Com. v. Washington, C. ( 2014 )

J-S73025-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CORY WASHINGTON
Appellant No. 814 MDA 2014
Appeal from the PCRA Order of April 28, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No.: CP-06-CR-0004242-2008
BEFORE: BOWES, J., WECHT, J., and MUSMANNO, J.
MEMORANDUM BY WECHT, J.: FILED DECEMBER 19, 2014
Cory Washington appeals pro se from the order dismissing his second
petition pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-46. We affirm.
On April 23, 2009, Washington entered an open guilty plea to delivery
of a controlled substance and criminal conspiracy.1 The court sentenced
Washington to an aggregate term of not less than eight nor more than
sixteen years’ incarceration on December 16, 2009. Washington did not file
a direct appeal, but filed a pro se motion to modify sentence nunc pro tunc
on May 17, 2010. The court, treating the motion as a first PCRA petition, 2
____________________________________________
1
35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. § 903(a)(1)(2).
2
See Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super.
2011) (holding that a defendant’s motion to correct his sentence was
(Footnote Continued Next Page)
J-S73025-14
appointed counsel. On June 22, 2010, counsel filed a petition to withdraw
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc),
concluding that there were no meritorious issues raised in Washington’s pro
se motions or letters.
The court granted the motion to withdraw on June 22, 2010, and on
June 30, 2010, issued notice of its intention to dismiss Washington’s petition
pursuant to Pa.R.Crim.P. 907. Washington responded pro se, contending
that PCRA counsel improperly argued that his sentence was illegal when
Washington wished to argue that his sentence was excessive. The PCRA
court concluded that this new argument was meritless, because “our law
does not allow a defendant to raise an excessive sentence claim in a PCRA
petition,” and dismissed the petition on September 2, 2010. Order,
9/2/2010. Washington filed an untimely request for extension of time to file
a notice of appeal on October 22, 2010, which the PCRA court denied on
October 25, 2010.
On May 9, 2011, Washington filed a second pro se PCRA petition. The
PCRA court provided notice of intent to dismiss the petition as untimely on
May 12, 2011. Washington responded, and the court dismissed the petition
on May 31, 2011. Washington timely appealed, and this Court affirmed the
_______________________
(Footnote Continued)
properly addressed as a PCRA petition because “any petition filed after the
judgment of sentence becomes final will be treated as a PCRA petition”).
-2-
J-S73025-14
PCRA court’s decision. See Commonwealth v. Washington, No. 1041
MDA 2011 (Pa. Super. filed July 19, 2012).
On January 10, 2013, Washington filed a pro se petition for writ of
habeas corpus. The court, concluding that his “allegations could have been
addressed through the regular course of direct appellate review or post-
conviction relief,” denied the petition on January 24, 2013. See
Commonwealth v. McNeil, 665 A.2d 1247, 1250 (Pa. Super. 1995)
(“Pennsylvania law explicitly states that in cases where a person has been
restrained by virtue of sentence after conviction for a criminal offense, the
writ of habeas corpus shall not be available if a remedy may be had by
post[-]conviction hearing proceedings authorized by law.”).
On April 10, 2014, Washington filed the instant pro se motion to
modify and reduce sentence. The PCRA court, observing that Washington’s
motion raised an identical challenge to the legality of his sentence claimed in
his first PCRA petition, concluded that he was not entitled to appointment of
counsel or post-conviction collateral relief and dismissed the petition on April
28, 2014. Washington timely appealed on May 8, 2014, and on the same
day, filed a statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). The PCRA court entered a statement in lieu of an opinion
pursuant to Pa.R.A.P. 1925(a) on July 9, 2014.
Washington raises two questions for our review:
I. Whether the Commonwealth and sentencing [court]
sentenced [Washington] to a mandatory sentence, where they
-3-
J-S73025-14
failed to meet the burden of proving beyond a reasonable doubt,
that a mandatory sentence did apply[?]
II. Whether trial counsel failed to challenge, where [the court]
went with an aggravated sentence without [cause] [sic]. Also
appella[te] counsel for deeming that there was no error in
sentence process, where it was clearly unconstitutional, where
the “element” of the crime was not proving beyond a reasonable
doubt[?]
Washington’s Brief at 4.
