Com. v. Sloan, K. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KEON SLOAN,
Appellant No. 2712 EDA 2017
Appeal from the PCRA Order Entered July 11, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1201211-2004
BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 25, 2018
Appellant, Keon Sloan, appeals pro se from the July 11, 2017 order that
dismissed, as untimely, his request for collateral relief filed pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. After careful
review, we affirm.
The PCRA court provided the factual and procedural history for this
matter as follows:
On June 14, 2004, around 4:00 a.m., the two victims were
asleep in a house located … in Philadelphia, Pennsylvania when
Appellant and two co-defendants forced their way into the house.
The three armed men went inside one victim's bedroom,
demanding money. The victim was shot in the lower leg by a co-
defendant. Then, the co-defendant passed the gun to Appellant,
who continued to shoot at the victim until he had emptied his
weapon. Appellant's shots missed the victim. As a result of the
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* Retired Senior Judge assigned to the Superior Court.
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shooting, this victim was hospitalized for two days for surgery.
Hardware was permanently inserted into his lower leg.
The other victim, who was located in another room, was
awakened by the sound of gunshots. The two co-defendants
found the victim and shot him a total of thirteen times. As a result
of the shooting, the second victim required heart-bypass surgery,
was hospitalized for two months, and became permanently
disabled. His left arm was paralyzed, and six bullets that could
not be surgically removed were left in his body, posing possible
future complications.
Following a jury trial from September 26, 2005 to October
7, 2005, Appellant was convicted of burglary (18 Pa.C.S. § 3502),
aggravated assault (18 Pa.C.S. § 2702), [carrying a firearm
without a license] (18 Pa.C.S. § 6106), possession of an
instrument of crime (18 Pa.C.S. § 907); and criminal conspiracy
(18 Pa.C.S. § 903). On December 2, 2005, Appellant was
sentenced to three consecutive terms of 10 to 20 years'
incarceration for the aggravated assault, burglary, and criminal
conspiracy charges. The aggregate term amounted to 30 to 60
years' incarceration. Sentence was suspended on the weapons
violations. Additional conditions of parole or probation included
obtaining education, anger management, psychiatric counseling,
drug rehabilitation, and mandatory court costs.
Appellant filed a direct appeal challenging the judgment of
sentence, raising numerous claims of trial court error.1 See
Commonwealth v. Sloan, … 938 A.2d 1121 (Pa. Super. 2007)
(unpublished mem[orandum]), appeal denied, 940 A.2d 364 (Pa.
2007). The judgment of sentence was affirmed. … The Superior
Court, in relevant part, found Appellant's excessive sentencing
claim waived because Appellant failed to challenge his sentence
during the proceedings and failed to file a post-sentence motion.
[65 EDA 2006] at 15-16. On December 20, 2007, our Supreme
Court denied his petition for allowance of appeal. Appellant filed
a petition for writ of certiorari with the United States Supreme
Court, which was denied on April 28, 2008. Sloan v.
Pennsylvania, 553 U.S. 1024 (2008).
1 On direct appeal, Appellant argued that the court erred or
abused its discretion by (1) failing to dismiss the case
pursuant to Pa.R.Crim.P. 600; (2) excluding the public from
the courtroom during a portion of the voir dire; (3)
mishandling the voir dire and jury selection; (4) quashing a
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subpoena issued to an assistant district attorney and
sustaining the Commonwealth's objection to defense
counsel's questioning of a detective; (5) sustaining the
Commonwealth's objection to a victim[’s] being questioned
about his bias toward the Commonwealth; (6) denying his
motion to preclude a detective from testifying; (7)
overruling his objections to a detective's testimony; and (8)
issuing an erroneously calculated and excessive sentence.
Commonwealth v. Sloan, 65 EDA 2006[, unpublished
memorandum] at 3-4 [(Pa. Super. filed September 14,
2007)].
On December 22, 2008, Appellant filed his first PCRA
petition and counsel was appointed. Subsequently, the PCRA
counsel filed a Finley "no merit" letter in accordance with
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) and
requested leave to withdraw pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988). [Appellant’s] PCRA counsel
found that the petition lacked merit because "each and every one
of the Petitioner's claims were raised on direct appeal and rejected
by the Superior Court." Finley Letter from Pasquale Colavita,
Esq. to PCRA Court (June 26, 2009) at 2. Since the issues were
previously litigated, the PCRA counsel argued that Appellant's
claims were unreviewable. Upon review, the [PCRA] court agreed.
