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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    v.                   :
                                         :
GEORGE M. DURHAM,                        :         No. 1525 WDA 2017
                                         :
                         Appellant       :


               Appeal from the PCRA Order, September 18, 2017,
                 in the Court of Common Pleas of Beaver County
                Criminal Division at No. CP-04-CR-0001860-2007


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED MAY 21, 2018

        George M. Durham (“appellant”) appeals pro se from the order of the

Court of Common Pleas of Beaver County that dismissed his fourth petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546.      Because we agree with the PCRA court that appellant’s

facially untimely petition failed to establish a statutory exception to the

one-year jurisdictional time limit for filing a petition under the PCRA, we

affirm.

        On March 14, 2008, a jury found appellant guilty of first degree

murder.1 Appellant stabbed his then girlfriend, Mary Ann Brown, 19 times.

On April 23, 2008, the trial court sentenced appellant to life in prison with no




1   18 Pa.C.S.A. § 2502(a).
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possibility of parole. Appellant filed a direct appeal with this court. In an

unpublished memorandum filed April 21, 2010, this court affirmed the

judgment of sentence.    See Commonwealth v. Durham, 998 A.2d 1019

(Pa.Super. 2010) (unpublished memorandum).

     On September 5, 2009, appellant filed a pro se PCRA petition. The

PCRA court entered an order on October 1, 2009, stating that no action

would be taken until the resolution of the direct appeal.      Appellant filed a

pro se PCRA petition on September 7, 2010.             Counsel was appointed.

Counsel filed a supplement to the PCRA petition on October 10, 2012.

Following a hearing, the PCRA court dismissed the petition as meritless on

January 14, 2013. On May 9, 2014, this court affirmed. Commonwealth

v. Durham, 104 A.3d 43 (Pa.Super. 2014) (unpublished memorandum),

appeal denied, 108 A.3d 34 (Pa. 2015).

     In August 2016, appellant filed another pro se PCRA petition that he

called a petition for habeas corpus relief.      On September 22, 2016, the

PCRA court dismissed the petition as untimely. Appellant appealed to this

court, which affirmed on August 3, 2017.        Commonwealth v. Durham,

No. 1705 EDA 2016, unpublished memorandum (Pa.Super. filed August 3,

2017).

     On October 7, 2016, appellant filed another pro se PCRA petition. On

November    3,   2016,   the   PCRA   court   denied   appellant’s   request   for

appointment of counsel because that PCRA petition was “untimely and



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constitutes an obvious waste of judicial resources, as have all of the

[appellant’s] many, many pro se pleadings over the last nine (9) years.”

(PCRA court order, 11/3/16 at 1.)

      On August 11, 2017, appellant filed the PCRA petition that is currently

before this court.     On September 18, 2017, the PCRA court denied

appellant’s petition without appointment of counsel and without benefit of a

hearing as the petition was untimely. On October 10, 2017, appellant filed a

notice of appeal. On October 10, 2017, the PCRA court directed appellant to

file a more concise statement of matters complained of on appeal within

21 days of the date of the order. On October 31, 2017, the PCRA court filed

an opinion in support of its order pursuant to Pa.R.A.P. 1925(a).2

      Appellant raises the following issues for this court’s review:

            I.     Did the [PCRA c]ourt abuse its discretion or
                   commit an error of Law in holding that
                   [a]ppellant’s Post Conviction Relief Act Petition
                   was untimely?

            II.    Did the [PCRA c]ourt abuse its discretion or
                   commit an error of Law by imposing an illegal
                   sentencing condition “without parole” upon
                   [a]ppellant that’s not within the laws of
                   Pennsylvania Act No. 46, H.B. 1060 P.L. 213
                   § 4 violating [a]ppellant’s Rights under the
                   5th, 6th, 8th, and 14th Amendments of the
                   United    States    Constitution   and    the
                   Pennsylvania Constitution?

            III.   Did the PCRA c]ourt abuse its discretion
                   on [sic] commit an error of Law by imposing an

2 Although appellant’s concise statement of matters complained of on appeal
is not part of the record, the trial court referred to it in its opinion.


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                   illegal sentence, enacting the crimes code
                   statue [sic] 18 pa. .cs. [sic] § 2502 as a
                   sentencing [sic] without statutory authority
                   and lacking subject matter jurisdiction where
                   the General Assembly never gave authorization
                   to [j]udges to charge, punish and sentence
                   defendants under the statue [sic], violating
                   [a]ppellant’s rights under the 5th, 6th, 8th,
                   and 14th Amendments of the United States
                   Constitution      and    the     Pennsylvania
                   Constitution?

            IV.    Did the PCRA c]ourt abuse its discretion or
                   commit an error of [l]aw by sentencing
                   [a]ppellant under a First Degree Murder
                   conviction that in the Commonwealth of
                   Pennsylvania could only be reached legally in a
                   [c]apital murder case violating [a]ppellant[’]s
                   [r]ights under the 5th, 6th, 8th, and
                   14th Amendments     of   the   United   States
                   Constitution    and       the    Pennsylvania
                   Constitution?

Appellant’s brief at 4.

      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


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            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 the expiration of
            time for seeking the review.”         42 Pa.C.S.[A.]
            § 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
            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


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            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 sentenced appellant on April 23,

2008. This court affirmed the judgment of sentence on April 21, 2010. See

Commonwealth        v.   Durham,     998    A.2d   1019    (Pa.Super.   2010)

(unpublished memorandum). Appellant did not appeal to the Pennsylvania

Supreme Court. Appellant’s judgment of sentence became final on May 21,

2010, after his opportunity to file a direct appeal expired. Appellant had one

year from May 21, 2010, to file a timely PCRA petition. Appellant’s current

petition was filed on August 11, 2017, more than six 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. In order to file a petition after one year has passed from the

final judgment of sentence, appellant must plead and prove one of the

following 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



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                    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.

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).

      Appellant asserts that his petition meets the exception contained in

42 Pa.C.S.A. § 9545(b)(1)(ii) because he did not learn until July 2017 when

he read in “Graterfriends Magazine”3 that a trial court did not have the

authority to impose a life sentence without possibility of parole and that also

in July 2017 he received from his cellmate a document entitled “The Truth

about First Degree Murder in Pennsylvania.”       He also asserts that he filed

this most recent PCRA petition within 60 days of learning of these facts in

compliance with Section 9545(b)(2).

      This court does not agree with appellant’s characterization of these

magazine articles as “facts.” To qualify as facts, a petitioner must establish


3 Apparently, this publication is printed at the State Correctional Institution
at Graterford. It is a publication of the Pennsylvania Prison Society.


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that the facts were unknown to him and that they could not have been

ascertained through due diligence. 42 Pa.C.S.A. § 9545(b)(1)(ii). The fact

allegedly contained in the Graterfriends publication is a column written by an

inmate urging all to support a bill to abolish life imprisonment without

parole. The author also opined that an act passed in 1974 does not allow

judges to impose a further condition of “without parole” in a life

imprisonment    sentence.    Without   determining    the   accuracy   of   that

statement, it is the act from 1974 that is the fact not the column in

Graterfriends. Under this exception, the focus is on newly discovered facts

not a new source for previously known facts. Commonwealth v. Marshall,

947 A.2d 714, 720 (Pa. 2008). If the statement is accurate, appellant could

have ascertained the fact with the exercise of due diligence. The PCRA court

did not err when it dismissed the petition as untimely.

      Because appellant failed to meet any exception to the timeliness

requirements, this court need not address his remaining issues.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 5/21/2018




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