J. S04 0 39 /1 8

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 M DA 20 17

: 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.: FI LED FEBRUARY 22, 2018

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

Court of Common Pleas of Dauphin County dismiss ing 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 th e 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.J. S 04 0 3 9 / 18

- 2

- 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 b y 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 pe tition 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 sen tence 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]. Attorn ey 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. fil e d July 28, 2000).

3 Commonwealth v. Futrell , 764 A.2d 49 (Pa. 2000).J. S 04 0 3 9 / 18

- 3

- Court granted Attorney Crisp’s Motio n 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 le gality 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]J. S 04 0 3 9 / 18

- 4

- 2. Did the sentence given by the Dauphin County Court of Common Please [sic] contain t he 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
pu rposes 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 extend ed, i.e. , by operation ofJ. S 04 0 3 9 / 18

- 5

- 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 address ing appellant’s issues on the merits,

we mus t 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 b ecomes 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 up on 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, 1 2 2 (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 onJ. S 04 0 3 9 / 18

- 6

-

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 th e 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 clai m 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 o f Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.

4 The fact t hat 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 ca lculation 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 Commonweal th v. Dehard
, 730 A.2d 991, 994 n.2 (Pa.Super. 1999), appeal denied , 745 A.2d 1218 (Pa. 1999).J. S 04 0 3 9 / 18

- 7

-

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 de monstrate 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.”

(Appel lant’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 P CRA 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 Supre me Court did recognize a new

constitutional right that it held to be retroactive, appellant had 60 days fromJ. S 04 0 3 9 / 18

- 8

-

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 i ssue 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 1 6 , 2013
, to successfully plead an exception to the PCRA time

- bar.