J-S46028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DARRYL LANGERSTON

                            Appellant                 No. 108 EDA 2016


                Appeal from the PCRA Order December 15, 2015
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0002149-2006


BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                                 FILED JULY 06, 2016

        Darryl Langerston appeals, pro se, from the order entered December

15, 2015, in the Court of Common Pleas of Montgomery County, denying, as

untimely filed, his sixth petition filed pursuant to the Pennsylvania Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Langerston seeks

relief from the judgment of sentence of a term of 20 to 40 years’

imprisonment imposed on November 14, 2006, following his convictions of

third-degree murder and possessing an instrument of a crime.1 On appeal,

Langerston argues: (1) the PCRA court erred in dismissing his petition as

untimely filed when he demonstrated the facts supporting his claim were

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    See 18 Pa.C.S. §§ 2502(c) and 907(a), respectively.
J-S46028-16



unknown to him until recently; (2) trial counsel was ineffective for failing to

challenge a sentence outside the sentencing guideline range and failing to

challenge inadmissible hearsay evidence; and (3) the trial court had no

jurisdiction because the criminal statutes he was convicted under are

unconstitutional. See Langerston’s Brief at ii. Based upon the following, we

affirm.

       The PCRA court aptly summarized the facts and procedural history

underlying this appeal and we adopt the PCRA court’s summary of the

background of this case.2 See PCRA Court Opinion, 2/16/2016 at 2-4.

       As noted above, the PCRA court concluded Langerston’s petition was

untimely filed.      “The PCRA timeliness requirement … is mandatory and

jurisdictional in nature.” Commonwealth v. Taylor, 67 A.3d 1245, 1248

(Pa. 2014) (citation omitted), cert. denied, Taylor v. Pennsylvania, 134

S.Ct. 2695 (2014).        Therefore, we must determine the timeliness of the

petition before reviewing Langerston’s substantive claims. Id. Generally, all

PCRA petitions must be filed within one year of the date the judgment of

sentence becomes final, unless the petition alleges, and the petitioner

proves, that one of the three enumerated exceptions to the time for filing


____________________________________________


2
  On January 6, 2016, the PCRA court ordered Langerston to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Langerston complied with the PCRA court’s directive, and filed a concise
statement on January 22, 2016.




                                           -2-
J-S46028-16



requirement is met.         See 42 Pa.C.S. § 9545(b)(1).         The PCRA exceptions

that      allow   for   review   of   an   untimely   petition   are   as   follows:   (1)

governmental interference; (2) the discovery of previously known facts; and

(3) a newly recognized constitutional right. See 42 Pa.C.S. §9545(b)(1)(i)-

(iii).

          Our review of the record confirms that the PCRA court properly

determined Langerston’s petition, filed December 9, 2015, was untimely,

and that Langerston failed to prove the “unknown facts” exception to the

PCRA’s one year time bar.             See PCRA Court Opinion, 2/16/2016 at 6-10

(finding: Langerston conceded petition was untimely; the information

contained in the recently acquired Sentencing Guideline form was not “new,”

as it was available at the time of his sentencing hearing; “[t]he Sentencing

Guideline form is nothing but a new source of information that Langerston

heard first hand at his sentencing hearing[;]” and in any event, Langerston

did not demonstrate the form could not have been acquired sooner had he

exercised due diligence).         Therefore, we adopt the discussion of the PCRA

court as dispositive of his first issue on appeal.

          With regard to his remaining claims, we note that they are substantive

challenges to either trial counsel’s stewardship or the jurisdiction of the trial

court.      See Langerston’s Brief at ii.      However, it is well established that

“[t]he PCRA’s timeliness requirements are jurisdictional; therefore, a court

may not address the merits of the issues raised if the petition was not timely

filed.”     Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. Super. 2012)

                                            -3-
J-S46028-16



(citation omitted).      Accordingly, we are precluding from addressing the

remaining claims on appeal.3

       Order affirmed.4

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2016




____________________________________________


3
   We note Langerston does not argue that any of the statutory exceptions to
the one-year time bar applies to his claims that counsel failed to challenge
hearsay evidence and that the criminal statutes he was convicted under are
unconstitutional.    Moreover, Langerston’s challenge regarding purported
hearsay evidence was rejected in his first PCRA petition.                See
Commonwealth v. Langerston, 981 A.2d 315 (Pa. Super. 2009)
(unpublished memorandum). Accordingly, even if his petition was timely
filed, that particular claim would be unreviewable as previously litigated.
See 42 Pa.C.S. § 9543(a)(3) (petitioner only eligible for PCRA relief if the
allegation of error has not been previously litigated or waived).
4
 In the event of further proceedings, the parties are directed to attach the
PCRA court’s February 16, 2016 opinion to this memorandum.



