J-S53008-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                  Appellee                :
                                          :
             v.                           :
                                          :
SAMUEL LEE MARTIN,                        :
                                          :
                  Appellant               :   No. 230 MDA 2015

                Appeal from the PCRA Order January 9, 2015,
                  Court of Common Pleas, Lancaster County,
             Criminal Division at No(s): CP-36-CR-0000252-2009,
             CP-36-CR-0005063-2008, CP-36-CR-0005494-2008,
                         and CP-36-CR-0005871-2008

BEFORE: DONOHUE, OTT and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                          FILED AUGUST 17, 2015

       Samuel Lee Martin (“Martin”) appeals pro se from the January 9, 2015

order entered by the Lancaster County Court of Common Pleas dismissing

his second and third petitions filed pursuant to the Post Conviction Relief Act,

42 Pa.C.S.A. §§ 9541-9546 (“PCRA”), as untimely. Upon review, we affirm.

       On August 19, 2009, Martin entered an open guilty plea at four

different criminal dockets to receiving stolen property, theft by unlawful

taking, robbery of a motor vehicle, aggravated assault, escape, threatening

to use a weapon of mass destruction, and three counts of robbery.1 The trial

court sentenced him on December 22, 2009 to an aggregate term of thirteen

to thirty-five years of imprisonment.



1
    18 Pa.C.S.A. §§ 3925, 3921, 3702, 2702, 5121, 2715, 3701.
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     On October 27, 2010, Martin filed a timely pro se PCRA petition. The

PCRA court appointed counsel (“PCRA counsel”).      Following an evidentiary

hearing, the PCRA court denied relief on August 4, 2011.       Martin timely

appealed the decision to this Court and we affirmed in an unpublished

memorandum on February 27, 2012.          The Pennsylvania Supreme Court

denied Martin’s request for allowance of appeal on July 18, 2012.

     On August 17, 2012, Martin filed a pro se petition for writ of habeas

corpus in the PCRA court, raising claims that he was not guilty of the crimes

to which he pled guilty by reason of insanity and that his sentencing hearing

was untimely in violation of Rule 704 of the Pennsylvania Rules of Criminal

Procedure.    The PCRA court treated the filing as a PCRA petition.       On

October 24, 2012, the PCRA court issued notice of its intention to dismiss

the petition pursuant to Pa.R.Crim.P. 907. No further action was taken on

Martin’s second PCRA petition, as the record was forwarded to the United

States District Court for the Eastern District of Pennsylvania, where Martin

had filed a petition for writ of habeas corpus on November 5, 2012.

     The district court denied Martin relief on September 12, 2014.

Thereafter, on September 25, 2014, Martin filed another pro se PCRA

petition in the PCRA court. As the record had not yet been returned to the

PCRA court, it issued an order denying Martin relief based upon its lack of




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jurisdiction over the matter.2 Undaunted, Martin filed an amendment to his

third PCRA petition on October 20, 2014.            The district court returned the

original record to the PCRA court on October 31, 2014. Martin then refiled

his third PCRA petition on November 10, 2014.               Therein, Martin raised

numerous claims, including:        governmental interference based upon the

failure of the PCRA court to decide his second PCRA petition; governmental

interference based upon the PCRA court’s failure to send PCRA counsel a

copy of his second pro se PCRA petition in violation of Pa.R.Crim.P. 576;

ineffective   assistance   of   both   plea   and    PCRA   counsel;   prosecutorial

misconduct; insufficient oral and written guilty plea colloquies; untimely

sentencing hearing in violation of Pa.R.Crim.P. 704; the absence of a written

sentencing order; an illegal mandatory minimum sentence pursuant to

Alleyne v. U.S., __ U.S. __, 133 S.Ct. 2151 (2013), which created a new

constitutional right; his second PCRA petition was timely filed; fines and

costs are being illegally withdrawn from Martin’s prison account; the failure

to litigate issues surrounding Martin’s mental health diagnosis, i.e.,

diminished capacity as a defense or mitigating factor at sentencing; and a

general claim of prejudice.

      On January 9, 2015, the PCRA court entered an order and opinion

dismissing Martin’s second and third PCRA petitions as untimely. Martin filed


2
   The record reflects that Martin filed numerous additional motions before
the PCRA court in the interim. All of the issues raised in these motions were
also included in Martin’s third PCRA petition.


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a timely pro se notice of appeal and complied with the PCRA court’s order for

the filing of a concise statement of errors complained of on appeal.     The

PCRA court notified this Court of its intention to rely upon its January 9,

2015 opinion dismissing Martin’s PCRA petitions as support for its decision

on appeal.

      Martin raises the following issues for our review, which we reordered

for ease of disposition:

      (1)    Did the lower court err[] in dismissing [Martin’s]
             state habeas/PCRA of 8/17/12 as untimely, when
             [Martin] still had (56) days left on his 1yr tolling
             time?

      (2)    Did [the] lower court violate [Martin’s] U.S. and Pa.
             Const. “due process[] and access to courts” by
             continually claiming “untimely” when [Martin] has
             claims that are “never waived, time barred and can
             be raised at any stage of the proceedings” even if
             not raised at trial or sentencing, thus violating a fully
             fair and non-bias[ed] litigation of claims?

