J-S11028-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

HOWARD OMAR POWELL

Appellant No. 1374 MDA 2014

Appeal from the PCRA Order July 14, 2014

In the Court of Common Pleas of Schuylkill County

Criminal Division at No(s): CP-54-CR-0001079-2000

BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.: FILED APRIL 10, 2015

Howard Omar Powell appeals from the order entered in the Court of 

Common Pleas of Schuylkill County, on July 14, 2014, denying him relief on 

his seventh petition filed pursuant to the Post Conviction Relief Act (PCRA), 

42 Pa.C.S. § 9541 et seq. The PCRA court determined, without a hearing, 

that the petition was untimely and no timeliness exception applied. After a 

thorough review of the submissions by the parties, relevant law, and the 

certified record, we affirm.

Powell was convicted by a jury of attempted first-degree murder; 

aggravated assault, infliction of serious bodily injury by use of a deadly 

weapon (firearm); robbery, infliction of serious bodily injury; conspiracy to 
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commit robbery; and related charges.

1

 These charges arose from the 

robbery and shooting of a gas station attendant, Nirmal Singh, in the late 

night hours of March 7, 2000. Although Powell was subject to a five-year 

mandatory minimum sentence for the above-mentioned charges, he 

received an aggregate sentence of 27 to 54 years’ incarceration.2 Powell 

filed a direct appeal and six prior PCRA petitions, none of which afforded him 

any relief. The instant petition is his seventh. He has raised three issues in 

his petition, claiming his sentence is illegal because he was not charged with 

possession of a handgun in the bill of information, was not charged with 

attempted murder under 18 Pa.C.S. § 1102(c), and the mandatory minimum 

aspect of his sentence is void pursuant to Alleyne v. United States, 133 

S.Ct. 2151 (2013).

As noted above, the PCRA court determined his petition was patently 

untimely and he was not entitled to any of statutory timeliness exceptions. 

Powell has raised six issues in this appeal, but we need to substantively 

address only the timeliness issue.

____________________________________________

1 18 Pa.C.S. §§ 901/2502, 2702, 3701 and 903/3701, respectively.

2 This is comprised of 20-40 years for attempted murder followed by 7 to 14 

years for robbery and a concurrent 7-14 year sentence for conspiracy. All 

sentences were well above the mandatory minimum sentence and were 

standard range sentences.
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In reviewing the denial of PCRA relief, we examine whether “the 

PCRA court's determinations are supported by the record and are 

free of legal error.” Commonwealth v. Robinson, 82 A.3d 998, 

1005 (Pa. 2013) (quotation and quotation marks omitted). See 

Commonwealth v. Strong, 761 A.2d 1167, 1170 n. 3 (Pa. 

2000) (“Since most PCRA appeals involve ... issues raising mixed 

questions of fact and law, our standard of review is whether the 

findings of the PCRA court are supported by the record and free 

of legal error.”) (citations omitted). “The PCRA court's credibility 

determinations, when supported by the record, are binding on 

this Court; however, we apply a de novo standard of review to 

the PCRA court's legal conclusions.” Commonwealth v. Roney, 

79 A.3d 595, 603 (Pa. 2013) (citation omitted).

Commonwealth v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014).

Instantly, the salient question is whether this petition is timely.

[T]he time limitations pursuant to ... the PCRA are jurisdictional. 

[Jurisdictional time] limitations are mandatory and interpreted 

literally; thus, a court has no authority to extend filing periods 

except as the statute permits. If the petition is determined to be 

untimely, and no exception has been pled and proven, the 

petition must be dismissed without a hearing because 

Pennsylvania courts are without jurisdiction to consider the 

merits of the petition.

Commonwealth v. Reed, 107 A.3d 137, 140 (Pa. Super. 2014) (citation 

omitted).

Initially, “[a] PCRA petition is timely if it is ‘filed within one year of the 

date the judgment [of sentence] becomes final.’ 42 Pa.C.S.A. § 9545(b)(1).” 

Commonwealth v. Callahan, 101 A.3d 118, 121-22 (Pa. Super. 2014). 
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There is no dispute that this petition, filed April 10, 2014, has been filed well 

past the one-year initial time limit.3

“However, an untimely petition may be received when the 

petition alleges, and the petitioner proves, that any of the three 

limited exceptions to the time for filing the petition, set forth at 

42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are met.” 

Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) 

(citation omitted). The PCRA provides, in relevant part, as 

follows.

§ 9545. Jurisdiction and proceedings

...

