J-S06014-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 JAMEEL EARTHY EAST                        :
                                           :
                    Appellant              :    No. 2474 EDA 2019

            Appeal from the PCRA Order Entered August 6, 2019
   In the Court of Common Pleas of Montgomery County Criminal Division
                     at No(s): CP-46-CR-0005484-2011


BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                            FILED MARCH 03, 2020

      Jameel Earthy East appeals pro se from the trial court’s order

dismissing, as untimely, his petition filed pursuant to the Post Conviction Relief

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

      The trial court set forth the following factual and procedural history of

the case:

      On January 11, 2013, [East] . . . appeared before [the court] and
      entered an open plea of guilty to one count of third [-] degree
      murder and one count of unsworn falsification to authorities.

      During the course of his guilty plea proceedings, [East]
      acknowledged that, on June 24, 2011, he was responsible for
      taking care of [E.], his three-month old son. [East] specifically
      admitted that, while he was supposed to be taking care of [E.], he
      struck [E.’s] head against a hard surface on the bathroom counter,
      causing injuries that resulted in [E.’s] death. [East] further
      admitted that he gave a statement to the police in which he first
      denied being responsible for [E.’s] injuries, but subsequently
      admitted to striking [E.’s] head against the counter. The affidavit
      of probable cause in support of the criminal complaint– which was
      incorporated into the record during [East’s] guilty plea
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      proceedings– further stated that an autopsy performed on [E.]
      resulted in a determination that [E.] had suffered blunt cerebral
      trauma with sufficient force that the child suffered two skull
      fractures, resulting in his death. The affidavit further stated that,
      in his statement to police, [East] first claimed to have accidentally
      struck [E.’s] head against the wall while taking the child
      downstairs after he had become ill, but that [East] subsequently
      admitted to striking [E.’s] head against the counter when he
      became “overwhelmed” with taking care of [E.] after the child
      vomited on him.

      A pre-sentence investigation [(PSI)] was conducted, and [East]
      appeared before [the sentencing court] for sentencing on June 26,
      2013. Following careful consideration of the PSI report, the
      arguments of counsel, and all of the evidence presented, [the
      sentencing court] imposed a standard[-]range sentence of not
      less than fifteen (15) nor more than thirty (30) years[’]
      imprisonment on [East’s] sentence for third[-]degree murder. No
      additional sentence was imposed on [East’s] conviction for
      unsworn falsification to authorities. [The sentencing court] stated
      the court’s reasoning for the sentence imposed at some length on
      the record.

      On July 5, 2013, [East] filed a timely post-sentence motion for
      reconsideration of sentence, in which [East] contended that, in
      imposing sentence, the court paid insufficient [attention] to
      potential mitigating factors, resulting in a sentence that was
      unduly harsh and excessive. Upon review of the record, [the
      sentencing court] denied [East’s] motion by order dated July 22,
      2013.

      [East] filed a timely notice of appeal to [this Court] on August 20,
      2013. On September 10, 2013, [the sentencing court] received a
      copy of [East’s] statement of errors complained of on appeal,
      pursuant to P[a.]R[.]A[.]P[.] 1925(b).

Trial Court Opinion, 11/20/13, at 1-3 (internal citations, footnotes and

citations to notes of testimony omitted).

      On direct appeal our Court affirmed East’s judgment of sentence,

concluding that the sentencing court did not abuse its discretion when

imposing his sentence as the court considered a PSI report, heard and

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considered testimony from experts who performed psychological evaluations

of East, reviewed East’s prior criminal, employment, social and educational

histories, considered the safety of the community and East’s rehabilitative

needs, explained the reasons for imposing the particular sentence, and

considered all relevant sentencing factors. Commonwealth v. East, 2435

EDA 2013 (Pa. Super. filed July 2, 2014) (unpublished memorandum). On

July 14, 2015, East filed a petition for “Writ of Habeas Corpus Ad

Subjiciendum” that the court treated as a PCRA petition.          Counsel was

appointed and, on December 8, 2015, the court dismissed East’s petition. East

filed a collateral appeal from that decision; our Court dismissed the appeal

due to East’s failure to file a brief. Commonwealth v. East, 190 EDA 2016

(Pa. Super. filed June 22, 2016) (per curiam).

      East filed the current PCRA petition, his second, on June 21, 2019. On

July 1, 2019, the court issued Pa.R.Crim.P. 907 notice of its intent to dismiss

East’s petition without a hearing. East did not respond to the dismissal notice.

On August 6, 2019, the trial court dismissed East’s petition. This timely appeal

follows.   He raises the following issue for our consideration:        Did the

sentencing court violate 42 Pa.C.S. § 9721(b) when in sentencing [him]

outside the guidelines, it failed to give adequate reason for its departure

therefrom.” Appellant’s Brief, at viii (unnecessary capitalization omitted).

      Generally, a petition for PCRA relief, including a second or subsequent

petition, must be filed within one year of the date the judgment is final. See

42 Pa.C.S.A. § 9545(b)(3); see also Commonwealth v. Alcorn, 703 A.2d

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1054 (Pa. Super. 1997). There are, however, exceptions to the time

requirement, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i),(ii), and (iii). Where

the petition alleges, and the petitioner proves, that an exception to the time

for filing the petition is met, the petition will be considered timely. These

exceptions include interference by government officials in the presentation of

the claim, after-discovered facts or evidence, and an after-recognized

constitutional right.     See Commonwealth v. Gamboa-Taylor, 753 A.2d

780, 783 (Pa. 2000). A PCRA petition invoking one of these exceptions must

“be filed within 60 days of the date the claims could have been presented.”

Id.; see also 42 Pa.C.S.A. § 9545(b)(2).1 The timeliness requirements of the

PCRA are jurisdictional in nature and, accordingly, a PCRA court cannot hear

untimely petitions.      Commonwealth v. Robinson, 837 A.2d 1157 (Pa.

2003).

       Instantly, East’s judgment of sentence became final on August 2, 2014,

after the time expired for him to file a petition for allowance of appeal with

the Pennsylvania Supreme Court. See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P.

1113. Thus, he had until August 2, 2015, to file the instant petition for it to

be deemed timely. East’s current petition, however, was not filed until June

____________________________________________


1 Section 9545(b)(2) was amended on October 24, 2018, effective in 60 days
(Dec. 24, 2018), extending the time for filing from sixty days of the date the
claim could have been presented, to one year. The amendment applies to
claims arising on December 24, 2017, or thereafter. See Act 2018, Oct. 24,
P.L. 894, No. 146, § 3.



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21, 2019, almost four years later.       Accordingly, East’s PCRA is patently

untimely and he must plead and prove a section 9545(b)(1) timeliness

exception in order for the court to consider its merits. See 42 Pa.C.S.A. §

9545(b)(3) (PCRA must be filed within one year of date judgment is final).

      In his petition, East neither pleads nor proves an exception to the PCRA

time bar. Rather, he raises non-cognizable discretionary aspect of sentencing

clams on appeal. Specifically, East contends that the sentencing court:     “(1)

failed to begin [its analysis] with the sentencing guidelines, [] failed to

consider mitigating factors [in fashioning his sentence], and failed to state the

reasons for its upward departure on the record in violation of the Rules of

Criminal Procedure.” Appellant’s Brief, at x. See 42 Pa.C.S. § 9543(a)(2)

(delineating what petitioner must raise to be eligible for relief under PCRA).

Because the timeliness requirements of the PCRA are jurisdictional in nature,

the PCRA court was unable to hear East’s petition and, thus, properly

dismissed it without a hearing. Robinson, supra.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/3/20




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