Com. v. Appler, S. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
v.
SHAUN RONALD APPLER
Appellant No. 582 MDA 2016
Appeal from the PCRA Order March 8, 2016
in the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001167-2012, CP-36-CR-0001173-
2012, CP-36-CR-0001177-2012
BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.
MEMORANDUM BY RANSOM, J.: FILED DECEMBER 19, 2016
Appellant, Shaun Ronald Appler, appeals from the March 8, 2016 order
denying, as untimely, his second petition filed under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
On November 5, 2012, Appellant entered a series of negotiated guilty
pleas. At docket No. 1167-2012, Appellant pleaded guilty to two counts of
robbery, two counts of theft by unlawful taking, and two counts of criminal
conspiracy to commit robbery.1 At docket No. 1173-2012, Appellant pleaded
guilty to two counts of robbery, three counts of criminal conspiracy, and two
counts of theft by unlawful taking. At docket No. 1177-2012, Appellant
pleaded guilty to robbery and criminal attempt to commit theft by unlawful
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1
18 Pa.C.S. § 3701(a)(1)(ii), 3921(a), and 903, respectively.
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taking. That same day, Appellant was sentenced to an aggregate of ten to
twenty years of incarceration. See Notes of Testimony (N. T.), 11/5/12, at
2-8. Appellant did not file a direct appeal.
On July 23, 2013, Appellant pro se filed a timely petition seeking PCRA
relief. The court appointed PCRA counsel, who submitted a Finley2 letter.
On December 4, 2013, the court granted counsel’s request to withdraw and
dismissed Appellant’s petition without a hearing. Appellant did not appeal
this order.
On November 2, 2015, Appellant pro se filed a motion to modify
sentence, seeking leave to file post-sentence motions nunc pro tunc, which
the PCRA court treated as a second PCRA petition. Appellant argued that his
sentence was illegal under Alleyne v. United States, 135 S. Ct. 1251(2013). On November 19, 2015, the court appointed counsel, who filed a
Finley letter, noting that the petition lacked merit because it was untimely.
On January 26, 2016, the court issued notice of intent to dismiss Appellant’s
petition pursuant to Pa.R.Crim.P. 907. On March 7, 2016, the court granted
counsel’s petition to withdraw and dismissed Appellant’s petition as
untimely.
Appellant timely appealed. The PCRA court did not issue an order
pursuant to Pa.R.A.P. 1925(b). Further, the PCRA court did not issue an
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2
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
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opinion pursuant to Pa.R.A.P. 1925(a). Instead, the PCRA court issued an
order stating that it affirmed its dismissal of Appellant’s PCRA petition for the
reasons set forth in its Pa.R.Crim.P. 907 notice.
Herein, Appellant presents three issues for our review:
I. Whether Appellant’s counsel was ineffective in failing to seek
correction of Appellant’s term in light of the fact that the law in
Pennsylvania allows for an unlawful sentence to be corrected
under the “plain error” doctrine, and counsel knew or should
have known of the law relating to this aspect of criminal
sentences?
II. Whether Appellant’s sentence is unlawful in light of recent
U.S. Supreme Court holdings which have outlawed the usage of
the sentencing statutes which Appellant was sentenced under
and of which recent amendment(s) and decision-making from
the Pennsylvania courts clearly indicate having retroactive effect
on sentencing in Pennsylvania?
III. Whether Pennsylvania has any enacted statutes or
legislation empowering any court to construe documents filed by
a litigant as other than that document the litigant has filed,
otherwise altering the proceedings of that litigant?
Appellant’s Brief at iii (unnecessary capitalization omitted).
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. See Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007).
We begin by addressing the timeliness of Appellant’s petition, as the
PCRA court issued an Order stating time limitations implicate our jurisdiction
and may not be altered or disregarded in order to address the merits of his
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claims. See Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007).
Under the PCRA, any petition for relief, including second and subsequent
petitions, must be filed within one year of the date on which the judgment of
sentence becomes final. Id. There are three exceptions:
(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 these
exceptions “shall be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v.
Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).
Appellant’s petition is untimely.3 Nevertheless, Appellant asserts his
claim is based upon a newly recognized constitutional right held to apply
retroactively. See Appellant’s Brief at 5-7.
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3
Appellant’s petition is patently untimely. Appellant’s judgment of sentence
became final on December 5, 2012, at the expiration of his thirty days to file
a direct appeal. See 42 Pa.C.S. § 9545(b)(3) (a judgment of sentence
becomes final at the conclusion of direct review or the expiration of the time
(Footnote Continued Next Page)
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According to Appellant, the sentence imposed upon him is illegal
pursuant to a newly recognized constitutional rule. See Appellant’s Brief at
5-7 (citing in support Alleyne, 133 S. Ct. at 2155 (concluding that “[a]ny
fact that … increases the penalty for a crime is an ‘element’ that must be
submitted to the jury and found beyond a reasonable doubt”)). Appellant
argues that our courts have held that the unconstitutional portions of
mandatory minimum sentencing statutes are not severable. Id. at 6 (citing
in support Commonwealth v. Hopkins, 117 A.3d 247 (2015)). Moreover,
Appellant asserts, this new rule must be applied retroactively, thus entitling
him to collateral relief. Id. at 5-6 (citing in support Montgomery v.
Louisiana, 136 S. Ct. 718 (2016)).
Appellant’s reliance upon Montgomery to establish the retroactive
applicability of Alleyne is misplaced. In Montgomery, the United States
Supreme Court recognized that state collateral review courts must give
retroactive effect to a new, substantive rule of constitutional law.
Montgomery, 136 S. Ct. at 729. However, the Pennsylvania Supreme
Court has recently determined that the rule announced in Alleyne was
neither a substantive nor a “watershed” procedural rule and, therefore, did
not apply retroactively to cases pending on collateral review.
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(Footnote Continued)
for seeking the review). Thus, Appellant had until December 5, 2013, to
timely file a petition. Appellant filed his current petition on November 2,
2015.
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Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016), see also
Commonwealth v. Riggle, 119 A.3d 1058, 1064-67 (Pa. Super. 2015)
(same). Neither did Hopkins announce a new rule that has been held to
apply retroactively. See Commonwealth v. Whitehawk, 146 A.3d 266,
271 (Pa. Super. 2016).
Appellant’s petition is untimely, and he has not satisfied a timeliness
exception to the requirements of the PCRA. Consequently, the PCRA court
was without jurisdiction to review the merits of Appellant’s claims, and
properly dismissed his petition. See Ragan, 932 A.2d at 1170.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2016
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