Com. v. Smith, K. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KEVIN SMITH
Appellant No. 2288 EDA 2016
Appeal from the PCRA Order May 27, 2016
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0000492-2000
BEFORE: OTT, J., SOLANO, J. AND JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED DECEMBER 08, 2016
Kevin Smith (“Appellant”) appeals from the order entered in the
Chester County Court of Common Pleas, which dismissed his petition filed for
relief pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
The PCRA court set forth the relevant factual and procedural history of
this appeal as follows:
On August 18, 2000[, a] jury convicted [Appellant] of
twelve (12) counts of [r]obbery and one count each of
[c]riminal [c]onspiracy, [p]ossessing [i]nstruments of
[c]rime (“PIC”), [t]heft by [u]nlawful [t]aking (“TBUT”),
[f]irearms [n]ot to be [c]arried [w]ithout a [l]icense and
[c]rimes [c]omitted with a [f]irearm…
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1
42 Pa.C.S. §§ 9541-9546.
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On October 18, 2000, [Appellant] was sentenced to an
aggregate sentence of not less than 23 years and not more
than 46 years[’] imprisonment, followed by a term of
seven (7) years of probation. [Appellant] timely appealed
the judgment of sentence, which was affirmed by the
Superior Court on September 27, 2002. Commonwealth
v. Smith, 3324 EDA 2000. [Appellant] did not seek
allowance of appeal in the Supreme Court of Pennsylvania.
On August 26, 2004, [Appellant] filed a first untimely PCRA
petition. Counsel was appointed to represent [Appellant]
in all matter[s] pertaining to that PCRA petition. PCRA
counsel filed a “no-merit” letter and a [p]etition to
[w]ithdraw, pursuant to the dictates set forth in
Commonwealth v. Turner, 544 A.2d 927 (Pa.1988) and
Commonwealth v. Finley, 550 A.2d 213
(Pa.Super.1988). On December 15, 2004, the [c]ourt
dismissed [Appellant’s] first PCRA petition as untimely.
[Appellant] did not appeal the dismissal of his first PCRA
petition.
On October 4, 2005, [Appellant] filed a second untimely
PCRA petition… On March 10, 2006, the court dismissed
[Appellant’s] second PCRA petition as untimely.
[Appellant] did not appeal.
PCRA Court notice of intent to dismiss PCRA petition pursuant to
Pa.R.Crim.P. 907, filed May 4, 2016, at 2, footnote 2.
On March 21, 2016, Appellant filed his third PCRA petition, which is the
subject of this appeal. On May 4, 2016, the PCRA court filed notice of its
intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P.
907. Appellant filed a response to the notice on May 23, 2016, and the
PCRA court dismissed his petition without a hearing on May 27, 2016.
On June 16, 2016, Appellant timely filed a notice of appeal. On July
14, 2016, the court ordered Appellant to file a concise statement of errors
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complained of on appeal pursuant to Pa.R.A.P. 1925(b), and he timely
complied on July 28, 2016.
Before we address the merits of Appellant’s claims, we must determine
whether his PCRA petition was timely. The timeliness of a PCRA petition
implicates the jurisdiction of both this Court and the PCRA court.
Commonwealth v. Williams, 35 A.3d 44, 52 (Pa.Super.2011), appeal
denied, 50 A.3d 121 (Pa.2012). “Pennsylvania law makes clear that no
court has jurisdiction to hear an untimely PCRA petition.” Id. To “accord
finality to the collateral review process[,]” the PCRA “confers no authority
upon [appellate courts] to fashion ad hoc equitable exceptions to the PCRA
timebar[.]” Commonwealth v. Watts, 23 A.3d 980, 983 (Pa.2011). With
respect to jurisdiction under the PCRA, this Court has further explained:
The most recent amendments to the PCRA...provide a
PCRA petition, including a second or subsequent petition,
shall be filed within one year of the date the underlying
judgment becomes final. A judgment is deemed 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.
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010)
(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011);
see also 42 Pa.C.S. § 9545(b). This Court may review a PCRA petition filed
more than one year after the judgment of sentence becomes final only if the
claim falls within one of the following three statutory exceptions, which the
petitioner must plead and prove:
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(i) the failure to raise the claim 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). These “exceptions to the time bar must be pled in
the PCRA petition, and may not be raised for the first time on appeal.”
Commonwealth v. Burton, 936 A.2d 521, 525 (Pa.Super.2007). Further,
if a petition pleads one of these exceptions, the petition will not be
considered unless it is “filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Appellant’s judgment of sentence became final on October 28,
2002, when the time-period to file a petition for allowance of appeal with our
Supreme Court expired. See 42 Pa.C.S. § 9545(b)(1), (3). See also 1
Pa.C.S. § 1908 (“Whenever the last day of [an appeal] period shall fall on…
Sunday… such day shall be omitted from the computation”). Appellant’s
PCRA petition, filed March 21, 2016, is patently untimely. We must next
determine whether Appellant has pled and proved any of the enumerated
exceptions to the PCRA’s jurisdictional time limitation.
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Appellant has failed to include in his pro se brief a section of questions
presented. We can glean, however, from the argument in his brief, his
Pa.R.A.P. 1925(b) statement, and his PCRA petition that Appellant attempts
to invoke the constitutional right exception to the PCRA time-bar pursuant to
42 Pa.C.S. § 9545(b)(1)(iii). Appellant claims that his sentence was
unconstitutional pursuant to Alleyne v. United States, ___ U.S. ___, 133
S.Ct, 2151, 186 L. Ed. 2d 314 (2013), and that the holding in Alleyne should
apply retroactively to his case. In Alleyne, the Supreme Court of the United
States held that “[a]ny fact that, by law, increases the penalty for a crime is
an ‘element’ that must be submitted to the jury and found beyond a
reasonable doubt.” Id., 133 S.Ct. at 2155.
Unfortunately for Appellant, to qualify for the constitutional right
exception to the PCRA time limitation, Appellant must plead and prove that
the Supreme Court of Pennsylvania or the Supreme Court of the United
States has recognized a constitutional right and that the right “has been
held by that court to apply retroactively.” 42 Pa.C.S. § 9545(b)(1)(iii)
(emphasis added). In Commonwealth v. Washington, 142 A.3d 810
(Pa.2016), the Supreme Court of Pennsylvania held that Alleyne does not
apply retroactively to cases pending on collateral review. Neither the
Supreme Court of Pennsylvania nor the Supreme Court of the United States
has held that Alleyne applies retroactively.
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Because Appellant has failed to plead and prove any of the
enumerated exceptions to the PCRA’s jurisdictional time limitation,
Appellant’s petition remains time-barred, and the PCRA court correctly
determined it lacked jurisdiction to hear it.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2016
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