                                           -4-
                                                                        Circulated 06/22/2016 02:30 PM
...


              IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY
                                  PENNSYLVANIA
                                CRIMINAL DIVISION


      COMMONWEALTH OF PENNSYLVANIA                          CP-46-CR-OOO 214 9-2 006


                  V.

      DARRYL LANGERSTON                                     108 EDA 2016

                                          OPINION

      CARPENTER J.                                         FEBRUARY 16, 2016


                           FACTUAL AND PROCEDURALHISTORY

                  Appellant, Darryl Langerston ("Langerston"), appeals from a final

      order of dismissal dated December 15, 2015, dismissing his untimely sixth pro

      se petition, seeking post-conviction relief pursuant to the Post-Conviction Relief
      Act ("PCRA"), 42 Pa.CS.A. §§9541-9546. While Langerston acknowledged the

      facially untimeliness of his most recent PCRA petition, Langerston attempted to

      invoke the newly-discovered facts exception at Section 9545(b)(l)(ii), arguing

      that he exercised due diligence in requesting a copy of the Pennsylvania

      Commission on Sentencing Guideline Sentence Form from the Montgomery·

      County Clerk of Courts on September 16, 2015 at which time he realized he was

      sentenced to "a sentence greater than the lawful maximum for a standard range

      sentence." See, PCRA petition 11/12/15,   p. II. However, this Court determined

      that Langerston could not establish that the facts upon which his claim was

      predicated were unknown to him and that they could not have been ascertained
r

    by the exercise of due diligence. Therefore, this Court concluded that the newly-

    discovered facts exception was unavailable to Langerston. Accordingly, the

    underlying merits of this untimely fifth PCRA petition were not reviewed based

    upon this Court's lack of jurisdiction.
                 By way of a brief background, on August 23, 2006, a jury convicted

    Appellant of third degree murder and possession of an instrument of crime for

    the February 7, 2006, stabbing death of Roderick Jackson. On November 14,

    2006, Appellant was sentenced to a term of 20 to 40 years' imprisonment. A

    timely direct appeal was not filed; however, Langerston's direct appeal rights

    were reinstated and a nunc pro tune direct appeal was filed. On November 26,

    2007, the Pennsylvania Superior Court affirmed Langerston's judgment of

    sentence.
                 On March 24, 2008, Langerston filed a timely first PCRA petition.

    Counsel was appointed, and finding no meritorious issues to pursue, counsel

    filed a no-merit letter. After proper notice pursuant to Pa.R.Crim.P. 907, a final

    order dismissing Langerston's PCRA petition was issued on July 10, 2008.

    Langerston appealed. On June 16, 2009, the Pennsylvania Superior Court

    affirmed the dismissal and the Pennsylvania Supreme Court denied

    Langerston's petition for allowance of appeal.
                 On February 8, 2010, Langerston filed an untimely second PCRA

    petition. He filed a response to the pre-dismissal notice styled as a writ of

    habeas corpus ad subjiciendum. On May 20, 2010, the writ of habeas corpus
    was dismissed. On June 2, 2010, the untimely second PCRA petition was also

                                              2
,.



     dismissed. Langerston appealed both orders, but later withdrew the appeal

     from the denial of his habeas corpus petition. The Pennsylvania Superior Court

     affirmed the dismissal of his second PCRA petition on February 25, 2011, and

     subsequently the Pennsylvania Superior Court denied Langerston's petition for

     allowance of appeal.
                 On October 28, 2011, Langerston filed an untimely third PCRA

     petition, which was ultimately dismissed on January 11, 2012. The dismissal

     was appealed, and on August 29,· 2012, the Pennsylvania Superior Court

     affirmed the dismissal.
                 On March 6, 2013, Langerston filed an untimely fourth PCRA

     petition. It was dismissed on April 1, 2013. Langerston did not appeal.

