J-S33003-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                      v.

JOHN RUSSELL MITCHELL

                             Appellant                  No. 1790 WDA 2015


                Appeal from the PCRA Order November 2, 2015
       in the Court of Common Pleas of Fayette County Criminal Division
                       at No(s): CP-26-CR-0001427-1999

BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:            FILED: June 29, 2016

        Appellant, John Russell Mitchell, appeals pro se from the order of the

Fayette County Court of Common Pleas dismissing his fifth Post Conviction

Relief Act1 (“PCRA”) petition as untimely. Appellant, in relevant part, asserts

the petition should be deemed timely under 42 Pa.C.S. § 9545(b)(1)(i) and

(ii), because he recently discovered the prior PCRA court interfered with his

ability to raise his claims for relief. We affirm.

        This Court previously adopted the following summary of the factual

background of Appellant’s June 13, 2000 judgment of sentence:

           In the early morning hours of October 24, 1999, Jane
           Walters was asleep on the living room sofa of her
           residence when she was awakened by a noise emanating
           from the kitchen area. Upon entering the kitchen to


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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           inspect the    source   of   the   noise,   she   encountered
           [Appellant].

           When Ms. Walters asked [Appellant] what he wanted,
           [Appellant] stated that he wanted money. [Appellant] also
           told her “if you scream, I’ll kill you.” When Ms. Walters
           screamed, [Appellant] struck her in the head repeatedly
           and with great force. [Appellant] placed his hands around
           her throat and choked her until she lost consciousness.

           After [Appellant] fled the scene, Ms. Walters regained
           consciousness and managed to dial 911. As a result of the
           incident, Ms. Walters suffered three skull fractures and
           several contusions to the surface of the brain tissue, as
           well as other injuries. [Appellant] also took Three Hundred
           ($300.00) Dollars in cash from Ms. Walters’ wallet.

Commonwealth v. Mitchell, 1169 WDA 2000 (Pa. Super. Feb. 5, 2001)

(unpublished memorandum at 3), appeal denied, 135 WAL 2001 (Pa. July

17, 2001).

        Appellant was charged, in relevant part, with attempted murder

generally,2 aggravated assault causing or attempting to cause serious bodily

injury,3 and robbery inflicting serious bodily injury.4        At trial, Appellant

testified that he did not remember striking the victim with a hammer and did

not intend to kill her. Id. On June 8, 2000, a jury found Appellant guilty of

attempted murder generally, robbery, and related offenses.




2
    18 Pa.C.S. §§ 901, 2501.
3
    18 Pa.C.S. § 2702.
4
    18 Pa.C.S. § 3701.



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      On June 13, 2000, the trial court imposed a sentence of sixteen to

thirty-two years’ imprisonment for attempted murder and a consecutive

sentence of five to ten years’ imprisonment for robbery. On June 26, 2000,

thirteen days after Appellant was sentenced, the United States Supreme

Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000), and held

that “[o]ther than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury and proved beyond a reasonable doubt.” Apprendi, 530

U.S. at 490.   Appellant took a direct appeal, and this Court affirmed the

judgment of sentence on February 5, 2001.5 Mitchell, 1169 WDA 2000, at

1. The Pennsylvania Supreme Court denied allowance of appeal on July 17,

2001. Commonwealth v. Mitchell, 135 WAL 2001 (Pa. July 17, 2001).

      Appellant, acting pro se, filed a first timely PCRA petition in June of

2002, and the PCRA court appointed counsel. Appointed PCRA counsel filed

a petition to withdraw in September of 2002, after which the court, on

January 17, 2003, issued a Pa.R.Crim.P. 907 notice of intent to dismiss the




5
  Appellant, in his direct appeal, challenged the sufficiency of the evidence
and the discretionary aspects of his sentence. When addressing Appellant’s
sentencing challenge, this Court noted, “The sentences in this matter were
undisputedly within the statutory limits.” Mitchell, 1169 WDA 2000, at 6
(citing 18 Pa.C.S. § 1103). The Court, however, did not discuss 18 Pa.C.S. §
1102(c), which governed the sentence for attempted murder.




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petition and an order granting appointed counsel leave to withdraw.6          On

February 12, 2003, Appellant filed a pro se response to the court’s Rule 907

notice and requested new counsel.7          On February 14, 2003, the court

dismissed Appellant’s first petition without a hearing.

