Com. v. Corbett, D. ( 2018 )

J. A30043/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DENNIS LAMONT CORBETT, : No. 1701 WDA 2016
:
Appellant :
Appeal from the PCRA Order, October 5, 2016,
in the Court of Common Pleas of Blair County
Criminal Division at Nos. CP-07-CR-0000980-2009,
CP-07-CR-0002792-2008, CP-07-CR-0002804-2008
BEFORE: BOWES, J., STABILE, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED: February 16, 2018
Dennis Lamont Corbett appeals pro se from the order filed in the Court
of Common Pleas of Blair County that dismissed his petition filed pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Because
we agree with the PCRA court that appellant’s facially untimely petition failed
to establish a statutory exception to the one-year jurisdictional time limit for
filing a petition under the PCRA, we affirm.
The PCRA court set forth the following factual and procedural history:
At CR 2792-2008, [a]ppellant entered a
nolo contendere plea on July 6, 2009 and received
a state sentence of 4 to 8 years for Possession of
Firearm Prohibited (18 Pa.C.S.A. § 6105(a)(1), a
felony of the 2nd degree) and a concurrent sentence
of 3½ to 7 years for Firearms Not To Be Carried
Without A License (18 Pa.C.S.A. § 6106(a)(1), a
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felony of the 3rd degree). Trial counsel was Attorney
J. Kirk Kling. There was no direct appeal filed.
[A]ppellant entered a guilty plea and was
sentenced on October 13, 2009 by the Honorable
Jolene Grubb Kopriva as follows: At CR 2804-2008,
to serve concurrent state sentences of 5 to 10 years
for Criminal Conspiracy (object crime PWID); PWID
(Heroin) and PWID (Ecstasy).[1] [A]ppellant was also
assessed $200 fines for both Escape and Fleeing or
Eluding a Police Officer.[2] At CR 980-2009,
[a]ppellant received a concurrent 5 to 10[-]year
sentence for Criminal Conspiracy (object crime PWID)
and a 10[-]year consecutive probationary period for
PWID (Heroin). His trial counsel was Attorney
Douglas J. Keating. [A]ppellant was afforded any and
all appropriate credit for time served and was found
not be [sic] RRRI eligible. Upon appeal, the Superior
Court of Pennsylvania affirmed the judgment of
sentence in its decision filed April 19, 2011.
[A]ppellant filed his original pro se PCRA
Petition on June 18, 20[1]5. His claims included
generally, that he pled nolo contendere under
duress; that mandatory minimum sentences were
imposed for the firearm convictions and that such
constituted an illegal sentence in light of the United
States Supreme Court decision in Alleyne v. U.S.,
133 S.Ct[.] 2151; and that he was rendered
ineffective assistance of counsel by both Attorney
Kling and Attorney Keating.
....
On March 1, 2016, the Commonwealth filed a
Motion to Dismiss Petitioner’s PCRA Petition,
asserting, inter alia, that [appellant’s] PCRA Petition
was untimely and that none of the exceptions set forth
in 42 Pa.C.S.A. § 9545 were applicable. Therefore,
the Commonwealth argued that this court lacked
1 18 Pa.C.S.A. § 903(a)(1) and 35 P.S. § 780-113(a)(30), respectively.
2 18 Pa.C.S.A. § 5121(a) and 75 Pa.C.S.A. 3733(a), respectively.
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jurisdiction to address to [sic] PCRA Petition/Amended
Petition on its merits. Further, the Commonwealth
asserted that even if the court had jurisdiction,
[appellant] failed to state a cognizable claim as he was
not entitled to a retroactive application of Alleyne.
....
On March 8, 2016, Attorney Puskar filed an
Amended PCRA Petition, citing Commonwealth v.
Hopkins, [117 A.3d 247 (Pa. 2015),] in support of
the argument that the mandatory minimum sentences
imposed were unconstitutional (specifically
42 Pa.C.S.A. § 9712.1) and that the PCRA Petition was
filed within sixty (60) days of learning of the Hopkins
decision.
