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[U] Commonwealth v. Smith

Superior Court of Pennsylvania

February 28, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
KEITH SMITH Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order April 5, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at Nos.: CP-51-CR-0503171-2000 CP-51-CR-0503181-2000

BEFORE: GANTMAN, J., OLSON, J., and WECHT, J.

MEMORANDUM

WECHT, J.

Keith Smith appeals, pro se, the April 5, 2013 order dismissing his fifth petition for relief under the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-46, as untimely. We affirm.

On September 25, 2001, Smith was convicted by a jury of first-degree murder, possessing an instrument of crime, and recklessly endangering another person.[1] In our memorandum affirming Smith's judgment of sentence, we summarized the pertinent facts underlying these convictions as follows:

[O]n October 15, 1999, at approximately 3:30 p.m., the victim Clifton Walker was shot at the intersection of 34th and Mt. Vernon Streets, Philadelphia. At the time of the shooting, the victim was with a group of friends and acquaintances, including Commonwealth witnesses Huey Hewitt and Kirk Dunson. The shooter stood in the intersection and fired at least eight shots, hitting the victim from the rear three times. Two of the shots entered the victim's buttocks; the fatal bullet entered at the shoulder blade, severed the aorta, exited and hit the victim's chin and exited a second time. The police obtained statements from the two above-named witnesses on the evening of the incident in which each of them identified [Smith] as the shooter. At a later time, each of the witnesses recanted their identifications of [Smith] and attributed their inculpatory statements to police misconduct, i.e., withholding of medical treatment of Hewitt and physical abuse of Dunson. At trial, neither witness identified [Smith] as the shooter. The Commonwealth was permitted to utilize their prior inconsistent statements as substantive evidence of Smith's guilt.

Commonwealth v. Smith, No. 554 EDA 2002, slip op. at 1-2 (Pa. Super. May 6, 2003). On September 26, 2001, Smith was sentenced to life imprisonment. On May 6, 2003, we affirmed the judgment of sentence. Id. at 1, 6. The Pennsylvania Supreme Court denied Smith's petition for allowance of appeal. Commonwealth v. Smith, 836 A.2d 122 (Pa. 2003) (per curiam).

On June 24, 2004, Smith filed his first PCRA petition. Following the appointment of counsel and the filing of an amended petition, the PCRA court dismissed the petition without a hearing. On June 5, 2007, we affirmed the denial. Commonwealth v. Smith, No. 1399 EDA 2006, slip op. at 7 (Pa. Super. June 5, 2007). On March 14, 2008, the Pennsylvania Supreme Court denied Smith's petition for allowance of appeal. Commonwealth v. Smith, 945 A.2d 170 (Pa. 2008) (per curiam).

On December 9, 2009, Smith filed a second pro se PCRA petition, which the PCRA court dismissed as untimely on August 20, 2010. On November 30, 2011, we also found the petition to be untimely, and affirmed the PCRA court's dismissal order. Commonwealth v. Smith, No. 2552 EDA 2010, slip op. at 1, 7 (Pa. Super. Nov. 30, 2011). On June 20, 2012, the Pennsylvania Supreme Court denied Smith's petition for allowance of appeal. Commonwealth v. Smith, 47 A.3d 847 (Pa. 2012) (per curiam).

Smith filed his third and fourth PCRA petitions on March 27, 2012 and August 15, 2012, respectively. The PCRA court dismissed both petitions as untimely on February 12, 2013. On February 11, 2013, Smith filed his fifth PCRA petition. On March 14, 2013, the PCRA court issued to Smith a notice of the court's intention to dismiss the PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907(1). On March 24, 2013, Smith filed a written response to the PCRA court's notice. On April 5, 2013, the PCRA court entered an order dismissing Smith's fifth petition.

On April 22, 2013, Smith filed a notice of appeal from the April 5, 2013 order. The PCRA court did not direct Smith to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Smith did not file one. Nonetheless, on June 11, 2013, the PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a).

