J-S08029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

TAHREEL MALEEK TOWNSEND

                            Appellant                No. 2112 EDA 2014


                  Appeal from the PCRA Order of July 1, 2014
                In the Court of Common Pleas of Lehigh County
               Criminal Division at No.: CP-39-CR-0003136-2008


BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                        FILED FEBRUARY 20, 2015

       Tahreel Maleek Townsend appeals the July 1, 20141 order that

dismissed his pro se petition for relief pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.

       The PCRA court provided the following history of this case:

       On October 1, 2009, following a jury trial that was conducted
       from September 28, 2009, through October 1, 2009, [Townsend]
       was found guilty of Murder of the First Degree[, 18 Pa.C.S.A.
       § 2502(a),] and Criminal Conspiracy to Commit Criminal
       Homicide[, 18 Pa.C.S.A. § 903(a)(1).] Thereafter, on October
       30, 2009, [Townsend] was sentenced to a term of life
       imprisonment in a state correctional institution on the charge of
       Murder of the First Degree. On the same date, [Townsend] was
       sentenced to a term of imprisonment of not less than ten (10)
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1
      Although the order was dated June 26, 2014, it was not filed and
docketed until July 1, 2014. We have amended the appeal paragraph
accordingly.
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       years nor more than twenty (20) years on the charge of Criminal
       Conspiracy to Commit Criminal Homicide. This sentence was
       ordered to run consecutively to the sentence[] imposed on the
       charge of Murder of the First Degree.          Subsequently, on
       November 19, 2009, [Townsend] filed a notice of Appeal with
       the Superior Court of Pennsylvania. By Order dated August 11,
       2011, the Superior Court of Pennsylvania affirmed this Court’s
       judgment of sentence. Then, on or about September 12, 2011,
       [Townsend] filed a Petition for Allowance of Appeal. On March
       15, 2012, the Supreme Court of Pennsylvania denied
       [Townsend’s] petition. Subsequently, [Townsend] filed a timely
       pro se Motion for Post Conviction Collateral Relief.
       Consequently, on June 25, 2012, [the PCRA court] appointed
       Robert Long, Esquire, to represent [Townsend] on his Motion for
       Post Conviction Collateral Relief. On July 27, 2012 and October
       11, 2012, Attorney Long filed an Amended Petition for Post
       Conviction Collateral Relief and a Second Amended Petition for
       Post Conviction Collateral Relief, respectively. An evidentiary
       hearing relative to [Townsend’s] motion was conducted before
       [the PCRA court] on October 18, 2012. On November 9, 2012,
       [the PCRA court] denied [Townsend’s] Motion for Post Conviction
       Collateral relief.[2] Then, on May 27, 2014, [Townsend] filed a
       second Motion for Post Conviction Collateral Relief. . . .

PCRA Court Opinion , 8/4/2014, at 1-2 (footnotes omitted).

       On June 2, 2014, the PCRA court filed and served a notice of intent to

dismiss Townsend’s second PCRA petition pursuant to Pa.R.Crim.P. 907. The

basis for the notice was that Townsend’s petition was untimely. Townsend

filed a response in which he asserted that he had invoked the newly-
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2
       On November 29, 2012, Townsend appealed the denial of his PCRA
petition to this Court. On September 25, 2013, we affirmed the PCRA court.
Commonwealth v. Townsend, 3271 EDA 2012 (Pa. Super. September 25,
2013) (unpublished memorandum). On October 23, 2013, Townsend filed a
petition for allowance of appeal with the Pennsylvania Supreme Court. On
March 25, 2014, it was denied. Commonwealth v. Townsend, 87 A.3d
816 (Pa. 2014).




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discovered fact exception to the PCRA time bar. On July 1, 2014, the PCRA

court dismissed Townsend’s petition.

     On July 14, 2014, Townsend filed a notice of appeal.      On July 18,

2014, the PCRA court ordered Townsend to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). On July 30, 2014,

Townsend timely complied. On August 4, 2014, the PCRA court issued its

Pa.R.A.P. 1925(a) opinion, which incorporated the rationale set forth in its

June 2, 2014 Rule 907 notice.

     Townsend raises the following issues for our review:

     1. Whether counsel provided ineffective assistance of counsel by
        filing a defective P.C.R.A. Brief which did not support or
        substantiate the legal claims in which [Townsend] sought
        relief on as well as the raising of ineffective assistance of
        counsel which is guaranteed by the U.S. Const. and the 6 th
        Amend. and Art. 1 Sec. 9 of the Pa Const.

     2. Whether trial counsel provided [Townsend] ineffective
        assistance of counsel during trial and at sentencing.

     3. Whether [the] sentencing court erred when it sentenced
        [Townsend] to an illegal sentence of life in prison without
        parole under 42 Pa.C.S. sec. 9715 without any statutory
        authorization to impose and add a sentence condition which
        was illegal.

     4. Whether [the] trial court violated [Townsend’s] procedural
        and substantive due process violation [sic] when it failed to
        follow the mandated rules and provisions of 42 Pa.C.S. sec.
        9715(B), 42 Pa.C.S. sec. 9711, 42 Pa.C.S. sec. 9721(A), 18
        Pa.C.S. sec. 1102(a) and Pa.R.Crim.P. rule 802 and
        Pa.R.Crim.P. rule 808.

     5. Whether [the] trial court erred when it sentenced [Townsend]
        to an illegal sentence of life imprisonment which is to be
        illegally carried out immediately in the state corr. without a
        signed notarized authenticated or even an “existing”

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         sentencing order specifying the sentence imposed pursuant to
         42 Pa.C.S. sec. 9764.

