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

COMMONWEALTH OF PENN SYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

TAHREEL MALEEK TOWNSEND
Appellant No. 2112 EDA 2014

Appeal from the PCRA Order of July 1 , 2014 In the Court of Common Pleas of Lehigh County Criminal Division at No. : CP

- 39

- CR

- 0003136

- 2008

BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.: FILED FEBRUARY 20, 2015
Tahreel Maleek Townsend appeals the July 1 , 2014 1 order that

dismissed his pro se petition for relief pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S.A. §§ 9541

- 46. We affirm.

The PCRA court provided the following history of this case:
On October 1, 2009, following a jury trial that was conducted from September 28, 2009, through October 1, 2009, [Townsend] was found guilty of Murder of the First Degree[, 18 Pa.C.S.A. § 2502(a) , ] and Criminal C onspiracy to Commit Criminal Homicide[, 18 Pa.C.S.A. § 903(a)(1).] Thereafter, on October 30, 2009, [Townsend] was sentenced to a term of life imprisonment in a state correctional institution on the charge of Murder of the First Degree. On the same date, [Townsend] was sentenced to a term of imprisonment of not less than ten (10)

____________________________________________

1 Although t he order was dated June 26, 2014, it was not filed and docketed until July 1, 2014. We have amended the appeal paragraph accordingly.J

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years nor more than twenty (20) years on the charge of Criminal Conspiracy to Commit Criminal Homicide. This sentence was ordered to run consecutively to the sentence[] imposed on the charge of Murder of the First Degree. Subsequently, on November 19, 2009, [Townsend] filed a notice of Appeal with the Superior Court of Pennsylvania. By Order dated August 11, 2011, the Superior Court of Pennsylvania affirmed this Court’s judgmen t of sentence. Then, on or about September 12, 2011, [Townsend] filed a Petition for Allowance of Appeal. On March 15, 2012, the Supreme Court of Pennsylvania denied [Townsend’s] petition. Subsequently, [Townsend] filed a timely pro se Motion for Post C onviction Collateral Relief. Consequently, on June 25, 2012, [the PCRA court] appointed Robert Long, Esquire, to represent [Townsend] on his Motion for Post Conviction Collateral Relief. On July 27, 2012 and October 11, 2012, Attorney Long filed an Amend ed Petition for Post Conviction Collateral Relief and a Second Amended Petition for Post Conviction Collateral Relief, respectively. An evidentiary hearing relative to [Townsend’s] motion was conducted before [the PCRA court] on October 1 8, 2012. On Nove mber 9, 2012, [the PCRA court] denied [Townsend’s] Motion for Post Conviction Collateral relief. [ 2 ] Then, on May 27, 2014, [Townsend] filed a second Motion for Post Conviction Collateral Relief. . . .

PCRA Court Opinion , 8/4/2014, at 1

- 2 (footnotes omitt ed).
On June 2, 2014, the PCRA court filed and served a notice of intent to

dismiss Townsend’s second PCRA petition pursuant to Pa.R.Crim.P. 907. The

basis for the notice was that Townsend’s petition was untimely. Townsend
filed a response in which he a sserted that he had invoked the newly

-

____________________________________________

2 On November 29, 2012, Townsend appealed the denial of his PCRA petition to this Court. On September 25, 2013, we affirmed the PCRA court. Commonwealth v. Townsend , 3271 EDA 2012 (Pa. Super. September 25, 2013) (unpublished memorandum). On October 23, 2013, Townsend filed a petition for allowance of appeal with the Pennsylvania Supreme Court. On March 25, 2014, it was denied. Commonwealth v. Townsend , 87 A.3d 816 (Pa. 2014).J

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discovered fact exception to the PCRA time bar. On July 1, 2014, the PCRA

court dismissed Townsend’s petition.
On July 14, 2014, Townsend filed a notice of appeal. On July 18,
2014, the PCRA court ordered Townsend to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). On July 30, 2014,
Townsend timely complied. On August 4, 2014, the PCRA court issued its
Pa.R.A.P. 1925(a) opinion , which incorporated the rationale set forth in i ts
June 2, 2014 Rule 907 notice.
Townsend raises the following issues for our review:

1. Whether counsel provided ineffective assistance of counsel by filing a defective P.C.R.A. Brief which did not support or substantiate the legal claims in which [Townsend] sought relief on as well as the raising of ineffective assistance of counsel which is guaranteed by the U.S. Const. and the 6 th Amend. and Art. 1 Sec. 9 of the Pa Const.

2. Whether trial counsel provided [Townsend] ineffective assistance of counsel during tr ial and at sentencing.

3. Whether [the] sentencing court err ed when it sentenced [Townsend] to an illegal sentence of life in prison without parole under 42 Pa.C.S. sec. 9715 without any statuto ry authorization to impose and add a sentence condition which was illegal.

4. Whether [the] trial court violated [Townsend’s] procedural and substantive due process violation [ sic ] when it failed to follow the mandated rules and provisions of 42 Pa.C.S. sec. 9715(B), 42 Pa.C.S. sec. 9711, 42 Pa.C.S. sec. 9721(A), 18 Pa.C.S. sec. 1102(a) and Pa.R.Crim.P. rule 802 and Pa.R.Crim.P. rule 808.

5. Whether [the] trial court erred when it sentenced [Townsend] to an illegal sentence of life imprisonment which is to be illegally carried out immediately in the state corr. without a signed notarized authenticated or even an “existing”J

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- sentencing order specifying the sentence imposed pursuant to 42 Pa.C.S. sec. 9764.