                 A fifth untimely PCRA petition was filed on October 8, 2014. It was

     dismissed on November 10, 2014, after Langerston withdrew it.
                 Most recently on December 9, 2015, Langerston filed an untimely

     sixth PCRA petition, which is currently at issue in this appeal. Therein,

     Langerston acknowledged its untimeliness, but attempted to invoke the newly-

     discovered facts exception at Section 9545(b)(l)(ii), arguing that he exercised

     due diligence in requesting a copy of his Pennsylvania Commission on

     Sentencing Guideline Sentence Form ("Sentencing Guideline form") from the

     Montgomery County Clerk of Courts on September 16, 2015, at which time he

     realized he was sentenced to "a sentence greater than the lawful maximum for
     a standard range sentence." A more detailed understanding of his timeliness

     exception claim comes from Langerston's attached memorandum of law and his

                                              3
I


    argument in support of his ineffectiveness of counsel claim where he explains

    that the undersigned, as the sentencing judge, intended to only sentence him to

    the standard range sentence but that the Commonwealth submitted an

    erroneous Sentencing Guideline form which caused this Court to sentence him

    to the statutory maximum and not the standard range. See. PCRA petition

    12/9/15, attached Memorandum of Law, p. 1.
                On November 19, 2015, this Court issued a pre-dismissal notice,

    notifying Langerston of this Court's intention to dismiss his current PCRA

    petition because it was untimely and no timeliness exceptions to applied and of

    his right to respond to the notice. On December 9, 2015, Langerston did file a

    response. He asserted in his response that the Sentencing Guideline form was

    not a matter of record prior to his September 16, 2015, request, and that this

    Court improperly determined that the newly discovered evidence exception did

    not apply. No further explanation was provided. On December 15, 2015, this

    Court issued a final dismissal order, dismissing Langerston's untimely sixth

    PCRA petition. Langerston filed a timely appeal. This 1925(a) Opinion follows.

                                         ISSUE
    I.    Whether this Court properly dismissed Langerston's fifth PCRA petition
          as untimely. when he failed to prove that the timeliness exception at
          Section 9545(b)(l)(ii), 42 Pa.CS.A. applied.
                                      DISCUSSION

    I.    This Court properly dismissed langerston's second PCRA petition as
          untimely, when he failed to prove that the timeliness exception at Section
          9545(b)(l)(ii), 42 Pa.CS.A. applied.



                                            4
               Our appellate court, when reviewing the propriety of an order

dismissing a PCRA petition on timeliness grounds, determines whether the

decision of the trial court is supported by the evidence of record and is free of

legal error. Commonwealth v. Williamson, 21 A.3d 236, 240 (Pa.Super. 2011).

The trial court's findings with regard to the timeliness of a PCRA petition will

not be disturbed unless there is no support for those findings in the certified

record. Id.

               The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Robinson, 12 A.3d 477, 479 (Pa.Super. 2011). "Jurisdictional

time limits go to a court's right or competency to adjudicate a controversy."     Id.

(quoting Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)). "If the

petition is determined    to be untimely, and no exception has been pled and

proven, the petition must be dismissed without a hearing because Pennsylvania

courts are without jurisdiction    to consider the merits of the

petition." Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa.Super. 2011)

(quoting Commonwealth v. Perrin, 947 A.2d 1284, 1285 (Pa.Super. 2008))

               Any PCRA petition, including a second and subsequent one, must

be filed within one year of the date the judgment of sentence becomes final. 42

Pa.C.S.A. §9545(b)(l). A judgment of sentence becomes final at the conclusion

of direct review, or when the time for seeking such review expires. 42 Pa.C.S.A.

§9545(b)(3).

