Com. v. Ratcliff, T. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
TONY RUFUS RATCLIFF, III,
Appellant No. 703 WDA 2015
Appeal from the PCRA Order March 6, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001717-2009
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and OTT, JJ.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 14, 2015
Appellant, Tony Rufus Ratcliff, III, appeals pro se from the order
denying his second petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.
We summarize the history of this case as follows. On March 22, 2011,
a jury convicted Appellant of the crimes of possession with intent to deliver,
firearms not to be carried without a license, possession of drug
paraphernalia, and three counts of possession of a controlled substance.
The trial judge convicted Appellant of the summary offense of driving while
operating privileges are suspended. On July 25, 2011, the trial court
sentenced Appellant to an aggregate term of incarceration of five to ten
years. Among the sentences imposed by the trial court was a mandatory
term of incarceration of five to ten years for Appellant’s conviction of
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possession with intent to deliver. Appellant filed post-sentence motions,
which the trial court denied. Thereafter, this Court affirmed Appellant’s
judgment of sentence on July 25, 2012. Commonwealth v. Ratcliff, 1597
WDA 2011, 55 A.3d 148 (Pa. Super. 2012) (unpublished memorandum).
Appellant did not seek further review in the Pennsylvania Supreme Court.
On October 24, 2012, Appellant filed his first PCRA petition, and the
PCRA court ultimately denied relief on June 4, 2013. This Court affirmed the
decision of the PCRA court on February 4, 2014. Commonwealth v.
Ratcliff, 1050 WDA 2013, 97 A.3d 793 (Pa. Super. 2014) (unpublished
memorandum).
On February 9, 2015, Appellant filed a writ of habeas corpus with the
court of common pleas arguing that the mandatory minimum sentence
imposed in his case is illegal pursuant to Alleyne v. United States, 133
S.Ct 2151 (2013). The court interpreted Appellant’s filing as a second PCRA
petition and, on March 9, 2015, filed a notice of intent to dismiss pursuant to
Pa.R.Crim.P. 907. On April 10, 2015, the PCRA court dismissed Appellant’s
second PCRA petition. This timely appeal followed. Both Appellant and the
PCRA court have complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
1. Did the trial court abuse its discretion by dismissing
Appellant’s second Motion for Post Conviction Collateral Relief
(originally titled as a Writ of Habeas Corpus) without a hearing,
in light of recent decisions by the Pennsylvania Superior and
Supreme Courts and the United States Supreme Court?
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(a) Whether an illegal sentence is ever considered
final?
(b) Whether the trial court always has jurisdiction to
correct an illegal sentence and must entertain such a
request when same is presented to them?
(c) Whether Appellant has invoked the exception to
42 Pa.C.S.A. 9545(b)(1)(iii) in his second pro se
PCRA petition, given the very limited access to legal
materials as a result of his prolonged incarceration?
2. Did the trial court impose an unconstitutional mandatory
minimum sentence?
Appellant’s Brief at 4.
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 determination is free of legal error. Commonwealth v. Phillips, 31
A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877
A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the certified record.
Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
2001)).
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). This time
requirement is mandatory and jurisdictional in nature, and it may not be
ignored in order to reach the merits of the petition. Commonwealth v.
Murray, 753 A.2d 201, 203 (Pa. 2000). A judgment of sentence “becomes
final at the conclusion of direct review, including discretionary review in the
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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).
However, an untimely petition may be received when the petition
alleges, and the petitioner proves, that any of the three limited exceptions to
the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),
and (iii), is met.1 A petition invoking one of these exceptions must be filed
within sixty days of the date the claim could first have been presented. 42
Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions to the
PCRA’s one-year filing deadline, “the petitioner must plead and prove
specific facts that demonstrate his claim was raised within the sixty-day time
frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.
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1
The exceptions to the timeliness requirement are:
(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), (ii), and (iii).
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Our review of the record reflects that the trial court imposed the
judgment of sentence on July 25, 2011. This Court affirmed Appellant’s
judgment of sentence on July 25, 2012. Appellant did not seek review in the
Pennsylvania Supreme Court. Accordingly, Appellant’s judgment of sentence
became final on August 24, 2012, thirty days after this Court affirmed
Appellant’s judgment of sentence and the time for filing a petition for
allowance of appeal with the Pennsylvania Supreme Court expired. 42
Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a). Appellant did not file the instant
PCRA petition until February 9, 2015. Thus, the instant PCRA petition is
patently untimely.
As previously stated, if a petitioner does not file a timely PCRA
petition, his petition may nevertheless be received under any of the three
limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S. §
9545(b)(1). If a petitioner asserts one of these exceptions, he must file his
petition within sixty days of the date that the exception could be asserted.
42 Pa.C.S. § 9545(b)(2).
Instantly, Appellant contends that Alleyne established a new
constitutional right that applies retroactively under section 9545(b)(1)(iii).
However, Appellant failed to raise this exception in a timely manner.
Alleyne was decided on June 17, 2013. Appellant did not file the instant
PCRA petition until February 9, 2015, which was well over sixty days after
the date the claim could have been presented. Therefore, Appellant failed to
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meet the timeliness requirement of 42 Pa.C.S. § 9545(b)(2). See
Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa. Super. 2007) (stating
that “[w]ith regard to [a newly] recognized constitutional right, this Court
has held that the sixty-day period begins to run upon the date of the
underlying judicial decision.”).
Further, this Court has held that even if Alleyne is interpreted as
enunciating a newly recognized constitutional right, such right is not
applicable retroactively to cases on PCRA review. Commonwealth v.
Miller, 102 A.3d 988, 995 (Pa. Super. 2014). Specifically, the Court in
Miller stated the following:
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 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.
Id. See also Commonwealth v. Riggle, 119 A.3d 1058 (Pa. Super. 2015)
(finding Alleyne is not entitled to retroactive effect in PCRA setting). 2 For
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2
While we acknowledge that Appellant’s claim concerning Alleyne goes to
the legality of his sentence, we note that this Court has stated that
“although illegal sentencing issues cannot be waived, they still must be
presented in a timely PCRA petition.” Commonwealth v. Taylor, 65 A.3d
462, 465 (Pa. Super. 2013).
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this reason as well, Appellant has failed to invoke an applicable timeliness
exception.
In conclusion, because Appellant’s second PCRA petition was untimely
and no exceptions apply, the PCRA court lacked jurisdiction to address the
claims presented and grant relief. See Commonwealth v. Fairiror, 809
A.2d 396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction
to hear untimely petition). Likewise, we lack the authority to address the
merits of any substantive claims raised in the PCRA petition. See
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007)
(“[J]urisdictional time limits go to a court’s right or competency to adjudicate
a controversy.”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2015
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