J-S02038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MARVIN CRUMP

                            Appellant                 No. 447 EDA 2016


                   Appeal from the PCRA Order January 6, 2016
               In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0313991-1982


BEFORE: FORD ELLIOTT, P.J.E., STABILE, J., and MOULTON, J.

MEMORANDUM BY MOULTON, J.:                             FILED JUNE 20, 2017

       Marvin Crump appeals, pro se, from the January 6, 2016 order entered

in the Philadelphia County Court of Common Pleas dismissing as untimely his

fourth petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-46. We affirm.

       The PCRA court summarized the factual and procedural history of this

matter as follows:

               On November 9, 1983, [Crump] was convicted of
            murder in the second degree, robbery, criminal conspiracy,
            and carrying firearms on public streets or public property
            in Philadelphia,[1] and sentenced to a term of life
            imprisonment by the Honorable Charles Durham. On
            November 20, 1985, the Superior Court affirmed the
            judgment of sentence. The Supreme Court of Pennsylvania
            denied allocatur on June 17, 1993.
____________________________________________


       1
           18 Pa.C.S. §§ 2502, 3701, 903, and 6108, respectively.
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             [Crump] filed his first PCRA petition on July 29, 1997,
           and it was dismissed as untimely on March 27, 1998.

              On January 14, 2008, [Crump] filed his second PCRA
           petition. Supplements in support of this petition were filed
           November 7, 2012, and February 5, 2013. [Crump]’s
           principal claims were that he was being unlawfully held
           due to a lack of sentencing order, and that the weight of
           the evidence presented at trial was insufficient to sustain
           his conviction.   This Court issued an order dismissing
           [Crump]’s claims as untimely on June 3, 2013. [Crump]
           did not appeal.

               On June 17, 2013, two weeks after [Crump’s] second
           petition was dismissed on timeliness grounds, [Crump]
           filed a writ of habeas corpus raising claims identical to
           those raised in his second petition, namely, the lack of a
           sentencing order and that the evidence presented at his
           trial was insufficient to sustain his conviction. [Crump]’s
           third petition was dismissed as untimely on July 31, 2014.

               [Crump] then filed his [fourth], and instant, petition –
           titled “Application For Relief” – on August 27, 2014.2 This
           Court issued a notice of its intent to dismiss [Crump]’s
           [fourth] and subsequent petitions[3] on November 5, 2015,
           and having received no response from [Crump], issued its
           order dismissing the instant petition and supplemental
           petitions on January 6, 2016.
____________________________________________


       2
        From the certified record, it appears that Crump attempted to
withdraw his “Application for Relief.” See Praecipe to Discontinue/Withdraw
Pending Matter, 11/3/14.
       3
         Crump “submitted upwards of twenty-nine separate filings [from
August 2014 until January 2016]. These petitions are docketed and the
dates a matter of court record; thus, for the sake of brevity, each filing will
not be addressed in turn here as none pleads an exception to timeliness.”
PCRA Ct. Op., 7/13/16, at 1 n.1 (unpaginated). Among Crump’s numerous
filings were submissions styled as “codicils” to petitions for writ of habeas
corpus as well as additional petitions for writ of habeas corpus.




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           On January 21, 2016 this Court received [Crump]’s
        notice of appeal to the Pennsylvania Superior Court. This
        Court did not order a Concise Statement of Matters
        Complained of pursuant to Pa.R.A.P. 1925(b).

PCRA Ct. Op., 7/13/16, at 1-2 (unpaginated).

     Crump raises the following issues on appeal:

        1. Did the lower court abuse its discretion and/or commit
        an error of law when it dismissed [Crump]’s writ of habeas
        corpus w/supporting affidavits, challenging record evidence
        of conviction in the certified docket entries, maintained by
        the clerk of courts, as an untimely PCRA petition, without
        the existence of a final order?

        2. Did the lower court deprive [Crump] of his
        constitutionally protected liberty interest under the due
        process clause of the 14th amendment based on an
        unforeseeable, retroac[t]ive judicial expansion of a
        criminal statute which operates precisely like an ex post
        facto law such as article I, sec. 10, of the Constitution
        forbids?

        3. Is discretion abused by subjecting [Crump] to a penal
        statute by implication through Joseph v. Glunt, 96 A.3d
        365 (Pa.Super.2014), to justify altering [Crump]’s habeas
        claim to fit its opinion absent a final order in the certified
        record?

        4. Do the laws that govern retroactivity subsume
        amendatory statutes such as 42 Pa.C.S. §9764(c.1)(3),
        that do not clearly and mainfiestly [sic] indicate
        retroactivity?

        5. Did the lower court abuse its discretion by attempting to
        establish presumption of the existence of an order
        [November 9, 1983], in the record when no such order
        exist in leagacy [sic] docket #8203139911; nor the
        criminal docket at CP-51 -CR-031399-1982?

        6. Does the lower court retain exclusive jurisdiction to
        entertain, adjudicate or time-bar [Crump]’s brief, absent
        the existence of a final order of conviction or sentence in
        the certified court record?


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Crump’s Br. at 7 (unnecessary capitalization and suggested answers

omitted).

      Before we reach the merits of Crump’s petition, we must determine

whether it was timely filed.

      Our standard of review from the denial of PCRA relief “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).

      It is well settled that “the timeliness of a PCRA petition is a

jurisdictional requisite.”   Commonwealth v. Brown, 111 A.3d 171, 175

(Pa.Super.), app. denied, 125 A.3d 1197 (Pa. 2015).          A PCRA petition

“including a second or subsequent petition, shall be filed within one year of

the date the judgment becomes final.”         42 Pa.C.S. § 9545(b)(1).      A

judgment is 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. § 9545(b)(3).

      Courts may consider a PCRA petition filed more than one year after a

judgment of sentence became final only if the petitioner alleges and proves

one of the following three statutory 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


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        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); see Brown, 111 A.3d at 175-76.         In

addition, when invoking an exception to the PCRA time bar, the petition

must “be filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S. § 9545(b)(2).

     On June 17, 1993, the Supreme Court denied Crump’s petition for

allowance of appeal.   Therefore, Crump’s current petition, filed on August

27, 2014, is facially untimely. Crump’s petition remains untimely unless he

alleged and proved a PCRA time-bar exception.

     As the PCRA court found, Crump’s “numerous filings attack his

sentence and the sufficiency of evidence to sustain the verdict.” PCRA Ct.

Order, 1/6/17, at 1 n.1. However, Crump did not attempt to invoke any

exception to the PCRA time bar.    Accordingly, we conclude that the PCRA

court properly dismissed Crump’s PCRA petition as untimely.




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       To the extent that Crump challenges the Department of Corrections’

(“DOC”) authority to detain him without a sentencing order,4 we agree with

the trial court that this “claim legitimately sound[s] in habeas corpus,”

Joseph v. Glunt, 96 A.3d 365, 368 (Pa.Super. 2014).         The PCRA court

properly found that this claim was meritless. See id. at 372 (holding that a

record of the valid imposition of a sentence was sufficient authority to

maintain a prisoner’s detention, such that even in the absence of a written

sentencing order, the DOC had continuing authority to detain appellant).

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/20/2017




____________________________________________


       4
        Crump appears to contend that the record does not contain proof of
his conviction. See PCRA Ct. Op. at 5. Crump states that he “does not seek
a sentencing order from the [DOC], nor is the DOC Respondents [sic] in this
matter as implied by Judge Minehart.” Crump’s Br. at 16. However, our
review of the record reveals that a sentencing order was entered in this
matter.




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