Com. v. Allen, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

JACK EDWARD ALLEN,

Appellant No. 153 WDA 2014

Appeal from the PCRA Order Entered January 16, 2014 In the Court of Common Pleas of Clearfield County Criminal Division at No(s): CP-17-CR-0000738-1995

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.* MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 05, 2014

Appellant, Jack Edward Allen, appeals pro se January 16, 2014 order denying, as untimely, his petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

The PCRA court summarized the facts and procedural history of this case as follows:

inter alia, first degree murder and was sentenced to an aggregate term of life imprisonment in 1996, after shooting his wife, Teresa Allen, in the back of her head in the presence of several witnesses on July 19, 1995. Mrs. Allen later passed away as a result of her ghastly injuries. [Appellant] subsequently filed a petit after which he received relief in the form of [the] reinstatement ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

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of his appellate rights nunc pro tunc. As a result [of his

judgment of sentence. Commonwealth v. Allen, 895 A.2d 644 (Pa. Super. Ct. 2006) (unpublished memorandum), appeal denied, 906 A.2d 537 (Pa. 2006).

[Appellant] was again convicted of first degree murder, along with other charges. On December 20, 2006, [Appellant] was, for a second time, sentenced to an aggregate term of life imprisonment. [Appellant] appealed his conviction, and the Superior Court affirmed the judgment of sentence on June 3, 2008. Commonwealth v. Allen, 959 A.2d 456 (Pa. Super. Ct. 2008) (unpublished memorandum), appeal denied, 959 A.2d 927 (Pa. 2008). During the pendency of the direct appeal process, [Appellant] filed numerous PCRA petitions that were dismissed by this [c]ourt without prejudice due to the pendency of other actions on direct appeal.

This Opinion stems from a pro se PCRA petition, which was filed on July 25, 2011, and a pro se Motion for New Trial that was filed on September 15, 2011. The [c]ourt originally ice of Intent to Dismiss, the [c]ourt characterized these petitions as untimely and determined that [Appellant] was not entitled to an attorney.

order dismissing the petitions and remanded for the appointment of counsel in order for [Appellant] to file an amended petition or take other

Commonwealth v. Allen, 60 A.3d 851 (Pa. Super. Ct. 2012) (unpublished memorandum).

On remand, this [c]ourt appointed Attorney Patrick Lavelle as counsel for [Appellant]. On January 30, 2013, the [c]ourt granted Attorney Lavelle thirty (30) days to file an Amended PCRA petition or other pleading. In lieu of proceeding with

petition to withdraw as counsel and a no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. Ct. 1988). On March 25, 2013, the [c]ourt, upon review of the record and - withdraw and dismissed the PCRA petition. [Appellant] once

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The Superior Court, on November 14, 2013, vacated this

remanded this case back to this [c]ourt. Commonwealth v. Allen, [91 A.3d 1285] (Pa. Super. Ct. 2013) (unpublished memorandum). The Superior Court found that this [c]ourt erred in not allowing [Appellant] an opportunity to respond to Attorney -merit letter. In addition, the Superior Court expressed that it was improper for this [c]ourt to adopt the no- merit letter in lieu of writing an Opinion on the matter. The Superior Court lastly dictated that this [c]ourt should allow

and evaluate any response by [Appellant].

d written -merit letter on November 26, 2013. The [c]ourt, on December 11, 2013, abiding by the

its Notice of Intent to Dismiss, written pursuant to Pa.R.Crim.P. 907. In the interests of justice, the [c]ourt clearly outlined what procedural steps [Appellant] needed to take in filing a proper PCRA petition. The [c]ourt, in its Notice of Intent to Dismiss, allowed [Appellant] to file an amended PCRA petition that would indicate which of the three (3) statutory exceptions to the timeliness provisions, permitted by the PCRA statute, would entitle [Appellant] to relief. The [c]ourt further instructed [Appellant] that, only after a showing that he met an exception

claim, or claims, which were cognizable under the PCRA and that have merit. [Appellant] filed said document, pro se, on December 23, 2013. However, [Appellant] did not state an exception to the timeliness requirement as requested by the [c]ourt and 42 Pa.C.S.A. § 9545. [Appellant] stated that he was entitled to relief under two (2) of the exceptions, but failed to state what those exceptions were or proffer facts in support of those exceptions.