               There are three statutory exceptions to the timeliness requirements

of the PCRA, which provide very limited circumstances to excuse the late filing

                                            5
.,

     of a petition. To invoke an exception, a petition must allege and the petitioner

     must prove that    (1)   the failure to raise the claim earlier was due to the

     interference of government officials; (2) the claim is predicated on facts that

     were unknown to the petitioner and could not have been discovered with due

     diligence or (3) the right asserted was recognized by the United States Supreme

     Court or the Pennsylvania Supreme Court as a constitutional right after the

     petitioner's case was decided and the right has been upheld to apply
     retroactively. 42 Pa.CS.A. §9545(b)(l)(i)-(iii). A petition alleging one of these

     exceptions must be filed within sixty days of the date that the claim could have

     been presented. 42 Pa.CS.A. §9545(b)(2). The 60-day rule requires a petitioner

     to plead and prove that the information on which he relies could not have been

     obtained earlier, despite the exercise of due diligence. Commonwealth v.

     Marshall, 596 Pa. 587, 947 A.2d 714, 720 (2008). "As such, when a PCRA

     petition is not filed within one year of the expiration of direct review, or not

     eligible for one of the three limited exceptions, or entitled to one of the

     exceptions, but not filed within 60 days of the date that the claim could have

     been first brought, the trial court has no power to address the substantive

     merits of a petitioner's PCRA claims." Commonwealth v. Robinson, 12 A.3d 477,

     4 79 (Pa.Super. 2011) (quoting Commonwealth v. Gamboa-Taylor, 753 A.2d 780,

     783 (Pa. 2000)).
                  In this case, Langerston conceded that his current PCRApetition is

     facially untimely. This is not at issue. Rather, at issue is whether the Sentencing

     Guideline form can avail him of the newly-discovered facts exception.

                                                  6
·1


                The exception at Section 9545(b)(l)(ii) has been explained in

     Commonwealth v. Brown, 111 A.3d 171 (Pa.Super. 2015) in detail as follows:


                The timeliness exception set forth in Section
                9545(b)(l)(ii) requires a petitioner to demonstrate he
                did not know the facts upon which he based his
                petition and could not have learned those facts earlier
                by the exercise of due diligence. Commonwealth v.
                Bennett, 593 Pa. 382, 395, 930 A.2d 1264, 1271 (2007).
                Due diligence demands that the petitioner take
                reasonable steps to protecthis own interests.
                Commonwealth v. Carr, 768 A.2d 1164, 1168
                (Pa.Super.2001). A petitioner must explain why he
                could not have learned the new fact(s) earlier with the
                exercise of due diligence. Commonwealth v. Break.iron,
                566 Pa. 323, 330-31, 781 A.2d 94, 98 (2001);
                Commonwealth v. Monaco, 996 A.2d 1076, 1080
                (Pa.Super.2010). This rule is strictly enforced. Id.
                Additionally, the focus of this exception "is on the
                newly discovered facts, not on a newly discovered or
                newly willing source for previously known facts."
                Commonwealth v. Marshall, 596 Pa. 587, 596, 947 A.2d
                714, 720 (2008) (emphasis in original).

                The timeliness exception set forth at Section
                9545(b)(l)(ii) has often mistakenly been referred to as
                the "after-discovered evidence" exception. Bennett,
                supra at 393, 930 A.2d at 1270. "This shorthand
                reference was a misnomer, since the plain language of
                subsection (b)(l)(ii) does not require the petitioner to
                allege and prove a claim of 'after-discovered
                evidence."' Id. Rather, as an initial jurisdictional
                threshold, Section 9545(b)(l)(ii) requires a petitioner to
                allege and prove that there were facts unknown to him
                and that he exercised due diligence in discovering
                those facts. See42 Pa.C.S.A. § 9545(b)(l)(ii); Bennett,
                supra. Once jurisdiction is established, a PCRA
                petitioner can present a substantive after-discovered-
                evidence claim. See42 Pa.C.S.A. § 9543(a)(2)(vi)
                (explaining that to be eligible for relief under PCRA,
                petitioner must plead and prove by preponderance of
                evidence that conviction or sentence resulted from,
                inter alia, unavailability at time of trial of exculpatory

                                            7
...


                  evidence that has subsequently become available and
                  would have changed outcome of trial if it had been
                  introduced). In other words, the "new facts" exception
                  at::

