J-S22011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 LAWRENCE EDWARD SEVER                    :
                                          :
                    Appellant             :     No. 633 MDA 2018

                Appeal from the PCRA Order March 12, 2018
  In the Court of Common Pleas of York County Criminal Division at No(s):
                          CP-67-CR-0000094-2010


BEFORE:    SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.

MEMORANDUM BY SHOGAN, J.:                     FILED: JULY 10, 2019

      Appellant, Lawrence Edward Sever, appeals pro se from the order

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

42 Pa.C.S. §§ 9541–9546. We affirm.

      In 2008, Appellant sexually assaulted C.J., a nine-year-old minor, in

Florida and in Pennsylvania.    Commonwealth v. Sever, 64 A.3d 17, 576

MDA 2012 (Pa. Super., filed December 12, 2012) (unpublished memorandum

at 1–2). Appellant was arrested and charged with involuntary deviate sexual

intercourse (“IDSI”) with a child, 18 Pa.C.S. § 3123(b), and indecent assault

of a person less than thirteen years old, 18 Pa.C.S. § 3126(a)(7). Id. at 2. A

prior panel of this Court summarized the procedural history of this case as

follows:

      There were two jury trials before the Honorable Thomas Kelley.
      Clasina Houtman, Esquire, First Assistant Public Defender at the
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     York County Public Defender’s Office, represented [Appellant]
     during both trials.

            On October 15, 2010, the first trial ended in a mistrial. In
     January 2011, two weeks before the second trial, Houtman
     learned that Judge Kelley had been involved in a romantic
     relationship with another Public Defender, Janan Tallo, Esquire,
     during 2010 and January 2011. Judge Kelley and Tallo kept their
     romance secret, thus enabling Tallo to continue representing
     clients in Judge Kelley’s courtroom.

            Houtman was Tallo’s supervisor in the Public Defender’s
     Office. When the Public Defender’s Office learned about the
     romance in January 2011, the Chief Public Defender, attorney
     Blocher, “had a conversation with Judge Kelley” and then removed
     Tallo from Judge Kelley’s courtroom. N.T., 6/16/15, at 36. Tallo
     did not participate in any way in [Appellant’s] two trials.

            On February 7, 2011, [Appellant’s] second jury trial began
     before Judge Kelley. On February 8, 2011, the evidentiary phase
     of trial concluded, the parties presented closing arguments, and
     Judge Kelley charged the jury. Later that night, Judge Kelley
     broke Tallo’s elbow during a domestic dispute.

           On February 9, 2011, Judge Kelley answered one question
     from the jury, and the jury found [Appellant] guilty of IDSI.
     Following trial, Judge Kelley was assigned to another trial division,
     and [Appellant’s] case was reassigned to the Honorable Richard
     Renn.

           Prior to his assault on C.J., [Appellant] had a prior conviction
     and lengthy sentence in Florida for lewd and lascivious assault
     upon a child. Accordingly, at sentencing on October 27, 2011,
     Judge Renn treated [Appellant] as a second-time sexual offender
     and imposed a term of 25-50 years’ imprisonment, the mandatory
     minimum under 42 Pa.C.S. § 9718.2.1 [Appellant] filed timely
     post-sentence motions, which Judge Renn denied. On December
     12, 2012, this Court affirmed on direct appeal. [Sever, 576 MDA
     2012 (unpublished memorandum)].             On May 13, 2014, the
     Supreme Court denied [Appellant’s] petition for allowance of
     appeal. [Commonwealth v. Sever, 91 A.3d 1238, 887 MAL
     2013 (Pa. 2014)].




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              1   [Appellant] does not challenge his mandatory
              minimum sentence as unconstitutional under Alleyne
              v. United States, -- U.S. --, 133 S.Ct. 2151 (2013).
              For the sake of completeness, we note that our
              Supreme Court has held that Alleyne does not apply
              retroactively to PCRA cases such as the present
              appeal. Commonwealth v. Washington, 142 A.3d
              810 (Pa. 2016).[1]

             On March 16, 2015, [Appellant] filed a timely PCRA petition,
       and he subsequently filed an amended PCRA petition. On June
       16, 2015, Judge Renn held an evidentiary hearing. At the
       conclusion of the hearing, Judge Renn denied all but one of
       [Appellant’s] claims and took the remaining claim under
       advisement. On June 23, 2015, Judge Renn entered an order and
       opinion denying the remaining claim.

