Com. v. Parham, P. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PAUL PARHAM,
Appellant No. 1737 EDA 2015
Appeal from the PCRA Order of May 11, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0306161-1997
BEFORE: BENDER, P.J.E., OLSON and PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 12, 2016
Appellant, Paul Parham, appeals pro se from the order entered on May
11, 2015, which dismissed his third petition filed under the Post-Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In 1999, a jury found Appellant guilty of aggravated assault and
possession of an instrument of crime and, on May 18, 2000, the trial court
sentenced Appellant to serve an aggregate term of nine to 18 years in
prison.1 On November 21, 2000, Appellant’s direct appeal to this Court was
dismissed for failure to file a brief. Superior Court Order, 11/21/00, at 1.
In 2001, Appellant filed a PCRA petition seeking the reinstatement of
his direct appellate rights and, on September 17, 2001, the PCRA court
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1
18 Pa.C.S.A. § 2702 and 907, respectively.
*Retired Senior Judge assigned to the Superior Court
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entered an order granting Appellant relief. The PCRA court’s order
reinstated Appellant’s direct appellate rights nunc pro tunc, directed the
appointment of new counsel, and declared that Appellant’s notice of appeal
shall be filed “within [30] days after said appointment.” PCRA Court Order,
9/17/01, at 1. New counsel was appointed on September 27, 2001;
however, Appellant did not file a notice of appeal to this Court.
On February 26, 2006, Appellant filed his first PCRA petition. See
Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa. Super. 2013) (“when
a PCRA petitioner’s direct appeal rights are reinstated nunc pro tunc in his
first PCRA petition, a subsequent PCRA petition will be considered a first
PCRA petition for timeliness purposes”). The PCRA court dismissed
Appellant’s petition on October 9, 2007; Appellant did not file a notice of
appeal to this Court.
Appellant filed his second PCRA petition on October 25, 2007. This
petition was dismissed on April 14, 2008, we affirmed the dismissal on
February 9, 2009, and the Pennsylvania Supreme Court denied Appellant’s
petition for allowance of appeal on September 28, 2009. Commonwealth
v. Parham, 972 A.2d 559 (Pa. Super. 2009) (unpublished memorandum) at
1-6, appeal denied, 908 A.2d 607 (Pa. 2009).
On December 27, 2010, Appellant filed a pro se “Petition for Writ of
Habeas Corpus Ad Subjiciendum,” where Appellant claimed that he was
entitled to relief because: 1) his first PCRA counsel provided him with
ineffective assistance, and 2) the initial PCRA court erred when it failed to
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grant him an evidentiary hearing on his claims. Appellant’s “Petition for Writ
of Habeas Corpus Ad Subjiciendum,” 12/27/10, at 8 and 11. Both of these
claims are cognizable under the PCRA; hence, Appellant’s “Petition for Writ
of Habeas Corpus Ad Subjiciendum” constitutes Appellant’s third PCRA
petition. See 42 Pa.C.S.A. § 9542 (the PCRA “is the sole means of obtaining
collateral relief and encompasses all other common law and statutory
remedies . . . including habeas corpus and coram nobis”); Commonwealth
v. West, 938 A.2d 1034, 1043 (Pa. 2007) (“[t]he PCRA subsumes all forms
of collateral relief, including habeas corpus, to the extent a remedy is
available under such enactment”).
Appellant amended his third PCRA petition two times: first on May 9,
2014 and then again on June 23, 2014. Appellant’s May 9, 2014 filing was
entitled “Petition for Habeas Corpus Relief Pursuant to Article I, Section 14 of
the Pennsylvania Constitution” (hereinafter “Appellant’s Petition for Habeas
Corpus Relief”). Within this filing, Appellant claimed that his sentence was
illegal because “no sentencing order exist[s] for the sentence imposed.”
Appellant’s Petition for Habeas Corpus Relief, 5/9/14, at 6. Further,
Appellant claimed that the PCRA’s one-year time-bar did not apply to his
claim, as he was raising an illegal sentencing claim. Id. at 3.
Appellant then filed his second amendment to his third PCRA petition
on June 23, 2014. This filing was titled “Petition for Post[-]Conviction Relief
and Habeas Corpus Relief” (hereinafter “Appellant’s Second Amended Third
PCRA Petition”). Appellant’s Second Amended Third PCRA Petition raised
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one claim: that his sentence is illegal because he was sentenced to a
mandatory minimum term of incarceration under 42 Pa.C.S.A. § 9712 and,
in Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013), the
United States Supreme Court effectively rendered Section 9712
unconstitutional. See Appellant’s Second Amended Third PCRA Petition,
6/23/14, at 1-9.
