Com. v. Colon, M. ( 2017 )


Menu:
  • J-S59004-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    MICKEY SANTOS COLON,
    Appellant                 No. 1128 EDA 2017
    Appeal from the PCRA Order Entered March 15, 2017
    In the Court of Common Pleas of Chester County
    Criminal Division at No(s): CP-15-CR-0001921-2010
    BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*
    MEMORANDUM BY BENDER, P.J.E.:                      FILED OCTOBER 24, 2017
    Appellant, Mickey Santos Colon, appeals pro se from the post-
    conviction court’s March 15, 2017 order denying, as untimely, his second
    petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§
    9541-9546. After careful review, we are compelled to affirm.
    We need not provide a detailed recitation of the facts of Appellant’s
    underlying convictions for purposes of this appeal. We only briefly note that,
    Herman McMullen, a confidential informant with a known drug
    history, facilitated the controlled purchase of cocaine from
    [Appellant] on two occasions. A jury convicted [Appellant] of
    two counts of possession with intent to deliver a controlled
    substance and two counts of criminal use of a communication
    facility. The trial court sentenced [Appellant] to an aggregate
    term of 12 to 24 years’ incarceration. On appeal, this Court
    affirmed [Appellant’s] judgment of sentence, and the
    ____________________________________________
    *   Former Justice specially assigned to the Superior Court.
    J-S59004-17
    Pennsylvania    Supreme      Court    denied  allocatur. See
    Commonwealth v. Colon, [
    63 A.3d 817
     (Pa. Super. 2012)],
    appeal denied, 
    67 A.3d 793
     (Pa. 2013). [Appellant] filed a
    timely PCRA petition. The PCRA court conducted an evidentiary
    hearing and later dismissed Colon’s petition.
    Commonwealth v. Colon, No. 543 EDA 2015, unpublished memorandum
    at 1-2 (Pa. Super. filed Sept. 11, 2015) (footnotes omitted). Appellant filed
    a timely appeal from the order denying his first PCRA petition, and this Court
    affirmed. 
    Id.
     Our Supreme Court thereafter denied Appellant’s petition for
    allowance of appeal. Commonwealth v. Colon, 
    158 A.3d 66
     (Pa. 2016).
    On October 25, 2016, Appellant filed his second pro se PCRA petition,
    which underlies the present appeal.    Therein, he argued that a mandatory
    minimum sentence      imposed in his case pursuant to 18 Pa.C.S. §
    7508(a)(3)(ii) (requiring a mandatory five-year minimum sentence when the
    amount of cocaine involved is at least 10 grams but less than 100 grams
    and, at the time of sentencing, the defendant has been convicted of another
    drug-trafficking offense), is illegal under Alleyne v. United States, 
    133 S.Ct. 2151
    , 2163 (2013) (holding that “facts that increase mandatory
    minimum sentences must be submitted to the jury” and found beyond a
    reasonable doubt).      Appellant also    asserted that the attorney who
    represented him in the litigation of his first, timely-filed PCRA petition was
    ineffective for not raising a challenge to the legality of his sentence under
    Alleyne.
    On February 8, 2017, the PCRA court issued a Pa.R.Crim.P. 907 notice
    of its intent to dismiss Appellant’s petition.     Appellant filed a pro se
    -2-
    J-S59004-17
    response, but on March 13, 2017, the PCRA court issued an order dismissing
    his petition. Appellant filed a timely, pro se notice of appeal, and he also
    timely complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b)
    concise statement of errors complained of on appeal.         Herein, Appellant
    presents one issue for our review: “Whether PCRA counsel was ineffective in
    failing to raise the issue that Appellant’s sentence constitutes an illegal
    mandatory [sentence] under Alleyne…[?]” Appellant’s Brief at 3.
    This Court’s standard of review regarding an order denying a petition
    under the PCRA is whether the determination of the PCRA court is supported
    by the evidence of record and is free of legal error.      Commonwealth v.
    Ragan, 
    923 A.2d 1169
    , 1170 (Pa. 2007). We must begin by addressing the
    timeliness of Appellant’s petition, because the PCRA time limitations
    implicate our jurisdiction and may not be altered or disregarded in order to
    address the merits of a petition.    Commonwealth v. Bennett, 
    930 A.2d 1264
    , 1267 (Pa. 2007) (stating PCRA time limitations implicate our
    jurisdiction and may not be altered or disregarded to address the merits of