              [Appellant] filed a timely notice of appeal.

Commonwealth v. Sever, 159 A.3d 42, 1153 MDA 2015 (Pa. Super., filed

October 13, 2016) (unpublished memorandum at *1–2).

       The instant PCRA court described the ensuing history as follows:

       On February 10, 2016, by order of Superior Court, the appeal was
       remanded for thirty days for a determination as to whether
       counsel for [Appellant], Attorney Seamus Dubbs, had abandoned


____________________________________________


1  The PCRA court’s reference to Alleyne and the PCRA court’s failure, along
with the Commonwealth, to perceive the presumably nuanced inapplicability
of that line of cases adds to the confusion herein, in light of the parties’ and
the PCRA court’s failure to clarify the exact nature of Appellant’s complaint.
This is so in light of the fact that Appellant received a mandatory minimum
sentence based upon having “previously been convicted of an offense set forth
in [42 Pa.C.S.] section 9799.14 or an equivalent crime . . . in another
jurisdiction,” 42 Pa.C.S. § 9718.2(a)(1) and (b); application of Alleyne
appears not to be relevant. N.T. (Sentencing), 10/27/11, at 31. However,
due to the failure of the parties and the court to acknowledge this, we will
address the issue Appellant presents.



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       [Appellant] and for this [c]ourt to take further action as required
       to protect [Appellant’s] right to appeal.[2]

             On March 3, 2016, we issued an order determining that
       Attorney Dubbs had not abandoned [Appellant]. During this
       hearing, we also found that [Appellant] knowingly and intelligently
       wished to have Attorney Dubbs continue to represent him on
       appeal. The Superior Court affirmed our order denying post-
       conviction relief by order and opinion dated October 13, 2016.
       [Sever, 1153 MDA 2015 (unpublished memorandum)].

             On December 22, 2017, [Appellant] filed a second petition
       pursuant to the [PCRA]. On December 29, 2017, we issued a
       Notice Pursuant to Pennsylvania Rule of Criminal Procedure 907
       advising [Appellant] his petition would be denied without further
       proceedings in twenty days. On March 12, 2018, we issued an
       order denying [Appellant’s] second PCRA petition. On April 13,
       2018, [Appellant] filed a Notice of Appeal to the Superior Court.[3]
       On April 13, 2018, we issued a concise statement order to
       [Appellant]. On April 21, 2018, [Appellant] apparently mailed his
       Concise Statement of Errors Complained of on Appeal pursuant to
       Pa.R.A.P. 1925(b)(4).1

              1  Apparently [Appellant] failed to “file” both his Rule
              907 “response” and his Rule 1925 statement. He,
              instead, sent them directly to this Judge. We have
              “filed” them contemporaneously with the filing of this
____________________________________________


2   The remand order was filed on February 8, 2016.

3  The order denying PCRA relief was mailed to pro se Appellant on March 13,
2018. Although Appellant’s notice of appeal was filed and docketed on April
13, 2018, thirty-one days after the entry of the March 12, 2018 order, we
consider the appeal timely. See Pa.R.A.P. 108(a)(1) (day of entry of an order
shall be the day the clerk of courts mails or delivers copies of the order to the
parties); Pa.R.A.P. 903(a) (notice of appeal shall be filed within thirty days
after the entry of the order from which the appeal is taken). Because
Appellant was incarcerated and the record reflects that he placed his notice of
appeal in the prison mail at the latest on April 6, 2018, his appeal is deemed
filed on that date pursuant to the prisoner mailbox rule. See Commonwealth
v. Johnson, 192 A.3d 1149, 1152, n.4 (Pa. Super. 2018) (stating that a pro
se prisoner’s document is treated as filed on the date he delivers it to prison
authorities for mailing).

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              Statement. His 1925 statement was timely received
              by the [c]ourt.

PCRA Court Opinion, 7/30/18, at 2–3.

      Appellant raises the following issues on appeal, which we reproduce

verbatim:

      1. Whether trial court erred in denying PCRA relief as a Rule of
      Criminal Procedure 907 response to Court’s Notice dated
      December 29, 2017, but instead cited that Notice in its Order
      Denying Post-Conviction RElief dated March 12, 2018.

