HomeMy WebLinkAboutCP-21-CR-1459-2000
COMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
DAVID LEE BARCLAY
NO. CP-21-CRIMINAL 1459 - 2000
IN RE: OPINION PURSUANT TO Pa. RA.P. 1925
Guido, J., March
, 2007
On August 2, 2006, David Lee Barclay filed a Motion for Relief under the Post
Conviction Relief Act. 1 On October 12, 2006 after an on the record discussion with
counsel, we dismissed the petition as having been untimely filed.2 Petitioner has filed the
instant appeal from that order.
Factual Background
On February 1, 2001 petitioner pled guilty to third degree murder, kidnapping and
a firearms charge. Pursuant to a plea agreement he was sentenced on that same day to
serve 33 - 67 years in a state correctional institution? No direct appeal was filed.
On March 5, 2003 petitioner filed a motion for relief under the Post Conviction
Relief Act. On April 11, 2003, after consultation with counsel, petitioner withdrew the
petition. On April 19, 2005 he filed a second petition for relief. On August 1,2005,
again after consulting with counsel, he withdrew that second petition.
1 42 Pa. C.S.A. 9541, et seq.
2 Petitioner was in attendance at the on the record discussion.
3 He had been charged with first degree murder. Furthermore, the Commonwealth had filed and served a
notice of aggravating circumstances paving the way for it to seek the death penalty.
NO. CP-21-CRIMINAL 1459 - 2000
The instant petition for relief was filed on August 2, 2006. We appointed counsel
and scheduled an evidentiary hearing for October 16, 2006.
Before the first witness was called the Commonwealth moved to dismiss the
petition under Section 9545 (b) (1) of the Act as having been untimely filed. That section
provides as follows:
(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
(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.
42 Pa. C.S.A. 9545 (b)(I).
It was clear from the record that the instant petition was filed more than one year
after the judgment became final. It was also clear that petitioner had not alleged, nor was
he ready to prove, that any of the exceptions applied.4 Therefore, we had no alternative
but to dismiss the petition.
4 See Transcript of Proceedings, October 12,2006, pp. 3-4.
2
NO. CP-21-CRIMINAL 1459 - 2000
DATE
Michelle H. Sibert, Esquire
District Attorney's Office
John A. Abom, Esquire
F or the Defendant
:sld
Edward E. Guido, 1.
3