J-S24022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

JAMES MILES, A/K/A JAMES MYLES,

                         Appellant                   No. 2678 EDA 2014


          Appeal from the PCRA Order entered September 5, 2014,
            in the Court of Common Pleas of Philadelphia County,
            Criminal Division, at No(s): CP-51-CR-0713191-1970


BEFORE: GANTMAN, P.J., ALLEN, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.:                              FILED APRIL 17, 2015

      James Miles, a/k/a James Myles (“Appellant”) appeals pro se from the

order denying his serial petition for post-conviction relief filed pursuant to

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46.         We

affirm.

      The PCRA court summarized the pertinent facts and protracted

procedural history as follows:

             On February 26, 1972, [Appellant] was found guilty by
          a jury presided over by the Honorable Victor DiNubile of
          Murder, Rape, and Conspiracy. On December 18, 1972,
          [Appellant] was sentenced to a term of [] life
          imprisonment on the Murder charge, with concurrent
          sentences of seven and [one-]half to fifteen years on the
          Rape count, and one to two years on the Conspiracy count.
          The Pennsylvania Supreme Court affirmed the judgment of
          sentence on March 16, 1977.

             On April 19, 1978, [Appellant] filed a counseled petition
          pursuant to the Post Conviction Hearing Act (PCHA). After
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        review, relief was denied on March 7, 1980. The dismissal
        was affirmed by the Pennsylvania Superior Court on June
        25, 1982.

            On May 14, 1984, [Appellant] filed his second PCHA
        petition, which was dismissed on October 29, 1985 and
        affirmed by the Superior Court on August 19, 1986. The
        Pennsylvania Supreme Court denied allocatur on March 2,
        1987.

           On November 10, 1994, [Appellant] filed a petition
        pursuant to the [PCRA], which had gone into effect on April
        13, 1988. This petition was denied on December 7, 1994,
        and the dismissal [was] affirmed by the Superior Court on
        August 12, 1997. [Appellant] also filed a writ of habeas
        corpus on February 2, 2001. It was treated as a PCRA
        petition and dismissed as untimely on May 9, 2001.

           On March 27, 2003, [Appellant] filed a Motion for DNA
        Testing pursuant to 42 Pa.C.S. § 9543.1. A hearing was
        held and [Appellant’s] request was denied on August 26,
        2004.   The Superior Court affirmed the denial of the
        motion on June 23, 2005.

           On September 5, 2007, [Appellant] filed his fifth
        petition for post conviction relief. It was dismissed [as
        untimely] on October 7, 2009. The dismissal was affirmed
        by the Superior Court on May 28, 2010. The Pennsylvania
        Supreme Court denied allocatur on October 19, 2010.

           [Appellant] filed the instant petition, his sixth, on
        August 23, 2011.       After conducting an extensive and
        exhaustive review of these filings, the record and
        applicable case law, this Court found that [Appellant’s
        PCRA petition] was untimely filed. Therefore, this Court
        did not have jurisdiction to consider [Appellant’s] PCRA
        petition and[,after issuing Pa.R.Crim.P. 907 notice,] it was
        dismissed.

PCRA Court Opinion, 11/12/14, at 1-2.




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      Appellant filed a timely pro se appeal to this Court, in which he

challenges the PCRA court’s determination that he failed to establish an

exception to the PCRA’s time bar. The PCRA court did not require Pa.R.A.P.

1925 compliance.

      This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported   by   the   evidence    of   record   and    is   free    of    legal   error.

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).       Moreover, a PCRA court may decline to hold a

hearing on the petition if the PCRA court determines that the petitioner’s

claim is patently frivolous and is without a trace of support in either the

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011

(Pa. Super. 2001).

      The   timeliness   of    a   post-conviction     petition     is    jurisdictional.

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation

omitted). Thus, if a PCRA petition is untimely, neither an appellate court nor

the PCRA court has jurisdiction over the petition. Id. “Without jurisdiction,

we simply do not have the legal authority to address the substantive claims”

raised in an untimely petition. Id.




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      Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

becomes final unless the petition alleges, and the petitioner proves, an

exception to the time for filing the petition. Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under

these exceptions, the petitioner must plead and prove that: “(1) there has

been interference by government officials in the presentation of the claim; or

(2)   there   exists   after-discovered    facts   or   evidence;   or   (3)   a   new

constitutional right has been recognized.” Commonwealth v. Fowler, 930

A.2d 586, 591 (Pa. Super. 2007) (citations omitted).                A PCRA petition

invoking one of these statutory exceptions must “be filed within sixty days of

the date the claim first could have been presented.” Gamboa-Taylor, 753

A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to

the time restrictions of the PCRA must be pled in the petition, and may not

be raised for the first time on appeal.         Commonwealth v. Burton, 936

A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not

raised before the lower court are waived and cannot be raised for the first

time on appeal.”).

      Before addressing the timeliness of Appellant’s latest PCRA petition,

the PCRA court considered whether Appellant could seek the relief he

requested via a serial post-conviction petition. The PCRA court explained:

         Before looking at the [PCRA’s timeliness exceptions], this
         Court must determine whether [Appellant] can be afforded

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        relief under the PCRA. [Appellant] claimed that he is
        subject to an illegal sentence due to an incomplete
        judgment of sentence. Specifically, [Appellant] claimed
        that he is unlawfully being detained on a DC-300B Court
        Commitment Form, rather than a sentencing order entered
        by a judge. Upon review, this claim was not cognizable
        under the PCRA. Because [Appellant’s] claim fell outside
        the eligibility requirements of the PCRA, this court [treated
        Appellant’s sixth PCRA petition as a] Petition for Writ of
        Habeas Corpus [and addressed it] on the merits.