      (3)    Has the lower court repeatedly shown prejudice to
             [Martin] by [its] incapability, refusal to answer
             petitions, court orders in a timely manner, and
             delibertly [sic] refusing to answer claims by hiding
             behind false claims of [Martin] being “untimely” so it
             gives [it] an easy pass on having to answer[?] The
             lower court has demonstrated [it is] in fact untimely
             on numerous [court] orders from this Honorable
             Court, and [it] act[s] when [it] want[s] to act on
             them.

      (4)    Did [the] lower court refuse to answer PCRA petition
             of 11/10/14 – which contain[s] numerous meritous
             [sic] claims which if reviewed, would entitle [Martin]
             to relief yet, [the] lower court []did[] answer the
             amended to that PCRA, but []not[] the petition itself?



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     (5)   [The] lower court erred by not reconizing [sic]
           [Martin] as timely filed on []PCRA[] of 11/10/14,
           “(60) days to present claim of newly reconized [sic]
           U.S. Supreme Court ruleling” [sic] “mandatory
           minimum sentencing being unconstitutional”.

     (6)   Did [the] lower court err[] by violating [Martin’s]
           []14th Amendment of the U.S. Constitution. [] Also
           the 8th Amendment[] the 14th, for equal protection
           clause and the [] 8th Amend. For cruel and unusual
           punishment[]?

     (7)   Did    the    lower  court cause    “governmental
           interference” by violating Rule[] of [Criminal
           Procedure] 576 – service upon parties [–] with the
           petition of 8/17/12?

     (8)   Did   the    lower    court   allow    prosecutor[ial]
           misconduct/bad     faith    tactics   during    court
           proceedings?

     (9)   Was 1st PCRA counsel ineffective for not fully
           investigating [Martin’s] case for plain errors[] and
           obvious violations of []Pa. and U.S. Const.[] and not
           perfecting his PCRA or appeals, or recognizing
           “improper prosecution of a []mentally ill person”?

     (10) Was [Martin’s] trial counsel so over burdened [sic]
          with other cases as a public defender[] that he did
          not want to pursue the “proper defense of a mentally
          ill person” due to his case load [sic] and the
          comment that “mental ill defense doesn[’]t work in
          Lancaster County”?

     (11) Was there a manifest/miscarriage of justice in
          regards to [Martin’s] whole case, from arrest date to
          present proceedings?

     (12) Did the lower court err[] in the verbal “colloquy” by
          not informing [Martin] that he could “withdraw” his
          guilty plea before sentencing, or ask the question of




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            was [Martin] “promised, threatened, coerced etc.”
            into the plea of guilt?

      (13) Did the lower court err[] in accepting [Martin’s]
           guilty plea with the knowledge of a “long
           documented, horrific[] mental health history”
           without having [Martin] evaluated to ensure
           competency []before[] allowing [Martin] to plea[d]?

      (14) Did [the] lower court violate Rule[] of [Criminal
           Procedure] 704, timely sentencing[] [where there
           were] 125 days between plea and sentencing date,
           without notification to defence [sic] or good cause
           shown?

      (15) Did the lower court []inproperly[] [sic] prosecute a
           mentally ill person, and not take into concideration
           [sic] [] the psychological evaluation upon sentencing
           or the recommendations?

      (16) Did the lower court err[] by not completing the
           sentencing phase by not providing upon the record
           of court a true and correct written judgment of
           sentence order, with the “statute and proper
           authority” that sentence was imposed from?

Martin’s Brief at 4-5.

      We review the denial of a PCRA petition on timeliness grounds

according to the following standard:

                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
            PCRA timeliness requirement, however, is mandatory
            and jurisdictional in nature. The court cannot ignore
            a petition’s untimeliness and reach the merits of the
            petition. Section 9545(b)(1) requires a petitioner to
            file a PCRA petition within one year of the date the
            judgment [became] final.




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Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013) (internal

citations and quotations omitted). “[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).

      The record reflects that Martin did not file a direct appeal from his

judgment of sentence.     Therefore, his judgment of sentence in this case

became final on January 21, 2010, thirty days after the imposition of his

sentence by the trial court. See Pa.R.A.P. 903(a) (requiring an appeal from

the trial court to the Superior Court to be filed within thirty days of the entry

of the order from which the appeal is taken). He therefore had until January

21, 2011 to timely file his PCRA petition. As stated above, Martin filed his

second PCRA petition on August 17, 2012 and his third on November 10,

2014, making both petitions patently untimely.

      Martin claims that fifty-six days remained in the one-year timeframe

when he filed his second PCRA petition (his petition for writ of habeas

corpus).3 See Martin’s Brief at 7, 11; Memorandum of Law, 11/10/14, at 4.

Martin appears to believe that the one-year timeframe was tolled while he

appealed the denial of his first PCRA petition. See Martin’s Reply Brief at 1.

Our Supreme Court has held, however, that apart from the specifically


3
   Curiously, Martin acknowledged in his second PCRA petition that it was
untimely under the PCRA. See Writ of Habeas Corpus Ad Subjiciendum,
8/17/12, ¶¶ 7-8.


