J.S23045/16

NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENN SYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

: LARRY GUESS, :

: Appellant :

: No. 3092 EDA 2015

Appeal from the PCRA Orde r September 30, 2015 in the Court of Common Pleas of Montgomery County Criminal Division

at No(s): CP

- 46

- CR

- 0009813

- 2008

BEFORE: PANELLA, OTT , and FITZGERALD, * JJ.

JUDGMENT ORDER BY FITZGERALD, J.: FILED APRIL 14, 2016

Pro se Appellant, Larry Guess, appeals from the order di smissing as

untimely 1 his serial pro se petition filed pursuant to the Post Conviction

Relief Act 2 (“PCRA”). Appellant claims that the petition was timely filed

under the PCRA’s exception in 42 Pa.C.S. § 9545(b)(1)(iii), following the

* Former Justice specially assigned to the Superior Court.

1 We note that in the PCRA court’s September 30, 2015 order, the court states that it is dismissing the PCRA petition for the reasons set forth in its August 31, 2015 order. The August 31st filing was the notice of intent to dismiss the PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907. In the notice, the court determined that the petition was untimely. The PCRA court refers to the instant petition as Appellant’s second petition. However, the court corrects this error in the September 30th order, indicating that it is dismissing Appellant’s third PCRA petition. See Order, 9/30/ 2015. Appellant filed his first PCRA petition on June 9, 2011. The second PCRA petition was filed on May 16, 2013 and the instant PCRA petition on August 13, 2015.

2 42 Pa.C.S. §§ 9541

- 9546.J.S23045/16

- 2

-

decision of the Uni ted States Supreme Court in Johnson v. United States
,
135 S. Ct. 2551 (2015). We affirm.

We adopt the facts and procedural history set forth in the PCRA court’s

opinion. See PCRA Ct. Op., 11/24/15, at 1

- 5. Appellant filed a court

ordered Pa.R.A.P. 1925 (b) statement of errors complained of on appeal. The

PCRA court filed a responsive opinion.

After a careful review of the parties’ arguments, the record, and the

decision of the Honorable Steven T. O’Neill, we affirm on the basis of the

PCRA court’s opin ion. See id. at 5

- 9 (holding Appellant failed to timely file

instant petition and invoke exception to PCRA time

- bar; Johnson not

retroactive; Appellant not sentenced under federal statute). 3 Having

discerned no abuse of discretion or error of law, we aff irm the order below.

See Commonwealth v. Abu

- Jamal , 941 A.2d 1263, 1267

- 68 (Pa. 2008).

Order affirmed.

3 We note that the PCRA court stated that Appellant “had one year, until August 5, 2012 . . . to file for [PCRA] review.” Id. at 7. However, August 5th fell on a Sunday. Therefore, Appellant had until August 6, 2012 to file for PCRA review. See 1 Pa.C.S. § 1908 (providing that when last day of any period of tim e referred to in any statute falls on Saturday, Sunday or legal holiday, such day shall be omitted from computation); In re Nomination Papers of Lahr , 842 A.2d 327, 333 n.6 (Pa. 2004) (“The courts have generally employed Section 1908 in circumstances that require counting forward[,]” including Rules of Criminal Procedure).J.S23045/16

- 3

-

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/14/2016A s Kr u pka wa l k ed down the h allway toward the door, he

h eard th e do orkn ob "jing l e" a nd sa w "pressure b e i ng p ut on the door li k e som e one was t ryi n g to e lb ow - like pry t h e i r way i n to t he d oor." (N

. T

. , 1 1/0 4/ 09, p

. 7 8 ) B e liev in g someone was try ing to g e t into th e apartme n t, Kr u pk a ran back in to hi s be dr oom and
gr a bbed a baseba ll bat. (N

. T

. , 1 1 /0 4/ 0 9, p

. 79 ) H e t h e n s t ood

a w ay fr om t h e do or an d watc h ed a s i t sh o ok fo r abo ut 1 0 to 15

se c o n ds

. (N. T

. , 1 1/0 4/09, p. 79 ) O n A u gust 2 8, 2 00 8, B rando n Kr up ka w a s a r eside n t of apartment M

- 10 1 at W issah i ckon A partments, 757 E ast Main S treet
, La n s d ale

, M ontg o mery C ou n ty

. ( N

. T

., 11 /04 /09

, p

. 77) At
approx i mate l y 12 : 22 p .m ., w hil e l yi n g i n bed watch i ng tel e vision, he heard a k nock at t h e fro nt door, w hi ch was s e cured w i th a do o r kn ob loc k an d dead b o l t

. (N.T.

