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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                             :
                                               :
                                               :
    MAURICE EVERETT                            :
                                               :
                       Appellant               :   No. 3079 EDA 2017

             Appeal from the PCRA Order Entered August 15, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-1100801-1995


BEFORE:      OTT, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                          FILED AUGUST 01, 2018

        Maurice Everett appeals from the order entered on August 15, 2017,

denying his request for relief under the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546. We affirm.

        On June 21, 1996, following a bench trial, Everett was convicted of one

count each of second-degree murder, possession of an instrument of crime

(“PIC”), and criminal conspiracy, and two counts of robbery.1 On October 21,

1996, the trial court sentenced Everett to life imprisonment without parole for

second-degree murder, and imposed concurrent terms of two and one half to

five years’ incarceration for PIC, and five to ten years’ incarceration for

criminal conspiracy. The robbery convictions merged with the murder

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*    Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 2502(b), 907, 903, and 3701, respectively.
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conviction for sentencing purposes. This Court affirmed his judgment of

sentence on August 27, 1997. Everett did not seek allowance of appeal.

        On January 28, 1998, Everett filed his first counseled PCRA petition,

which the trial court dismissed for lack of merit. This Court affirmed on May

30, 2001. Everett then filed numerous unsuccessful PCRA petitions. On March

25, 2016, he filed the document that gave rise to this appeal, a so-called “Writ

of Habeas Corpus,” which he supplemented on August 29, 2016, with what he

styled a PCRA petition. The trial court treated the petition for Writ of Habeas

Corpus as a PCRA petition and, on April 27, 2017, gave notice of its intent to

dismiss pursuant to Pa.R.Crim.P. 907. Everett replied to the Rule 907 notice

on May 15, 2017. The trial court dismissed his PCRA petition on August 15,

2017. This timely appeal followed. The trial court did not request that Everett

file a Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P.

1925(b).

        Although Everett’s brief does not contain a statement of questions

involved,2 we are able to discern from his brief the issue he raises in this Court

and thus will not quash this appeal. See Kern v. Kern, 892 A.2d 1, 6

(Pa.Super. 2005) (declining to quash appeal where Court was able to discern

issue raised and defects in brief, such as failure to include statement of

matters complained of on appeal, did not hamper appellate review). Everett

argues that the lower court should have granted him PCRA relief based on

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2   See Pa.R.A.P. 2111(a).

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Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) (holding mandatory

sentence of life imprisonment without possibility of parole was illegal, and

setting forth sentencing procedures). However, Everett’s petition was

untimely, he failed to prove any time-bar exceptions applies, and Batts is

inapplicable here.

      A defendant must present all claims cognizable under the PCRA within

one year of the date the judgment of sentence becomes final, unless a

statutory exception to the one-year time bar applies. 42 Pa.C.S.A. § 9545(b).

“[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(b)(3). A PCRA petitioner filing after the one-year

deadline must plead and prove at least one of the three limited time-bar

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 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.



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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petitioner must raise the exception within

60 days of the date on which he or she could have first raised it. 42 Pa.C.S.A.

§ 9545(b)(2).

       Everett’s sentence became final on September 26, 1997, at the

expiration of the time for him to seek allowance of appeal to the Pennsylvania

Supreme Court. See Pa.R.A.P. 1113(a). He thus had until September 28,

1998, to file a timely PCRA petition.3 Everett filed the instant petition on

August 29, 2016, nearly 18 years later. It was therefore untimely, and the

PCRA court lacked jurisdiction unless Everett pleaded and proved that at least

one of the exceptions applied.

       Everett asserts the governmental interference exception. See 42

Pa.C.S.A. § 9545(b)(1)(i). Because he raised this exception for the first time

on appeal, he has waived this claim. See Pa.R.A.P. 302(a) (issues not raised

in lower court are waived and cannot be raised for first time on appeal).

       In all events, even if Everett had properly preserved his “governmental

interference” claim, no relief would be due. Everett appears to argue that that

unnamed “governmental officials” interfered by unspecified means in his

discovery of the Supreme Court’s decision in Batts. He seems to believe that

Batts requires relief in his case because he was sentenced to life without

parole “to what ha[s] now been determined to be unconstitutional provisions

____________________________________________


3 Because the one-year deadline fell on a Saturday, Everett had until the
following Monday, September 28, 1998, to file a timely PCRA petition. See 1
Pa.C.S.A. § 1908.

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of 42 Pa.C.S.[A.] § 9711 (requiring sentencing factors to be determined by

the trial court by a preponderance of the evidence) are unseverable, and that

the statutes at issue are unconstitutional.” Everett’s Br. at 5-6.

      These arguments – insofar as we understand them – are meritless.

Regarding the specific timeliness issue at hand, Everett does not explain how

any governmental actor impeded his discovery of the Supreme Court’s

decision in Batts. Furthermore, the trial court did not sentence Everett

pursuant to Section 9711, because he was convicted of second-degree

murder, not first-degree murder. In addition, Batts would not afford Everett

relief because he was not a juvenile at the time he committed the crimes at

issue. He was 25 years old. The trial court properly dismissed Everett’s PCRA

petition as untimely.

      Finally, we deny Everett’s Emergency Motion to Stay Appeal and

Remand to the PCRA Court for an Evidentiary Hearing. We do so without

prejudice to his ability to seek PCRA relief based on the allegedly “newly

discovered evidence” he cites in his Motion, in a timely PCRA petition after

disposition of the present appeal.

      Order affirmed. Motion denied.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/1/18




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