Com. v. Sherrill, D., Jr.
Com. v. Sherrill, D., Jr. No. 761 MDA 2016
| Pa. Super. Ct. | Feb 21, 2017Background
- Donald J. Sherrill, Jr. was convicted by a jury of attempted homicide, aggravated assault, conspiracy to commit aggravated assault, and escape; he received an aggregate sentence of 11 to 22 years in April 2006.
- Direct appeals were pursued; this Court affirmed and the Pennsylvania Supreme Court denied allowance of appeal in 2007, making the judgment of sentence final on November 14, 2007.
- Sherrill filed a first PCRA petition in April 2008; it was dismissed in March 2011 and his appeal was ultimately dismissed for failure to file a brief in 2013.
- In February 2016 Sherrill filed a second, pro se PCRA petition alleging (inter alia) ineffective assistance of counsel for failing to investigate his mental-health history and that prison officials interfered with his ability to timely pursue collateral relief by misplacing or destroying legal materials.
- The PCRA court issued a Rule 907 notice and dismissed the 2016 petition as untimely in March 2016; Sherrill appealed. The Superior Court reviewed timeliness and jurisdictional issues before reaching the merits.
Issues
| Issue | Sherrill's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Whether the 2016 PCRA petition is timely or fits an exception | The petition is timely under the governmental-interference exception because prison officials lost/destroyed legal materials needed to file earlier | Petition is untimely and Sherrill failed to plead or prove a timeliness exception or show when interference occurred within the 60-day carve-out | Petition is untimely; Sherrill failed to establish the §9545(b)(1)(i) exception or the 60-day requirement, so court lacked jurisdiction and dismissal affirmed |
| Whether ineffective assistance of counsel claim (failure to investigate mental-health history) may be considered | Counsel failed to investigate mental health, denying effective assistance under Sixth Amendment/Pa. Const. art. I § 9 | Claim is procedurally barred by untimeliness; court need not reach merits absent an exception | Court did not reach the merits because the petition was jurisdictionally time-barred |
Key Cases Cited
- Ragan v. Commonwealth, 923 A.2d 1169 (Pa. 2007) (standard for appellate review of PCRA order)
- Bennett v. Commonwealth, 930 A.2d 1264 (Pa. 2007) (PCRA timeliness is jurisdictional and cannot be excused except by statutory exceptions)
- Brown v. Commonwealth, 48 A.3d 1275 (Pa. Super. 2012) (deference to PCRA court factual findings when supported by record)
- Anderson v. Commonwealth, 995 A.2d 1184 (Pa. Super. 2010) (same principles on review of PCRA factual findings)
- Preston v. Commonwealth, 904 A.2d 1 (Pa. Super. 2006) (failure to include matters not in certified record cannot be considered on appeal)
- Davis v. Commonwealth, 867 A.2d 585 (Pa. Super. 2005) (Pa.R.Crim.P. 114 notice requirements are mandatory)
- Johnston the Florist, Inc. v. TEDCO Construction Corp., 657 A.2d 511 (Pa. Super. 1995) (appellate principle of treating as done that which should have been done)