Com. v. Gardner, S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

STEVEN A. GARDNER,

Appellant No. 418 WDA 2014

Appeal from the PCRA Order entered February 7, 2014, in the Court of Common Pleas of Butler County, Criminal Division, at No(s): CP-10-CR-0000219-1995

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and ALLEN, JJ. MEMORANDUM BY ALLEN, J.: FILED AUGUST 11, 2014

pro se from the order denying his serial petition for post-conviction relief filed pursuant to the Post

42 Pa.C.S.A. §§ 9541-46. We affirm.

The pertinent facts and protracted procedural history have been summarized as follows:

On October 20, 1995, a jury convicted [Appellant] of first degree murder in connection with the January 10, 1995 shooting of a man who was renting a room in

sentenced to life imprisonment on October 23, 1995. This [C]ourt affirmed the judgment of sentence on August 29, 2000, and our supreme court denied appeal on January 22, 2001. Commonwealth v. Gardner, 764 A.2d 122 (Pa. Super. 2000) (unpublished memorandum), appeal denied, 576 Pa. 710, 785 A.2d 87 (2001). We note that during the pendency of both his direct appeal and subsequent PCRA petitions, [Appellant] has repeatedly filed additional pro se PCRA petitions or similar pleadings despite the fact that he already had a petition pending.

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On February 15, 2001, [Appellant] filed his first valid PCRA petition. Counsel was appointed and an amended PCRA petition was filed. A hearing was held on January 21, 2004, and the petition was ultimately denied on March 4, 2004. This [C]ourt affirmed the decision on October 24, 2006, and our supreme court denied appeal on May 18, 2007. Commonwealth v. Gardner, 913 A.2d 941 (Pa. Super. 2006) (unpublished memorandum), appeal denied, 592 Pa. 765, 923 A.2d 1173 (2007).

On November 19, 2008, [Appellant] filed a second pro se PCRA petition. On February 10, 2011, an order was

second PCRA petition. On February 24, 2011, Appellant filed a motion to reconsider. On March 8, 2011, the court denied the motion to reconsider. On April 5, 2011, [Appellant] filed a notice of appeal, attempting to appeal the orders entered on February 10, 2011 and March 8, 2011. This [appeal was docketed] at 733 WDA 2011.

On March 9, 2011, [Appellant] filed a third pro se PCRA petition. On March 25, 2011, an order was entered (dated

On April 6, 2011, [Appellant] filed a motion to reconsider. On April 7, 2011, the court denied the motion to reconsider. On May 5, 2011, [Appellant] filed a notice of appeal, attempting to appeal the orders entered on March 25, 2011 and April 7, 2011. This [appeal was docketed] at No. 1275 WDA 2011.

On August 26, 2011, Appellant filed a fourth pro se PCRA petition. On September 7, 2011, an order was entered (dated September 1, 2011) denying and

September 23, 2011, [Appellant] filed a motion to reconsider. On September 30, 2011, the court entered an order (dated September 28, 2011) denying the motion to reconsider. On October 14, 2011, [Appellant] filed a notice of appeal, attempting to appeal the orders entered on September 7, 2011 and September 30, 2011. This [appeal was docketed] at No. 1681 WDA 2011.

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Commonwealth v. Gardner, 50 A.3d 237 (Pa. Super. 2012), unpublished memorandum at 3-5 (footnotes omitted)).

On May 8, 2012, this Court addressed all three appeals together and quashed at each docket. Gardner, unpublished memorandum at 2. In doing so, we stated:

Appellant has committed the same fatal error in each of the three appeals before us. In each instance, after the court below entered an order denying [his] PCRA petition, [Appellant] filed a motion to reconsider and then waited until this motion was decided before filing the notice of appeal. In each case, the notice of appeal was filed beyond 30 days after the original order was entered denying the PCRA petition, resulting in an untimely appeal. See Pa.R.A.P., Rule 903(a). 42 Pa.C.S.A.