      2. Whether Court committed an erroe of law by declaring
      Appellant’s PCRA was untimely.

      3. Whether Clerk of Court was negligent in not filing and returning
      Appellant’s amended PCRA, and did not stamp, time-date, and
      notify Appellant of receipt of amended PCRA that was sent as
      response to Rule of Criminal Procedure 907.

      4. Whether Court-appointed attorney for Appelant abandoned
      him, or was ineffective in providing counsel.

Appellant’s Brief at 4.

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”    Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)).    This Court is limited to determining whether the evidence of

record supports the conclusions of the PCRA court and whether the ruling is

free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.

2016).   The PCRA court’s findings will not be disturbed unless there is no




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J-S22011-19


support for them in the certified record. Commonwealth v. Lippert, 85 A.3d

1095, 110 (Pa. Super. 2014).

       Initially, we must determine whether the PCRA court had jurisdiction to

review the merits of Appellant’s issues.4 The timeliness of a PCRA petition is

a jurisdictional threshold that may not be disregarded in order to reach the

merits of the claims raised in an untimely PCRA petition. Commonwealth v.

Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citing Commonwealth v. Murray,

753 A.2d 201, 203 (Pa. 2000)).

       The PCRA court concluded that Appellant’s PCRA petition was untimely.

PCRA Court Opinion, 7/30/18, at 5. The timeliness of a PCRA petition is a

jurisdictional threshold that may not be disregarded in order to reach the

merits   of   the   claims    raised    in     a   PCRA   petition   that   is   untimely.



____________________________________________


4  Regarding Appellant’s claim in issues one and three that relate to his
response to the PCRA court’s Pa.R.Crim.P. 907 notice, we note that Appellant
did not file the response and instead, mailed it to the PCRA court. PCRA Court
Opinion, 7/30/18, at 3 n.1. Despite the PCRA court’s representation in its
Rule 1925(a) opinion that it filed Appellant’s Rule 907 response
contemporaneously with its Rule 1925(a) opinion, id., there is no such
response in the record certified to us on appeal. See Commonwealth v.
Lopez, 57 A.3d 74, 82 (Pa. Super. 2012) (“It is an appellant’s duty to ensure
that the certified record is complete for purposes of review”). The “[f]ailure
to ensure that the record provides sufficient information to conduct a
meaningful review constitutes waiver of the issue sought to be reviewed.”
Commonwealth v. Reed, 971 A.2d 1216, 1219 (Pa. 2009). We note,
however, that the PCRA court received the response and presumably
considered it. PCRA Court Opinion, 7/30/18, at 3 n.1, 4. Thus, we find no
merit to issues one and three.



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Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citing

Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)).

       Appellant was sentenced on October 27, 2011.             This Court affirmed

Appellant’s judgment of sentence on December 12, 2012. Sever, 576 MDA

2012 (unpublished memorandum).                 Our Supreme Court denied Appellant’s

petition for allowance of appeal on May 13, 2014. Sever, 887 MAL 2013.5

Appellant did not seek further review in the United States Supreme Court.

Thus, Appellant’s judgment of sentence became final on August 11, 2014,

when the time expired to seek relief in the United States Supreme Court. See

42 Pa.C.S. § 9545(b)(3) (for purposes of calculating the timeliness of a

petition, 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”); U.S.Sup.Ct.R. 13 (petition for a writ of certiorari seeking review

of a judgment of a lower state court that is subject to discretionary review by

the state court of last resort is timely when it is filed with the Clerk within

ninety days after entry of the order denying discretionary review). Therefore,

Appellant had until August 11, 2015, to file a timely PCRA petition. The instant


____________________________________________


5 Both the PCRA court in its Pa.R.A.P. 1925(b) opinion and the Commonwealth
in its appellate brief incorrectly report the dates of both Appellant’s direct
appeal and denial of his petition for allowance of appeal. PCRA Court Opinion,
7/30/18, at 5; Commonwealth’s Brief at 8.



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petition was filed on December 22, 2017, more than two years beyond the

relevant timeliness date. As such, the PCRA petition is patently untimely.

