J-S51029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

BRIAN K. SANDERS,

                            Appellant                 No. 3351 EDA 2016


                 Appeal from the PCRA Order October 18, 2016
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0001222-1982


BEFORE: BOWES and SHOGAN, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                       FILED NOVEMBER 07, 2017

       Appellant, Brian K. Sanders, appeals pro se from the order denying his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. We affirm.

       In addressing Appellant’s case on direct appeal, a panel of this Court

summarized the underlying facts of this matter as follows:

             The evidence in this case showed that [A]ppellant, at age
       15, had been involuntarily committed to Norristown State
       Hospital in Montgomery County. On the evening of September
       30, 1981, he was escorted to a laundry facility by [Victim], a
       psychiatric security aide trainee. Upon their return, [A]ppellant
       managed to grab [Victim] around the neck. He then dragged
       [Victim] backwards into a bathroom and later forced her into a
       day room in a remote part of the hospital. [Appellant] held
       [Victim’s] neck so tightly that she was unable to breathe, and
____________________________________________


*   Former Justice specially assigned to the Superior Court.
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     she sustained injury which required physical therapy for two
     months and the wearing of a neck brace for six months.
     Appellant took [Victim’s] keys from her, locked the doors to the
     day room, and ordered [Victim] to undress. With his hand on
     her neck, [A]ppellant threatened to break [Victim’s] neck if she
     didn’t follow his instructions. [Appellant] then forced [Victim] to
     the floor and engaged in sexual intercourse with her.
     Thereafter, he locked [Victim] in the room and left. Appellant
     escaped from the hospital by using a picnic table to assist him in
     climbing over the wall. [Victim] was able to use a pay phone in
     the day room to call for assistance, but she was too late to
     prevent [A]ppellant’s escape. [Appellant] was apprehended in
     Philadelphia on November 20, 1981.

Commonwealth v. Sanders, 489 A.2d 207, 210 (Pa. Super. 1985).

     In addressing an appeal from the dismissal of a prior PCRA petition,

this Court summarized the subsequent history of this case as follows:

           Appellant was arrested as a result of a September 30,
     1981 incident that occurred in a juvenile detention unit. He was
     charged with rape, indecent assault, indecent exposure, unlawful
     restraint, reckless endangerment, simple and aggravated
     assault, criminal attempt, and escape.        After two hearings,
     [A]ppellant was certified to stand trial as an adult. After a two
     day bench trial, the court granted a demurrer on the attempt
     charge but convicted [A]ppellant of all remaining charges.
     Appellant was sentenced to a total term of imprisonment of
     seventeen to thirty-four years. On appeal, we determined that
     since the certification court had not given any reason for its
     decision, a remand was necessary for a proper explanation of
     the reasons for [A]ppellant’s certification as an adult. We also
     determined    that    the   sentence     imposed     for  reckless
     endangerment should have merged with rape for sentencing
     purposes and that if [A]ppellant was determined upon remand to
     have been certified properly as an adult, then he should be re-
     sentenced to a term of imprisonment of sixteen to thirty-two
     years.




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              Appellant was certified again on May 8, 1985, and on
       December 14, 1988, [A]ppellant was re-sentenced to sixteen to
       thirty-two years imprisonment. On May 12, 1989, [A]ppellant
       filed a petition for post conviction relief,1 counsel was appointed,
       and counsel filed a supplemental PCRA petition. On August 16,
       1989, a hearing was held to address the matters raised in both
       petitions.

Commonwealth v. Sanders, 613 A.2d 1264, 2410 PHL 1989, at 1-2 (Pa.

Super. filed June 17, 1992) (unpublished memorandum).           The PCRA court

entered an order denying relief on August 19, 1989.           Appellant took an

appeal from the denial of PCRA relief and this Court affirmed the PCRA

court’s decision on June 17, 1992. Id.

       On July 18, 2016, Appellant filed the instant pro se PCRA petition. On

August 29, 2016, the Commonwealth filed an answer and motion to dismiss.

The PCRA court filed its notice of intent to dismiss pursuant to Pa.R.Crim.P.

907 on September 8, 2016.             On September 26, 2016, Appellant filed a

response to the PCRA court’s Rule 907 notice, and on October 7, 2016,

Appellant filed an amended PCRA petition.            The PCRA court dismissed

Appellant’s PCRA petition on October 18, 2016, on the basis that the PCRA

petition was untimely filed.        This timely appeal from that order followed.