(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

____________________________________________

3

Powell’s judgment of sentence became final on July 3, 2002, when his 

sentence was affirmed on direct appeal and the 30-day limit to file a petition 

for allowance of appeal to the Pennsylvania Supreme Court expired. 

Accordingly, the one-year limit to file a timely PCRA petition expired on July 

2, 2003. 
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(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.A. § 9545(b)

Commonwealth v. Miller, 102 A.3d 988, 993 (Pa. Super. 2014).

Here, Powell argues a hybrid of exceptions (b)(1)(i) and (ii). 

Specifically, he argues that United States v. Alleyne, supra, represents 

newly discovered evidence and the government interfered with his ability to 

discover that case by failing to make timely updates to the prison library. 

This claim is unavailing for a number of reasons.

First, as the PCRA court correctly noted, a judicial opinion does not 

qualify as a previously unknown fact. See generally, Commonwealth v. 

Watts, 23 A.3d 980 (Pa. 2011). Therefore, Powell has invoked the incorrect 

exception. The proper exception is found at Section 9545(b)(1)(iii), a newly 

asserted constitutional right. 

Accepting Powell has properly invoked one of the three timeliness 

exceptions, we must also determine if he filed his petition within 60 days of 

the date the claim could have been presented. The Alleyne decision was 

issued on June 17, 2013. Accordingly, 60 days from that date was August 
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16, 2013. Powell’s PCRA petition was dated April 8, 2014, approximately 

eight months past the 60-day deadline. 

However, Powell claims the government interfered with his ability to 

find Alleyne in that prison officials did not update the prison law library in a 

timely manner. To support this assertion, Powell has included a statement 

from a person purporting to be a prison library official, Mrs. Price, librarian 

assistant, stating as of March 16, 2014, the library had been last updated on 

February 24, 2014. This allegation does not support a claim of 

governmental interference. The prison library is under no obligation to 

timely update its materials. See Commonwealth v. Baldwin, 798 A.2d 

728, 731 (Pa. Super. 2001) (Neither the court system nor the correctional 

system is obliged to educate or update prisoners concerning changes in the 

law; untimely updating of library materials is not cognizable.)

Even if Powell’s claim had been timely, he would not be entitled to 

relief. The rule in Alleyne was entitled to retroactive application only to the 

extent it applied to pending cases. “The new rule [Alleyne] is to be applied 

retroactively to cases where the issue in question is properly preserved at all 

stages of adjudication up to and including any direct appeal.” 

Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc). 

Powell’s direct appeal had been resolved years prior to the Alleyne decision. 

He is not entitled to retroactive application of the Alleyne rule.
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Powell’s only argument regarding the application of a timeliness 

exception addressed the Alleyne argument. Accordingly, to the extent his 

other claims raise different issues, neither the PCRA court nor our Court has 

the jurisdiction to address the merits of those claims. Additionally, Powell 

has complained the PCRA court did not grant him a hearing on his petition. 

However, there is no right to a PCRA hearing; if the PCRA court determines 

the claims are patently frivolous, it may deny a hearing on the petition. See 

Miller, 102 A.3d at 993. The PCRA court did not abuse its discretion or 

commit an error of law by denying Powell a hearing on a patently untimely, 

and therefore, frivolous, petition. Finally, Powell has claimed the PCRA court 

erred in failing to appoint counsel so that the petition could be advanced in 

acceptable legal terms. There is no constitutional right to counsel for PCRA 

representation. Rather, by rule, a petitioner is entitled to appointed counsel 

for his first PCRA petition. Pa.R.Crim.P. 904(C).4 See also 

Commonwealth v. Turner, 80 A.3d 754, 766 (Pa. 2013). This is Powell’s 

____________________________________________

4 Under Pa.R.Crim.P. 904(D), an indigent petitioner is entitled to 

appointment of counsel for a second or subsequent PCRA petition when an 

evidentiary hearing is necessary. While Powell is indigent, no hearing on the 

petition was necessary. Therefore, this subsection is not applicable to 

Powell. Rule 904(E) allows for the appointment of counsel in the interest of 

justice. Powell’s petition is frivolous, and despite Powell’s claim of being a 

foreigner, illiterate in the lack of education, and suffering from a mental 

illness, his petition and brief are both understandable. Accordingly the 

interest of justice did not require the appointment of counsel.
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seventh petition. He was not entitled to appointed counsel and the PCRA 

court did not err in refusing Powell’s request. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/10/2015