When reviewing the denial of a PCRA petition, our scope of
review is limited by the parameters of the act. Our standard of
review permits us to consider only whether the PCRA court’s
determination is supported by the evidence of record and
whether it is free from legal error. Moreover, in general we may
affirm the decision of the [PCRA] court if there is any basis on
the record to support the [PCRA] court’s action; this is so even if
we rely on a different basis in our decision to affirm.
Commonwealth v. Heilman, 867 A.2d 542, 544 (Pa. Super. 2005)
(citation omitted).
Preliminarily, because the time limits imposed by the PCRA are
jurisdictional and must be strictly construed, see Commonwealth v. Fahy,
959 A.2d 312, 315 (Pa. 2008), we will begin by addressing the timeliness of
Washington’s motion to modify and reduce sentence, properly construed as
a serial petition pursuant to the PCRA. See Jackson, 30 A.3d at 521.
A PCRA petition, “including a second or subsequent petition, shall be
filed within one year of the date the judgment [of sentence] becomes
final[.]” 42 Pa.C.S.A. § 9545(b)(1).
Pennsylvania law makes clear no court has jurisdiction to hear
an untimely PCRA petition. Statutory time restrictions are
mandatory and jurisdictional in nature, and may not be altered
-4-
J-S73025-14
or disregarded to reach the merits of the claims raised in the
petition. . . .
The three statutory exceptions to the timeliness provisions in the
PCRA allow for very limited circumstances under which the late
filing of a petition will be excused. 42 Pa.C.S.A. § 9545(b)(1).
To invoke an exception, a petition must allege and the petitioner
must prove:
(i) the failure to raise a 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 by this section and has been held by that court to
apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). The PCRA specifically
provides that a petitioner raising one of the statutory exceptions
to the timeliness requirements must affirmatively plead and
prove the exception. Id. The statutory exceptions to the
timeliness requirements of the PCRA are also subject to a
separate time limitation and must be asserted within sixty (60)
days of the date the claim could have been first presented. 42
Pa.C.S.A. § 9545(b)(2). As such, when a PCRA [petition] is not
filed within one year of the expiration of direct review, or not
eligible for one of the exceptions, or entitled to one of the
exceptions, but not filed within 60 days of the date that the
claim could have been first brought, the trial court has no power
to address the substantive merits of a petitioner’s PCRA claims.
Commonwealth v. Taylor, 933 A.2d 1035, 1038-39 (Pa. Super. 2007)
(footnote, quotation marks and case citations omitted). Accordingly, when a
petition is filed outside the one-year time limitation, “our review focuses on
-5-
J-S73025-14
whether Appellant has pled and proven that one of the three limited
exceptions to the timeliness requirements of the PCRA apply.”
Commonwealth v. Wilson, 824 A.2d 331, 335 (Pa. Super. 2003) (en
banc).
Here, Washington’s judgment of sentence became final on January 15,
2010. See 42 Pa.C.S.A. § 9545(b)(3); see also Pa.R.A.P. 903(c)(3) (“In a
criminal case in which no post-sentence motion has been filed, the notice of
appeal shall be filed within 30 days of the imposition of the judgment of
sentence in open court.”). Hence, in order to comply with the filing
requirements of the PCRA, Washington’s petition had to be filed by January
18, 2011.3 Because Washington’s petition was filed on April 10, 2014, it is
patently untimely and the PCRA court lacked jurisdiction to review it unless
he pleaded and proved one of the statutory exceptions to the time bar under
42 Pa.C.S.A. § 9545(b)(1).
In the instant case, Washington cites to the third exception, arguing
that “[t]he holding [of] Alleyne [v. United States, 133 S. Ct. 2151(2013)], renders unconstitutional at least three relevant provisions of the
Pennsylvania Mandatory Minimum Statutes.” Washington’s Brief at 9.
However, the Supreme Court decided Alleyne on June 17, 2013, and
Washington’s petition, filed 297 days later, fell well outside the sixty-day
____________________________________________
3
January 15, 2011 fell on a Saturday, and Monday, January 17, 2011,
was Martin Luther King, Jr. Day, a federal holiday.
-6-
J-S73025-14
window in which he could have asserted an exception to the time bar on this
ground. See 42 Pa.C.S.A. § 9545(b)(2). Accordingly, the PCRA court did
not err or abuse its discretion in dismissing Washington’s petition when it
was patently untimely. See Heilman, 867 A.2d at 544. Because
Washington’s petition is untimely, we are without jurisdiction to address the
merits of his issues. See Taylor, 933 A.2d at 1038-39.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2014
-7-