On March 18, 2016, Attorney Puskar filed a
Motion to Withdraw as Counsel. . . .[3]
....
. . . . Due to Attorney Gieg’s late appointment, [the
PCRA court] continued the hearing originally
scheduled June 2, 2016 relative to the
Commonwealth’s Motion to Dismiss the PCRA Petition.
That hearing was eventually held October 4, 2016.
[Appellant] appeared via video conferencing. That
same date, [the PCRA court] entered an order
granting the Commonwealth’s motion, dismissing the
PCRA Petition/Amended Petition as being untimely
filed. In [its] order, [the PCRA court] specifically found
that [appellant] was not entitled to retroactive relief
under Alleyne, based upon the Pennsylvania
Supreme Court decision in Commonwealth v.
Terrance Washington, [142 A.3d 810 (Pa. 2016)].
On November 7, 2016, [appellant] filed a
pro se Notice of Appeal of this court’s order of
October 4, 2016. On December 6, 2016, [the PCRA
court] entered a Rule 1925(b) Order, directing
3 The PCRA court granted the motion and appointed Attorney Matthew P. Gieg
(“Attorney Gieg”) as substitute PCRA counsel.
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[a]ppellant to file his Concise Statement of the Errors
Complained of on Appeal within twenty (21) days after
filing and service of the order.
PCRA court opinion, 3/1/17 at 1-4 (emphasis omitted from ¶¶ 1-2).
The Rule 1925(b) order was sent to the assistant district attorney,
appellant, and Attorney Gieg. By letter dated November 14, 2016, the trial
court advised Attorney Gieg that appellant had filed a pro se notice of appeal
and suggested that Attorney Gieg file a formal motion to withdraw as counsel
along with a Turner/Finley4 letter if Attorney Gieg believed the appeal was
meritless. Attorney Gieg served the petition on the trial court on
December 28, 2016, and it was filed on January 3, 2017. The PCRA court
granted the petition on February 28, 2017. It was filed on March 10, 2017.
No Rule 1925(b) statement was filed within 21 days of the December 6,
2016 order. On December 22, 2016, appellant applied for leave to stay and
abeyance of Rule 1925(b) statement and all other matters on the basis that
cases pending in this court and the Pennsylvania Supreme Court would
address questions of law directly pertaining to the issues at hand. The PCRA
court received the motion on December 29, 2016. This court denied the
motion on January 5, 2017.
Despite the fact that there was no Rule 1925(b) statement filed, the
PCRA filed a Rule 1925(a) opinion on March 1, 2017. The opinion was
4Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super. 1988).
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forwarded to this court and filed on March 14, 2017. In a letter dated
February 28, 2017, and addressed to the deputy prothonotary of this court in
Pittsburgh, the PCRA court stated that appellant had not filed his concise
statement of errors complained of on appeal.
Appellant received a copy of the letter to this court. He then petitioned
the PCRA court to reissue the order requesting a statement of matters
complained of on appeal. By letter dated March 23, 2017, the PCRA court
informed appellant that the PCRA court no longer had jurisdiction over the
matter.
While appellant did not file a Rule 1925(b) statement, Attorney Gieg still
represented appellant during the period to timely file the statement. If this
court determined that Attorney Gieg was per se ineffective, it could remand
for the filing of a statement nunc pro tunc and a filing of an opinion by the
PCRA court pursuant to Pa.R.A.P. 1925(c)(3). However, that is not necessary
here as appellant has not requested that and the PCRA court issued an opinion
which provides this court with sufficient information to address any claim not
specifically addressed in that opinion. This court also declines to find waiver5
for failure to file the Rule 1925(b) statement given that Attorney Gieg still
represented appellant during the relevant period. See Commonwealth v.
Oliver, 128 A.3d 1275 (Pa.Super. 2015) (this court addressed appeal of denial
5 Under Rule 1925(b)(4)(vii) of the Pennsylvania Rules of Appellate Procedure,
issues not raised in the Rule 1925(b) statement are waived.
