J-S34021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    JEROME BURNAM

                             Appellant               No. 1674 WDA 2017


             Appeal from the PCRA Order entered October 11, 2017
               In the Court of Common Pleas of Allegheny County
              Criminal Division at Nos.: CP-02-CR-0013518-1988;
                            CP-02-CR-0001399-1989


BEFORE: BOWES, STABILE, AND STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                          FILED AUGUST 23, 2018

        Appellant, Jerome Burnam, appeals from the October 11, 2017 order

entered in the Court of Common Pleas of Allegheny County, denying as

untimely his sixth petition for collateral relief filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we

affirm.

        In a memorandum opinion issued on appeal from dismissal of an earlier

PCRA petition, this Court provided the following factual and procedural

background:

        Appellant brutally stabbed a 68 year old woman to death in order
        to rob her apartment. Before succumbing to more than eight stab

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*   Retired Senior Judge assigned to the Superior Court.
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     wounds, the victim wrote Appellant’s name in blood on a bed
     sheet, and verbally identified him as her attacker.

     Appellant pleaded guilty to second degree murder and robbery
     and was sentenced to a mandatory term of life imprisonment on
     June 29, 1989, but that sentence was later vacated by the
     Superior Court and the case was remanded for a new trial.
     Appellant then pleaded guilty to the general charge of criminal
     homicide with the court to determine the degree of guilt, and
     waived his right to a jury trial on the robbery charge. He was
     subsequently found guilty of first degree murder and robbery, and
     sentenced to death. Following the filing of numerous post trial
     motions, which were properly treated as requests for relief under
     the PCRA, Appellant’s death sentence was subsequently vacated,
     but all other relief was denied. On December 7, 1998, Appellant
     was again sentenced to life imprisonment.

     On November 15, 1999, Appellant requested the right to appeal
     nunc pro tunc. The Commonwealth did not oppose reinstatement
     of appellate rights, but noted that the petition should be
     considered a PCRA petition. Appellant was granted permission to
     appeal, and in addressing the matter the Superior Court noted
     that instead of hearing the merits of Appellant’s request to appeal
     nunc pro tunc, the trial court should have treated the pleading as
     an untimely second PCRA petition.        Despite this procedural
     irregularity, the Superior Court nevertheless affirmed Appellant’s
     sentence.

     Appellant then filed a third request for PCRA relief, which was
     denied via order filed June 23, 2005, and that denial was affirmed
     on direct appeal. A petition for writ of habeas corpus was
     subsequently filed and denied, its denial was affirmed on direct
     appeal, and the Pennsylvania Supreme Court denied review.

     . . . Appellant’s fourth PCRA petition was filed pro se on March 8,
     2012. Following the filing of a Notice of Intention to Dismiss on
     April 9, 2012, the petition was denied on June 1, 2012. Appellant
     appealed to this Court, and was directed to file a Pa.R.A.P.
     1925(b) Statement via order dated, filed and docketed on October
     26, 2012, and served on Appellant by certified mail, return receipt
     requested on October 30, 2012. Thus, in order to be timely filed,
     Appellant needed to mail his 1925(b) Statement by Friday,
     November 16, 2012. No statement was received by the lower
     court, however, and on December 31, 2012, the lower court noted

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      its absence and ordered the certified record to be transmitted to
      the Superior Court.

      On January 11, 2013, a document was filed with the lower court
      titled “Resubmit – Concise Statement of Matters Complained of on
      Appeal Pursuant to Rule 1925(b).” Although the document is
      accompanied by a “Proof of Service” page asserting that it was
      served on the Criminal Division, Department of Court Records,
      Allegheny County, on November 18, 2012,[] the certified record
      and docket sheet do not reflect such service. We also note that
      the proof of service page states only that the 1925(b) Statement
      was served on the Criminal Division of the Department of Court
      records, and makes no mention that Appellant complied with the
      requirement that the statement also be served on the trial judge
      pursuant to Pa.R.A.P. 1925(b)(1). In light of the fact that a timely
      Rule 1925(b) statement was not received prior to the transferal of
      the certified record from the lower court, no responsive Rule
      1925(a) Opinion was filed by the trial judge.

Commonwealth        v.   Burnam,     No.   1544    WDA     2015,   unpublished

memorandum, at 1-3 (Pa. Super. filed July 14, 2016) (brackets omitted)

(quoting Commonwealth v. Burnam, 82 A.3d 1064 (Pa. Super. filed July

12, 2013) (unpublished memorandum) (footnotes omitted).

      In this Court’s 2016 decision, the panel quashed the untimely-filed

appeal from the PCRA court’s dismissal of Appellant’s December 2014 “Petition

for Writ of Habeas Corpus ad Subjiciendum,” which the court treated as an

untimely PCRA petition, Appellant’s fifth. Appellant filed the instant petition,

styled “Petition for Writ of Mandamus and/or Extraordinary Relief,” on June

26, 2017. In the petition, Appellant asserted that the sentencing court failed

to issue “Resentencing Transcripts and Opinion.”       Petition, 6/26/17, at 2

(unnumbered). The court again treated the petition as a PCRA petition. After

issuing a Pa.R.Crim.P. 907 notice of intent to dismiss the petition as untimely,

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the court dismissed the petition by order entered on October 11, 2017, noting

that the reasons for its ruling were set forth in its August 30, 2017 Rule 907

notice. This timely appeal followed. The PCRA court did not order a Rule

1925(b) statement.