6. Whether trial counsel was ineffe ctive for giving erroneous advic e to withdraw [a plea to] 3 rd degree murder because he’d guaranteed and assure [Townsend’s] freedom but instead [Townsend] ended up getting a life sentence plus 10

- 20 yrs.

7. Whether [Townsend] had raised and established a clear cut case of manifest injustice when here he shows he’d i nvoked the exception and met all of the requirements that were needed to invoke the exception to the timeliness rule under Pa.R.A.P. 720(C) after discovered evidence where he sho w ed and has presented abundance of facts and evidence pursuant to the Lehigh C ounty own clerk’s admission that the documents requested “does not even exist” as mandated triggering the provision of 42 Pa.C.S. 9545(B)(1)(ii) which were indeed unknown to him during sentencing.

Townsend’s Brief at 12 (minor modification to capitalizatio n , spelling, and
punctuation for clarity).
Before reaching the merits of Townsend’s appeal, we must ensure that
we have jurisdiction.
The filing mandates of the PCRA are jurisdictional in nature and are strictly construed. Commonwealth v. Stokes , 959 A.2 d 306, 309 ( Pa. 2008). The question of whether a petition is timely raises a question of law. See Commonwealth v. Fahy , 959 A.2d 312, 316 ( Pa. 2008). Where the petitioner raises questions of law, our standard of review is de novo and our scope of review plenary. Commonwealth v. Colavita , 993 A.2d 874, 886 ( Pa. 2010). An untimely petition renders this Court without jurisdiction to afford relief. Commonwealth v. Gandy , 38 A.3d 899 (Pa. Super. 2012).

Com monwealth v. Taylor , 65 A.3d 462, 468 ( Pa. Super. 2013) (citations
modified).
To be filed timely, a petition must comply with the following criteria :J

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(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 da te 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 Constitut ion 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 ass erted 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 invok ing an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented. (3) For purposes of this subchapter, a judgment becomes final at the conclusion of direct review, including discretionary review in th e Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review.

42 Pa.C.S.A. § 9545

.
On direct appeal, the Pennsylvania Supreme Court denied Townsend’s
petition for allowance of appeal on Ma rch 15, 2012. He did not seek review
in the United States Supreme Court

. Therefore, h is judgment of sentence

became final on June 13 , 2012 when time to seek such review expired.
Thus, he had until on or about June 13, 2013 to file a timely PCRA petition

.
Townsend filed his second PCRA petition on May 27, 2014 and , therefore, itJ

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is facially untimely. To invoke the PCRA court’ s and our jurisdiction,
Townsend must plead and prove one of the exceptions to the time bar
enumerated in section 9545(b). See Co mmonwealth v. Cintora , 69 A.3d
759, 763 ( Pa. Super. 2013)

.
Townsend argues that he has satisfied the newly

- discovered fact
exception pursuant to section 9545(b)(1)(ii)

. Townsend asse r ts that ,
sometime after March 25, 2014 , he discovered that no signed sentencing

order existe d in his case . Townsend also asserts that he could not have
discovered this fact earlier and that he filed his petition within sixty days of
learning tha t there was no signed sentencing order.

First, Townsend is factually mistaken that there are no signed
sentencing orders in the record

. T he certified record contains two signed
and dated sentencing sheets 3 reflecting Townsend’s sentence. 4 Further, the
sentence was pronounced in open court. Notes of Testimony, 10/30/2009,

at 20

- 21. The docket reflects the same sentence. There is no question that
Townsend was sentenced, even if no order existed. See Joseph v. Glunt , 96 A.3d 365, 372 (Pa. Super. 2014) ( finding sufficient authority to maintain

____________________________________________

3 Although tit led a sentencing sheet, the documents have all the hallmarks of an order. Each list s a charge for which Townsend was convicted and his related sentence. They are dated and bear the signature of the presiding judge. They are also docketed as sentencing ord ers.

4 While the documents appear to be photocopies, each is signed and stamped by the clerk of judicial records, attesting that it is a true and correct copy of the original.J

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a priso ner’s detention, even in the absence of a sentencing order, when
docket and sentencing transcript reflect sentence).
Further, o ur Supreme Court has held that , “ 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. ” Commonwealth v. Chester , 895 A.2d 520, 523 ( Pa. 2006)

. The record in Townsend’ s case i s a public

record and is available for inspection. He could have discovered at any time
that the sentencing sheet s were in the record along with the docket and
transcript that reflect his sentence.

T o meet this e xception, the newly

- discovered fac t could not have been

discoverable earlier through the exercise of due diligence. See 42 Pa.C.S.A.
§ 9545(b)(1)(ii). Townsend contends that he did not became aware of the
lack of sentencing order until he received a copy of his sentencing sheet with

a post

- it stating that there was no sentencing order. Townsend does not
explain why he could not have discovered th is alle ged flaw prior to his
current PCRA petition.
Finally, Townsend has the burden to demonstrate that he filed his
claim within sixty days of its discovery. See 42 Pa.C.S.A. § 9545(b)(2).
Townsend baldly asserts that he filed his PCRA petition within sixty days of
the receipt of his sentencing sheet, but he does not provide any information
about the date of receipt or proof, such as a copy of the note or post

- marked
envelope. Therefore, Townsend has not met his burden to prove that the
newly

- discovered fac t exception to the time bar applies. Thus, his PCRAJ

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petition was untimely and this Court is without jurisdiction to review its

merits.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/20/2015