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of PCRA petition where no 1925(b) statement was filed, and the appellant’s
attorney withdrew representation during the course of time to file 1925(b)
statement).
Appellant raises the following issues for our review:
I. Did the [PCRA] Court err in denying the Post
Conviction Relief Act Petition without a hearing
by misapprehending the retrospective
application in Commonwealth v. Hopkins,
117 A.3d 247 (2015)[,] when it’s [sic]
paradigm, Alleyne v. United States, 133 S.Ct.
2151 (2013), created a “substantive rule,”
which “the Constitution requires State Collateral
Review Courts to give retroactive effect to that
rule?”
II. Did the [PCRA] Court err in denying the Post
Conviction Relief Act Petition without a hearing
when [appellant] filed the instant Post
Conviction Relief Act Petition timely by filing
within sixty (60) days of learning of the
Supreme Court of Pennsylvania’s decision in
Commonwealth v. Hopkins, 117 A.3d 247([Pa] 2015)?
III. Did the [PCRA] Court err in denying the Post
Conviction Relief Act Petition without a hearing
when [appellant] contends that through the
Court’s inherent power, the PCRA Court always
retains jurisdiction to correct his patently
unconstitutional, and therefore illegal sentence?
Appellant’s brief at 4.
The standard of review for an order denying
post-conviction relief is limited to whether the record
supports the PCRA court’s determination, and whether
that decision is free of legal error. The PCRA court’s
findings will not be disturbed unless there is no
support for the findings in the certified record.
Furthermore, a petitioner is not entitled to a PCRA
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hearing as a matter of right; the PCRA court can
decline to hold a hearing if there is no genuine issue
concerning any material fact and the petitioner is not
entitled to post-conviction collateral relief, and no
purpose would be served by any further proceedings.
Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa.Super. 2008), appeal
denied, 956 A.2d 433 (Pa. 2008), quoting Commonwealth v. Taylor, 933
A.2d 1035, 1040 (Pa.Super. 2007) (citations omitted).
Pennsylvania law makes clear no court has jurisdiction
to hear an untimely PCRA petition. Commonwealth
v. Robinson, 575 Pa. 500, 508, 837 A.2d 1157, 1161
(2003). The most recent amendments to the PCRA,
effective January 16, 1996, provide a PCRA petition,
including a second or subsequent petition, shall be
filed within one year of the date the underlying
judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1);
Commonwealth v. Bretz, 830 A.2d 1273, 1275
(Pa.Super. 2003); Commonwealth v. Vega, 754
A.2d 714, 717 (Pa.Super. 2000). A judgment is
deemed final “at the conclusion of direct review,
including discretionary review in the Supreme Court
of the United States and the Supreme Court of
Pennsylvania, or at the expiration of time for seeking
the review.” 42 Pa.C.S.A. § 9545(b)(3).
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010).
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 prove:
(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;
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(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)(1)(i)-(iii). “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 three limited 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.
Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783
(2000); 42 Pa.C.S.A. § 9545(b)(2).
Id. at 1079-1080.
The Pennsylvania Supreme Court has held that the PCRA’s time
restriction is constitutionally sound. Commonwealth v. Cruz, 852 A.2d 287,
292 (Pa. 2004). In addition, our supreme court has instructed that the
timeliness of a PCRA petition is jurisdictional. If a PCRA petition is untimely,
a court lacks jurisdiction over the petition. Commonwealth v. Callahan,
101 A.3d 118, 120-121 (Pa.Super. 2014) (courts do not have jurisdiction over
an untimely PCRA); see also Commonwealth v. Wharton, 886 A.2d 1120(Pa. 2005).
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With respect to docket number CP-07-CR-0002792-2008, appellant
entered a plea of nolo contendere on July 6, 2009, and was sentenced the
same day. The sentencing order was not filed until July 20, 2009. Appellant
did not file a direct appeal, rendering the judgment of sentence as final on
August 19, 2009. As he did not petition for post-conviction relief until June 18,
2015, the current petition was clearly untimely. In order for the PCRA court
to properly consider the current petition, appellant must establish that he
meets one of the three exceptions to the one-year requirement.