Both Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

       Appellant presents the following issue for our review:
____________________________________________


1  It appears that Appellant attempted to seek post-conviction relief under
the Post Conviction Hearing Act (“PCHA”), the predecessor to the PCRA. The
PCHA was repealed and replaced by the PCRA for petitions filed on or after
April 13, 1988.



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        A. Whether the lower court abused its discretion when it
        impermissibly relied on [Appellant] not filing any motions on
        time, and time barring him was manifestly excessive under the
        circumstances that the lower court refused to give up any and all
        transcripts for [Appellant] to challenge the Commonwealth[’s]
        case.

Appellant’s Brief at 4. In his sole issue, Appellant contends that the PCRA

court improperly concluded that his PCRA petition was time barred. Id. at

9-14.

        When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”     Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc)). This Court is limited to determining whether the evidence

of record supports the conclusions of the PCRA court and whether the ruling

is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that

are supported in the record and will not disturb them unless they have no

support in the certified record.    Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).

        We   first   address   whether    Appellant   satisfied   the    timeliness

requirement of the PCRA. A PCRA petition must be filed within one year of

the date that the judgment of sentence becomes final.                   42 Pa.C.S.

§ 9545(b)(1). A judgment of sentence “becomes final at the conclusion of

direct review, including discretionary review in the Supreme Court of the

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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).   This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.     Commonwealth v.

Cintora, 69 A.3d 759, 762 (Pa. Super. 2013).

       Effective January 16, 1996, the PCRA was amended to require a

petitioner to file any PCRA petition within one year of the date the judgment

of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). Where a petitioner’s

judgment of sentence became final on or before the effective date of the

amendment, a special grace proviso allowed first PCRA petitions to be filed

by January 16, 1997.         See Commonwealth v. Alcorn, 703 A.2d 1054,

1056-1057 (Pa. Super. 1997) (explaining application of PCRA timeliness

proviso).

       However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), is met.2 A petition invoking one of these exceptions must be filed

____________________________________________


2   The exceptions to the timeliness requirement are:

       (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;

(Footnote Continued Next Page)


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within sixty days of the date the claim could first have been presented. 42

Pa.C.S. § 9545(b)(2).        In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164,

1167 (Pa. Super. 2001).

      Our review of the record reflects that, on the directive of this Court,

Appellant was resentenced on December 14, 1988. Thereafter, Appellant did

not pursue a direct appeal from the judgment of sentence.        Accordingly,

Appellant’s judgment of sentence became final on January 13, 1989, thirty

days after the trial court imposed the judgment of sentence and the time for

filing a direct appeal expired. See 42 Pa.C.S. § 9545(b)(3) (providing that

“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

(Footnote Continued) _______________________

      (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), (ii), and (iii).




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review.”). Thus, Appellant’s judgment of sentence became final prior to the

effective date of the PCRA amendments. Appellant’s instant PCRA petition,

filed on July 18, 2016, does not qualify for the grace proviso as it was not

filed before January 16, 1997. Hence, the instant PCRA petition is patently

untimely.

        As previously stated, if a petitioner does not file a timely PCRA

petition, his petition nevertheless may be received under any of the three

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.

§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file

his petition within sixty days of the date that the exception could be

asserted. 42 Pa.C.S. § 9545(b)(2).

        Our review of the record reflects that, in his pro se PCRA petition,

Appellant attempted to argue the timeliness exception under section

9545(b)(1)(ii), claiming he had newly discovered evidence in the form of a

revelation that his certified record did not contain a copy of the trial court’s

May 8, 1985 decision to recertify Appellant to adult court.        In addition,

Appellant attempted to invoke the governmental interference exception

under section 9545(b)(1)(i).     Appellant baldly alleged that somehow the

government hid the fact that he was recertified to adult court on May 8,

1985.

        We cannot ignore that Appellant was required to exercise due diligence

in obtaining the information that forms the basis for his PCRA petition. This


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issue was addressed by our Supreme Court in Commonwealth v. Stokes,

959 A.2d 306 (Pa. 2008). In Stokes, the appellant was convicted of three

counts of first-degree murder and related charges in 1983.         The appellant

then filed a timely direct appeal and a timely PCRA petition, which were

unsuccessful.

