Com. v. Ferguson, P. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee
v.
PAUL A. FERGUSON
Appellant No. 203 MDA 2016
Appeal from the PCRA Order entered October 14, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at Nos: CP-22-CR-0001353-1996;
CP-22-CR-0001354-1996; CP-22-CR-0001355-1996
BEFORE: STABILE, DUBOW, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 23, 2016
Appellant, Paul A. Ferguson, appeals from the order the Court of
Common Pleas of Dauphin County entered on October 14, 2015 dismissing
his second petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A.
§§ 9541-46. Upon review, we affirm.
We summarized the factual background of this matter in our
memorandum addressing Appellant’s direct appeal. Accordingly, we need
not repeat it here. See Commonwealth v. Ferguson, 358 HGB 1997 (Pa.
Super. filed June 9, 1998). Briefly, Appellant was involved in a home
invasion, followed by assaultive conduct on the residents. At the time of the
crimes, Appellant was 15-years old. After a trial, a jury found Appellant
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*
Retired Senior Judge assigned to the Superior Court.
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guilty of two counts of criminal attempt (homicide), three counts of
aggravated assault, and one count of burglary. The trial court sentenced
Appellant to an aggregate term of incarceration of 36 years to 72 years. On
June 9, 1998, this Court reversed Appellant’s conviction on one of the counts
of aggravated assault and remanded for resentencing. Id. The Supreme
Court denied the Commonwealth’s petition for allowance of appeal.
Commonwealth v. Ferguson, 734 A.2d 392 (Pa. 1998).
Following resentencing, Appellant was sentenced to an aggregate term
of 30 years to 60 years’ imprisonment. Appellant appealed again to this
Court. We affirmed. See Commonwealth v. Ferguson, 542 MDA 99 (Pa.
Super. filed November 18, 1999). The Supreme Court denied Appellant’s
petition for allowance of appeal on April 11, 2000. Commonwealth v.
Ferguson, 757 A.2d 928 (Pa. 2000).
On May 22, 2001, Appellant filed his first PCRA petition, which the
PCRA court dismissed on April 2, 2002. Appellant appealed to this Court.
We affirmed on June 3, 2003. See Commonwealth v. Ferguson, 953
MDA 2002 (Pa. Super. filed June 3, 2003).
Appellant filed the instant PCRA petition on December 8, 2014. The
PCRA court dismissed the petition on October 14, 2015. This appeal
followed.
“[A]n appellate court reviews the PCRA court’s findings of fact to
determine whether they are supported by the record, and reviews its
conclusions of law to determine whether they are free from legal error.”
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Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). All PCRA
petitions, “including a second or subsequent petition, shall be filed within
one year of the date the judgment becomes final” unless an exception to
timeliness applies. 42 Pa.C.S.A. § 9545(b)(1). “The PCRA’s time
restrictions are jurisdictional in nature. Thus, [i]f a PCRA petition is
untimely, neither this Court nor the [PCRA] court has jurisdiction over the
petition. Without jurisdiction, we simply do not have the legal authority to
address the substantive claims.” Commonwealth v. Chester, 895 A.2d
520, 522 (Pa. 2006) (first alteration in original) (internal citations and
quotation marks omitted). As timeliness is separate and distinct from the
merits of Appellant’s underlying claims, we first determine whether this
PCRA petition is timely filed. See Commonwealth v. Stokes, 959 A.2d
306, 310 (Pa. 2008) (consideration of Brady claim separate from
consideration of its timeliness). The timeliness requirements of the PCRA
petition must be met, even if the underlying claim is a challenge to the
legality of the sentence. See Commonwealth v. Holmes, 933 A.2d 57, 60
(Pa. 2007) (“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”) (citing Commonwealth v. Fahy, 737 A.2d 214, 223
(1999)).
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Appellant acknowledges that the instant PCRA petition is facially
untimely. However, he alleges that since his sentence is illegal under
Apprendi1 and/or Alleyne,2 the PCRA time-bar does not apply. We
disagree. Apprendi and Alleyne do not apply retroactively to cases
pending on collateral review. See Commonwealth v. Washington, 142
A.3d 810, 819-20 (Pa. 2016). Accordingly, Apprendi and Alleyne do not
provide any support for Appellant’s timeliness argument.
Appellant also argues that Miller3 is relevant to the issue of timeliness
of his PCRA petition. Even if Miller makes his petition timely, Appellant has
no claim under Miller. Miller held that “mandatory life without parole for
those under the age of 18 at the time of their crimes violates the Eighth
Amendment’s prohibition on ‘cruel and unusual’ punishments.” Miller, 132
S.Ct. at 2460. As noted above, Appellant was not sentenced to life without
parole. As such, reliance on Miller is misplaced.
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1
Apprendi v. New Jersey, 530 U.S. 466 (2000) (holding that any facts,
other than the fact of a prior conviction, that subject a defendant to any
additional penalty beyond a statutory maximum must be submitted to a jury
and be found proved beyond a reasonable doubt).
2
Alleyne v. United States, 133 S. Ct. 2151 (2013) (holding that a jury
must find beyond a reasonable doubt any fact triggering a mandatory
minimum sentence).
3
Miller v. Alabama, 132 S.Ct. 2455 (2012).
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Because the instant PCRA petition is patently untimely, and Appellant
failed to prove he met any of the exceptions to the timeliness requirements,
we cannot review the merits of Appellant’s challenges. Chester, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2016
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