                  [S]ubsection (b)(l)(ii) has two components, which must
                  be alleged and proved. Namely, the petitioner must
                  establish that: 1) the facts upon which the claim was
                  predicated were unknown and 2) could not have been
                  ascertained by the exercise of due diligence. If the
                  petitioner alleges and proves these two components,
                  then the PCRA court has jurisdiction over the claim
                  under this subsection.
                  Thus, the "new facts" exception at Section 9545(b)(l)(ii)
                  does not require any merits analysis of an underlying
                  after-discovered-evidence claim.' Id. at 395, 930 A.2d
                  at 1271.
      Brown, 111 A.3d at 176-77 (emphasis in original).

                  Applying the law to the facts of this case, Langerston has not

      established that the facts that he asserted as newly discovered, namely the

      information contained in the Sentencing Guideline form, and he has not

      established that these facts were unknown to him or that they could not have

      been ascertained earlier by the exercise of due diligence. The crux of

      Langerston's newly-discovered evidence exception argument is that he was

      allegedly improperly sentenced and he did not know this until he uncovered the

      Sentencing Guideline form. In support of this allegedly improper sentence

      Langerston asserted that he was sentenced to "a sentence greater than the

      lawful maximum for a standard range sentence." See, PCRA petition 11/12/15,
      p. II. However he bases this argument on events that occurred at his November

      14, 2006, sentencing hearing at which Langerston was present. See, PCRA
      petition 11/12/15, attached memorandum of law, claim 1 p. 1. He was present

                                              8
 for the entire hearing, and supports his claim in part on the sentencing

 transcripts and the following. He heard the Commonwealth request this Court

 to "sentence the, defendant to the maximum possible punishment: 20 - 40 years

incarceration on the murder ... " (Sentencing 11/14/06 pp. 23 - 24). He also was

present when this Court in announcing his sentence stated, " ... and the

 sentence I will impose will be in the standard range for third degree

, murder ... [o)n the crime of third-degree murder, he will undergo imprisonment

 for not less than 20 nor more than 40 years." Id. at 27. Langerston does not

explain what information was newly discovered from the Sentencing Guideline

form that he had not heard at the sentencing hearing itself. The Sentencing

 Guideline form is nothing more than a new source of information that

 Langerston heard first hand at his sentencing hearing.

             Assuming that somehow Langerston was able to establish that the

 Sentencing Guideline form provided facts that he was previously unaware of,

Langerston would not be able to establish due diligence in uncovering the

 Sentencing Guideline form. In his petition and in his response, Langerston

 baldly asserts due diligence, but does not account for any actions he has taken

before his September 16, 2015, Sentencing Guideline form request to retrieve

 that form. Nor can he explain his inaction in failing to previously request the

 Sentencing Guideline form. He simply provides no further explanation.
             Additionally, Langerston also stated in his response to the pre-

dismissal notice that the form wasn't a part of the record until the time he

requested it on September 16, 2015. However, he provides no evidence to

                                         9
f   ;   ... ~




         support that assertion, e.g., what previous attempts he made at securing the

         Sentencing Guideline form to no avail or provide copies of previous docket

         reports. In fact, a review of the docket belies his contention. The docket shows

         that the Sentencing Guideline form was entered onto the docket on the day of

         sentencing, November 14, 2006. Langerston does not explain why it took him

         almost nine years to request the Sentencing Guideline form. Accordingly,

         Langerston was unable to establish due diligence; therefore, he was unable to

         avail himself o( the newly-discovered evidence timeliness exception.

                                          CONCLUSION

                     Based on the forgoing analysis, the final order of dismissal dated

         December 15, 2015, dismissing Langerston's untimely fifth PCRA petition

         should be affirmed.

                                                      BY THE COURT:



                                                      WIL~~se~.· L
                                                      COURT OF COMMON PLEAS
                                                      MONTGOMERY COUNTY
                                                      PENNSYLVANIA
                                                      38rn JUDICIAL DISTRICT
        Copies sent onFebruary     16, 2016
        By Interoffice Mail to:
        Court Administration

        By First Class Mail to:
        Darryl Langerston #GW2381
        SCI Greene
        1 75 Progress Drive
        Wayneburg, PA 15370



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