     In Commonwealth v. Stokes, 959 A.2d 306 (Pa. 2008), our Supreme

Court stated:

     Our standard of review of the denial of PCRA relief is clear: we
     are “limited to determining whether the PCRA court’s findings are
     supported      by   the  record     and    without   legal  error.”
     Commonwealth v. Hawkins, 953 A.2d 1248, 1251 (Pa. 2006).
     We note that a second or subsequent petition must present a
     strong prima facie showing that a miscarriage of justice may have
     occurred. Commonwealth v. Carpenter, 555 Pa. 434, 725 A.2d
     154, 160 (1999). Finally, the petition must be timely, as the Act’s
     timeliness restrictions are jurisdictional in nature and are to be
     strictly construed. Commonwealth v. Abu–Jamal, 596 Pa. 219,
     941 A.2d 1263, 1267–68 (2008).

Id. at 309.

     Appellant asks us to consider two issues in this appeal:

     I.       Whether the court committed errors of law when petition for
              writ of mandamus and/or extraordinary relief sought
              production of resentencing transcript and opinion was
              misnomered [sic] as PCRA and adjudicated.

     II.      Whether the court committed errors of law by failure to
              resolve writ of mandamus facts in dispute of rights to
              requested relief for sentence transcripts and opinion when
              procedent [sic] establishes duty to be provided.

Appellant’s Brief at 1 (unnecessary capitalization and punctuation omitted).

However, before we can consider either of his issues, we must ascertain

whether we have jurisdiction to do so.


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       As noted above, on November 15, 1999, Appellant requested the right

to appeal nunc pro tunc from the imposition of his December 7, 1998 sentence

of life imprisonment. On January 23, 2004, this Court issued a memorandum

opinion    affirming    the    December        7,   1998   judgment   of   sentence.1

Commonwealth v. Burnam, 847 A.2d 755, No. 491 WDA 2000 (unpublished

memorandum) (Pa. Super. filed January 23, 2004).                Our Supreme Court

denied Appellant’s petition for allowance of appeal on October 25, 2004.2

Appellant did not seek review from the United States Supreme Court.

Therefore, Appellant’s judgment of sentence was final on January 23, 2005,

90 days after our Supreme Court denied allocatur, and he had until January

23, 2006 to file a timely petition for collateral review.

       The instant petition was filed on June 26, 2017, more than ten years

after Appellant’s judgment of sentence became final. Therefore, his petition

is patently untimely and we may not consider it unless Appellant has

presented and proved an exception to the PCRA’s timeliness requirement.

42 Pa.C.S.A. § 9545(b)(1). “The PCRA’s time restrictions are jurisdictional in

nature.    Thus, [i]f a PCRA petition is untimely, neither this Court nor the



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1Although the panel entertained the idea that the November 15, 1999 motion
seeking an appeal nunc pro tunc could have been treated as an untimely
second PCRA petition, the panel nevertheless considered the merits of
Appellant’s appeal and affirmed his judgment of sentence.

2 Appellant’s petition for allowance of appeal was denied by per curiam order
issued on October 25, 2004. See Supreme Court Docket No. 49 WM 2004.

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[PCRA] court has jurisdiction over the petition. Without jurisdiction, we simply

do not have the legal authority to address the substantive claims.”

Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006) (first alteration

in original) (internal citations and quotation marks omitted). As timeliness is

separate and distinct from the merits of Appellant’s underlying claims, we first

determine whether this PCRA petition is timely filed. See Stokes, 959 A.2d

at 310 (consideration of Brady claim separate from consideration of its

timeliness).

      Appellant has not suggested that an exception to the PCRA’s timeliness

requirements exists. He simply contends his petition is not a PCRA petition

and is not subject to the PCRA’s time bar. He argues the PCRA court erred by

failing to address his rights to his “requested relief for sentence transcripts

and [an] opinion.” Appellant’s Brief at 1. We reject his contentions, just as

the panel did in his previous appeal, explaining:

      Appellant’s December 2014 petition challenged the legality of his
      sentence premised on the trial court’s failure to provide a written
      opinion for the sentence of life in prison and on an unlawfully
      induced plea. Thus, we would conclude that the PCRA court did
      not err in treating the December 2014 petition as a PCRA petition.
      See Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa. Super.
      2014) (stating that issues cognizable under the PCRA must be
      raised in a timely PCRA petition and cannot be raised in a habeas
      corpus petition).

Commonwealth v. Burnam, 154 A.3d 856, No. 1544 WDA 2015 (Pa. Super.

filed July 14, 2016) (unpublished memorandum at 6 n.2) (citation omitted).




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      In his petition, Appellant claims that his re-sentencing violated his

constitutional rights to appeal because the trial judge “has failed to file an

[sic] ‘Re-sentencing Transcript’ and ‘Opinion’ of the decision that was

render[ed] in this case on December 7, 1998.” Petition for Writ of Mandamus

and/or Extraordinary Relief, 6/26/17, at 2 (unnumbered). As such, his claim

falls clearly within the eligibility provisions for PCRA relief, i.e., for a

“conviction or sentence result[ing] from one or more of the following: . . .

[t]he improper obstruction by government officials of the petitioner’s right of

appeal where a meritorious appealable issue existed and was properly

preserved in the trial court.”    42 Pa.C.S.A § 9543(a)(2)(iv).         Appellant’s

insistence that his petition falls outside the PCRA is without merit.

      We find the PCRA court’s factual findings are supported by the record.

Further, we find no error in treating the June 2017 petition as a PCRA petition.

See Taylor, supra.

      The PCRA court correctly concluded Appellant’s petition was untimely

filed and is barred by the PCRA’s timeliness requirements.       Therefore, we

affirm the October 11, 2017 order dismissing Appellant’s petition.

      Order affirmed.



Judgment Entered.




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Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/23/2018




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