Com. v. Hagwood, M. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
MAURICE JERMAINE HAGWOOD, :
:
Appellant : No. 199 EDA 2015
Appeal from the Order entered on December 10, 2014
in the Court of Common Pleas of Montgomery County,
Criminal Division, No. CP-46-CR-0003130-2006
BEFORE: BOWES, OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JULY 07, 2015
Maurice Jermaine Hagwood (“Hagwood”) appeals from the Order
dismissing his Petition for habeas corpus ad subjiciendum (“Petition”).1 We
affirm.
In 2007, a jury convicted Hagwood on counts of possession with intent
to deliver, possession of a controlled substance for personal use, persons not
1
It is well-settled that any petition filed after the judgment of sentence
becomes final will be treated as a petition filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.
Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011). Further,
the PCRA subsumes the remedy of habeas corpus where the PCRA provides
a remedy for the claim. See Commonwealth v. Turner, 80 A.3d 754, 770
(Pa. 2013); 42 Pa.C.S.A. § 9542 (providing that “[t]he action established in
this subchapter shall be the sole means of obtaining collateral relief and
encompasses all other common law and statutory remedies for the same
purpose that exists when this subchapter takes effect, including habeas
corpus.”). In his Petition, Hagwood challenges the legality of his sentence
and ineffective assistance of counsel. Because Hagwood filed his Petition
after his judgment of sentence became final, and the PCRA provides a
remedy for his claims, the Petition is properly treated as a PCRA Petition.
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to possess a firearm, and firearms not to be carried without a license.2 The
trial court sentenced Hagwood to an aggregate prison term of ten years and
fifteen days to twenty years and thirty days. This Court affirmed the
judgment of sentence, after which the Pennsylvania Supreme Court denied
the allowance of appeal. See Commonwealth v. Hagwood, 976 A.2d
1203 (Pa. Super. 2009) (unpublished memorandum), appeal denied, 990
A.2d 728 (Pa. 2010).
In February 2011, Hagwood filed his first PCRA Petition which the
PCRA court denied. This Court affirmed the PCRA court’s denial. See
Commonwealth v. Hagwood, 55 A.3d 148 (Pa. Super. 2012) (unpublished
memorandum).
In 2012, Hagwood filed a Motion for reconsideration/reduction of
sentence, which the PCRA court treated as Hagwood’s second PCRA Petition.
The PCRA court denied the Petition.
Hagwood filed the instant Petition in October 2014. The PCRA court
addressed the Petition under the PCRA, and dismissed the Petition as
untimely.
Our standard of review regarding a PCRA court’s dismissal of a PCRA
petition is whether the PCRA court’s decision is supported by the evidence of
record and is free of legal error. Commonwealth v. Garcia, 23 A.3d 1059,
1061 (Pa. Super. 2011).
2
The jury initially deadlocked on the firearms charges. As a result, a second
jury trial was held, after which Hagwood was found guilty.
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Initially, we observe that all PCRA petitions, including second or
subsequent petitions, must be filed within one year of the defendant’s
judgment of sentence becoming final. 42 Pa.C.S.A. § 9545(b)(1). “A
judgment becomes 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
review.” Id. § 9545(b)(3). The PCRA’s timeliness requirements are
jurisdictional in nature and a court may not address the merits of the issues
raised if the PCRA petition was not timely filed. Commonwealth v.
Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
In this case, Hagwood’s judgment of sentence became final on May 26,
2010, after the time to seek review with the United States Supreme Court
had expired. See Sup. Ct. R. 13 (allowing ninety days to petition for a writ
of certiorari). Accordingly, Hagwood had until May 26, 2011, to file a timely
PCRA petition. Thus, Hagwood’s October 2014 Petition is facially untimely
under the PCRA.
However, Pennsylvania courts may consider an untimely petition
where the defendant can explicitly plead and prove one of three exceptions
set forth in the PCRA as follows:
(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). Additionally, any PCRA petition invoking one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.
Here, Hagwood invokes the newly recognized constitutional right
exception, under section 9545(b)(1)(iii). Brief for Appellant at 9. Hagwood
argues that the United States Supreme Court’s decision in Alleyne v.
United States, 133 S. Ct. 2151 (2013), rendered his sentence illegal. Brief
for Appellant at 14. The Alleyne Court held that any fact that increases the
mandatory minimum sentence for a crime is an element that must be
submitted to the jury and found beyond a reasonable doubt. Alleyne, 133
S. Ct. at 2155, 2163.
Here, Hagwood failed to file his Petition within 60 days of the date on
which the Supreme Court issued the Alleyne decision. See
Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013) (stating
that to fulfill the 60-day requirement, defendants need to file their petitions
within 60 days from the date of the court’s decision). Moreover, Alleyne is
not retroactive to cases where the judgment of sentence was final. See
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Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (stating
that neither the Pennsylvania 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 has become final); see also id. (stating that while
Alleyne raises a legality of sentence challenge, courts cannot review a
legality claim where it does not have jurisdiction). Thus, Hagwood’s Petition
fails to satisfy the statutory exception at section § 9545(b)(1)(iii).3
Hagwood also argues that his Petition was timely since the United
States Supreme Court published Alleyne during the pendency of his federal
habeas corpus Petition. However, this assertion does not trigger any of the
statutory exceptions to the PCRA timeliness requirements. Additionally,
Hagwood’s claims regarding ineffective assistance of counsel do not
implicate any timeliness exceptions. See Commonwealth v. Breakiron,
781 A.2d 94, 97 (Pa. 2001). Accordingly, the PCRA court properly dismissed
the Petition.
Order affirmed.
3
Hagwood asserts he is entitled to relief under Commonwealth v.
Newman, 99 A.3d 86, 90 (Pa. Super. 2014), Commonwealth v. Munday,
78 A.3d 661, 666 (Pa. Super. 2013), and Commonwealth v. Whatley, 81
A.3d 108, 116 (Pa. Super. 2013). Brief for Appellant at 14-16. However,
these decisions were not decided by the Pennsylvania Supreme Court or the
United States Supreme Court, and did not announce a new constitutional
right that applies retroactively as required by section § 9545(b)(1)(iii).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2015
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