, 1 1/ 04 /0 9

, pp

. 7 7, 79) Super i or Co u rt on M a rch 30, 2 0 12 and November 1 2, 2 0 13 as fo llows: T he re l evan t facts we r e set fort h by t hi s Co u rt's O p inions written to t h e I. FACTS AND PROCEDURAL HISTORY affirmed

. without a hearing. F or t h e reasons set fort h be l ow, th e O rder s h ou ld be 30, 20 1 5, dismiss in g his t hird Post Convic ti on R e li ef Ac t ( "PC RA ") Petition Defe n dant, L arry G u ess , appeals pro se from the Ord e r d at e d September f 's ) NOVEMBER

l.. .> , 2015 °

. ' O ' NE I LL, J , 1

. 0 OPINION LAR R Y GU E SS f ')

. ' ; t

. s 

### v. No. 98 1 3 -0 8 COM M ON W EALTH OF PEN N SY LV ANIA IN T HE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY , PENNSYLVANIA CRIMINAL DIVISION (I ) Circulated 03/24/2016 02:53 PM2 From inside his vehicle, Detective DiBonaventura identified himself as being with the Lansdale Police Department, and inquired of the two men whether [they] lived at the apartment. They responded that they did not live there, but were on the premises to visit a friend. (N.T., 11/04/09, p. 107) The two men were not able, however, to identify any friend living at the apartment complex. (N.T., 11/04/09, p. 108) Detective DiBonaventura positioned himself outside "M" building near his unmarked vehicle and a marked police cruiser while three uniformed officers went inside the building. Moments later Detective DiBonaventura saw two black males coming from a grassy area between buildings "M" and "N." (N.T., 11/04/09, pp. 102, 105) Both men had on white t-shirts, and one of the men had a dark jacket. (N.T., 11/04/09, p. 102) The men began to walk away "rapidly," looking back frequently in the direction of Detective DiBonaventura and ''M" building. (N.T., 11/04/09, pp. 103-104) Detective DiBonaventura then drove his vehicle across the parking lot toward the suspects. Within 10 minutes of the call, Lansdale police, including plain-clothes Detective Justin DiBonaventura, responded to a report of a burglary in progress at the apartment complex. (N.T., 11/04/09, pp. 88, 99) The suspects were described in the report as two black males, one wearing a white t-shirt, and the other wearing a black jacket. (N.T., 11/04/09, p. 99) They reportedly had last been seen in the area of the "M" building. (N.T., 11/04 /09, p. 99) Continuing to look through the peephole, Krupka observed the two males knocking on doors, turning the knobs and trying to "nudge" their way into other apartments. (N.T., 11/04/09, pp. 80- 81) In all, Krupka observed the two males unsuccessfully attempt to gain access to at least three other apartments. Krupka telephoned 911 after he saw the two men attempt to enter the third apartment. (N.T., 11/04/09, p. 85) !J l Once the shaking stopped, Krupka walked to the door and

looked out the peephole. From that vantage point, he could hear the same activity occurring at the apartment next door. (N.T., 11 / 04 / 09, p. 80) He then saw two black males in the hallway walk away from the next door apartment. Krupka observed one of the males wearing a white t-shirt, and the other wearing a black jacket. (N.T., 11 /04 /09, pp. 80, 84, 96)3 Defendant filed a direct appeal to the Superior Court on February 4, 2010. The Superior Court affirmed the judgment of sentence on December 2, 2010, and our Supreme Court denied a Petition for Allowance of Appeal on May 5, 2011. On November 5, 2009, the jury found Defendant guilty of all charges, with the exception of the offense of Identity Theft, which this court had dismissed at the close of the evidence. On January 15, 2010, this court sentenced Defendant to a term of 25 to 50 years imprisonment. Defendant, through trial counsel, filed a timely post-sentence motion, attacking the sufficiency and weight of the evidence produced by the Commonwealth. This court denied the post-sentence motion in an Order dated January 25, 2010. Kumar, who lived in apartment M-204 on the day in question, and whose credit card Defendant had dropped, also testified at trial. He stated that he was at work around the time of the incident. (N.T., 11/04/09, p. 128) Prior to leaving his apartment that morning, he locked the door by using the doorknob lock only, as was his habit, and not with the deadbolt. He had not given anyone permission to be in his apartment. (N.T., 11/04/09, pp. 128, 137) The credit card dropped by Defendant was one Kumar did not regularly use, but kept in a drawer in his bedroom. (N.T., 11/04/09, p. 134) At a jury trial that commenced on November 4, 2009, Defendant stood accused of Burglary (Apt. M-204), Criminal Conspiracy (Burglary), Criminal Attempt (Burglary - Apt. M-101), Possession of an Instrument of Crime (Plastic Hotel Placards), Criminal Trespass (Apt. M-204), Theft by Unlawful Taking (Credit Card of Ramana Kumar), Identity Theft and Receiving Stolen Property (Credit Card of Ramana Kumar). Krupka and Detective DiBonaventura testified to the previously detailed events. After Defendant dropped the credit card, both men were patted down. (N.T., 11/04 /09, p. 111) The police retrieved various pieces of jewelry from Defendant's pockets. (N.T., 11/04/09, pp. 111-112) Defendant and the other male, Kevin Jordan, subsequently were arrested. Detective DiBonaventura eventually exited his vehicle and asked the men if he could speak with them. During this interaction, Defendant dropped a credit card. (N.T., 11/04/09, p. 109) Detective DiBonaventura retrieved the card, which bore the name Ramana Kumar.4