Smith raises the following six questions for our review:
A. Whether the PCRA court "erred" in dismissing [Smith's] second or subsequent petition as untimely, despite [Smith] satisfying the (60) sixty day rule/the after-discovered facts exception, to the PCRA's time-bar, set forth in/under Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007), 42 Pa.C.S. §§ 9545(b)(2), 9545(b)(1)(ii)?
B. Whether the PCRA court violated [Smith's] "due process rights" of procedures, when the judge failed to rule on [Smith's] objection to the 907 notice of dismissal, where [Smith] plead[ed] and proved the said applicability of the exceptions, which did not warrant review of the untimely filed PCRA petition?
C. Whether [Smith's] "due process rights" of the Fourteenth Amendment were violated upon equal protection of the law, prohibition of cruel and unusual punishment, Eighth Amendment, where a "juvenile" gave a statement against [Smith], without his parents presence, nor permission, that later got [Smith] arrested/convicted for murder?
D. Whether [Smith's] "due process rights" of the Fourteenth Amendment and equal protection of the law were violated where the jury at [Smith's] penalty hearing was prohibited from hearing mitigating circumstances that could have been considered as to whether [Smith] could be sentenced to life without parole as a punishment for the crime committed?
E. Whether the PCRA court erred in dismissing [Smith's] third or subsequent petition as untimely despite [Smith] satisfying the (60) sixty day rule/after discovered facts exception, when [Smith] submitted [an] affidavit from Department of Corrections Specialist Michelle Koontz, to the PCRA's time-bar, set forth in/under 42 Pa.C.S. §§ 9545(b)(2), 9545(b)(1)(ii), Bennett, supra?
F. Whether [Smith's] "due process rights" upon state procedures at sentencing were violated of the Fourteenth Amendment/equal protection of the law, prohibition of cruel and unusual punishment Eighth Amendment, where at sentencing [the] judge illegally sentenced [Smith] and used no signed written judgment of sentencing order nor statutory authorization, to impose a life sentence on [Smith], which was in accordance to the authority mandated by the legislative branch, where at sentencing, [the] judge failed to sign a written judgment of sentencing order, due to no oral pronouncement of a sentence is not a sentence imposed until incorporated in a signed written judgment of sentencing order/whether all counsels were ineffective assistance for failure to object and appeal same?

Brief for Smith at iii (citations modified; some commas and parentheses omitted).[2]

Although Smith presents six questions, our focus is upon only one: whether Smith, in his fifth PCRA petition, the dismissal of which is the only order at issue herein, pleaded and proved one of the enumerated exceptions to the PCRA's time bar, and, therefore, has established jurisdiction in our courts to review his substantive claims. For the reasons that follow, we conclude that he has not.

It is well-established that the PCRA time limits are jurisdictional, and are meant to be both mandatory and applied strictly by the courts to all PCRA petitions, regardless of the potential merit of the claims asserted. Commonwealth v. Murray, 753 A.2d 201, 202-03 (Pa. 2000); Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. Super. 2011). "[N]o court may properly disregard or alter [these filing requirements] in order to reach the merits of the claims raised in a PCRA petition that is filed in an untimely manner." Murray, 753 A.2d at 203; see also Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).

Section 9545(b) sets forth the time limitations for filing of a PCRA petition as follows:

(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.
(2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.

42 Pa.C.S. § 9545(b)(1)(i)-(iii), (2). When a petition is filed outside the one-year time limit, the petitioner must plead and prove the applicability of one of the three exceptions to the PCRA time restriction. See Commonwealth v. Perrin, 947 A.2d 1284, 1285 (Pa. Super. 2008); 42 Pa.C.S. § 9545(b)(1)(i)-(iii).

A judgment of sentence is deemed 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 such review." 42 Pa.C.S. § 9545(b)(3). As we determined in our November 30, 2011, memorandum, Smith's judgment of sentence became final on January 28, 2004, ninety days after the Supreme Court of Pennsylvania denied Smith's petition for allowance of appeal.[3] Smiths' fifth PCRA petition was filed on February 11, 2013. Thus, the petition facially is untimely, and no Pennsylvania court has jurisdiction over the petition unless Smith pleaded and proved one of the three exceptions to the PCRA's time bar.

