Com. v. Cole, S. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
SHAWN COLE
Appellant No. 1238 EDA 2015
Appeal from the PCRA Order April 13, 2015
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0003064-2003
CP-15-CR-0003065-2003
BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY MUNDY, J.: FILED AUGUST 26, 2015
Appellant, Shawn Cole, appeals from the April 13, 2015 order,
dismissing as untimely, his fifth 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 April 21, 2004, the trial court sentenced Appellant to an aggregate
term of 17 to 34 years’ imprisonment, following his convictions for eight
counts of possession with intent to deliver, two counts of possession of drug
paraphernalia, seven counts of criminal use of a communication facility, and
one count of possession of a firearm prohibited.1 This Court affirmed
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1
35 P.S. §§ 780-113(a)(30), 780-113(a)(32), 18 Pa.C.S.A. §§ 7512(a) and
6105(a), respectively.
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Appellant’s judgment of sentence on July 15, 2005. Commonwealth v.
Cole, 883 A.2d 685 (Pa. Super. 2005) (unpublished memorandum), appeal
dismissed, 897 A.2d 1165 (Pa. 2006). Our Supreme Court granted
Appellant’s allocatur petition in part, but dismissed the appeal as
improvidently granted on April 21, 2006. Id. Appellant did not seek a writ
of certiorari from the Supreme Court of the United States; therefore, his
judgment of sentence became final on July 20, 2006, when the filing period
for such a petition expired.2 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
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2
Appellant timely filed his first PCRA petition on March 20, 2007, which the
PCRA court dismissed on August 5, 2008, after two evidentiary hearings,
and this Court affirmed on March 31, 2010. Commonwealth v. Cole, 996
A.2d 538 (Pa. Super. 2010) (unpublished memorandum). Appellant filed his
second PCRA petition on May 11, 2010, which the PCRA court dismissed on
December 20, 2010, and this Court affirmed on June 30, 2011.
Commonwealth v. Cole, 31 A.3d 760 (Pa. Super. 2011) (unpublished
memorandum). Appellant’s third PCRA petition was filed on July 27, 2011,
the PCRA court dismissed the same on August 29, 2011, this Court affirmed
on March 9, 2012, and our Supreme Court denied allocatur on September
11, 2012. Commonwealth v. Cole, 47 A.3d 1239 (Pa. Super. 2012)
(unpublished memorandum), appeal denied, 53 A.3d 49 (Pa. 2012).
Appellant’s fourth PCRA petition was filed on November 9, 2012, the PCRA
court dismissed it on December 4, 2012, this Court affirmed said dismissal
on July 24, 2013, and our Supreme Court denied allowance of appeal on
January 6, 2014. Commonwealth v. Cole, 82 A.3d 1077 (Pa. Super.
2013) (unpublished memorandum), appeal denied, 84 A.3d 1061 (Pa.
2014).
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review[]”); U.S. Sup. Ct. R. 13(1) (stating “a petition for a writ of certiorari
to review a judgment in any case … is timely when it is filed with the Clerk of
this Court within 90 days after entry of the judgment[]”). As a result,
Appellant had until July 21, 2007 to timely file a PCRA petition. 3 Appellant
filed the instant petition on October 15, 2014; therefore, it was facially
untimely. However, Appellant argues this Court’s decision in
Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc),
satisfies the newly-discovered fact exception to the time-bar at Section
9545(b)(1)(ii) and the new constitutional right exception to the time-bar at
Section 9545(b)(1)(iii). Appellant’s Brief at 2-3.
Our Supreme Court has held that judicial decisions are not “facts” for
the purposes of Section 9545(b)(1)(ii). Commonwealth v. Watts, 23 A.3d
980, 986-987 (Pa. 2011). In addition, Newman did not purport to
announce a new constitutional right, much less one that applied
retroactively. Rather, in Newman, this Court held that all of Pennsylvania’s
mandatory minimum statutes, except those that rely on the fact of a prior
conviction, are facially unconstitutional because their various subsections
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3
We note that July 20, 2007 was a Sunday; therefore, Appellant’s PCRA
petition was due by Monday, July 21, 2007. See 1 Pa.C.S.A. § 1908
(stating, “[if] the last day of any such period shall fall on Saturday or
Sunday … such day shall be omitted from the computation[]”).
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could not be severed from each other.4 Newman, supra at 101-102.
However, even if Newman did announce a new retroactive constitutional
right, Appellant’s time-bar argument would still fail in this case, as this Court
lacks the judicial power to make such determinations for the purposes of the
PCRA time-bar.5 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). As a
result, the PCRA court lacked jurisdiction to consider the merits of
Appellant’s claims.
Based on the foregoing, we conclude the PCRA court properly
dismissed Appellant’s fifth PCRA petition as untimely. Accordingly, the PCRA
court’s April 13, 2015 order is affirmed.
Order affirmed.
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4
Our Supreme Court recently agreed with Newman’s conclusion.
Commonwealth v. Hopkins, --- A.3d ---, 2015 WL 3949099, at *1, 10,
11, 13 (Pa. 2015). However, our Supreme Court did not hold that its rule
was to be retroactively applied.
5
To the extent Appellant’s brief could be construed as arguing Alleyne v.
United States, 133 S. Ct. 2151 (2013), satisfies the new constitutional
right exception, this Court has rejected that argument. Commonwealth v.
Miller, 102 A.3d 988, 995 (Pa. Super. 2014).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/26/2015
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