J.S23045/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
LARRY GUESS,                                :
                                            :
                          Appellant         :
                                            :     No. 3092 EDA 2015

               Appeal from the PCRA Order September 30, 2015
     in the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0009813-2008

BEFORE: PANELLA, OTT, and FITZGERALD,* JJ.

JUDGMENT ORDER BY FITZGERALD, J.:                      FILED APRIL 14, 2016

        Pro se Appellant, Larry Guess, appeals from the order dismissing as

untimely1 his serial pro se petition filed pursuant to the Post Conviction

Relief Act2 (“PCRA”).      Appellant claims that the petition was timely filed

under the PCRA’s exception in 42 Pa.C.S. § 9545(b)(1)(iii), following the


*
    Former Justice specially assigned to the Superior Court.
1
  We note that in the PCRA court’s September 30, 2015 order, the court
states that it is dismissing the PCRA petition for the reasons set forth in its
August 31, 2015 order. The August 31st filing was the notice of intent to
dismiss the PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907.
In the notice, the court determined that the petition was untimely. The
PCRA court refers to the instant petition as Appellant’s second petition.
However, the court corrects this error in the September 30th order,
indicating that it is dismissing Appellant’s third PCRA petition. See Order,
9/30/2015. Appellant filed his first PCRA petition on June 9, 2011. The
second PCRA petition was filed on May 16, 2013 and the instant PCRA
petition on August 13, 2015.
2
    42 Pa.C.S. §§ 9541-9546.
J.S23045/16


decision of the United States Supreme Court in Johnson v. United States,

135 S. Ct. 2551 (2015). We affirm.

     We adopt the facts and procedural history set forth in the PCRA court’s

opinion.   See PCRA Ct. Op., 11/24/15, at 1-5.       Appellant filed a court

ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The

PCRA court filed a responsive opinion.

     After a careful review of the parties’ arguments, the record, and the

decision of the Honorable Steven T. O’Neill, we affirm on the basis of the

PCRA court’s opinion. See id. at 5-9 (holding Appellant failed to timely file

instant petition and invoke exception to PCRA time-bar; Johnson not

retroactive; Appellant not sentenced under federal statute). 3        Having

discerned no abuse of discretion or error of law, we affirm the order below.

See Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1267-68 (Pa. 2008).

     Order affirmed.




3
  We note that the PCRA court stated that Appellant “had one year, until
August 5, 2012 . . . to file for [PCRA] review.” Id. at 7. However, August
5th fell on a Sunday. Therefore, Appellant had until August 6, 2012 to file
for PCRA review. See 1 Pa.C.S. § 1908 (providing that when last day of any
period of time referred to in any statute falls on Saturday, Sunday or legal
holiday, such day shall be omitted from computation); In re Nomination
Papers of Lahr, 842 A.2d 327, 333 n.6 (Pa. 2004) (“The courts have
generally employed Section 1908 in circumstances that require counting
forward[,]” including Rules of Criminal Procedure).



                                     -2-
J.S23045/16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/14/2016




                          -3-
                                                                      Circulated 03/24/2016 02:53 PM




            IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY,
(I)
                                PENNSYLVANIA
                              CRIMINAL DIVISION


      COMMONWEALTH OF                                                   No. 9813-08
      PENNSYLVANIA

            v.                                                                           t.    s

                                                                                        f')        . ' ;

      LARRY GUESS

                                        OPINION                                         1.0

                                                                                        f's)

      O'NEILL, J,                                             NOVEMBERl...>, 2015°.'


            Defendant, Larry Guess, appeals pro se from the Order dated September

      30, 2015, dismissing his third Post Conviction Relief Act ("PCRA") Petition

      without a hearing. For the reasons set forth below, the Order should be

      affirmed.

      I.    FACTS AND PROCEDURAL HISTORY

            The relevant facts were set forth by this Court's Opinions written to the

      Superior Court on March 30, 2012 and November 12, 2013 as follows:

                   On August 28, 2008, Brandon Krupka was a resident of
            apartment M-101 at Wissahickon Apartments, 757 East Main
            Street, Lansdale, Montgomery County. (N.T., 11 /04 /09, p. 77) At
            approximately 12:22 p.m., while lying in bed watching television,
            he heard a knock at the front door, which was secured with a
            doorknob lock and deadbolt. (N.T., 11/04/09, pp. 77, 79)