We first observe that Smith's February 11, 2013 PCRA petition is not in the certified record. "Our law is unequivocal that the responsibility rests upon the appellant to ensure that the certified record on appeal is complete in the sense that it contains all of the materials necessary for the reviewing court to perform its duty." Commonwealth v. Bongiorno, 905 A.2d 998, 1000 (Pa. Super. 2006) (citing Commonwealth v. Kleinicke, 895 A.2d 562, 575 (Pa. Super. 2006) (en banc)). If a document or item is absent from the record, the issue dependent upon that item will be deemed waived, unless there was an "extraordinary breakdown in the judicial process." Id. at 1001 (citing Commonwealth v. Williams, 715 A.2d 1101, 1106 (Pa. 1998)). As a general matter, the failure of an unrepresented appellant to make an inquiry into the completeness of the transmitted record does not constitute an "extraordinary breakdown." Id. at 1001. Nonetheless, "whether a default with regard to the contents of the certified record warrants a finding of waiver is a question that must be evaluated under the particular facts of a specific appeal." Id. Instantly, despite the absence of the petition, we are able to ascertain Smith's timeliness assertions from Smith's objection to the PCRA court's notice of intention to dismiss, the PCRA court's opinion, and the parties' briefs. Hence, in this instance, we do not believe waiver is warranted.

The crux of Smith's claims is that the sentencing judge did not execute a written sentencing order to substantiate the sentence pronounced in open court. Through an affidavit of a representative from the Pennsylvania Department of Corrections, Smith asserted that the Department of Corrections could not provide him with a copy of a sentencing order. Without such an order, Smith maintained that his sentence was illegal because a sentencing judge lacks the authority to sentence a defendant in the absence of a written order corresponding to the pronounced sentence. Smith's contentions implicate the legality of his sentence. Presumably, the contentions also implicate the newly-discovered fact exception to the PCRA's time limit. We address the latter first.

To succeed on the newly-discovered facts exception, the petitioner must establish that: 1) the facts upon which the claim was predicated were unknown and 2) could not have been ascertained by the exercise of due diligence. If the petitioner alleges and proves these two components, then the PCRA court has jurisdiction over the claim under this subsection. Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013) (citing Bennett, 930 A.2d at 1271-72). Additionally:

Our Supreme Court has held for purposes of 42 Pa.C.S. § 9545(b)(1)(ii) information is not "unknown" to a PCRA petitioner when the information was a matter of public record. For purposes of the exception to the PCRA's jurisdictional time-bar under [subsection] 9545(b)(1)(ii), a petitioner fails to meet his burden when the facts asserted were merely unknown to him. A petitioner must also explain why his asserted facts could not have been ascertained earlier with the exercise of due diligence.

Commonwealth v. Taylor, 933 A.2d 1035, 1040-41 (Pa. Super. 2007).

Instantly, Smith complains that he did not know that the sentencing judge allegedly did not issue a written order contemporaneously with pronouncing his sentence. If true, the purported absence of the document is a matter of public record, and easily could have been discovered through the exercise of due diligence. The fact that Smith did not know of the order's non-existence is of no moment. Consequently, Smith cannot meet the newly-discovered fact exception to the PCRA time-bar. No other exceptions are applicable to Smith's claims.

In the alternative, Smith argued that his claims implicated the legality of his sentence, which generally are non-waivable. This is true. However, the fact that Smith's claims are not waived does not mean that we have jurisdiction over them. Waiver and jurisdiction are separate matters. Although "not technically waivable, a legality [of sentence] claim may nevertheless be lost should it be raised for the first time in an untimely PCRA petition for which no time-bar exception applies, thus depriving the court of jurisdiction over the claim." Commonwealth v. Slotcavage, 939 A.2d 901, 903 (Pa. Super. 2007) (citing Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) ("Although legality of sentence is always subject to review within the PCRA, claims must still first satisfy the PCRA's time limits or one of the exceptions thereto.")). Because, as we noted above, no exceptions to the PCRA's timeliness requirements apply in this case, we lack jurisdiction to review Smith's legality of sentence claims, even though they are non-waivable.

For the preceding reasons, Smith has not established that the claims raised in his fifth PCRA petition meet any of the exceptions to the PCRA's one-year time limit. Consequently, no Pennsylvania court has jurisdiction to review those claims.

Order affirmed.

Olson, J. concurs in the result.


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