      Appellant did not appeal the denial of his first PCRA petition, but filed a

pro se “Amended Petition under the Post-Conviction Relief Act,” which the

PCRA court received on October 8, 2003.        The court regarded Appellant’s

filing as a second PCRA petition and on October 14, 2003, issued a notice of

intent to dismiss. Appellant filed a response. The court did not enter a final

order disposing of the second petition, and Appellant, one-and-a-half years

later, filed a notice of appeal on April 5, 2005.      This Court quashed the

appeal. On July 18, 2005, however, the PCRA court entered the final order

dismissing Appellant’s second PCRA petition, from which Appellant took a pro

se appeal.    This Court affirmed the dismissal of Appellant’s second PCRA

petition as untimely, and the Pennsylvania Supreme Court denied allowance

6
  First PCRA counsel’s petition to withdraw referred to a brief in support of
her contention that Appellant’s PCRA petition was frivolous. However, she
did not indicate that she forwarded a copy of the brief to Appellant or
apprised him of his right to proceed pro se or with privately retained
counsel. See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). We
note the first PCRA court’s Pa.R.Crim.P. 907 notice referred to Appellant’s
right to proceed pro se or with private counsel. A copy of first PCRA
counsel’s no-merit letter is not in the certified record.
7
  Appellant also filed a pro se petition for sentencing credit on January 31,
2003. The PCRA court initially granted the petition, but then rescinded the
order granting credit.



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of appeal on November 8, 2006. Commonwealth v. Mitchell, 1356 WDA

2005 (Pa. Super. Mar. 3, 2006) (unpublished memorandum at 5), appeal

denied, 253 WAL 2006 (Pa. Nov. 8, 2006).

     Appellant, on August 16, 2011, filed a petition, and on May 16, 2012,

also filed a pro se “Petition for Redress,” which the PCRA court, on June 5,

2012, dismissed.8    Appellant took an appeal, and this Court affirmed the

dismissal   of   those   petitions   as   an   untimely    third   PCRA   petition.

Commonwealth v. Mitchell, 1096 WDA 2012 (Pa. Super. Jan. 24, 2013).

     On May 13, 2015, Appellant filed a pro se PCRA petition, his fourth. In

that petition, Appellant placed a check mark next to the statement that his

sentence exceeded the statutorily authorized maximum sentence and

asserted his sentence is illegal in light of Alleyne v. United States, 133 S.

Ct. 2151 (2013). On May 20, 2015, the PCRA court issued a notice of intent

to dismiss the petition.    The record contains Appellant’s pro se response,

which the PCRA court received on June 8, 2015, and which cited Alleyne as

a new constitutional rule or a newly discovered fact. The court entered an

order dismissing the petition on June 11, 2015.           Appellant filed a timely

appeal, which he subsequently discontinued.


8
 We note that Appellant also filed pro se writs of mandamus, which the trial
court denied on June 7, 2011. In those writs, Appellant sought the return of
money from the Department of Corrections. This Court vacated the trial
court’s order denying the mandamus relief, concluding that the court of
common pleas lacked subject matter jurisdiction.       Commonwealth v.
Mitchell, 986 WDA 2011 (Pa. Super. Dec. 23, 2011) (judgment order at 2).



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         On September 24, 2015, the PCRA court received Appellant’s fifth pro

se PCRA petition, alleging that (1) his sentence was illegal under Apprendi

and (2) direct appeal and first PCRA counsel were ineffective for failing to

preserve an illegal sentence claim. The PCRA court filed a notice to dismiss

on October 8, 2015, which read:

           b) [Appellant’s] Petition for Post-Conviction Collateral
           Relief claims eligibility for relief based on the following:

              1) The ineffectiveness of counsel.

           c) [Appellant’s] petition is untimely, and he makes no
           assertion to the contrary. The timing requirements of the
           PCRA are jurisdictional. Commonwealth v. Fahy, 737
           A.2d 214, 222 (Pa. 1999). Pennsylvania courts have no
           jurisdiction to address claims in an untimely PCRA petition
           no matter how serious the assertions raised therein, even
           if they concern an illegal sentence of death. Id.

              1) The Court lacks jurisdiction to entertain this third
              Petition filed pursuant to the Post-Conviction Relief Act.

Order, 10/6/15, at 1-2.9     Appellant did not respond to the notice, and the

PCRA court dismissed Appellant’s petition by an order docketed on

November 2, 2015.       Appellant filed a timely notice of appeal and a court-

ordered Pa.R.A.P. 1925(b) statement.

         Appellant presents the following questions for review in his pro se

brief:


9
  Although captioned as an “order,” the PCRA court’s Pa.R.Crim.P. 907 notice
advised Appellant of his right to respond within twenty days to the proposed
dismissal. Order, 10/6/15, at 3.