                  As Krupka walked down the hallway toward the door, he
           heard the doorknob "jingle" and saw "pressure being put on the
           door like someone was trying to elbow - like pry their way into the
           door." (N.T., 11/04/09, p. 78) Believing someone was trying to get
           into the apartment, Krupka ran back into his bedroom and
           grabbed a baseball bat. (N.T., 11/04/09, p. 79) He then stood
           away from the door and watched as it shook for about 10 to 15
           seconds. (N.T., 11/04/09, p. 79)
              Once the shaking stopped, Krupka walked to the door and
      looked out the peephole. From that vantage point, he could hear
       the same activity occurring at the apartment next door. (N.T.,
       11 / 04 / 09, p. 80) He then saw two black males in the hallway
      walk away from the next door apartment. Krupka observed one of
      the males wearing a white t-shirt, and the other wearing a black
      jacket. (N.T., 11 /04 /09, pp. 80, 84, 96)

            Continuing to look through the peephole, Krupka observed
!Jl   the two males knocking on doors, turning the knobs and trying to
      "nudge" their way into other apartments. (N.T., 11/04/09, pp. 80-
      81) In all, Krupka observed the two males unsuccessfully attempt
      to gain access to at least three other apartments.         Krupka
      telephoned 911 after he saw the two men attempt to enter the third
      apartment. (N.T., 11/04/09, p. 85)

            Within 10 minutes of the call, Lansdale police, including
      plain-clothes Detective Justin DiBonaventura, responded to a
      report of a burglary in progress at the apartment complex. (N.T.,
      11/04/09, pp. 88, 99) The suspects were described in the report
      as two black males, one wearing a white t-shirt, and the other
      wearing a black jacket. (N.T., 11/04/09, p. 99) They reportedly
      had last been seen in the area of the "M" building. (N.T.,
      11/04 /09, p. 99)

             Detective DiBonaventura positioned himself outside "M"
      building near his unmarked vehicle and a marked police cruiser
      while three uniformed officers went inside the building. Moments
      later Detective DiBonaventura saw two black males coming from a
      grassy area between buildings "M" and "N." (N.T., 11/04/09, pp.
      102, 105) Both men had on white t-shirts, and one of the men had
      a dark jacket. (N.T., 11/04/09, p. 102) The men began to walk
      away "rapidly," looking back frequently in the direction of Detective
      DiBonaventura and ''M" building. (N.T., 11/04/09, pp. 103-104)
      Detective DiBonaventura then drove his vehicle across the parking
      lot toward the suspects.

            From inside his vehicle, Detective DiBonaventura identified
      himself as being with the Lansdale Police Department, and
      inquired of the two men whether [they] lived at the apartment.
      They responded that they did not live there, but were on the
      premises to visit a friend. (N.T., 11/04/09, p. 107) The two men
      were not able, however, to identify any friend living at the
      apartment complex. (N.T., 11/04/09, p. 108)

                                       2
       Detective DiBonaventura    eventually exited his vehicle and
asked the men if he could        speak with them.       During this
interaction, Defendant dropped   a credit card. (N.T., 11/04/09, p.
109) Detective DiBonaventura     retrieved the card, which bore the
name Ramana Kumar.

      After Defendant dropped the credit card, both men were
patted down. (N.T., 11/04 /09, p. 111) The police retrieved various
pieces of jewelry from Defendant's pockets. (N.T., 11/04/09, pp.
111-112)     Defendant and the other male, Kevin Jordan,
subsequently were arrested.

      At a jury trial that commenced on November 4, 2009,
Defendant stood accused of Burglary (Apt. M-204), Criminal
Conspiracy (Burglary), Criminal Attempt (Burglary - Apt. M-101),
Possession of an Instrument of Crime (Plastic Hotel Placards),
Criminal Trespass (Apt. M-204), Theft by Unlawful Taking (Credit
Card of Ramana Kumar), Identity Theft and Receiving Stolen
Property (Credit Card of Ramana Kumar). Krupka and Detective
DiBonaventura testified to the previously detailed events.

        Kumar, who lived in apartment M-204 on the day in
question, and whose credit card Defendant had dropped, also
testified at trial. He stated that he was at work around the time of
the incident.      (N.T., 11/04/09,   p. 128) Prior to leaving his
apartment that morning, he locked the door by using the doorknob
lock only, as was his habit, and not with the deadbolt. He had not
given anyone permission to be in his apartment.     (N.T., 11/04/09,
pp. 128, 137) The credit card dropped by Defendant was one
Kumar did not regularly use, but kept in a drawer in his bedroom.
(N.T., 11/04/09, p. 134)

       On November 5, 2009, the jury found Defendant guilty of all
charges, with the exception of the offense of Identity Theft, which
this court had dismissed at the close of the evidence. On January
15, 2010, this court sentenced Defendant to a term of 25 to 50
years imprisonment.     Defendant, through trial counsel, filed a
timely post-sentence motion, attacking the sufficiency and weight
of the evidence produced by the Commonwealth. This court denied
the post-sentence motion in an Order dated January 25, 2010.

