Com. v. Daddario, R. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee
v.
RICHARD ANDREW DADDARIO
Appellant No. 1577 MDA 2014
Appeal from the PCRA Order August 25, 2014
In the Court of Common Pleas of Snyder County
Criminal Division at No(s): CP-55-CR-0000245-2005
BEFORE: OTT, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY OTT, J.: FILED JUNE 16, 2015
Richard Andrew Daddario appeals pro se1 from the order entered
August 25, 2014, in the Court of Common Pleas of Snyder County that
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1
On October 15, 2014, this Court entered the following per curiam order:
Upon review of the pro se docketing statement filed in this Court
and the trial docket, the following is ORDERED:
Within 30 days of the date of this order, the trial court shall
appoint new counsel and notify this Court of its determination.
See Commonwealth v. Quail, 729 A.2d 571 (Pa. Super. 1999
(indigent first-time PCRA petitioner is entitled to representation
by counsel); Commonwealth v. Johnson, 803 A.2d 1291 (Pa.
Super. 2002) (any petition filed after the judgment of sentence
becomes final will be treated as a PCRA petition). Immediately
upon being appointed, counsel shall enter his or her appearance
in this Court.
The Prothonotary is directed to forward copies of this order to
the trial court.
(Footnote Continued Next Page)
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dismissed his petition filed pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S. §§ 9541–9546. Daddario claims the PCRA court erred by
dismissing his PCRA petition as untimely filed. Based upon the following, we
affirm.
The PCRA court set forth the relevant procedural history in its opinion.
Judgment in [Daddario’s] case became final on January 15,
2009, thirty (30) days after the Supreme Court’s denial of his
Petition for Allowance of appeal. Thus, any issues relating to his
original trial and his appeal had to be filed as part of a Petition
for Post Conviction Relief within one (1) year of January 17,
2010. 42 Pa.C.S. § 9545(b). …
[Daddario] filed his first PCRA Petition pro se on June 17, 2009,
well within the jurisdictional time limits. As a result of that
Petition and subsequent proceedings and pursuant to an
agreement to resolve his Petition, his original sentence was
vacated and he was resentenced by the [trial court] on July 2,
[2]010. No appeal followed.
[Daddario’s] second PCRA Petition presently before the Court
was filed on July 14, 2014, almost 5-1/2 years after his
conviction became final and slightly less than 4 years after his
resentencing, which became final for PCRA purposes on August
1, 2010.
PCRA Court Opinion, 7/23/2014, at 1–2 (citation and footnote omitted).
Our standard of review is as follows:
Our standard of review of an order denying PCRA relief is
whether the record supports the PCRA court’s determination and
whether the PCRA court’s 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.
_______________________
(Footnote Continued)
Order, 10/15/2015.
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Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citations
omitted).
It is well settled that no court may entertain the merits of a PCRA
petition if it is untimely filed. Commonwealth v. Murray, 753 A.2d 201,
203 (Pa. 2000). The PCRA time limit is strict, mandatory, and jurisdictional.
Id.
Generally, a PCRA petition must be filed within one year from the
date a judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1).
There are three exceptions to this time requirement: (1)
interference by government officials in the presentation of the
claim; (2) newly discovered facts; and (3) an after-recognized
constitutional right. 42 Pa.C.S.A. § 9545(b)(1)(i-iii). When a
petitioner alleges and proves that one of these exceptions is
met, the petition will be considered timely. See
Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 753 A.2d
780, 783 (Pa. 2000). A PCRA petition invoking one of these
exceptions must “be filed within 60 days of the date the claims
could have been presented.” Id. (quoting 42 Pa.C.S.A. §
9545(b)(2)). The timeliness requirements of the PCRA are
jurisdictional in nature and, accordingly, a PCRA court cannot
hear untimely petitions. Commonwealth v. Robinson, 575 Pa.
500, 837 A.2d 1157, 1161 (Pa. 2003).
Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa. Super. 2012).
Daddario does not dispute that his present PCRA petition is facially
untimely. He claims, however, that his petition falls within two exceptions to
the PCRA’s time bar, namely, the newly discovered facts exception set forth
at 42 Pa.C.S. § 9545(b)(1)(ii), and the after-recognized constitutional right
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exception found at 42 Pa.C.S. § 9545(b)(1)(iii). 2 In pleading both
exceptions, Daddario relies on the United States Supreme Court case of
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2
The exceptions to the PCRA time bar are set forth in Section 9545(b)(1)(i)-
(iii), as follows:
(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.