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       Did the PCRA Court abuse its discretion by dismissing the
       PCRA of [Appellant], without addressing all of the Claims
       raised by [him], where [the court] only addressed the
       Ineffective Counsel Claim, without going into specific legal
       reasons why the Ineffective Counsel Claim is eligible or not
       eligible for relief.

       Did the PCRA Court abuse its discretion by not addressing
       [Appellant’s] Layered Ineffective Assistance of Counsel,
       where he demonstrated that his Trial Counsel, Direct
       Appeal Counsel, and PCRA Counsel were all Ineffective.

       Did the PCRA Court abuse its discretion and err by not
       addressing [Appellant’s] Illegal Sentence Claim, where he
       properly demonstrated that his Sentence of 16 to 32 years
       for Attempted Homicide was Illegal pursuant to Apprendi
       . . . regarding the sentence enhancement pursuant to 18
       Pa.C.S. §1102(c), as [he] was not charged with Attempted
       Homicide with Serious Bodily Injury, he was not put on
       Notice that he could receive an enhanced sentence of up to
       40 years, when the Statutory Maximum was 20 years,
       [the] Jury was not ever charged with the element of
       Serious Bodily Injury for the Attempted Homicide, nor was
       the Jury asked to render a Verdict on the element of
       Serious Bodily Injury as a Sentence enhancement for
       Attempted Homicide, thus the Statutory Maximum
       sentence that [he] could receive was 10 to 20 years for
       Attempted Homicide. [The trial court] also abused his
       discretion and erred by failing to impose an individualized
       sentence upon [him] by not Ordering a PSI report to
       observe and consider in formulating a proper sentence
       worthy of [his] rehabilitative needs or his Prior Record
       Score.

       Did the Trial Court abuse its discretion and violate
       [Appellant’s] 6th Amendment Right to Counsel by failing to
       appoint Counsel . . . until approximately 43 days after his
       arrest and detention. Said Counsel was not appointed . . .
       until after he was forced to Waive his Preliminary Hearing
       and his Formal Arraignment due to him not having Counsel
       to represent him at critical stages of his Criminal Process.
       The fact of not having Counsel appointed to represent him
       was clearly demonstrated by him through his Criminal
       Docket Sheet.


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Appellant’s Brief at 6.

      Preliminarily, we must consider whether the instant PCRA petition,

Appellant’s fifth, was timely filed. See Fahy, 737 A.2d at 223. Appellant,

for the first time on appeal, asserts (1) the PCRA court’s Pa.R.Crim.P. 907

notice was deficient, (2) the PCRA court obstructed the presentation of his

claims by permitting appointed counsel in his first PCRA proceeding to

withdraw without challenging the legality of his sentence, and (3) he has

been denied access to publically available legal information and without

counsel for “the last 16 years.” Appellant’s Brief at 18-19. Appellant relies

on Commonwealth v. Burton, 121 A.3d 1063 (Pa. Super. 2015) (en

banc), appeal granted, ___ A.3d ___, 2016 WL 1366958 (Pa. Apr. 6, 2016),

to support his assertion that he exercised reasonable diligence in asserting

his present claims for relief. We conclude Appellant’s attempts to argue a

timeliness exception on appeal are waived and, in any event, would not

excuse the more than twelve-year delay in filing the instant petition.

      Our standard of review is well-settled:

         In reviewing the denial of PCRA relief, we examine whether
         the PCRA court’s determination is supported by the record
         and free of legal error. The scope of review is limited to
         the findings of the PCRA court and the evidence of record,
         viewed in the light most favorable to the prevailing party
         at the trial level. . . . [T]his Court reviews the PCRA
         court’s legal conclusions de novo.

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations

omitted).


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      “[W]hen ‘a PCRA petition is untimely, neither this Court nor the trial

court has jurisdiction over the petition.’” Id. (citations omitted). The PCRA

time limitations are not subject to the doctrine of equitable tolling and all

claims, including legality of sentencing challenges, must be presented in a

timely PCRA petition. Fahy, 737 A.2d at 222-23.

      Section 9545(b)(1) codifies the relevant timeliness requirements as

follows:

           (b) Time for filing the 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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).

      All arguments, including those seeking relief from the PCRA time-bar,

must be raised and presented to the PCRA court.          See Pa.R.A.P. 302(a)

(“Issues not raised in the lower court are waived and cannot be raised for


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the first time on appeal.”); Commonwealth v. Lewis, 63 A.3d 1274, 1278-

79, 1280 n.3 (Pa. Super. 2013) (citations omitted); accord 42 Pa.C.S. §

9545(b)(1) (requiring “petition allege[ ] and the petitioner prove[ ] a

timeliness exception under Section 9545(b)(1)(i), (ii), or (iii)”). Similarly, a

claim that PCRA counsel was ineffective generally must be raised at the first

opportunity to do so in the PCRA court. See Commonwealth v. Henkel,

90 A.3d 16, 20-30 (Pa. Super. 2014) (en banc), appeal denied, 101 A.3d

785 (Pa. 2014).

