J. S04039/18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

LARRY E. FUTRELL, : No. 1182 MDA 2017

:

 Appellant :

Appeal from the PCRA Order, July 5, 2017,

in the Court of Common Pleas of Dauphin County

Criminal Division at No. CP-22-CR-0000615-1997

BEFORE: SHOGAN, J., DUBOW, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 22, 2018

Appellant, Larry E. Futrell, appeals from the July 5, 2017 order of the 

Court of Common Pleas of Dauphin County dismissing without a hearing his 

fourth pro se petition filed pursuant to the Post-Conviction Relief Act 

(hereinafter, “PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we 

affirm.

The PCRA court provided the following procedural history:

On January 3, 1997, [appellant] was charged with 

one (1) count Rape, one (1) count Involuntary 

Deviate Sexual intercourse, one (1) count 

Aggravated Indecent Assault, one (1) count Indecent 

Assault, one (1) count Statutory Sexual Assault, and 

one (1) count Corruption of Minors.[

1

 Appellant] was 

arrested by the Swatara Township Police on that 

date. A jury trial was conducted between 

 

1 18 Pa.C.S.A. §§ 3121(a), 3123(a), 3125(a), 3126(a), 3122.1, and 

6301(a), respectively. 
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November 18 and November 20, 1997 before the 

Honorable Lawrence F. Clark Jr., now retired. 

[Appellant] was represented by John M. Shugars, 

Esquire. [Appellant] was found guilty by the jury on 

all counts and sentenced to an aggregate term of 

fifteen (15) years to life incarceration at a State 

Correctional Institute. On February 17, 1998, 

[appellant] filed a post sentence motion which was 

denied on March 2, 1998.

On June 22, 1998, [appellant] filed a pro se PCRA 

petition. On October 11, 199[9], Judge Clark 

granted a resentencing in light of the Pennsylvania 

Supreme Court holding in Commonwealth v. 

Williams, 733 A.2d 593 (Pa. 1999). All other issues 

raised in [appellant’s] PCRA petition were denied. 

On November 15, 1999, [appellant] was resentenced 

to an aggregate term of fifteen (15) to sixty (60) 

years[’] incarceration in a State Correctional 

Institute. [Appellant] appealed to the Superior Court 

who affirmed the judgment of sentence on July 28, 

2000,[

2] and the Supreme Court of Pennsylvania 

denied his petition for allowance of appeal on 

December 20, 2000.[3]

On December 26, 2003, [appellant] filed a second 

pro se PCRA petition. After conducting an 

independent review the court found [appellant’s] 

claims [to be] without merit and accordingly 

dismissed his petition on June 28, 2004.

On April 25, 2011, [appellant] filed a third pro se

PCRA petition. Attorney Jonathan W. Crisp was 

appointed as PCRA counsel for [appellant]. 

Attorney Crisp filed a Petition to Withdraw, along 

with a letter of “no merit” pursuant to 

Commonwealth v. Turner, 544 A.2d 927 (Pa. 

1988), and Commonwealth v. Finley, 550 A.2d 

213 (Pa.Super. 1988). On December 28, 2011, the 

 

2 Commonwealth v. Futrell, No. 90 MDA 2000, unpublished memorandum 

(Pa.Super. filed July 28, 2000).

3 Commonwealth v. Futrell, 764 A.2d 49 (Pa. 2000).
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Court granted Attorney Crisp’s Motion to Withdraw, 

and gave its notice of intent to dismiss the PCRA 

petition. On April 10, 2012, [appellant’s] PCRA 

petition was dismissed.

On December 1, 2016, [appellant] filed a fourth 

pro se PCRA petition. In his petition, [appellant] 

challenges the legality of his sentence. [Appellant] 

alleges the trial court imposed a mandatory sentence 

under 18 Pa.C.S.A. § 7508 which was facially void 

pursuant to Alleyne v. United States, 133 S.Ct. 

2151 (2013), and Commonwealth v. Newman, 

[99 A.3d 86 (Pa.Super. 2014) (en banc)].

PCRA court opinion, 3/3/17 at 1-2.

On March 3, 2017, the PCRA court filed a notice of intent to dismiss 

appellant’s PCRA petition without a hearing pursuant to Pennsylvania Rule of 

Criminal Procedure 907(1). On July 5, 2017, the PCRA court dismissed 

appellant’s petition. Appellant filed a notice of appeal to this court on 

July 27, 2017. The PCRA court ordered appellant to file a concise statement 

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) and 

appellant timely complied. The PCRA court filed a statement in lieu of an 

opinion pursuant to Pa.R.A.P. 1925(a) in which it incorporated the language 

of its March 3, 2017 opinion filed with its notice of intent to dismiss 

appellant’s PCRA petition.

Appellant raises the following issues for our review:

1. Was the appellant sentenced to a harsher 

sentence due to his mental illness a sentence 

that would not of been given to a normal 

person? [sic]
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2. Did the sentence given by the Dauphin County 

Court of Common Please [sic] contain the 

same format as multiple other statutes that 

were struck down as unconstitutional?

Appellant’s brief at 5.

Subsequent PCRA petitions beyond a petitioner’s first petition are 

subject to the following standard:

A second or subsequent petition for post-conviction 

relief will not be entertained unless a strong 

prima facie showing is offered to demonstrate that 

a miscarriage of justice may have occurred. 

Commonwealth v. Allen, 732 A.2d 582, 586 (Pa. 

1999). A prima facie showing of entitlement to 

relief is made only by demonstrating either that the 

proceedings which resulted in conviction were so 

unfair that a miscarriage of justice occurred which no 

civilized society could tolerate, or the defendant’s 

innocence of the crimes for which he was charged. 