       Defendant filed a direct appeal to the Superior Court on
February 4, 2010. The Superior Court affirmed the judgment of
sentence on December 2, 2010, and our Supreme Court denied a
Petition for Allowance of Appeal on May 5, 2011.

                                 3
                    On June 9, 2011, Defendant filed a pro se Motion for Post-
             Conviction Collateral Relief. This court subsequently appointed
O)
             Ethan O'Shea, Esquire to serve as PCRA counsel. Defendant,
             through counsel, filed an Amended Petition for Post-Conviction
             Relief on December 28, 2011.

                    After a hearing, this court denied the Amended Petition in an
             Order dated January 9, 2012. On January 23, 2012, PCRA
             counsel filed a Petition to Withdraw. This court issued an Order
1 ·•
             dated January 25, 2012, holding in abeyance a decision on the
(Ii          Petition pending the filing of a Notice of Appeal and a Grazier
             hearing to determine whether Defendant wanted to proceed on
             appeal without counsel.

                   On February 2, 2012, PCRA counsel filed a timely Notice of
             Appeal with the Superior Court. This court then held a Grazier
             hearing on February 13, 2012, at the conclusion of which
             Defendant stated his desire to continue to proceed on appeal with
             counsel. Defendant, through counsel, subsequently complied with
             this court's directive that he produce a statement of errors in
             conformance with Pennsylvania Rule of Appellate Procedure
             1925(b).

                    Thereafter, on September 13, 2012, the Superior Court affirmed
             the trial court's denial of Defendant's first petition pursuant to the Post
             Conviction Relief Act. Defendant filed a prose second PCRApetition on
             May 16, 2013. After a review of the record, this Court sent Defendant a
             Notice of its intent to dismiss his PCRApetition without a hearing.
             Defendant filed a response to the Notice on July 11, 2013 in the form of a
             "Petitioner Motion for Reconsideration." Subsequently, on August 19,
             2013, this Court denied the PCRApetition without a hearing.

       Trial Court Opinion, 11/ 13/ 13 pp. 1-4 (quoting Trial Court Opinion, 3/30/ 12
       pp. 1-5) (footnotes omitted)).

             The Defendant appealed the dismissal of his second petition. On July 3,

       2014, the Superior Court affirmed the dismissal of the Defendant's second

       petition, finding that it was untimely filed and did not satisfy any exception to

       the time bar.

             On or about August 13, 2015, the Defendant filed a third PCRApetition

       alleging a constitutional violation. After a review of the record, on August 31,
                                               4
2015, this Court sent the Defendant a notice of intent to dismiss his petition

without a hearing.   By Order of September 30, 2015, this Court dismissed the

Defendant's petition. This appeal followed.    On October 14, 2015, this Court

ordered the Defendant to produce a Concise Statement of Errors; the

Defendant has since complied with this directive.

II.    ISSUES

       Defendant raises the followingissue in his Concise Statement:

       1.    With regards to the instant appeal[,]Appellant argues that
             recent United States Supreme Court ruling in Johnson v.
             United States, holds that the residual clause is
             unconstitutional for three prior conviction(sic) for a violent
             felony under which appellant is sentenced. The above said
             case applies retroactively which enables appellant to over
             come (sic) the one-year time limitation set forth by 42
             Pa.C.S.A. (b)( 1) andl.] therefore[,] appellant contends that his
             claim under the new holding should have been consider[ed]
             on its merits in the courts below.

III.   DISCUSSION

       A petition for post-conviction collateral relief may be dismissed without a

hearing when there are no genuine issues concerning any material fact, the

defendant is not entitled to post-conviction collateral relief, and no purpose

would be served by any further proceedings. Pa.R.Crim.P. 907. Furthermore,

"[tjhe right to an evidentiary hearing on a post-conviction petition is not

absolute." Commonwealth v. Granberry, 644 A.2d 204, 208 (Pa. Super. 1994)

(citing Commonwealth v. Box, 451 A.2d 252 (Pa. Super. 1982)). A hearing may

be denied if a petitioner's claim is patently frivolous and is without a trace of

support either in the record or from other evidence. Id.

       Additionally, 42 Pa.C.S. §9545(b)(l) dictates that any PCRApetition shall
                                         5
      be filed within one year of the date the judgment becomes final, unless the
())
      petition alleges and the petitioner proves that:

            (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.

            "The PCRA'stime restrictions are jurisdictional in nature. Thus, if a

      PCRApetition is untimely, neither [the Superior) Court nor the [PCRA]court

      has jurisdiction over the petition." Commonwealth v. Lewis, 63 A.3d 1274,

      1280-81 (Pa. Super. 2013) (citing Commonwealth v. Chester, 895 A.2d 520,

      522 (Pa. Super. 2006)). Moreover, without jurisdiction, there is no legal

      authority to address the substantive claims. Id.