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enumerated exceptions contained in section 9545(b), “the period for filing a

PCRA petition is not subject to the doctrine of equitable tolling[.]”

Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999); Commonwealth

v. Rienzi, 827 A.2d 369, 371 (Pa. 2003).

      The specifically enumerated statutory exceptions to the timeliness

provisions contained in section 9545(b) allow for very limited circumstances

under which we may excuse the late filing of a PCRA petition and include:

             (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.A. § 9545(b)(1). “Any petition invoking an exception provided in

paragraph (1) shall be filed within [sixty] days of the date the claim could

have been presented.”      42 Pa.C.S.A. § 9545(b)(2).     It is the petitioner’s

burden to plead and prove, by a preponderance of the evidence, that his

facially untimely petition falls under one of the three timeliness exceptions;

that he filed it within sixty days of the date it could have been presented;

and   that   the   information   could   not   have   been   obtained   earlier.



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Commonwealth        v.   Williams,   105   A.3d   1234,   1239    (Pa.   2014);

Commonwealth v. Ali, 86 A.3d 173, 178 (Pa. 2014), cert. denied sub

nom., Ali v. Pennsylvania, 135 S. Ct. 707 (U.S. 2014).

      In his brief on appeal, Martin claims government interference based

upon the PCRA court’s failure to forward his second pro se PCRA petition to

PCRA counsel in violation of Pa.R.Crim.P. 576.4      See Martin’s Brief at 12.

This argument is baseless, as PCRA counsel completed his representation of

Martin at the conclusion of the appeals process for Martin’s first PCRA

petition. See Pa.R.Crim.P. 120(A)(4) (“An attorney who has been retained

or appointed by the court shall continue such representation through direct

appeal or until granted leave to withdraw by the court pursuant to paragraph

(B).”). Martin was not entitled to the appointment of counsel to effectuate

his second PCRA petition.     See Pa.R.Crim.P. 904(C), (D).       Furthermore,

Martin failed to indicate when he learned that the PCRA court failed to

forward his second PCRA petition to his former attorney.         More than two

years passed between Martin filing his second and third pro se PCRA

petitions, so we cannot presume that Martin learned of the information


4
   This Rule provides, in pertinent part, as follows: “In any case in which a
defendant is represented by an attorney, if the defendant submits for filing a
written motion, notice, or document that has not been signed by the
defendant's attorney, the clerk of courts shall accept it for filing, time stamp
it with the date of receipt and make a docket entry reflecting the date of
receipt, and place the document in the criminal case file. A copy of the time
stamped document shall be forwarded to the defendant's attorney and the
attorney for the Commonwealth within 10 days of receipt.” Pa.R.Crim.P.
576(A)(4).


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within sixty days of filing his third PCRA petition.     See 42 Pa.C.S.A. §

9545(b)(2); see also Williams, 105 A.3d at 1239; Ali, 86 A.3d at 178. As

such, this argument does not entitle him to relief.

      Martin asserts that his sentence is illegal pursuant the United States

Supreme Court’s decision in Alleyne v. U.S., wherein the Court held that

“facts that increase mandatory minimum sentences must be submitted to

the jury.”5   Alleyne, 133 S. Ct. at 2163; see Martin’s Brief at 12.      It is

unclear precisely whether Martin intends to invoke subsection (ii) or (iii) of

section 9545(b)(1).    To the extent he argues that the Alleyne decision

constitutes a newly discovered fact pursuant to subsection (ii), this

argument fails as our Supreme Court has held that a judicial decision does

not qualify as an exception under 9545(b)(1)(ii). See Commonwealth v.

Watts, 23 A.3d 980, 987 (Pa. 2011). Subsection (iii) also does not afford

Martin relief, as this Court has held that Alleyne is not retroactive on PCRA

review, and is thus inapplicable to Martin’s case. See Commonwealth v.

Riggle, __ A.3d __, 2015 WL 4094427 (Pa. Super. July 7, 2015).

      The remaining claims raised by Martin are substantive.6      As Martin’s

second and third PCRA petitions were not timely filed and Martin failed to


5
  The record reflects that Martin was sentenced pursuant to the mandatory
minimum sentence contained in 42 Pa.C.S.A. § 9712, held unconstitutional
by Commonwealth v. Valentine, 101 A.3d 801, 804 (Pa. Super. 2014).
See N.T., 12/22/09, at 15-16.
6
   Although Martin is correct that some of these claims, including his legality
of sentencing claim pursuant to Alleyne, represent non-waivable claims, the


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establish any of the exceptions to the PCRA’s time bar, neither the PCRA

court nor this Court have jurisdiction to review his claims.    See Taylor,

67 A.3d at 1248. We therefore affirm the PCRA court’s decision dismissing

both of his PCRA petitions as untimely.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/17/2015




law is clear that jurisdiction is a prerequisite to deciding even non-waivable
claims. See Taylor, 67 A.3d at 1248; see also, e.g., Commonwealth v.
Capaldi, 112 A.3d 1242, 1245 & n.5 (Pa. Super. 2015).


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