alleging a constitutional violation. After a review of the record, on August 31, On or about August 13, 2015, the Defendant filed a third PCRA petition the time bar. petition, finding that it was untimely filed and did not satisfy any exception to 2014, the Superior Court affirmed the dismissal of the Defendant's second The Defendant appealed the dismissal of his second petition. On July 3, Trial Court Opinion, 11/ 13/ 13 pp. 1-4 (quoting Trial Court Opinion, 3/30/ 12 pp. 1-5) (footnotes omitted)).

Thereafter, on September 13, 2012, the Superior Court affirmed the trial court's denial of Defendant's first petition pursuant to the Post Conviction Relief Act. Defendant filed a prose second PCRA petition on May 16, 2013. After a review of the record, this Court sent Defendant a Notice of its intent to dismiss his PCRA petition without a hearing. Defendant filed a response to the Notice on July 11, 2013 in the form of a "Petitioner Motion for Reconsideration." Subsequently, on August 19, 2013, this Court denied the PCRA petition without a hearing. On February 2, 2012, PCRA counsel filed a timely Notice of Appeal with the Superior Court. This court then held a Grazier hearing on February 13, 2012, at the conclusion of which Defendant stated his desire to continue to proceed on appeal with counsel. Defendant, through counsel, subsequently complied with this court's directive that he produce a statement of errors in conformance with Pennsylvania Rule of Appellate Procedure 1925(b). After a hearing, this court denied the Amended Petition in an Order dated January 9, 2012. On January 23, 2012, PCRA counsel filed a Petition to Withdraw. This court issued an Order dated January 25, 2012, holding in abeyance a decision on the Petition pending the filing of a Notice of Appeal and a Grazier hearing to determine whether Defendant wanted to proceed on appeal without counsel. On June 9, 2011, Defendant filed a pro se Motion for PostConviction Collateral Relief. This court subsequently appointed Ethan O'Shea, Esquire to serve as PCRA counsel. Defendant, through counsel, filed an Amended Petition for Post-Conviction Relief on December 28, 2011.

1

· • ( Ii O )Additionally, 42 Pa.C.S. §9545(b)(l) dictates that any PCRA petition shall

5 support either in the record or from other evidence. Id. be denied if a petitioner's claim is patently frivolous and is without a trace of (citing Commonwealth v. Box, 451 A.2d 252 (Pa. Super. 1982)). A hearing may absolute." Commonwealth v. Granberry, 644 A.2d 204, 208 (Pa. Super. 1994) "[tjhe right to an evidentiary hearing on a post-conviction petition is not would be served by any further proceedings. Pa.R.Crim.P. 907. Furthermore, defendant is not entitled to post-conviction collateral relief, and no purpose hearing when there are no genuine issues concerning any material fact, the A petition for post-conviction collateral relief may be dismissed without a III. DISCUSSION 1. With regards to the instant appeal[,]Appellant argues that recent United States Supreme Court ruling in Johnson v. United States, holds that the residual clause is unconstitutional for three prior conviction(sic) for a violent felony under which appellant is sentenced. The above said case applies retroactively which enables appellant to over come (sic) the one-year time limitation set forth by 42 Pa.C.S.A. (b)( 1) andl.] therefore[,] appellant contends that his claim under the new holding should have been consider[ed] on its merits in the courts below. Defendant raises the following issue in his Concise Statement: II. ISSUES Defendant has since complied with this directive. ordered the Defendant to produce a Concise Statement of Errors; the Defendant's petition. This appeal followed. On October 14, 2015, this Court without a hearing. By Order of September 30, 2015, this Court dismissed the 2015, this Court sent the Defendant a notice of intent to dismiss his petition6

