Com. v. Hall, J. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JEROME V. HALL, JR., : No. 2814 EDA 2014
:
Appellant :
Appeal from the PCRA Order, August 22, 2014,
in the Court of Common Pleas of Montgomery County
Criminal Division at No. CP-46-CR-0002864-2008
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. AND JENKINS, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 24, 2015
Jerome V. Hall, Jr., appeals, pro se, from the order of August 22,
2014, dismissing his second Post Conviction Relief Act (“PCRA”) petition
without a hearing.1 We affirm.
Appellant entered an open guilty plea to two counts of possession with
intent to deliver cocaine and a single count each of corrupt organizations,
criminal conspiracy, and criminal use of a communication facility. On
June 16, 2009, appellant was sentenced to an aggregate term of 8 to
16 years’ imprisonment. The sentence included a mandatory sentence of 3
to 6 years and a $15,000 fine pursuant to 18 Pa.C.S.A. § 7508(b).
1
See 42 Pa.C.S.A. §§ 9541-9546.
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Appellant did not file a post-sentence motion or a direct appeal. On
June 7, 2010, appellant filed a pro se PCRA petition; counsel was
subsequently appointed. Scott C. McIntosh, Esq., filed a “no merit” letter in
accordance with Turner/Finley2 and a request to withdraw. The petition
was dismissed and counsel was granted leave to withdraw.
On July 7, 2014, appellant filed his second pro se PCRA petition. On
July 22, 2014, the court filed notice, pursuant to Pa.R.Crim.P. Rule 907,
42 Pa.C.S.A., of its intention to dismiss appellant’s petition without a
hearing. Appellant’s petition was dismissed in an order filed on August 22,
2014, and this timely appeal followed. (Docket #41, 42.) Appellant filed a
concise statement of matters to be complained of on appeal and presents
the following claims for our review:
1. The trial court erred by dismissing [appellant’s]
P.C.R.A. when it is clear that [appellant’s]
sentence was illegal, the legality of a sentence
is a non-waivable issue subject to review at
any stage of the judicial process or sua sponte
by the court.
2. The trial court erred by not utilizing an
exception that exist[s] where the trial court
discovers that the sentence originally imposed
was illegal in which case it may alter the
sentence beyond the 30 day period.
3. The trial court erred by claiming it does not
have jurisdiction to address the merits of
[appellant’s] claim because [appellant’s]
petition is untimely and [appellant] has not
2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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satisfied any of the timeliness exceptions. Due
to the merits of [appellant’s] claim[,] a
challenge to the legality of a sentence may be
raised as a matter of right, is non-waivable and
may be entertained as long as [the]
re[view]ing court has jurisdiction.
4. The trial court erred by claiming [appellant] did
not satisfy any of the timeliness exceptions.
Where the mandatory minimum sentence[s]
were deemed “Unconstitutional by the
Supreme Court in August 2014[,]” [w]hich
bolstered [appellant’s] argument that the
mandatory minimum sentence is illegal and a
violation of [appellant’s] constitutional rights
and laws of the Commonwealth. Also, being
that these facts were unknown to [appellant]
at the time and could not have been
ascertained by exercise of due diligence. The
grounds [appellant] raised in a timely P.C.R.A.
and preserved were the denial of his
constitutional rights, ineffectiveness of plea
counsel, an unlawfully induced guilty plea, the
imposition of a sentence in excess of the lawful
maximum and lack of jurisdiction.
5. The trial court erred claiming [appellant] was
not sentenced to an illegal sentence when the
mandatory sentence imposed violated the sixth
amendment, fifth amendment, and the
fourteenth amendment of the constitution of
the Commonwealth of Pennsylvania.
Appellant’s brief at 7-8. Each of these issues essentially claims that the
PCRA court erred in denying his petition as untimely where the sentence he
is serving is illegal. We disagree.
Our standard of review for an order denying post-conviction relief is
whether the record supports the PCRA court’s determination, and whether
the PCRA court’s determination is free of legal error. Commonwealth v.
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Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings
will not be disturbed unless there is no support for the findings in the
certified record. Id.A PCRA petition, including a second or subsequent one, must be filed
within one year of the date that the judgment of sentence becomes final.
42 Pa.C.S.A. § 9545(b)(1). This time requirement is mandatory and
jurisdictional in nature, and the court may not ignore it in order to reach the
merits of the petition. Commonwealth v. Taylor, 933 A.2d 1035, 1038
(Pa.Super. 2007), appeal denied, 951 A.2d 1163 (Pa. 2008). In this case,
appellant’s judgment of sentence became final on Thursday, July 16, 2009,3
when the time for filing a direct appeal expired. See 42 Pa.C.S.A.
§ 9545(b)(3); Pa.R.A.P., Rule 903, 42 Pa.C.S.A. The instant petition, filed
July 7, 2014, is manifestly untimely and the PCRA court lacked jurisdiction to
review it unless appellant pleaded and proved a valid exception to the time
bar of the PCRA. See 42 Pa.C.S.A. § 9545(b)(1)(i-iii).
