 9545(b)(2).

      Gilmore argues that his PCRA petition is timely pursuant to 42 Pa.C.S.

§ 9545(b)(1)(i) and (ii). We will first address whether Gilmore satisfies the

time-bar exception in section 9545(b)(1)(ii), which is known as the “new

facts” exception. Under this exception, a petitioner may overcome the PCRA

time bar if he or she alleges and proves: “(1) the facts upon which the claim

was predicted were unknown and (2) they could not have been ascertained

by the exercise of due diligence.” Commonwealth v. Cox, 146 A.3d 221,

227 (Pa. 2016); 42 Pa.C.S. § 9545(b)(1)(ii).        “Due diligence ‘does not

require perfect vigilance and punctilious care, but merely a showing the

party has put forth reasonable effort’ to obtain the information upon which a

claim is based.”    Cox, 146 A.3d at 230 (quoting Commonwealth v.

Edmiston, 65 A.3d 339, 348 (Pa. 2013). Furthermore, our Supreme Court

has “unequivocally explained that ‘the exception set forth in subsection

(b)(1)(ii) does not require any merits analysis of the underlying claim.’” Id.

at 227 (quoting Commonwealth v. Abu Jamal, 941 A.2d 1263, 1268 (Pa.

2008)).

      Gilmore avers that his PCRA petition is timely because he filed it within

60 days of discovering a new fact, that is, “that critical notes of testimony

from his plea proceedings [which] had been transcribed by the Court

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Reporter Service [were] later destroyed, despite the fact that [Gilmore] had

attempted multiple times through multiple sources to obtain them before

their destruction.” Gilmore’s Br. at 8. He claims that he first learned of the

alleged destruction of the notes of testimony on August 3, 2010, when he

received an affidavit from his mother, dated June 9, 2010, which stated that

in March 2010, she had learned from the court reporter service that the

notes of testimony could not be located.

       We conclude that Gilmore has failed to establish that the “new facts”

exception applies.       Regardless of whether the notes of testimony were

missing or “destroyed,”5 Gilmore knew in 2008 that the notes were

unavailable, as evidenced by the letter Gilmore allegedly received from the

court reporter service, see R.R. at 8.6          Because Gilmore did not file the

instant PCRA petition until 2010, the petition was not filed within 60 days of

the date his claim could have been presented as required by section

9545(b)(2).




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       5
       Although Gilmore contends the notes of testimony were “destroyed,”
he provides no proof that this occurred. Rather, the affidavit from his
mother avers only that the court reporter service could not find the records.
       6
       We note that the letter from the court reporter service, as included in
the reproduced record, is undated; however, the version attached to
Gilmore’s original and amended PCRA petitions includes a handwritten
notation of “Sept 17, 2008 [sic].”




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       Next, we address whether Gilmore satisfies the time-bar exception of

section 9545(b)(1)(i), known as the “governmental interference” exception.

Gilmore argues that the government interfered by ignoring his repeated

requests for the notes of testimony “until it was too late and the notes had

been destroyed.” Gilmore’s Br. at 19. “Although a Brady7 violation may fall

within the governmental interference exception, the petitioner must plead

and prove that the failure to previously raise [the claim] was the result of

interference by government officials, and that the information could not have

been obtained earlier with the exercise of due diligence.” Commonwealth

v. Hawkins, 953 A.2d 1248, 1253 (Pa. 2006).

       We    conclude     that   Gilmore       has   not   proven   any   governmental

interference.     Although he repeatedly uses the words “destroyed” and

“destruction,” the only evidence Gilmore provides to support his allegation

that the notes of testimony were destroyed is his mother’s affidavit, which

does not support this claim. Moreover, to the extent Gilmore argues that his

requests for the notes of testimony were ignored, Gilmore was aware in

2008 that the notes of testimony were unavailable, and the instant PCRA

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       7
         Brady v. Maryland, 373 U.S. 83 (1963). “[T]o establish a Brady
violation, a defendant must demonstrate that: (1) the evidence was
suppressed by the Commonwealth, either willfully or inadvertently; (2) the
evidence was favorable to the defendant; and (3) the evidence was material,
in that its omission resulted in prejudice to the defendant.”
Commonwealth v. Haskins, 60 A.3d 538, 545 (Pa.Super. 2012).




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petition was not filed until 2010. Further, Gilmore does not explain how the

alleged destruction of the notes of testimony interfered with his ability to

bring a claim challenging the propriety of his guilty plea colloquy, as Gilmore

was present8 at the guilty plea colloquy and would know whether he had

been       informed   of   the   possibility   that   he   could   receive   consecutive

sentences.9 Finally, Gilmore does not adequately explain how his ability to

make claims related to the unavailability of the notes of testimony was

affected by the alleged interference, and more critically, does not explain

why that information could not have been obtained earlier with the exercise

of due diligence.

       Accordingly, we conclude that the PCRA court’s dismissal of Gilmore’s

fourth PCRA petition is supported by the record and free of legal error.

       Order affirmed.




____________________________________________


       8
       Gilmore’s brief contends only that he was not present at the April 21,
2003 resentencing hearing.
       9
        Gilmore’s underlying claim challenges the propriety of his guilty plea,
that is, that he made the plea knowingly, intelligently, and voluntary.
Gilmore contends that he was not informed prior to pleading of the
possibility of receiving consecutive sentences, and that he believed that he
would receive concurrent sentences.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/21/2017




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