           That said, this court found [Appellant’s] claims to be
        completely without merit. The Honorable Judge DiNuble
        [sic] entered a sentencing order in this matter on
        December 18, 1972. The original sentencing order is
        being maintained by the Clerk of Courts of this court as
        part of [Appellant’s] file in this matter.       Therefore,
        [Appellant’s] Petition for Writ of Habeas Corpus for lack of
        a sentencing order was demonstrably frivolous and was
        therefore denied.

PCRA Court Opinion, 11/12/14, at 3 (footnote omitted). We agree.

     As this Court has recently noted, our Supreme Court has held “that a

claim that a defendant’s sentence is illegal due to the inability of the

[Department of Corrections] to ‘produce a written sentencing order related

to [his] judgment of sentence’ constitutes a claim legitimately sounding in

habeas corpus.”   Joseph v. Glunt, 96 A.3d 365, 368 (Pa. Super. 2014)

(citation omitted).   In Joseph, after reviewing relevant case law, we

determined that “courts confronting this issue in the past have deemed a

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

maintain a prisoner’s detention notwithstanding the absence of a written

sentencing order under 42 Pa.C.S. § 9764(a)(8).” Id. at 372. Here, as in




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Joseph, a review of the record contains a legitimate sentencing order.

Thus, Appellant is not entitled to habeas corpus relief.

      In response to the PCRA court’s Pa.R.Crim.P. 907 notice of intent to

dismiss, Appellant maintained that his claim should be considered under the

PCRA and that he established an exception to the PCRA’s time bar.          We

disagree.

      Because Appellant did not file a petition for writ of certiorari with the

United States Supreme Court following our Supreme Court’s denial of

allocatur, for PCRA purposes, Appellant’s judgment of sentence became final

ninety days thereafter, on June 14, 1977.        42 Pa.C.S.A. § 9545(b)(3);

U.S.Sup.Ct.R. 20 (repealed). Appellant filed the instant PCRA petition over

three decades later.      As a result, his PCRA petition is patently untimely

unless he has satisfied his burden of pleading and proving that one of the

enumerated exceptions applies.      See Commonwealth v. Beasley, 741

A.2d 1258, 1261 (Pa. 1999).

      Appellant has failed to prove the applicability of any of the exceptions

to the PCRA’s time restrictions.        Appellant asserts that he recently

discovered that his “judgment of sentence order is not [] binding in being

authorized by a signed and sealed official document, that constitutes [an]

illegal sentence[.]” Appellant’s Brief at 5 (emphasis removed). According to

Appellant, discovery of this fact rendered his latest petition timely under

section 9545(b)(1)(ii).   This exception requires that “the facts upon which

the claim is predicated were unknown to the petitioner and could not have

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been ascertained by the exercise of due diligence.”         42 Pa.C.S.A. §

9545(b)(1)(ii).

       The PCRA court rejected Appellant’s claim, and reasoned:

             [Appellant] claimed that his petition was timely since
          the petition was filed within 60 days of receiving the
          judgment of sentencing from the Clerk of Courts, which he
          states was on July 26, 2011. [Appellant] is mistaken.
          Even if [Appellant’s] petition had been considered under
          the PCRA, [Appellant] would not have been afforded relief.
          To be timely, the statue clearly states that a petition
          invoking one of the exceptions must be submitted within
          60 days of when it first could have been presented. 42
          Pa.C.S.A. § 9545(b)(2). In this instance, [Appellant’s]
          judgment of sentence and DC-300 B Commitment Form
          have been discoverable since the 1970s, and [presenting]
          this claim over 30 years later did not meet the 60-day
          requirement.

PCRA Court Opinion, 11/12/14, at 4.

       Our review of the record readily supports the PCRA court’s conclusion

that Appellant did not timely raise his claim of newly discovered evidence.

Additionally, because Appellant’s sentence is a matter of public record, his

eligibility for the time-bar exception fails.1    See Commonwealth v.

Edmiston, 65 A.3d 339, 352 (Pa. 2013) (holding that to qualify for the
____________________________________________


1
  Within his brief, Appellant raises a claim that all prior counsel were
ineffective for failing to discover the defect in his “sentencing order.” See
Appellant’s Brief at 8-9. Because Appellant inappropriately raises this claim
for the first time on appeal, it is waived. See generally, Pa.R.A.P. 302. In
addition, claims of ineffectiveness do not constitute interference by
governmental officials under the PCRA. 42 Pa.C.S.A. § 9545(b)(4).




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newly-discovered exception under the PCRA, the facts must be unknown to

the petitioner, not discoverable through reasonable diligence, and not part of

the public record); see also Commonwealth v. Heredia, 97 A.3d 392,

395, n.6 (explaining that PCRA petitioner could not assert the newly-

discovered facts exception to the PCRA’s time bar based on a DC-300B

commitment form because the information contained therein was not new).

      In sum, the PCRA court correctly determined that Appellant is not

entitled to habeas corpus relief, and that it would lack jurisdiction to

consider Appellant’s latest petition under the PCRA. We therefore affirm the

PCRA court’s order denying Appellant post-conviction relief.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2015




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