Appellant’s arguments assume that where a petitioner is challenging
the legality of sentence, the issue cannot be waived and must always be
heard. This is only partially correct. While a question pertaining to the
legality of sentence cannot be waived, our supreme court has ruled that it
cannot be reviewed pursuant to an untimely PCRA petition:
3
We disagree with the PCRA court’s conclusion that appellant’s judgment of
sentence became final on August 16, 2009. (Trial court opinion, 12/2/14 at
4.)
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Appellant’s fourth contention is that his petition
cannot be barred as untimely because to do so would
result in the execution of an illegal sentence of
death. Appellant offers that even if untimely, a
petitioner’s claims will always be considered on the
merits when the claims challenge the legality of the
sentence. Appellant is mistaken. Although 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. Chester, 557 Pa. 358, 733 A.2d
1242 (1999). Thus, Appellant’s contention is easily
dismissed.
Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999). This court does
not have jurisdiction to address the legality of sentence pursuant to an
untimely PCRA petition. Commonwealth v. Slotcavage, 939 A.2d 901,
903 (Pa.Super. 2007). “Though not technically waivable, a legality [of
sentence] claim may nevertheless be lost should it be raised for the first
time in an untimely PCRA petition for which no time-bar exception applies,
thus depriving the court of jurisdiction over the claim.” Id.Appellant’s fourth issue also suggests that his discovery of Alleyne v.
United States, 133 S.Ct. 2151 (2013) (holding that, to comply with the
dictates of the Sixth Amendment, facts that increase mandatory minimum
sentence are elements of offense and must be submitted to jury and proven
beyond a reasonable doubt), is a new fact to satisfy the exception to the
time-bar. However, our supreme court has held that “subsequent decisional
law does not amount to a new ‘fact’ under section 9545(b)(1)(ii) of the
PCRA.” Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011). Thus, an
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assertion that publication of the Alleyne decision qualifies as a previously
unknown fact, triggering the timeliness exception set forth in
Section 9545(b)(1)(ii), fails.
Appellant also suggests he should be afforded the benefit of a newly
recognized, retroactively applied constitutional right to relief predicated on
the Alleyne decision. He suggests that a challenge to the legality of a
sentence cannot be waived, and that Alleyne retroactively applies to this
case, rendering his untimely petition reviewable on the merits. We conclude
that Alleyne is unavailing to appellant’s claim.
First, we note that appellant did not raise the exception at
Section 9545(b)(1)(iii) in a timely manner. Alleyne was decided on
June 17, 2013. Appellant did not file the instant PCRA petition until July 7,
2014, well over 60 days after the date the claim could have been presented.
See 42 Pa.C.S.A. § 9545(b)(2) (requiring that any PCRA petition invoking
one of the time-bar exceptions must be filed within 60 days from the date
the claim could have been presented); Commonwealth v. Boyd, 923 A.2d
513, 517 (Pa.Super. 2007).
Also instructive to the instant case is this court’s decision in
Commonwealth v. Miller, 102 A.3d 988, 993 (Pa.Super. 2014), in which
the appellant argued the applicability of Section 9545(b)(1)(iii) to his
patently untimely PCRA petition. Specifically, the appellant averred that the
Alleyne decision announced a new constitutional right that applies
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retroactively to cases on collateral review. Id. at 993-994. The Miller court
disagreed, explaining:
Even assuming that Alleyne did announce a
new constitutional right, neither our Supreme Court,
nor the United States Supreme Court has held that
Alleyne is to be applied retroactively to cases in
which the judgment of sentence had become final.
This is fatal to Appellant’s argument regarding the
PCRA time-bar. This Court has recognized that a
new rule of constitutional law is applied retroactively
to cases on collateral review only if the United States
Supreme Court or our Supreme Court specifically
holds it to be retroactively applicable to those cases.
Therefore, Appellant has failed to satisfy the new
constitutional right exception to the time-bar.
We are aware that an issue pertaining to Alleyne
goes to the legality of the sentence. It is generally
true that this Court is endowed with the ability to
consider an issue of illegality of sentence
sua sponte. However, in order for this Court to
review a legality of sentence claim, there must be a
basis for our jurisdiction to engage in such review.
As this Court recently noted, [t]hough not
technically waivable, a legality [of sentence]
claim may nevertheless be lost should it be
raised . . . in an untimely PCRA petition for
which no time-bar exception applies, thus
depriving the court of jurisdiction over the
claim. As a result, the PCRA court lacked
jurisdiction to consider the merits of
Appellant’s second PCRA petition, as it was
untimely filed and no exception was proven.
Id. at 994-996 (emphasis added, quotation marks, footnote, and citations
omitted).
Miller squarely applies to this case. Like the appellant in Miller,
appellant raised Alleyne more than one year after his judgment of sentence
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became final. Moreover, even if Alleyne announced a new constitutional
right, neither the United States Supreme Court nor the Pennsylvania
Supreme Court has held that this right applies retroactively to cases on
collateral review. See id. at 995. “This is fatal to appellant’s argument
regarding the PCRA time-bar.” Id. Thus, although Alleyne implicates the
legality of appellant’s sentence, we lack jurisdiction to address this issue.
Id. at 995-996.
Accordingly, we affirm the PCRA court’s order dismissing appellant’s
second petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/24/2015
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