Com. v. Barker, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RICCHEEM A. BARKER
Appellant No. 1559 MDA 2014
Appeal from the PCRA Order September 8, 2014
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0001996-2009
*************************************************************
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICCHEEM A. BARKER
Appellant No. 1560 MDA 2014
Appeal from the PCRA Order September 8, 2014
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0001995-2009
BEFORE: BOWES, J., OTT, J., and STABILE, J.
MEMORANDUM BY OTT, J.: FILED JUNE 30, 2015
Riccheem A. Barker appeals pro se from the order entered September
8, 2014, in the Court of Common Pleas of Lycoming County that dismissed
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his second petition filed pursuant to the Post Conviction Relief Act (PCRA) 1.
Barker claims that 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.
On September 8, 2010, [Barker] pled guilty to Third
Degree Murder,1 Persons Not to Possess a Firearm,2 and
Possession with the Intent to Deliver a Controlled Substance.3
On September 8, 2010, the Court imposed an aggregate
sentence of twenty (20) to fifty (50) years. [Barker] did not file
an appeal to the Superior Court. On June 24, 2014, [Barker]
filed a Post-Conviction Relief Act (PCRA) Petition. The petition is
postmarked June 23, 2014. The petition is [Barker’s] second
PCRA petition. In the petition, [Barker] argues that as a result
of the decision of the Supreme Court of the United States in
Alleyne v. United States,4 his rights under the Sixth Amendment
to the United States Constitution were violated because the
Court utilized a mandatory minimum when fashioning the
sentence imposed.
_____________________
1
18 Pa.C.S. § 2502(c).
2
18 Pa.C.S. § 6105(a)(1).
3
35 P.S. § 780-113(a)(30).
4
133 S.Ct. 2151 (2013).
____________________
PCRA Court Opinion, 7/09/2014, at 1.
Our standard of review is as follows:
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1
42 Pa.C.S. §§ 9541-9546. Barker filed his first PCRA petition on July 12,
2011. The PCRA court denied relief and this Court affirmed the decision of
the PCRA court. Commonwealth v. Barker, 102 A.3d 524 (Pa. Super.
2014) (unpublished memorandum).
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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.
Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citations
omitted).
It is undisputed that a PCRA petition must be filed within one year of
the date that the judgment of sentence becomes final. 42 Pa.C.S. §
9545(b)(1); Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super.
2013) (citation omitted). This time requirement is mandatory and
jurisdictional in nature, and the court may not ignore it in order to reach the
merits of petition. Id. at 651.
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 requirement 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, 233-234 (Pa. Super. 2012).
Barker does not dispute that his present PCRA petition is facially
untimely. He claims, however, that his petition falls within a statutory
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exception to the PCRA’s time bar.2 In this regard, Barker cites the United
States Supreme Court’s decision in Alleyne v. United States, 133 S. Ct.
2151 (June 17, 2013), and relies upon the PCRA’s exception for newly
discovered facts. 42 Pa.C.S. § 9545(b)(ii). We conclude, however, no relief
is due.
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
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2
The relevant exceptions to the PCRA time bar are set forth in Section
9545(b)(1), 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:
****
(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 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)(ii)-(iii), (b)(2) (emphasis supplied).
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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).
In this case, Barker avers:
[T]he material fact presented is that his mandatory minimum
sentence of five (5) years got [sic] Possession with the Intent to
Deliver a Controlled Substance under 35 P.S. § 780-113(a)(30)
and 18 Pa.C.S.A. [sic] 7508, and Person not to Possess a
Firearm under 18 Pa.C.S.A. § 6105(a)(1), based upon the fact
that [Barker] possessed heroin with an intent to deliver and
possessed a firearm, during the commission of the drug offense
and homicide offense was not determined by a jury, to have
been proven beyond a reasonable doubt.
Barker’s Objection to July 9, 2014, Opinion and Order to Dismiss, 8/4/2014,
at 1, ¶ 1 (emphasis omitted).
Barker’s petition does not satisfy any exceptions to the PCRA’s one-
year time limitation. “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, while not specifically raised by Barker, we note that this
Court, in Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014),
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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 PCRA 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.
Miller, 102 A.3d at 995 (citations omitted) (footnote omitted).3
Furthermore, as the PCRA court correctly pointed out, even if Barker’s
arguments satisfied an exception, his petition would still be untimely.
Section 9545(b)(2) requires a PCRA petition raising an exception to “be filed
within 60 days of the date the claim could have been presented.” 42 Pa.C.S.
§ 9545(b)(2). Alleyne was decided on June 17, 2013, and Barker did not
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3
Although Barker cites Commonwealth v. Newman, supra, for the
proposition that Alleyne applies retroactively, his reliance is misplaced.
See Barker’s Brief, at 2. 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.
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file his petition until June 23, 2014, over one year after the decision.
Although Barker maintains that he filed his petition within 60 days of a local
newspaper article wherein he learned of the Alleyne decision, this Court has
explained:
[T]he sixty-day period begins to run upon the date of the
underlying judicial decision. Ignorance of the law does not
excuse [a petitioner’s] failure to file his petition within the 60
days …. Neither the court system nor the correctional system is
obliged to educate or update prisoners concerning changes in
case law.
Brandon, supra, 51 A.3d at 235 (Pa. Super. 2012) (quotations and
citations omitted).
As Barker’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 PCRA, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/30/2015
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