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the date the
claim could have been presented.
42 Pa.C.S. § 9545(b)(1)(i)-(iii), (b)(2) (emphasis supplied).
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Alleyne v. United States, 133 S. Ct. 2151 (2013), decided June 17, 2013.3
No relief is due.
As the PCRA court correctly pointed out, Daddario did not file his PCRA
petition within 60 days of the Alleyne decision, as required by Section
9545(b)(2), and his ignorance of the law until the decision was available in
the prison law library does not excuse this failure to comply with the 60-day
requirement. Commonwealth v. Brandon, 51 A.3d 231, 235 (Pa. Super.
2012), citing Commonwealth v. Baldwin, 789 A.2d 728, 731 (Pa. Super.
2001) (“Neither the court system nor the correctional system is obliged to
educate or update prisoners concerning changes in case law.”). See PCRA
Court Opinion, 7/23/2014, at 3–4.
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3
On September 1, 2006, a jury convicted Daddario of multiple counts of
involuntary deviate sexual intercourse, statutory sexual assault, aggravated
indecent assault, corruption of minors, and indecent assault. The trial court
sentenced Daddario to an aggregate term of 25 to 90 years’ incarceration.
Daddario’s PCRA petition alleges that “[t]he trial judge exceeded his
authority by imposing mandatory minimum sentences and applying the
Statutes which were and are unconstitutional.” Daddario’s PCRA Petition,
7/24/2014, at 1, ¶I(a).
In Alleyne v. United States, 133 U.S. 2151 (2013), the United
States Supreme Court held “[a]ny fact that, by law, increases the penalty for
a crime is an ‘element’ that must be submitted to the jury and found beyond
a reasonable doubt.” Id. at 2155. Applying this mandate, this Court has
held that Alleyne renders unconstitutional mandatory minimum sentencing
statutes that permit the trial court to increase a defendant’s minimum based
upon a preponderance of the evidence standard. See Commonwealth v.
Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc) (finding 42 Pa.C.S. §
9712.1 unconstitutional).
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Even if Daddario had filed his PCRA petition within 60 days of the
issuance of the Alleyne decision, his petition does not satisfy the PCRA
exceptions for newly discovered facts or an after-recognized constitutional
right. “Our Courts have expressly rejected the notion that judicial decisions
can be considered newly-discovered facts which would invoke the
protections afforded by section 9545(b)(1)(ii).” Commonwealth v.
Cintora, 69 A.3d 759, 763 (Pa. Super. 2013). Therefore, Alleyne, a
judicial decision, is not a “fact” that satisfies Section 9545(b)(1)(ii).
Moreover, this Court, in Commonwealth v. Miller, 102 A.3d 988 (Pa.
Super. 2014), confirmed that a PCRA petitioner may not rely upon the
decision of the Supreme Court of the United States in Alleyne to avail
himself of the exception to the time requirements of the Post Conviction
Relief Act codified at § 9545(b)(1)(iii). In Miller, a panel of this Court
concluded that Alleyne was an extension of the line of cases beginning with
Apprendi v. New Jersey, 530 U.S. 466 (2000), and further that:
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 in those
cases. Therefore, Appellant has failed to satisfy the new
constitutional right exception to the time-bar.
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Miller, 102 A.3d at 995 (citations omitted) (footnote omitted).4
As Daddario’s PCRA petition is time-barred in that he is unable to
demonstrate the applicability of a statutory exception to the time
requirements of the Post Conviction Relief Act, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/16/2015
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4
Although Daddario cites Commonwealth v. Newman, 99 A.3d 86 (Pa.
Super. 2014) (en banc), and Commonwealth v. Wolfe, 106 A.3d 800 (Pa.
Super. 2014), his reliance is misplaced. Daddario’s Brief, at 12. Newman
held that Alleyne is to be given retroactive effect to cases that were
pending on direct appeal at the time the decision in Alleyne was issued.
In Wolfe, the appellant was sentenced after Alleyne was decided, and this
Court applied Alleyne in Wolfe’s direct appeal. Neither Newman nor
Wolfe involved the issue of whether Alleyne would apply retroactively to
cases on post-conviction collateral review where the defendant’s direct
appeal was already finally decided.
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