Com. v. Beneshunas, J. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
JOSEPH M. BENESHUNAS :
APPELLANT :
:
: No. 1541 MDA 2016
Appeal from the PCRA Order August 29, 2016
In the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0000745-1995
BEFORE: BOWES, J., DUBOW, J., and FITZGERALD, J.*
MEMORANDUM BY DUBOW, J.: FILED AUGUST 16, 2017
Appellant, Joseph M. Beneshunas, appeals from the August 29, 2016
Order entered in the Court of Common Pleas of Schuylkill County dismissing
his third Petition filed under the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-9546. After careful review, we affirm on the basis that
Appellant’s PCRA Petition is untimely and this Court, thus, lacks jurisdiction
to review the Petition.
On January 21, 1997, a jury convicted Appellant of First-Degree
Murder and related offenses for the shooting death of his girlfriend, and the
trial court subsequently sentenced Appellant to a mandatory term of life
*
Former Justice specially assigned to the Superior Court.
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imprisonment.1 On November 30, 1998, this Court affirmed Appellant’s
Judgment of Sentence, and the Pennsylvania Supreme Court denied
Appellant’s Petition for Allowance of Appeal on April 20, 1999.
Commonwealth v. Beneshunas, 738 A.2d 454 (Pa. 1999). Appellant did
not seek review by the United States Supreme Court. Appellant’s Judgment
of Sentence, therefore, became final on July 19, 1999. See 42 Pa.C.S. §
9545(b)(3); U.S. Sup. Ct. R. 13.
On July 21, 2016, more than seventeen years after his Judgment of
Sentence became final, Appellant filed the instant pro se PCRA Petition, his
third, raising an Alleyne2 claim. On August 11, 2016, the PCRA court issued
a Pa.R.Crim.P. 907 Notice advising Appellant of its intent to dismiss his
Petition without a hearing. Appellant filed a timely pro se “Objection to
Notice of Intent to Dismiss with an Alternative Habeas Corpus Pleading.” On
August 29, 2016, after consideration of Appellant’s response, the PCRA court
dismissed Appellant’s Petition without a hearing, concluding that “Alleyne
does not apply retroactively to collateral attacks on mandatory minimum
1
18 Pa.C.S. § 1102.
2
Alleyne v. United States, 133 S.Ct. 2151, 2160-61 (U.S. 2013) (holding
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).
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sentences.”3 PCRA Court Opinion, filed 8/29/16, at 2. Appellant timely
appealed.
Appellant challenges the denial of his PCRA Petition, asserting that (1)
the PCRA court should have addressed his Alternative Habeas Corpus
Pleading as separate from his PCRA petition, and (2) his Alleyne claim is
timely based on the holding in Montgomery v. Louisiana, 136 S.Ct. 718(U.S. 2016).4
We review the denial of a PCRA Petition to determine whether the
record supports the PCRA court’s findings and whether its Order is otherwise
free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
2014). There is no right to a PCRA hearing; a hearing is unnecessary where
the PCRA court can determine from the record that there are no genuine
issues of material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.
Super. 2008).
Before addressing the merits of Appellant’s claims, we must first
determine whether we have jurisdiction to entertain the underlying PCRA
Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)
3
The PCRA court also concluded the “Alternative Habeas Corpus Pleading”
was a response to the Notice of Intent to Dismiss, rather than a separate
petition for writ of habeas corpus.
4
In Montgomery, the United States Supreme Court held that the rule
announced in Miller v. Alabama, 132 S.Ct. 2455 (U.S. 2012), prohibiting
mandatory life sentences without parole for juvenile offenders, is a
substantive constitutional rule that applies retroactively on state collateral
review.
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(explaining that the timeliness of a PCRA Petition is a jurisdictional
requisite). Under the PCRA, any 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). A Judgment of Sentence 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.” 42 Pa.C.S. §
9545(b)(3). The PCRA’s timeliness requirements are jurisdictional in nature,
and a court may not address the merits of the issues raised if the PCRA
petition was not timely filed. Commonwealth v. Albrecht, 994 A.2d 1091,
1093 (Pa. 2010).