            Pursuant to §9545(b)(3),the one-year period in which to file a petition

      under the PCRAbegins to run upon the conclusion of direct review.

      Commonwealth v. Banks, 726 A.2d 374, 375 (Pa. 1999). Defendant was

      convicted and then sentenced on January 15, 2010. The Superior Court

      affirmed, and the Supreme Court of Pennsylvania denied discretionary review

      on May 5, 2011. Therefore, Defendant's judgment became final on August 5,

      2011, after he did not seek certiorari within ninety days pursuant to United

                                               6
         States Supreme Court Rule 13. He then had one year, until August 5, 2012,

         per §9545(b)(l), to file for Post Conviction ReliefAct review. The instant, third
~· •1'
         Petition was filed August 13, 2015, approximately three years beyond the time

         limitation. Therefore, he must satisfy one of the time-bar exceptions before this

         court can review his substantive claims.

U1             While the Defendant does not specify which exception he believes he has

         met, it appears from his filings that he is attempting to satisfy the exception

         found in §9545(b)(l)(iii). The Defendant relies on Johnson v. United States,

         135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), to support his claim that he has

         satisfied an exception to the time bar. He is mistaken. Pennsylvania courts

         have stated, "for purposes of subsection (iii), the language 'has been held by

         that court to apply retroactively' means the court announcing the rule must

         have also ruled on the retroactivity of the new constitutional right, before the

         petitioner can assert retroactive application of the right in a PCRApetition."

         Commonwealth v. Taylor, 933 A.2d 1035, 1042 (Pa. Super. 2007)(quoting

         Commonwealth v. Abdul-Salaam, 571 Pa. 219, 227, 812 A.2d 497, 501 (2002)).

               In Johnson, the Supreme Court held that that residual clause of the

         Armed Career Criminal Act's ("ACCA") definition of "violent felony'' was

         unconstitutionally vague and therefore violative of Johnson's due process

         rights. Id. The residual clause of the ACCAdefines "violent felony" as

         "burglary, arson, extortion, involves the use of explosives, or otherwise involves

         conduct that presents a serious potential risk of physical injury to another." 18

         U.S.C.A.§925(e}(2)(B)(ii)(emphasis
                                         added).       The Court found that the italicized

                                                 7
Vi
0
J'.tl
;::I     language "violates the Constitution's guarantee of due process ... Today's

         decision does not call into question the application of the Act to the four

         enumerated offenses, or the remainder of the Act's definition of a violent [eloruj."

         Johnson, 135 S.Ct. at 2563 (emphasis added). However, the Supreme Court
1\l      did not address the retroactive application of their holding and the Third
Fi1
, .. ~
ul       Circuit has yet to address this issue. Therefore, the Defendant cannot satisfy

         the exception to the time bar found in §9545(b)(l)(iii)and the Court is without

         jurisdiction to address the merits of his claim.

               Furthermore, even if Johnson is found to apply retroactively, the

         Defendant was not sentenced under this federal statute. The Pennsylvania

         statute under which the Defendant was sentenced, which has not been found

         to be unconstitutional, does not contain similarly vague language, but rather a

         list of clearly enumerated crimes of violence. 42 Pa. C.S.A. §9714(g).

         Instantly, the Defendant was convicted of attempted burglary, with a person

         present, which is one of the enumerated crimes in §9714(g). In imposing a

         mandatory minimum sentence for a third strike offender, this Court found that

         the Defendant had a prior conviction for murder, which is clearly a crime of

         violence. N.T., 1/ 15/ 10 pg. 28. This Court also found that the Defendant had

         a prior conviction for robbery, which is also one of the enumerated crimes of

         violence in §9714(g). Id. at 29. Therefore, because the Pennsylvania statute

         creates no uncertainty about whether the crimes committed by the Defendant

         constitute "crimes of violence," he is not entitled to relief based on Johnson.

               Because his second PCRApetition is untimely and he has failed to

                                                   8
        establish that any exceptions to the time-bar apply, this Court does not have

        jurisdiction to address the substantive claims raised therein.            Defendant's

        claim is meritless and an evidentiary hearing would have been frivolous and

        unnecessary.      Therefore, the court did not err in denying Defendant's petition

i'<'l   without a hearing.
i,i~

        IV.    CONCLUSION

               Based upon the foregoing, the Order should be affirmed


                                                                   BY THE COURT:




        Copies mailed on iJ  /.;Jt.f./tS
        to the following:
        Robert Falin, Esq. (District Attorney's Office)
        La    Gues~I                   Somerset, 1600 Walters MillRd. Somerset, PA 15510-0001




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