It is well-settled that a motion for reconsideration does not toll the 30-day appeal clock unless the court grants the motion within the 30-day appeal period. Commonwealth v. Moir, 766 1253, 1254 (Pa. Super. 2000). Otherwise, a notice of appeal must be filed within the 30-day appeal Id. we have consistently held that an appeal from an order Id.

***

Since all three notices of appeal were filed beyond their respective 30-day appeal periods, all three appeals are untimely and must be quashed.

Id., unpublished memorandum at 5-6. petition for mandamus and application to proceed in forma pauperis. Commonwealth v. Gardner, 2013 Pa. LEXIS 199.

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On June 29, 2012, Appellant filed another PCRA petition, styled as an procedural error, and sought the reinstatement of his right to file his appeals because we did not rule on their merits. According to Appellant, his have overlooked. Subsequently, on November 9, 2012, Appellant filed with t notice of appeal to this Court. filings as requests for post-conviction relief, and believing that two of

See Order of Court, 12/19/12 (citing Commonwealth v. Jones, 811 A.2d 944, 1008 (Pa. 2002); Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000)). That same day, appeal and requested a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Subsequently, both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

In a judgment order entered July 8, 2013, this Court quashed

ant filed his appeal

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prematurely because no appealable order had been entered upon the

See Commonwealth v. Gardner, 82 A.3d 1059 (Pa. Super. reargument and/or reconsideration.

Undaunted, on September 6, 2013, Appellant filed another PCRA

or Restoration of Appellate Rights & Appellant further asserted that his latest filing was timely because it was f Commonwealth v. Beasley, 741 A.2d 1259

On December 20, 2013, the PCRA court issued Pa.R.Crim.P. 907 notice because it was untimely and Appellant had not established any exception to petition. On February 14, 2014, Appellant filed a motion for reconsideration, which the PCRA court denied on March 11, 2014. Learning from his past mistakes, Appellant also filed a timely appeal to this Court on March 3, 2014. Subsequently, both Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

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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 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 i 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

tition for post-subsequent post-conviction request for relief will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice m Commonwealth v. Burkhardt, 833 A.2d 233, 236 (Pa. Super. 2003) (en banc prima facie showing if he demonstrates that either the proceedings which resulted in his conviction were so unfair that a miscarriage of justice occurred which no civilized society could tolerate, or that he was innocent of

Id.

Appellant seeks to reinstate his right to appeal and have his previously-filed triad of PCRA petitions considered on their merits. Before

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doing so, we must determine whether the PCRA court properly determined

-conviction petition is jurisdictional. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation omitted). Thus, if a petition is untimely, neither an appellate court nor the PCRA court has jurisdiction over the petition. Id

raised in an untimely petition. Id.

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 been interference by government officials in the presentation of the claim; or (2) there exists after-discovered facts or evidence; or (3) a new

Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition inv

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

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be raised for the first time on appeal. Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007); see also raised before the lower court are waived and cannot be raised for the first

Because Appellant did not file a writ of certiorari to the United States allowance of appeal on January 22, 2001, his judgment of sentence became final on or about April 23, 2001, when the ninety-day time period for filing a writ of certiorari with the United States Supreme Court expired. See U.S.Sup.Ct.R. 13; 42 Pa.C.S.A. § 9545(b)(3). Therefore, Appellant had to file the instant petition by April 23, 2002, in order for it to be timely. As Appellant filed the instant petition on September 6, 2013, it 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). time bar. See 9545(b)(1)(i-iii). Instead, within his brief, Appellant within the time exceptions of 42 Pa.C.S.A. § 9545 (b)(1)(ii) the 60 day notice of appeal should be excused as he was

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that the filing of a motion for reconsideration would toll the thirty-day appeal own ineffectiveness as a basis for satisfying a PCRA time bar exception. See generally not include defense counsel); Commonwealth v. Crews, 863 A.2d 498 (Pa. 2004).

In sum, the PCRA court correctly determined that it lacked jurisdiction

s substantive issues raised in his latest filing. We

-conviction relief.

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/11/2014

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