On July 31, 2009, the court issued its Pa.R.Crim.P. 907 notice of
intent to dismiss the petition. On September 4, 2009, the court
formally dismissed Appellant's petition. Thereafter, on September
17, 2009, Appellant filed a notice of appeal. On September 9,
2010, the Superior Court affirmed. See Commonwealth v.
Sloan, [] 13 A.3d 976 (Pa. Super. 2010) [(unpublished
memorandum)], appeal denied, 13 A.3d 976 (Pa. 2011). On July
25, 2011, our Supreme Court denied his petition for allowance of
appeal.
On October 11, 2016, Appellant, acting pro se, filed this
instant PCRA petition. Appellant alleged that both trial and
appellate counsel provided ineffective assistance for failing to
object to certain jury charges and that his aggravated assault
conviction merged with robbery at sentencing. On December 6,
2016, the [PCRA] court issued its Pa.R.Crim.P. 907 notice of intent
to dismiss the petition as without merit. Appellant timely filed a
response to the court's notice of intent to dismiss. By Order dated
July 11, 2017, the court dismissed the petition, and this timely
appeal followed.
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PCRA Court Opinion (PCO), 9/29/17, at 1-4.1
First, we must address the timeliness of Appellant’s notice of appeal.
On November 6, 2017, this Court issued a rule to show cause “why this appeal
should not be quashed as untimely filed on August 14, 2017, from the denial
of the petition for post-conviction relief on July 11, 2017.” Order, 11/6/17, at
1 (single page). Subsequently, this Court issued an order rescinding the rule
to show cause, leaving the issue to this panel. Order, 2/7/18, at 1 (single
page). Our review of the certified record indicates that Appellant’s notice of
appeal was time-stamped by the PCRA court on August 1, 2017. Accordingly,
we deem Appellant’s notice of appeal to have been timely filed.
Next, we recognize Appellant’s brief does not conform to the Rules of
Appellate Procedure. His brief, inter alia, does not contain any statement of
the questions involved as required by Pa.R.A.P. 2111(a)(4) and 2116.
Nevertheless, we can readily ascertain that Appellant claims that his sentence
is illegal pursuant to Alleyne v. United States, 570 U.S. 99 (2013). He
asserts two exceptions to the PCRA timeliness requirements, 42 Pa.C.S. §
9545(b)(1)(ii) and (b)(1)(iii). He first claims the Alleyne decision was a
newly-discovered fact and, second, that the Alleyne decision applies
retroactively.
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1 While the PCRA court’s Rule 907 notice stated that Appellant’s PCRA petition
lacked merit, the court’s opinion indicates that his petition was denied as
untimely. PCO at 5. Appellant has not raised any issues concerning the PCRA
court’s Rule 907 notice in his brief.
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This Court’s standard of review, regarding an order denying a petition
filed 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). 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
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.
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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).
First, Appellant appears to attempt to invoke the newly-discovered fact
exception to the PCRA’s timeliness requirements, Section 9545(b)(1)(ii). In
this regard, he asserts that the Alleyne decision is a newly-discovered fact of
which he was previously unaware. See Appellant’s Brief at 4-5. This claim is
meritless. 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).
Second, Appellant asserts that the Alleyne decision satisfies the
retroactive-right exception pursuant to Section 9545(b)(1)(iii). Appellant’s
Brief at 4. However, as this Court has recognized: “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.”
Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014).2
Accordingly, this claim is also meritless.
Third, we address Appellant’s assertion that, once he learned of the
Alleyne decision, he had asked “the United States Supreme Court for a stay
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2 Indeed, following this Court’s decision in Miller, our Supreme Court held
that Alleyne does not apply retroactively to collateral attacks on mandatory
minimum sentences. See Commonwealth v. Washington, 142 A.3d 810
(Pa. 2016).
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or remand so that he c[ould] address the issues.” Appellant’s Brief at 5. This
claim is patently false. As noted above, Appellant’s writ of certiorari filed in
the United States Supreme Court was denied by the High Court on April 28,
2008. Alleyne was subsequently decided in 2013.
For the above reasons, we conclude that the lower court’s order
dismissing Appellant’s PCRA petition as untimely is supported by the evidence
of record and free of legal error.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/25/18
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