      Instantly, there is no dispute that Appellant’s fifth petition, filed in

September 2015, is untimely on its face. Appellant’s sentence became final

on October 15, 2001, when the ninety-day limit to petition the United States

Supreme Court for writ of certiorari in his direct appeal expired.      See 42

Pa.C.S. § 9545(b)(1), (3); see also U.S. Sup. Ct. R. 13.         The one-year

statutory limit for filing a facially timely PCRA petition expired on October

15, 2002, and the instant petition was filed more than twelve years after

that deadline passed. See 42 Pa.C.S. § 9545(b)(1), (3).

      Regarding Appellant’s assertion of defects in the PCRA court’s

Pa.R.Crim.P. 907 notice, the record belies his contention that he was unable

to discern the basis for dismissal.      As noted above, the court’s notice

informed Appellant that a timeliness exception under 42 Pa.C.S. §

9545(b)(1)(i), (ii), and (iii), must be established, and the instant “petition

d[id] not allege any exception to the time for filing petition.”    See Order,



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10/6/15, at 2.   Although Appellant complains that statement was directed

only to his claim of ineffective assistance of counsel, the court’s notice noted

that it was not able to address claims in an untimely petition even if they

concerned an illegal sentence. See id. at 1-2.     Thus, Appellant’s challenge

to the adequacy of the Rule 907 notice is frivolous.

      A review of Appellant’s pro se petition reveals that Appellant did not

preserve his assertions of governmental interference or the ineffectiveness

of first PCRA counsel.    Therefore, Appellant’s arguments addressing the

PCRA time-requirements on appeal are waived.           See Pa.R.A.P. 302(a);

Lewis, 63 A.3d at 1278-79, 1280 n.3.

      In any event, Appellant assertions on appeal would not merit relief

from the PCRA time-bar.      Because Apprendi was decided after he was

sentenced but before his conviction became final, his contention that his

sentence for attempted murder exceeded a lawful maximum sentence could

have been raised on direct appeal or in his first PCRA petition. Moreover,

this Court discussed the applicability of Apprendi to the sentencing scheme

for attempted murder in Commonwealth v. Johnson, 910 A.2d 60 (Pa.

Super. 2006), a decision issued on September 26, 2006.               Appellant,

however, made no prior efforts to raise this claim.

      Further, although Appellant asserts that first PCRA counsel was

ineffective and the first PCRA court interfered with his ability to raise his

claims, the facts underlying those assertions were within his possession no



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later than February 14, 2003, when the PCRA court dismissed his first PCRA

petition without a hearing. Accordingly, Appellant cannot claim reasonable

diligence in discovering the facts that would excuse the filing of the instant

petition in September 2015. That Appellant may have recently discovered a

legal theory to advance his claims of governmental interference, ineffective

assistance of counsel, or an illegal sentence does not constitute a recognized

exception under 42 Pa.C.S. § 9545(b)(1)(i)-(iii), but rather seeks an

equitable exception to the PCRA time-bar.10

      Thus, we agree with the PCRA court that the instant petition was

untimely and that it did not have jurisdiction to consider Appellant’s

substantive claims for relief. See Fahy, 737 A.2d at 222-23; Miller, 102

A.3d at 992.

      Order affirmed.

      Gantman, P.J. has joined the Memorandum.

      Olson, J. Concurs in the Result.


10
   A sage jurist mused that when a law relies too heavily on fictions, the law
itself becomes a fiction. As this case illustrates, it is unrealistic to impose on
a pro se PCRA petitioner the burden of identifying claims at the earliest
opportunity in the PCRA court, particularly when appointed counsel
overlooked an issue and was granted leave to withdraw. Nevertheless, the
PCRA timeliness requirements and the presumptions our courts apply often
require seemingly harsh outcomes. Cf. Commonwealth v. Brown, 943
A.2d 264, 270-72 (Pa. 2008) (Castille, C.J., concurring); id. at 272-73
(Baer, J., dissenting). That we must follow the law does not ease the
concerns that we sacrifice remedies for possible violations of a constitutional
right, as well as the PCRA’s rule-based rights to counsel, for the sake of
finality.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/29/2016




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