Id. at 586. Our standard of review for an order 

denying post-conviction relief is limited to whether 

the trial court’s determination is supported by 

evidence of record and whether it is free of legal 

error. Commonwealth v. Jermyn, 709 A.2d 849, 

856 (Pa. 1998).

A PCRA petition, including a second or subsequent 

petition, must be filed within one year of the date 

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

§ 9545(b)(1). A judgment becomes final for 

purposes of the PCRA “at the conclusion of direct 

review, including discretionary review in the 

Supreme Court of the United States and the 

Supreme Court of Pennsylvania, or the expiration of 

time for seeking the review.” 42 Pa.C.S. 

§ 9543(b)(3). PCRA time limits are jurisdictional in 

nature, implicating a court’s very power to 

adjudicate a controversy. Commonwealth v. Fahy, 

737 A.2d 214 (Pa. 1999). Accordingly, the “period 

for filing a PCRA petition can be extended only if the 

PCRA permits it to be extended, i.e., by operation of 
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one of the statutorily enumerated exceptions to the 

PCRA time-bar. Id. at 222.

Commonwealth v. Ali, 86 A.3d 173, 176-177 (Pa. 2014), cert. denied, 

135 S.Ct. 707 (2014). Before addressing appellant’s issues on the merits, 

we must first determine if we have jurisdiction to do so.

As noted above, a PCRA petitioner has one year from the date his or 

her judgment of sentence becomes final in which to file a PCRA petition. 

This court has held the following regarding when a judgment becomes final:

The plain language of the PCRA provides that a 

judgment of sentence becomes final at the 

conclusion of direct review or when the time seeking 

direct review expires. See 42 Pa.C.S.A. 

§ 9545(b)(3). In fixing the date upon which a 

judgment of sentence becomes final, the PCRA does 

not refer to the conclusion of collateral review or the 

time for appealing a collateral review determination. 

Thus, the plain language of the PCRA statute shows 

that a judgment of sentence becomes final 

immediately upon expiration of the time for seeking 

direct review, even if other collateral proceedings are 

still ongoing. As this result is not absurd or 

unreasonable, we may not look for further 

manifestations of legislative intent. See 

Commonwealth v. Hall, 80 A.3d 1204, 1211 (Pa. 

2013) (internal quotation marks omitted) (We may 

“look beyond the plain language of the statute only 

when words are unclear or ambiguous, or the plain 

meaning would lead to a result that is absurd, 

impossible of execution, or unreasonable.”).

Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa.Super. 2014). 

In the instant case, the trial court denied appellant’s post-sentence 

motion on March 2, 1998. Appellant did not file a direct appeal with this 

court. Accordingly, appellant’s judgment of sentence became final on 
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April 1, 1998.4 Appellant filed the instant petition on December 1, 2016—

more than 17 years after his judgment became final and more than 16 years 

after a PCRA petition could be considered timely. See 42 Pa.C.S.A. 

§ 9545(b)(1).

As noted above, the PCRA does enumerate exceptions to the one-year 

requirement. A petitioner may file a petition under the PCRA after one year 

has passed from the final judgment of sentence for any of the following 

reasons:

(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.

 

4 The fact that appellant’s first PCRA petition was successful, resulting in a 

resentencing is inapposite here. “[A] successful first PCRA petition does not 

‘reset the clock’ for the calculation of the finality of the judgment of sentence 

for purposes of the PCRA where the relief granted in the first petition . . . 

affected [the petitioner’s] sentence only.” Commonwealth v. McKeever, 

947 A.2d 782, 785 (Pa.Super. 2008), citing Commonwealth v. Dehard, 

730 A.2d 991, 994 n.2 (Pa.Super. 1999), appeal denied, 745 A.2d 1218 

(Pa. 1999).
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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Section 9545 also mandates that any 

petition filed under these exceptions must be filed within 60 days of the date 

the claim could have been presented. Id. at § 9545(b)(2).

In the instant appeal, appellant fails to demonstrate any of the 

exceptions to the PCRA time-bar. For his first issue, appellant appears to be 

challenging the discretionary aspects of his sentence while also alleging 

“interference by government officials with the presentation of the claim.” 

(Appellant’s brief at 6.) Appellant fails to provide any information as to 

when the alleged interference by government officials ceased to exist. 

Moreover, this allegation is belied by the certified record before us, which 

reflects that appellant filed three PCRA petitions prior to the instant appeal. 

Accordingly, we do not have jurisdiction to consider this issue on its merits.

For his second issue, appellant appears to be averring that his 

sentence was based on a finding-of-fact by the sentencing court that

appellant suffered from mental illness. Appellant specifically cites two cases 

from the Supreme Court of the United States, Apprendi v. New Jersey, 

530 U.S. 466 (2000), and Harris v. United States, 536 U.S. 545 (2002). 

Assuming, arguendo, that the Supreme Court did recognize a new 

constitutional right that it held to be retroactive, appellant had 60 days from 
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the date of the Court’s decision in Harris to file a PCRA petition.5 See

42 Pa.C.S.A. § 9545(b)(2). The Supreme Court announced its decision in 

Harris on June 24, 2002. Accordingly, in order to successfully plead an 

exception to the PCRA time-bar, appellant would have had to file his petition 

by August 23, 2002. Therefore, we find that we do not have jurisdiction to 

consider appellant’s second issue on its merits.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/22/2018

 

5 We note that the holding in Harris was overruled by the Supreme Court in 

Alleyne v. United States, 570 U.S. 99 (2013), on June 17, 2013. Even if 

appellant had framed his issue as an Alleyne argument, he would have 

been required to file his PCRA petition by August 16, 2013, to successfully 

plead an exception to the PCRA time-bar.