      6. Whether trial counsel was ineffective for giving erroneous
         advice to withdraw [a plea to] 3rd degree murder because
         he’d guaranteed and assure [Townsend’s] freedom but
         instead [Townsend] ended up getting a life sentence plus 10-
         20 yrs.

      7. Whether [Townsend] had raised and established a clear cut
         case of manifest injustice when here he shows he’d invoked
         the exception and met all of the requirements that were
         needed to invoke the exception to the timeliness rule under
         Pa.R.A.P. 720(C) after discovered evidence where he showed
         and has presented abundance of facts and evidence pursuant
         to the Lehigh County own clerk’s admission that the
         documents requested “does not even exist” as mandated
         triggering the provision of 42 Pa.C.S. 9545(B)(1)(ii) which
         were indeed unknown to him during sentencing.

Townsend’s Brief at 12 (minor modification to capitalization, spelling, and

punctuation for clarity).

      Before reaching the merits of Townsend’s appeal, we must ensure that

we have jurisdiction.

      The filing mandates of the PCRA are jurisdictional in nature and
      are strictly construed. Commonwealth v. Stokes, 959 A.2d
      306, 309 (Pa. 2008). The question of whether a petition is
      timely raises a question of law. See Commonwealth v. Fahy,
      959 A.2d 312, 316 (Pa. 2008). Where the petitioner raises
      questions of law, our standard of review is de novo and our
      scope of review plenary. Commonwealth v. Colavita, 993
      A.2d 874, 886 (Pa. 2010). An untimely petition renders this
      Court without jurisdiction to afford relief. Commonwealth v.
      Gandy, 38 A.3d 899 (Pa. Super. 2012).

Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citations

modified).

      To be filed timely, a petition must comply with the following criteria:

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     (b) Time for filing petition.--

     (1) Any petition under this subchapter, including a second or
     subsequent petition, shall be filed within one year of the date the
     judgment becomes final, unless the petition alleges and the
     petitioner proves that:

        (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.

     (2) Any petition invoking an exception provided in paragraph (1)
     shall be filed within 60 days of the date the claim could have
     been presented.

     (3) For purposes of this subchapter, a judgment becomes 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 the
     review.

42 Pa.C.S.A. § 9545.

     On direct appeal, the Pennsylvania Supreme Court denied Townsend’s

petition for allowance of appeal on March 15, 2012. He did not seek review

in the United States Supreme Court. Therefore, his judgment of sentence

became final on June 13, 2012 when time to seek such review expired.

Thus, he had until on or about June 13, 2013 to file a timely PCRA petition.

Townsend filed his second PCRA petition on May 27, 2014 and, therefore, it

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is facially untimely.       To invoke the PCRA court’s and our jurisdiction,

Townsend must plead and prove one of the exceptions to the time bar

enumerated in section 9545(b). See Commonwealth v. Cintora, 69 A.3d

759, 763 (Pa. Super. 2013).

       Townsend argues that he has satisfied the newly-discovered fact

exception pursuant to section 9545(b)(1)(ii).            Townsend asserts that,

sometime after March 25, 2014, he discovered that no signed sentencing

order existed in his case.        Townsend also asserts that he could not have

discovered this fact earlier and that he filed his petition within sixty days of

learning that there was no signed sentencing order.

       First, Townsend is factually mistaken that there are no signed

sentencing orders in the record.          The certified record contains two signed

and dated sentencing sheets3 reflecting Townsend’s sentence.4 Further, the

sentence was pronounced in open court. Notes of Testimony, 10/30/2009,

at 20-21. The docket reflects the same sentence. There is no question that

Townsend was sentenced, even if no order existed. See Joseph v. Glunt,

96 A.3d 365, 372 (Pa. Super. 2014) (finding sufficient authority to maintain
____________________________________________


3
      Although titled a sentencing sheet, the documents have all the
hallmarks of an order. Each lists a charge for which Townsend was convicted
and his related sentence. They are dated and bear the signature of the
presiding judge. They are also docketed as sentencing orders.
4
      While the documents appear to be photocopies, each is signed and
stamped by the clerk of judicial records, attesting that it is a true and
correct copy of the original.



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a prisoner’s detention, even in the absence of a sentencing order, when

docket and sentencing transcript reflect sentence).

      Further, our Supreme Court has held that, “for purposes of 42 Pa.C.S.

§ 9545(b)(1)(ii), information is not ‘unknown’ to a PCRA petitioner when the

information was a matter of public record.”     Commonwealth v. Chester,

895 A.2d 520, 523 (Pa. 2006). The record in Townsend’s case is a public

record and is available for inspection. He could have discovered at any time

that the sentencing sheets were in the record along with the docket and

transcript that reflect his sentence.

      To meet this exception, the newly-discovered fact could not have been

discoverable earlier through the exercise of due diligence. See 42 Pa.C.S.A.

§ 9545(b)(1)(ii). Townsend contends that he did not became aware of the

lack of sentencing order until he received a copy of his sentencing sheet with

a post-it stating that there was no sentencing order.    Townsend does not

explain why he could not have discovered this alleged flaw prior to his

current PCRA petition.

      Finally, Townsend has the burden to demonstrate that he filed his

claim within sixty days of its discovery.     See 42 Pa.C.S.A. § 9545(b)(2).

Townsend baldly asserts that he filed his PCRA petition within sixty days of

the receipt of his sentencing sheet, but he does not provide any information

about the date of receipt or proof, such as a copy of the note or post-marked

envelope. Therefore, Townsend has not met his burden to prove that the

newly-discovered fact exception to the time bar applies.     Thus, his PCRA

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petition was untimely and this Court is without jurisdiction to review its

merits.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/20/2015




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