    the petition).   Under the PCRA, any petition for post-conviction relief,
    including a second or subsequent one, must be filed within one year of the
    date the judgment of sentence becomes final, unless one of the following
    exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
    (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
    -3-
    J-S59004-17
    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. § 9545(b)(1)(i)-(iii).   Any petition attempting to invoke one of
    these exceptions “shall be filed within 60 days of the date the claim could
    have been presented.” 42 Pa.C.S. § 9545(b)(2).
    Here, Appellant’s judgment of sentence became final on August 27,
    2013, at the conclusion of the ninety-day time period for seeking review with
    the United States Supreme Court.      See 42 Pa.C.S. § 9545(b)(3) (stating
    that a judgment of sentence becomes final at the conclusion of direct review
    or the expiration of the time for seeking the review); Commonwealth v.
    Owens, 
    718 A.2d 330
    , 331 (Pa. Super. 1998) (directing that under the
    PCRA, petitioner’s judgment of sentence becomes final ninety days after our
    Supreme Court rejects his or her petition for allowance of appeal since
    petitioner had ninety additional days to seek review with the United States
    Supreme Court).    Thus, his current petition in October of 2016 is facially
    untimely and, for this Court to have jurisdiction to review the merits thereof,
    -4-
    J-S59004-17
    Appellant must prove that he meets one of the exceptions to the timeliness
    requirements set forth in 42 Pa.C.S. § 9545(b).
    Instantly, Appellant contends that he has met “the timeliness
    exceptions outlined in § 9545” because his first PCRA counsel acted
    ineffectively by not arguing that Alleyne renders Appellant’s mandatory
    minimum sentence illegal. Appellant’s Brief at 6. Appellant stresses that the
    rule in Alleyne “was applicable to Appellant[,] whose direct appeal was
    pending until August 27, 2013[,]” which was after Alleyne was decided on
    June 17, 2013.     Id.   Appellant maintains that his PCRA counsel acted
    ineffectively by not asserting that Alleyne applies to Appellant’s case
    because his judgment of sentence was not final when Alleyne was decided.
    We are constrained to conclude that Appellant’s argument cannot
    overcome the one-year timeliness requirement of the PCRA. We recognize
    that this Court has granted post-conviction relief to a petitioner who, like
    Appellant, claimed that his sentence was illegal under Alleyne, and whose
    judgment of sentence was not final before Alleyne was decided.           See
    Commonwealth v. Ruiz, 
    131 A.3d 54
    , 59 (Pa. Super. 2015). In Ruiz, the
    petitioner filed a timely PCRA petition, and our Court accepted his argument
    that Alleyne applied to his case because his judgment of sentence was not
    yet final when Alleyne was decided. Id. at 59-60.
    However, in the present case, Appellant’s initial PCRA counsel did not
    present such an argument in Appellant’s timely-filed PCRA petition.
    Unfortunately for Appellant, he cannot challenge PCRA counsel’s arguable
    -5-
    J-S59004-17
    ineffectiveness in this regard in his untimely-filed PCRA petition, as “[i]t is
    well settled that allegations of ineffective assistance of counsel will not
    overcome    the   jurisdictional   timeliness   requirements   of   the   PCRA.”
    Commonwealth v. Wharton, 
    886 A.2d 1120
    , 1127 (Pa. 2005) (citations
    omitted).
    Additionally, Appellant cannot obtain relief based on his claim that his
    sentence is illegal under Alleyne.     While claims challenging the legality of
    sentence are subject to review within the PCRA, the petitioner must first
    satisfy the PCRA’s time limits.     Commonwealth v. Fahy, 
    737 A.2d 214
    ,
    223 (Pa. 1999).    Appellant cannot rely on Alleyne to meet the timeliness
    exception of section 9545(b)(1)(iii), as Alleyne does not apply retroactively
    to collateral review. See Commonwealth v. Washington, 
    142 A.3d 810
    ,
    820 (Pa. 2016).
    Therefore, we are constrained to conclude that Appellant has failed to
    meet any timeliness exception and, thus, the PCRA court did not err in
    dismissing his petition.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 10/24/2017
    -6-
    

Document Info

Docket Number: 1128 EDA 2017

Filed Date: 10/24/2017

Precedential Status: Non-Precedential

Modified Date: 12/13/2024