Com. v. Emra, J. ( 2015 )

J-S42028-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JASON J. EMRA
Appellant No. 554 EDA 2015
Appeal from the PCRA Order February 9, 2015
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0003952-2009
BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED JULY 21, 2015
Appellant, Jason J. Emra, appeals pro se1 from the February 9, 2015
order dismissing his first petition for relief filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful
review, we affirm.
On August 15, 2011, Appellant pled guilty to two counts of possession
with intent to deliver (PWID).2 That same day, the trial court imposed an
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*
Former Justice specially assigned to the Superior Court.
1
The PCRA court appointed counsel for Appellant, who later was granted
leave to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927
(Pa. 1988), Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc), and their progeny. Appellant does not challenge said withdrawal on
appeal.
2
35 P.S. § 780-113(a)(30).
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aggregate sentence of eight to 16 years’ imprisonment, plus four years’
probation. On September 9, 2011, the trial court resentenced Appellant
upon consideration of a timely post-sentence motion for modification filed by
the Commonwealth, although the relevant terms of the sentence remained
unchanged.
Appellant did not file a notice of appeal with this Court. As a result,
Appellant’s judgment of sentence became final on October 11, 2011, when
the time to file a notice of appeal to this Court expired. 3 See 42 Pa.C.S.A.
§ 9545(b)(3) (stating, “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 the review[]”); Pa.R.A.P. 903(c) (stating, “[i]n a criminal case in
which no post-sentence motion has been filed, the notice of appeal shall be
filed within 30 days of the imposition of the judgment of sentence in open
court[]”). Therefore, Appellant had until October 11, 2012 to timely file a
PCRA petition. See generally 42 Pa.C.S.A. § 9545(b)(1). Appellant filed
the instant PCRA petition on December 4, 2014; as a result, it was patently
untimely. Consequently, the PCRA court lacked jurisdiction to consider the
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3
We observe that the 30th day fell on Sunday, October 9, 2011, and the
next day was a holiday, Columbus Day. When computing the 30-day filing
period “[if] the last day of any such period shall fall on Saturday or Sunday,
or on any day made a legal holiday … such day shall be omitted from the
computation.” 1 Pa.C.S.A. § 1908. Therefore, the 30th day for Appellant to
file a timely notice of appeal was on Tuesday, October 11, 2011.
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merits of Appellant’s PCRA petition unless one “of the three limited
exceptions to the time for filing the petition, set forth at 42 Pa.C.S.A.
§ 9545(b)(1)(i), (ii), and (iii), [apply].” Commonwealth v. Lawson, 90
A.3d 1, 5 (Pa. Super. 2014) (citation omitted).
To the extent Appellant argues in his PCRA petition and appellate brief
that Alleyne v. United States, 133 S. Ct. 2151 (2013) satisfies the new
constitutional right exception to the time-bar under Section 9545(b)(1)(iii),
this Court has held it does not. Commonwealth v. Miller, 102 A.3d 988,
995 (Pa. Super. 2014). In addition, our decisions in Commonwealth v.
Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc) and Commonwealth v.
Watley, 81 A.3d 108 (Pa. Super. 2013) (en banc) only noted that Alleyne
applied retroactively to cases that were on direct appeal at the time Alleyne
was decided on June 17, 2013. Newman, supra at 90; Watley, supra at
117. This Court has not held that Alleyne applies retroactively to
judgments of sentence already final when the Alleyne case was decided.
Even if this Court did conclude as such, Section 9545(b)(1)(iii) only permits
a time-bar exception when either our Supreme Court or the United States
Supreme Court holds a new constitutional right to be retroactive to cases on
collateral review. See 42 Pa.C.S.A. § 9545(b)(1)(iii) (allowing a time-bar
exception for “a constitutional right that was recognized by the Supreme
Court of the United States or the Supreme Court of Pennsylvania … and has
been held by that court to apply retroactively[]”) (emphasis added).
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Therefore, the PCRA court correctly determined that it lacked jurisdiction to
address the merits of any of Appellant’s claims.4
Based on the foregoing, we conclude the PCRA court correctly
dismissed Appellant’s PCRA petition as untimely. Accordingly, the PCRA
court’s February 9, 2015 order is affirmed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2015
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4
Although Alleyne claims pertain to the legality of the sentence and are
generally non-waivable, this does not displace the requirements of the PCRA
time-bar. Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super.
2014), appeal denied, 101 A.3d 103 (Pa. 2014).
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