Here, Appellant’s Judgment of Sentence became final on July 19,
1999, upon expiration of the time to file a Petition for Writ of Certiorari with
the United States Supreme Court. See 42 Pa.C.S. § 9545(b)(3); U.S. Sup.
Ct. R. 13. In order to be timely, Appellant needed to submit his PCRA
Petition by July 19, 2000. 42 Pa.C.S. § 9545(b)(1). Appellant filed this
PCRA Petition on July 21, 2016, more than sixteen years after the one-year
deadline. Thus, Appellant’s Petition is facially untimely.
Pennsylvania courts may consider an untimely PCRA petition, however,
if the appellant pleads and proves one of the three exceptions set forth in 42
Pa.C.S. § 9545(b)(1). Any petition invoking a timeliness exception must be
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filed within 60 days of the date the claim could have been presented. 42
Pa.C.S. § 9545(b)(2).
Here, Appellant invokes the third timeliness exception to challenge the
legality of his sentence, which allows an untimely filing if the petition asserts
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)(iii).
Although a legality of sentence claim cannot be waived, it must be
timely raised, i.e., within 60 days of the date the claim could have been
presented. 42 Pa.C.S. § 9545(b)(2); Commonwealth v. Jones, 932 A.2d
179, 182 (Pa. Super. 2007); Commonwealth v. Fahy, 737 A.2d 214, 223
(Pa. 1999) (holding that ”[a]lthough legality of sentence is always subject to
review within the PCRA, claims must still first satisfy the PCRA’s time limits
or one of the exceptions thereto”).
In support of his challenge, Appellant erroneously argues that Alleyne
announced a new substantive rule made retroactive by Montgomery.
However, the Pennsylvania Supreme Court recently concluded that the
constitutional rule announced in Alleyne is procedural, not substantive, and
unequivocally held that “Alleyne does not apply retroactively to cases
pending on collateral review[.]” Commonwealth v. Washington, 142
A.3d 810, 818-20 (Pa. 2016). Accordingly, Appellant’s reliance on
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Montgomery is misplaced and his Alleyne claim does not fall under one of
the Section § 9545(b)(1)(iii) timeliness exceptions.5
Further, the holding in Montgomery is that the rule announced in
Miller, supra, holding juveniles cannot be sentenced to life in prison without
parole, is substantive for purposes of retroactivity. This is not a case
involving a juvenile, and, therefore, Montgomery does not apply.6
With respect to Appellant’s challenge to the PCRA court’s treatment of
his “Alternative Habeas Corpus Pleading,” we note that it is well established
that “the writ of habeas corpus has been subsumed into the PCRA for claims
that are cognizable under the [PCRA] and is not available merely because an
otherwise cognizable claim is jurisdictionally time-barred.” Commonwealth
v. Dickerson, 900 A.2d 407, 412 (Pa. Super. 2006) (citation omitted).
In his “Habeas Corpus Pleading,” Appellant raised the same issues as
those raised in his Objection to the PCRA court’s Rule 907 Notice. The PCRA
court properly considered the pleading to be part of his response to the Rule
907 Notice, rather than as a separate habeas corpus petition.
5
Additionally, the trial court sentenced Appellant to a mandatory term of life
imprisonment pursuant to 18 Pa.C.S. § 1102, a sentencing statute which
does not permit imposition of a lesser term. Accordingly, Alleyne is
inapplicable in Appellant’s case.
6
Moreover, Montgomery, supra, was decided on January 25, 2016.
Assuming, arguendo, that Montgomery is applicable here, Appellant had
until March 25, 2016 to file a PCRA Petition. See 42 Pa.C.S. § 9545(b)(2).
Appellant did not file the instant PCRA Petition until July 21, 2016, thus
rendering it untimely in any event.
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In conclusion, Appellant failed to plead and prove any of the timeliness
exceptions provided in 42 Pa.C.S. § 9545(b)(1), and the PCRA court properly
dismissed Appellant’s untimely Petition and properly addressed Appellant’s
“Alternative Habeas Corpus Pleading.” The record supports the PCRA court’s
findings and its Order is free of legal error. We, thus, affirm the denial of
PCRA relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/2017
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