Further, this court affirmed appellant’s judgment of sentence on
April 19, 2011 for docket numbers CP-07-CR-0002804-2008 and CP-07-CR-
0000980-2009. Appellant had 30 days to appeal to the Pennsylvania Supreme
Court for discretionary review or until May 19, 2011. He did not appeal. In
order to timely file a PCRA petition, appellant had to file his petition within one
year of May 19, 2011. The current petition was not filed until June 18, 2015,
which was clearly untimely. In order for the PCRA court to consider the current
petition, appellant must establish that he meets one of the three exceptions
to the one-year requirement.
Before this court, appellant initially contends that the PCRA court erred
when it denied his petition without a hearing by misapprehending the
retrospective application in Hopkins when Alleyne created a substantive rule
that the PCRA court must apply retroactively.
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In Hopkins, the Supreme Court of Pennsylvania held on a direct appeal
from a judgment of sentence under 18 Pa.C.S.A. § 6317, relating to selling
drugs in close proximity to a school, that the statute was unconstitutional
under Alleyne. The Pennsylvania Supreme Court held that numerous sections
constituted mandatory minimum sentencing and were constitutionally infirm
while the remaining sections could not be severed from the unconstitutional
portion. Hopkins, 117 A.3d at 262.
In contrast to Hopkins, in Commonwealth v. Washington, 142 A.3d
810 (Pa. 2016), a case involving collateral review of mandatory minimum
sentences under Alleyne, the Pennsylvania Supreme Court determined, “We
hold that Alleyne does not apply retroactively to cases pending on collateral
review, and that Appellant’s judgment of sentence, therefore, is not illegal on
account of Alleyne.” Washington, 142 A.3d at 820.
Appellant states that he must be afforded the constitutional right of
retroactive application of Alleyne because the new rule announced is
substantive and applies retroactively on collateral review. However, the
Pennsylvania Supreme Court emphatically held that the opposite was true. To
the extent appellant is attempting to employ the constitutional right exception
to the timeliness requirements of the PCRA, this attempt must fail.
Appellant next contends that the PCRA court erred when it denied his
PCRA petition when appellant filed the petition within 60 days of learning of
Hopkins so that the petition met the requirements of the unknown facts
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exception to the timeliness requirement. Appellant argues that the newly
discovered fact is not the precedential case law of Hopkins but the principles
of the statute becoming null and void based upon the standards set in
Alleyne.
However, the Pennsylvania Supreme Court held in Commonwealth v.
Watts, 23 A.3d 980, 987 (Pa. 2011), “that subsequent decisional law does
not amount to a new “fact” under Section 9545(b)(1)(ii) of the PCRA.” To the
extent appellant claims that he met the exception because he filed his facially
untimely petition within 60 days of the decision in Hopkins, this claim is
without merit. Further, as previously stated, appellant raises the argument
that under Alleyne all mandatory minimum statutes with a proof at
sentencing provision are void ab initio even for purposes of collateral review.
This assessment of the law runs contrary to the Pennsylvania Supreme Court’s
decision in Washington.
Appellant next contends that the PCRA court erred when it denied his
petition without a hearing where the court always retains jurisdiction to correct
an illegal sentence.
To the extent appellant is arguing that his sentence is illegal, this claim
does not allow him to skirt the timeliness requirement. “[E]ven claims that a
sentence was illegal, an issue deemed incapable of being waived, are not
beyond the jurisdictional time restrictions.” Commonwealth v. Grafton, 928
A.2d 1112, 1114 (Pa.Super. 2007), citing Fahy, 737 A.2d 214 (Pa. 1999);
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Commonwealth v. Beck, 848 A.2d 987 (Pa.Super. 2004). Therefore,
appellant’s illegal sentencing claim does not operate as an independent
exception to the PCRA’s jurisdictional time-bar.
In conclusion, the trial court did not abuse its discretion when it
determined that it lacked jurisdiction to hear appellant’s untimely PCRA
petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/16/2018
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