2011, after he did not seek certiorari within ninety days pursuant to United on May 5, 2011. Therefore, Defendant's judgment became final on August 5, affirmed, and the Supreme Court of Pennsylvania denied discretionary review convicted and then sentenced on January 15, 2010. The Superior Court Commonwealth v. Banks, 726 A.2d 374, 375 (Pa. 1999). Defendant was under the PCRA begins to run upon the conclusion of direct review. Pursuant to §9545(b)(3), the one-year period in which to file a petition authority to address the substantive claims. Id. 522 (Pa. Super. 2006)). Moreover, without jurisdiction, there is no legal 1280-81 (Pa. Super. 2013) (citing Commonwealth v. Chester, 895 A.2d 520, has jurisdiction over the petition." Commonwealth v. Lewis, 63 A.3d 1274, PCRA petition is untimely, neither [the Superior) Court nor the [PCRA] court "The PCRA's time restrictions are jurisdictional in nature. Thus, if a (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. 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 (ii) 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; (i) petition alleges and the petitioner proves that: be filed within one year of the date the judgment becomes final, unless the

() )7

U.S.C.A. §925(e}(2)(B)(ii)(emphasis added). The Court found that the italicized conduct that presents a serious potential risk of physical injury to another." 18 "burglary, arson, extortion, involves the use of explosives, or otherwise involves rights. Id. The residual clause of the ACCA defines "violent felony" as unconstitutionally vague and therefore violative of Johnson's due process Armed Career Criminal Act's ("ACCA") definition of "violent felony'' was In Johnson, the Supreme Court held that that residual clause of the Commonwealth v. Abdul-Salaam, 571 Pa. 219, 227, 812 A.2d 497, 501 (2002)). Commonwealth v. Taylor, 933 A.2d 1035, 1042 (Pa. Super. 2007)(quoting petitioner can assert retroactive application of the right in a PCRA petition." have also ruled on the retroactivity of the new constitutional right, before the that court to apply retroactively' means the court announcing the rule must have stated, "for purposes of subsection (iii), the language 'has been held by satisfied an exception to the time bar. He is mistaken. Pennsylvania courts 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), to support his claim that he has found in §9545(b)(l)(iii). The Defendant relies on Johnson v. United States, met, it appears from his filings that he is attempting to satisfy the exception While the Defendant does not specify which exception he believes he has court can review his substantive claims. limitation. Therefore, he must satisfy one of the time-bar exceptions before this Petition was filed August 13, 2015, approximately three years beyond the time per §9545(b)(l), to file for Post Conviction Relief Act review. The instant, third States Supreme Court Rule 13. He then had one year, until August 5, 2012,

U1 ~ · • 1'8

Because his second PCRA petition is untimely and he has failed to constitute "crimes of violence," he is not entitled to relief based on Johnson. creates no uncertainty about whether the crimes committed by the Defendant violence in §9714(g). Id. at 29. Therefore, because the Pennsylvania statute a prior conviction for robbery, which is also one of the enumerated crimes of violence. N.T., 1/ 15/ 10 pg. 28. This Court also found that the Defendant had the Defendant had a prior conviction for murder, which is clearly a crime of mandatory minimum sentence for a third strike offender, this Court found that present, which is one of the enumerated crimes in §9714(g). In imposing a Instantly, the Defendant was convicted of attempted burglary, with a person list of clearly enumerated crimes of violence. 42 Pa. C.S.A. §9714(g). to be unconstitutional, does not contain similarly vague language, but rather a statute under which the Defendant was sentenced, which has not been found Defendant was not sentenced under this federal statute. The Pennsylvania Furthermore, even if Johnson is found to apply retroactively, the jurisdiction to address the merits of his claim. the exception to the time bar found in §9545(b)(l)(iii) and the Court is without u l Circuit has yet to address this issue. Therefore, the Defendant cannot satisfy did not address the retroactive application of their holding and the Third Johnson, 135 S.Ct. at 2563 (emphasis added). However, the Supreme Court enumerated offenses, or the remainder of the Act's definition of a violent [eloruj." decision does not call into question the application of the Act to the four language "violates the Constitution's guarantee of due process

... Today's

1\ l F i 1



## , .. ~ Vi 0
J'.t l
; :: I9

Copies mailed on iJ 

## /.;Jt.f./tS

to the following: Robert Falin, Esq. (District Attorney's Office) La Gues~I Somerset, 1600 Walters Mill Rd. Somerset, PA 15510-0001 BY THE COURT: Based upon the foregoing, the Order should be affirmed CONCLUSION 

### IV. i'<'l without a hearing.
i, i ~ unnecessary. Therefore, the court did not err in denying Defendant's petition

claim is meritless and an evidentiary hearing would have been frivolous and jurisdiction to address the substantive claims raised therein. Defendant's establish that any exceptions to the time-bar apply, this Court does not have