The [c]ourt, in an Order dated January 16, 2014, dismissed the pro se PCRA petition filed by [Appellant] for the

dated December 11, 2013. [Appellant] filed a Notice of Appeal on January 22, 2014, appealing the aforementioned Order of this [c]ourt to the Superior Court. The [c]ourt, on January 24, 2014, instructed [Appellant] to file a concise statement of the matters complained of on appeal, per Rule of Appellate Procedure

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1925(b). [Appellant] filed said document on February 28, [1]

PCRA Court Opinion (PCO), 4/2/14, at 1-4.

On appeal, Appellant lists 12 issues for our review in the Statement of the Questions Involved section of his brief.2 However, before we may petition, because the PCRA time limitations implicate our jurisdiction and may not be altered or disregarded in order to address the merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (stating PCRA time limitations implicate our jurisdiction and may not be altered or disregarded to address the merits of the petition); Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002) (holding the Superior Court lacks jurisdiction to reach merits of an appeal from an untimely PCRA petition). ____________________________________________ 1 was dated January 24, 2014, it was not filed until February 24, 2014. Thus,

2 -page, single spaced Argument section is not

is one uninterrupted discussion without any headings indicating what issue Appellant is addressing. See Pa.R.A.P. 2119(a).

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Under the PCRA, any petition for post-conviction relief, including a second or subsequent one, must be filed within one year of the date the judgment of sentence becomes final, unless one of the exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies. That section states, in relevant part:

(b) Time for filing petition.--

(1) Any petition under this subchapter, including a second or subsequent petition, shall 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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke one of

Here, this Court affirme 2008, and our Supreme Court denied his subsequent petition for allowance

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became final 90 day thereafter, or on January 12, 2009. See 42 Pa.C.S. § 9545(b)(3) (stating that a judgment of sentence becomes final at the conclusion of direct review or the expiration of the time for seeking the review); Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super. 1998) (directing that under the PCRA, petit final ninety days after our Supreme Court rejects his or her petition for allowance of appeal since petitioner had ninety additional days to seek review with the United States Supreme Court). Consequently, Appellant had until January 12, 2010, to file a timely PCRA petition. He did not file the instant pro se petition until July 25, 2011. Accordingly, for this Court to have jurisdiction to review the merits thereof, Appellant must prove that he meets one of the exceptions to the timeliness requirements set forth in 42 Pa.C.S. § 9545(b). ascertain, his principal contention is that he received ineffective assistance from all prior counsel and, in particular, from Attorney Lavelle. See

previously and repeatedly explained, a claim of ineffective assistance of counsel does not Commonwealth v. Morris, 822 A.2d 684, 694-695 (Pa. 2003) (citing Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999)). Thus,

-year time-bar.

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Appellant also avers that his petition is timely because it was filed within one year of the judgment becoming final on a federal petition for writ of habeas corpus filed by Appellant. On December 13, 2010, the United

certiorari in that case. See Allen v. Britton, 131 S.Ct. 823 (US 2010). Appellant maintains that, as such, he had until December 13, 2011, to file a timely PCRA petition. However, in Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999), our Supreme Court rejected a similar claim that filing a federal habeas

habeas relief has been filed would undermine the federal policy of initial state Id. at 223. In light of Fahy habeas petition in federal court has no bearing on the timeliness of his PCRA petition. U January 12, 2009, making his pro se PCRA petition facially untimely.

Appellant proffers one other argument that could be construed as an attempt to invoke a timeliness exception. He maintains that he has capitalization omitted). Appellant also claims that he has documents that were handw demonstrate that she is not deceased. Id.

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Appellant indicates that he raised these claims before the PCRA court in his pro se amended petition filed on December 23, 2013. Our review of that do

Pro Se Amended Petition, 12/23/13, at 7. unknown to petitioner, needs to be investigated and searched out for these

Id. documents purportedly drafted by the victim after her death, Appellant

Id. Consequently, Appellant did not attach any proof of these handwritten documents.

mpt to invoke the afterunverified claim that he has proof that the victim is still alive is insufficient to meet his burden of pleading and proving the applicability of that exception. requirement. On appeal, Appellant offers no argument to convince us otherwise. Consequently, we ascertain n deny his petition without a hearing. See Commonwealth v. Ragan, 923 regarding an order denying a petition under the PCRA is whether the

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determination of the PCRA court is supported by the evidence of record and is free of legal error).

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/5/2014

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