       In February of 2004, the appellant in Stokes initiated federal habeas

corpus proceedings and obtained files from the United States Postal Service

and the Philadelphia Police Department.            He then filed a second PCRA

petition alleging a Brady violation,3 in that the Commonwealth failed to

disclose documents in the files, which contained exculpatory evidence. The

appellant in Stokes claimed that he satisfied the “newly discovered fact” and

“government        interference”      exceptions   to   the   PCRA’s   timeliness

requirements. The PCRA court found the PCRA petition to be untimely and

denied his petition without a hearing, and our Supreme Court ultimately

affirmed on appeal.

       In reaching its decision, our Supreme Court held that both exceptions

mandate compliance with the sixty-day rule, which “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.” Stokes, 959 A.2d at

310. Thus, the proper questions with respect to timeliness in Stokes were

____________________________________________


3   Brady v. Maryland, 373 U.S. 83 (1963).



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“whether the government interfered with Appellant’s access to the […] files,

and whether Appellant was duly diligent in seeking those files.”       Id.   The

Court in Stokes concluded the record established that the appellant had

been aware of the existence of the files prior to seeking them, and he did

not claim that the Commonwealth prevented him from accessing the files

earlier.   The Court in Stokes held the record indicated the appellant was

aware of the existence of the files prior to filing his PCRA petition, and he did

not explain why he did not seek them earlier; he thus failed to satisfy the

due diligence requirement of the sixty-day requirement under the PCRA.

Stokes, 959 A.2d at 311.

      In addressing Appellant’s claim that these two exceptions to the

timeliness requirement of the PCRA apply, the PCRA court stated the

following:

             Appellant failed to prove an exception to the time-bar
      applied, and thus, the trial court properly dismissed said PCRA
      Petition without an evidentiary hearing. Appellant summarily
      alleged he meets the first and second exceptions, the
      “government interference” and “unknown facts” exceptions,
      respectively. These allegations are facially invalid and Appellant
      fails to meet these timeliness exceptions for several reasons.
      Appellant’s allegation of “government interference” and
      “unknown fact” are synonymous, as both relate to the alleged
      non-existence of a second order certifying Appellant to adult
      criminal court.    Moreover, Appellant, in his PCRA Petition,
      claimed he discovered the lack of such an order on or around
      May 19, 2016, through the efforts of both him and his family.
      (See Appellant’s PCRA Petition 4 ¶ 16-17). However, the efforts
      Appellant and his family made in ascertaining copies of orders
      from his file could have been made decades earlier, and such
      exercise of due diligence is required by the PCRA timeliness
      exceptions. Specifically, Appellant failed to make any credible

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     allegations for failing to inquire into the existence of orders prior
     to 2016, aside from the baseless allegations of “government
     interference” to keep such information from Appellant, which are
     unsupported in Appellant’s Concise Statement and in the record.
     Thus, Appellant’s allegations as to timeliness exceptions were
     neither filed within sixty (60) days of the date the claims could
     have been presented, nor sufficient to overcome the one-year
     deadline for filing a PCRA Petition.

            The record reflects there was no government interference
     preventing Appellant from challenging the propriety of the re-
     certification. In fact, Appellant challenged the efficacy of his re-
     certification proceeding in his first PCHA petition, and failed to
     mention the issue of a formal re-certification order when the
     recertification process was a central issue being litigated. The
     Superior Court heard this challenge to the efficacy of Appellant’s
     recertification on appeal, and ultimately affirmed the re-
     certification. See Sanders, [613 A.2d 1264, 2410 PHL 1989,
     (unpublished memorandum at 2-3).] Appellant’s instant PCRA
     Petition failed to allege any facts that would lead the [PCRA]l
     court to believe the lack of a re-certification order, three decades
     later, was the result of government interference. Specifically,
     Appellant failed to allege any actions on the part of the Clerk of
     Courts, Public Defender’s office, or District Attorney’s office that
     would have led to the lack of a re-certification order. Thus, the
     record shows Appellant could have alleged the issue of a formal
     re-certification order prior to his instant PCRA Petition by
     exercising due diligence, and the government did not inhibit him
     from doing to in any way.