       The jurisdictional time bar can be overcome only by satisfaction of one

of the three statutory exceptions codified at 42 Pa.C.S. § 9545(b)(1)(i)–(iii).6

Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017). Further, “[a]ny

petition invoking an exception . . . shall be filed within 60 days of the date the

claim could have been presented.”              42 Pa.C.S. § 9545(b)(2).7   The PCRA

petitioner bears the burden of proving the applicability of one of the

exceptions. Commonwealth v. Edmiston, 65 A.3d 339, 346 (Pa. 2013).




____________________________________________


6   The exceptions to the timeliness requirement are:

       (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.

42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).
7   42 Pa.C.S. § 9545(b)(2) was amended effective December 24, 2018, and
provided that claims arising after December 24, 2017, were permitted to be
filed within one year, rather than sixty days, of the date the claim could have
been presented. Appellant filed his PCRA petition on December 22, 2017,
which was prior to the effective date of the amendment.

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     Appellant attempts to assert applicability of one of the timeliness

exceptions.   Appellant’s Brief at 10, 12.        He avers applicability of

Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017), appeal

granted, 190 A.3d 581, 47 WAL 2018 (Pa. filed July 31, 2018), and

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), stating that he “read

about these cases” and “intended to raise the issues presented in those cases

and argue that [he] was sentenced under a law that has since been declared

unconstitutional.” Appellant’s Brief at 11. We recently reiterated that Muniz

does not establish a timeliness exception to the PCRA:

     Appellant’s reliance on Muniz cannot satisfy the “new retroactive
     right” exception of section 9545(b)(1)(iii) . . . . Here, we
     acknowledge that this Court has declared that, “Muniz created a
     substantive rule that retroactively applies in the collateral
     context.” Commonwealth v. Rivera-Figueroa, 174 A.3d 674,
     678 (Pa. Super. 2017). However, because Appellant’s PCRA
     petition is untimely (unlike the petition at issue in Rivera-
     Figueroa), he must demonstrate that the Pennsylvania Supreme
     Court has held that Muniz applies retroactively in order to satisfy
     section 9545(b)(1)(iii). See Commonwealth v. Abdul-Salaam,
     571 Pa. 219, 812 A.2d 497, 501 (2002). Because at this time, no
     such holding has been issued by our Supreme Court, Appellant
     cannot rely on Muniz to meet that timeliness exception.

Commonwealth v. Greco, 203 A.3d 1120, 1124 (Pa. Super. 2019) (citing

Commonwealth v. Murphy, 180 A.3d 402, 405–406 (Pa. Super. 2018)).

Appellant’s desire “to hold the merits of his argument in abeyance” until new




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laws “come into effect” does not present a claim for our review.8 Appellant’s

Brief at 11.

       Finally, regarding Appellant’s fourth issue, we note that a claim of

ineffective assistance of counsel does not save an otherwise untimely petition

for review on merits. Commonwealth v. Perrin, 947 A.2d 1284, 1287 (Pa.

Super. 2008).        Moreover, the issue concerning whether prior counsel

abandoned Appellant was addressed and resolved in Appellant’s prior PCRA

action.      See    PCRA     Court    Opinion,     7/30/18,   at   8–9.   See   also

Commonwealth v. Blakeney, 108 A.3d 739, 749 (Pa. 2014) (“To prevail on

a petition for PCRA relief, a petitioner . . . must show that the claims of error

have not been previously litigated or waived.” 42 Pa.C.S. § 9543(a)(3). An

issue has been previously litigated if “the highest appellate court in which the

petitioner could have had review as a matter of right has ruled on the merits

of the issue.” 42 Pa.C.S. § 9544(a)(2); Commonwealth v. Spotz, 47 A.3d

63, 76 (Pa. 2012)).

       In conclusion, because Appellant’s PCRA petition was untimely and no

exceptions apply, the PCRA court lacked jurisdiction to address issues and

grant relief. See Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super.



____________________________________________


8  As we noted in Murphy, “if the Pennsylvania Supreme Court issues a
decision holding that Muniz applies retroactively, [an a]ppellant can then file
a PCRA petition, within [one year] of that decision, attempting to invoke the
‘new retroactive right’ exception of [sub]section 9545(b)(1)(iii).” Murphy,
180 A.3d at 406 n.1.

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2002) (holding that PCRA court lacks jurisdiction to hear untimely petition).

Likewise, we lack the authority to address the merits of any substantive claims

raised in the PCRA petition. Therefore, we affirm the March 12, 2018 order

denying Appellant’s PCRA petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/2019




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