Com. v. Gonzalez, J. ( 2015 )

J-A14026-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSE A. GONZALEZ
Appellant No. 1362 MDA 2014
Appeal from the PCRA Order July 8, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0002205-2001
CP-36-CR-0002213-2001
CP-36-CR-0002257-2001
CP-36-CR-0002258-2001
BEFORE: BENDER, P.J.E., JENKINS, J., and STRASSBURGER, J.*
MEMORANDUM BY JENKINS, J.: FILED MAY 04, 2015
Jose Gonzalez appeals from an order denying his petition for relief
under the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq. The lone
issue in this appeal is whether Gonzalez’s sentence is unconstitutional under
Alleyne v. United States, -- U.S. --, 133 S.Ct. 2151 (2013). Alleyne does
not apply to cases on collateral review such as the case at bar. Therefore,
we affirm.
On January 8, 2002, Gonzalez was convicted of four counts of delivery
of cocaine1 and one count of criminal conspiracy.2 On March 4, 2002, the
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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trial court invoked the mandatory minimum provisions of 18 Pa.C.S. § 7508
and sentenced Gonzalez to an aggregate sentence of 18-36 years’
imprisonment. On December 19, 2002, the Superior Court affirmed his
judgment of sentence, and on May 28, 2003, the Supreme Court denied his
petition for allowance of appeal.
In 2004, Gonzalez filed a PCRA petition which the PCRA court
dismissed without a hearing. This Court subsequently affirmed. In 2006
and 2007, Gonzalez filed two more PCRA petitions, both of which the PCRA
Court dismissed without a hearing. In both instances, this Court affirmed on
the ground that the PCRA petition was untimely. Finally, on May 30, 2014,
Gonzalez filed his fourth pro se PCRA petition, the petition presently on
appeal, alleging that the trial court’s use of the mandatory minimum
provisions in section 7508 rendered his sentence unconstitutional under
Alleyne. On June 6, 2014, the PCRA court issued a Pa.R.Crim.P. 907 notice
of intent to dismiss the PCRA petition without a hearing. On August 14,
2014, the court issued an order dismissing the fourth PCRA petition without
a hearing. This timely appeal followed. Both Gonzalez and the PCRA court
complied with Pa.R.A.P. 1925.
The single issue in this appeal is as follows:
_______________________
(Footnote Continued)
1
35 P.S. § 780-113(a)(30).
2
18 Pa.C.S. § 903.
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Whether the PCRA court erred as a matter of law and
Constitution in dismissing appellant’s pro se PCRA
Petition, where appellant was sentenced to a
mandatory minimum sentence under statute 18
Pa.C.S.A. §7508 which was and is deemed
unconstitutional in light of [Alleyne]?
Brief For Appellant, p. 4. Gonzalez argues that his sentence is
unconstitutional under Alleyne, which held that, other than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory minimum must be submitted to a jury and proved
beyond a reasonable doubt. Id., 131 S.Ct. at 2160-61.
This issue is not waived, because challenges to the legality of a
sentence cannot be waived. Commonwealth v. Miller, 102 A.3d 988, 996
(Pa.Super.2014) (Alleyne challenge to legality of sentence is “not
technically waivable”). On the other hand, this issue is untimely, because
Gonzalez raised it for the first time more than one year after his judgment of
sentence became final and has not pleaded or proved one of the PCRA’s
enumerated exceptions. As a result, we lack jurisdiction to review it under
the PCRA’s statute of limitations, 42 Pa.C.S. § 9545(b).
Section 9545 provides that a petition “including a second or
subsequent petition, shall be filed within one year of the date the judgment
becomes final.” 42 Pa.C.S. § 9545(b)(1); accord Commonwealth v.
Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003). No court has jurisdiction to
hear an untimely PCRA petition. Commonwealth v. Monaco, 996 A.2d
1076, 1079 (Pa.Super.2010) (citing Commonwealth v. Robinson, 837
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A.2d 1157, 1161 (Pa.2003)). A judgment is 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.” 42 Pa.C.S. § 9545(b)(3).
Three exceptions to the PCRA’s time-bar provide for very limited
circumstances under which a court may excuse the late filing of a PCRA
petition. 42 Pa.C.S. § 9545(b)(1); Monaco, 996 A.2d at 1079. The late
filing of a petition will be excused if a petitioner alleges and proves:
(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;
(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. § 9545(b)(1)(i)-(iii). A petition invoking an exception to the
PCRA time bar must “be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2).