On March 26, 2015, the PCRA court provided Appellant with notice that
it intended to dismiss his third PCRA petition in 20 days, without holding a
hearing. PCRA Court Order, 3/26/15, at 1; see also Pa.R.Crim.P. 907(1).
The PCRA court finally dismissed Appellant’s third PCRA petition on May 11,
2015 and Appellant filed a timely notice of appeal to this Court. We now
affirm the dismissal of Appellant’s untimely, serial PCRA petition.2
We “review an order granting or denying PCRA relief to determine
whether the PCRA court’s decision is supported by evidence of record and
whether its decision is free from legal error.” Commonwealth v. Liebel,
825 A.2d 630, 632 (Pa. 2003).
The PCRA “provides for an action by which persons convicted of crimes
they did not commit and persons serving illegal sentences may obtain
collateral relief.” 42 Pa.C.S.A. § 9542. As the statute declares, the PCRA “is
the sole means of obtaining collateral relief and encompasses all other
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2
We note that the Commonwealth did not file a brief in this appeal.
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common law and statutory remedies . . . including habeas corpus and coram
nobis.” Id.; see also Commonwealth v. Ahlborn, 699 A.2d 718, 721 (Pa.
1997). Thus, under the plain terms of the PCRA, “if the underlying
substantive claim is one that could potentially be remedied under the PCRA,
that claim is exclusive to the PCRA.” Commonwealth v. Pagan, 864 A.2d
1231, 1233 (Pa. Super. 2004) (emphasis in original).
Appellant raised the following claims in third PCRA petition: 1) his first
PCRA counsel provided him with ineffective assistance; 2) the initial PCRA
court erred when it failed to grant him an evidentiary hearing on the claims
he raised in his first PCRA petition; 3) his sentence is illegal because “no
sentencing order exist[s] for the sentence imposed;” and, 4) his sentence is
illegal because he was sentenced under a now-unconstitutional mandatory
minimum sentencing statute. Appellant’s “Petition for Writ of Habeas Corpus
Ad Subjiciendum,” 12/27/10, at 8 and 11; Appellant’s Petition for Habeas
Corpus Relief, 5/9/14, at 6; Appellant’s Second Amended Third PCRA
Petition, 6/23/14, at 1-9.
The PCRA encompasses all of Appellant’s claims for relief. See 42
Pa.C.S.A. § 9543(a)(2)(ii) (ineffective assistance of counsel claims are
cognizable under the PCRA); 42 Pa.C.S.A. § 9543(a)(2)(vii) (illegal
sentencing claims are cognizable under the PCRA); 42 Pa.C.S.A. § 9544(b)
(Appellant’s claim that the PCRA court erred during his first PCRA proceeding
is waived because Appellant could have raised the claim “in a prior state
post[-]conviction proceeding”).
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Appellant’s claims thus fall under the rubric of the PCRA and, since the
PCRA encompasses all of Appellant’s claims, Appellant “can only find relief
under the PCRA’s strictures.” Pagan, 864 A.2d at 1233; see also
Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011)
(“[petitioner’s legality of sentence] claim is cognizable under the PCRA . . . .
[Thus, petitioner’s] ‘motion to correct illegal sentence’ is a PCRA petition and
cannot be considered under any other common law remedy”).
The PCRA contains a jurisdictional time-bar, which is subject to limited
statutory exceptions. This time-bar demands that “any PCRA petition,
including a second or subsequent petition, [] be filed within one year of the
date that the petitioner’s judgment of sentence becomes final, unless [the]
petitioner pleads [and] proves that one of the [three] exceptions to the
timeliness requirement . . . is applicable.” Commonwealth v. McKeever,
947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b). Further,
since the time-bar implicates the subject matter jurisdiction of our courts,
we are required to first determine the timeliness of a petition before we
consider the underlying claims. Commonwealth v. Yarris, 731 A.2d 581,
586 (Pa. 1999). Our Supreme Court explained:
the PCRA timeliness requirements are jurisdictional in
nature and, accordingly, a PCRA court is precluded from
considering untimely PCRA petitions. See, e.g.,
Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)
(stating that “given the fact that the PCRA's timeliness
requirements are mandatory and jurisdictional in nature, no
court may properly disregard or alter them in order to reach
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the merits of the claims raised in a PCRA petition that is
filed in an untimely manner”); Commonwealth v. Fahy,
737 A.2d 214, 220 (Pa. 1999) (holding that where a
petitioner fails to satisfy the PCRA time requirements, this
Court has no jurisdiction to entertain the petition). [The
Pennsylvania Supreme Court has] also held that even where
the PCRA court does not address the applicability of the
PCRA timing mandate, th[e court would] consider the issue
sua sponte, as it is a threshold question implicating our
subject matter jurisdiction and ability to grant the requested
relief.
Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003).
Appellant’s judgment of sentence became final in 2001, when his time
for filing a notice of appeal to this Court expired. As Appellant did not file
his current petition until December 27, 2010, the current petition is
manifestly untimely and the burden thus fell upon Appellant to plead and
prove that one of the enumerated exceptions to the one-year time-bar
applied to his case. See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.
Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008) (to properly invoke a
statutory exception to the one-year time-bar, the PCRA demands that the
petitioner properly plead and prove all required elements of the relied-upon
exception).
Here, Appellant purports to invoke the “newly recognized constitutional
right” exception to the time-bar. This statutory exception provides:
(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:
...
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(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.
...
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the date the
claim could have been presented.
42 Pa.C.S.A. § 9545(b).
As our Supreme Court explained:
Subsection (iii) of Section 9545(b)(1) has two requirements.
First, it provides that 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 provided in this section. Second, it provides that
the right “has been held” by “that court” to apply
retroactively. Thus, a petitioner must prove that there is a
“new” constitutional right and that the right “has been held”
by that court to apply retroactively. The language “has
been held” is in the past tense. These words mean that the
action has already occurred, i.e., “that court” has already
held the new constitutional right to be retroactive to cases
on collateral review. By employing the past tense in writing
this provision, the legislature clearly intended that the right
was already recognized at the time the petition was filed.
Commonwealth v. Copenhefer, 941 A.2d 646, 649-650 (Pa. 2007),
quoting Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002)
(internal corrections omitted). Moreover, since the plain statutory language
of section 9545 demands that the PCRA petition “allege” all elements of the
statutory exception, it is clear that – to properly invoke the “newly
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recognized constitutional right” exception – the petitioner must plead each of
the above-stated elements in the petition. 42 Pa.C.S.A. § 9545(b)(1).
Within Appellant’s third PCRA petition, Appellant claimed that his
sentence is illegal because he was sentenced to a mandatory minimum term
of incarceration under 42 Pa.C.S.A. § 9712 and, in Alleyne, the United
States Supreme Court effectively rendered Section 9712 unconstitutional.
This claim immediately fails, as Appellant did not raise his Alleyne
claim “within 60 days of the date the claim could have been presented.” 42
Pa.C.S.A. § 9545(b)(2). Rather, the first time Appellant raised his Alleyne
claim was in his June 23, 2014 Second Amended Third PCRA Petition – which
was over one-year after the United States Supreme Court decided Alleyne.3
See Appellant’s Second Amended Third PCRA Petition, 6/23/14, at 1-9.
Thus, Appellant failed to properly plead the newly-recognized constitutional
right exception to the PCRA’s one-year time-bar. See Commonwealth v.
Boyd, 923 A.2d 513, 517 (Pa. Super. 2007) (“[w]ith regard to [the newly-
]recognized constitutional right [exception], . . . the [60-]day period begins
to run upon the date of the underlying judicial decision”).
Further, we note that, even if Appellant had satisfied the 60-day
requirement, Appellant’s petition would still be untimely, as we have held
that the rule of law announced in Alleyne does not apply retroactively to
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3
The United States Supreme Court decided Alleyne on June 17, 2013.
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cases on collateral review. Commonwealth v. Riggle, 119 A.3d 1058 (Pa.
Super. 2015) (“the Alleyne ruling does not prohibit punishment for a class
of offenders nor does it decriminalize conduct. Rather, Alleyne procedurally
mandates the inclusion of facts in an indictment or information, which will
increase a mandatory minimum sentence, and a determination by a
factfinder of those facts beyond a reasonable doubt. Alleyne, therefore, is
not substantive. Nor does Alleyne constitute a watershed procedural rule. .
. . Hence, the fundamental fairness of the trial or sentencing is not seriously
undermined, and Alleyne is not entitled to retroactive effect in this PCRA
setting”).
Since Appellant did not attempt to plead any other exception to the
time-bar, we conclude that Appellant’s petition is time-barred and that our
“courts are without jurisdiction to offer [Appellant] any form of relief.”4
Commonwealth v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011).
Therefore, we affirm the PCRA court’s order dismissing Appellant’s third
PCRA petition without a hearing.
Order affirmed.
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4
To the extent Appellant claims that his illegal sentencing claim is non-
waivable, we note that, in Commonwealth v. Fahy, our Supreme Court
held: “[a]lthough legality of sentence is always subject to review within the
PCRA, claims must still first satisfy the PCRA’s time limits or one of
the exceptions thereto.” Commonwealth v. Fahy, 737 A.2d 214, 223
(Pa. 1999) (emphasis added).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/2016
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