            While the Superior Court did not specifically address the
     existence or non-existence of a formal certification order in its
     1992 [memorandum], it did find the re-certification was valid.
     See Sanders, [613 A.2d 1264, 2410 PHL 1989, (unpublished
     memorandum at 2-3).]           As well, there exists an order for
     Appellant’s first certification. There are two likely possibilities for
     the current lack of an electronically scanned re-certification
     order: either (i) the paper recertification order was simply not
     scanned into the electronic court filing system and was lost after
     Appellant’s case closed, as Appellant’s case is three decades old,
     or (ii) a re-certification order was unnecessary per the trial
     court’s interpretation of the Superior Court’s remand, given
     there was already an order for the first certification and the
     second re-certification hearing was simply to put on the record

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     the clear reasons for certification to adult court.             (See,
     generally N.T. PCHA Hr’g, August 11, 1989.) (Exhibit G).
     Given both defense counsel and Appellant in the PCHA petitions
     raised the issue that “the re-certification hearing was conducted
     improperly in that directives of [the Superior] [C]ourt were
     ignored,” and the Superior Court thereafter affirmed the trial
     court’s re-certification, the re-certification order either existed at
     the time or the Superior Court agreed with the trial court that a
     second order was unnecessary. See Sanders, [613 A.2d 1264,
     2410 PHL 1989, (unpublished memorandum at 2-3).]

            Moreover, Appellant’s allegation that his “20-plus years” in
     solitary confinement kept him from discovering the missing re-
     certification order does not relieve him of his duty to exercise
     due diligence. Firstly, Appellant’s time in solitary confinement
     does not account for the total time period between his re-
     certification and the filing of the instant PCRA Petition, which is
     thirty (30) years. Secondly, Appellant was able to file his other
     PCHA petition within that time frame and specifically made
     allegations as to the efficacy of the re-certification process.
     Thirdly, Appellant did not mention actions, if any, that he
     undertook in trying to specifically ascertain the specific re-
     certification order in his file prior to or during his time in solitary
     confinement. Therefore, Appellant failed to prove a timeliness
     exception applies and his PCRA Petition is time-barred.

            On November 3, 1987, Appellant wrote a letter to the
     Clerk of Courts, specifically asking for a copy of the transcript
     proceedings and “a copy of [the trial judge’s] Opinion for his
     decision as soon as possible.” (See Appellant’ Correspondence,
     November 3, 1987). Whether Appellant was referring to a
     certification order or an actual opinion, it is at this time that
     Appellant could have first requested a certification order through
     due diligence, and if it had never existed, then timely challenge
     the absence in his first PCHA petition. Appellant also filed an
     Application for Order Mandating Clerk of Courts to Furnish Court
     Records, [in] which Appellant specifically asked for re-
     certification records for May 8, 1995.           (See Appellant’s
     Application for Order). On January 20, 1998, [the trial judge]
     ordered the release of the transcripts from Appellant’s
     certification and re-certification hearing upon the request of
     Appellant’s counsel, then public defender, Garret Page. (See
     Trial Ct. Order, January 20, 1988.) Again, Appellant could have
     exercised due diligence at that time to follow-up with the trial

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      court if he found the January 20, 1988, Order did not provide the
      relief he was requesting in his letter and application; namely, if
      the re-certification order was missing.

PCRA Court Opinion, 1/26/17, at 10-13 (citations to exhibits omitted).

      Similarly, our review of the record reflects there was no obstruction to

Appellant obtaining information regarding the existence of a May 8, 1985

recertification order, which this Court referenced in our June 17, 1992

decision addressing Appellant’s appeal from the denial of his first petition

seeking post-conviction relief. Appellant does not offer an explanation why

he did not investigate the status of the recertification order in the thirty

years preceding the filing of the instant PCRA petition other than alleging he

had been in solitary confinement for twenty of those years.

      Accordingly, we conclude that Appellant has failed to establish that he

satisfied the sixty-day rule, that the information he relied upon in filing his

PCRA petition could not have been obtained earlier by the exercise of due

diligence.   42 Pa.C.S. § 9545(b)(2); Stokes, 959 A.2d at 310. Thus, the

PCRA court correctly determined that it did not have jurisdiction to decide

the merits of Appellant’s petition, and the PCRA court did not err by

dismissing the petition without a hearing. See Commonwealth v. Fairiror,

809 A.2d 396, 398 (Pa. Super. 2002) (holding that PCRA court lacks

jurisdiction to hear untimely petition).     Likewise, we lack the authority to

address the merits of any substantive claims raised in the PCRA petition.

See Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007)


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(“[J]urisdictional time limits go to a court’s right or competency to adjudicate

a controversy.”).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2017




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