With these principles in mind, we observe that Gonzalez’s judgment of
sentence became final on August 26, 2003, the final day for filing a petition
for writ of certiorari in the United States Supreme Court. Thus, Gonzalez
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had until August 26, 2004 to timely file a PCRA petition. Gonzalez did not
file his petition until May 30, 2014. Thus, it is untimely on its face.
Nor do any of the exceptions in section 9545(b)(i-iii) apply to this
case. Gonzalez suggests in his brief that Alleyne applies retroactively under
section 9545(b)(iii), because challenges to the illegality of his sentence are
never waived. We disagree, based on our analysis of the same issue in
Miller. Miller held that the PCRA court lacked jurisdiction to consider an
Alleyne argument presented in a second PCRA petition filed five years after
the petitioner’s judgment of sentence became final, reasoning:
Subsection (iii) of Section 9545 [(b)(1)] has two
requirements. First, it provides that 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
provided in this section. Second, it provides that the
right ‘has been held’ by ‘that court’ to apply
retroactively. Thus, a petitioner must prove that
there is a ‘new’ constitutional right and that the right
‘has been held’ by that court to apply retroactively.
The language ‘has been held’ is in the past tense.
These words mean that the action has already
occurred, i.e., ‘that court’ has already held the new
constitutional right to be retroactive to cases on
collateral review. By employing the past tense in
writing this provision, the legislature clearly intended
that the right was already recognized at the time the
petition was filed.
…
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.
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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 to those cases.
Commonwealth v. Phillips, 31 A.3d 317, 320
(Pa.Super.2011), appeal denied, 615 Pa. 784, 42
A.3d 1059 (2012), citing Tyler v. Cain, 533 U.S.
656, 663, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001);
see also, e.g., Commonwealth v. Taylor, 933
A.2d 1035, 1042 (Pa.Super.2007) (stating, ‘for
purposes of subsection (iii), the language ‘has been
held by that court to apply retroactively’ means the
court announcing the rule must have also ruled on
the retroactivity of the new constitutional right,
before the petitioner can assert retroactive
application of the right in a PCRA petition[ ]’), appeal
denied, 597 Pa. 715, 951 A.2d 1163 (2008).
Therefore, Appellant has failed to satisfy the new
constitutional right exception to the time-bar.
…
We are aware that an issue pertaining to Alleyne
goes to the legality of the sentence. See
Commonwealth v. Newman, 99 A.3d 86, 90
(Pa.Super.2014) (en banc) (stating, ‘a challenge to a
sentence premised upon Alleyne likewise implicates
the legality of the sentence and cannot be waived on
appeal[ ]’). It is generally true that ‘this Court is
endowed with the ability to consider an issue of
illegality of sentence sua sponte.’ Commonwealth
v. Orellana, 86 A.3d 877, 883 n. 7 (Pa.Super.2014)
(citation omitted). However, in order for this Court to
review a legality of sentence claim, there must be a
basis for our jurisdiction to engage in such review.
See Commonwealth v. Borovichka, 18 A.3d 1242,
1254 (Pa.Super.2011) (stating, ‘[a] challenge to the
legality of a sentence ... may be entertained as long
as the reviewing court has jurisdiction[ ]’) (citation
omitted). As this Court recently noted, ‘[t]hough not
technically waivable, a legality [of sentence] claim
may nevertheless be lost should it be raised ... in an
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untimely PCRA petition for which no time-bar
exception applies, thus depriving the court of
jurisdiction over the claim.’ [Commonwealth v.]
Seskey, [86 A.3d 237,] 242 [(Pa.Super.2014)]. As a
result, the PCRA court lacked jurisdiction to consider
the merits of Appellant’s second PCRA petition, as it
was untimely filed and no exception was proven…
Miller, 102 A.3d at 994, 995, 996 (emphasis added; certain citations
omitted). Miller squarely applies to this case. Like the petitioner in Miller,
Gonzalez raised Alleyne more than one year after his judgment of sentence
became final. Moreover, even if Alleyne announced a new constitutional
right, neither the United States Supreme Court nor the Pennsylvania
Supreme Court has held that this right applies retroactively. Thus, although
Alleyne implicates the legality of Gonzalez’s sentence, we lack jurisdiction
to address this issue. Miller, 102 A.3d at 995, 996.
Gonzalez’s Alleyne argument suffers from an additional jurisdictional
defect not present in Miller. Whereas the petitioner in Miller raised
Alleyne in a PCRA petition within sixty days after Alleyne’s issuance,
Gonzalez did not raise Alleyne until over one year after its issuance.
Consequently, his Alleyne claim is untimely under the sixty-day deadline in
section 9545(b)(2) for filing exceptions to the PCRA’s one-year time bar.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/2015
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