Com. v. Zeigler, Q. ( 2017 )

J-S37030-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
QUILIE ZEIGLER
Appellant No. 2000 MDA 2016
Appeal from the PCRA Order December 19, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0002540-2013
BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED SEPTEMBER 26, 2017
Quilie Zeigler appeals, pro se, from the November 27, 2016 order
entered in the Dauphin County Court of Common Pleas dismissing as
untimely his fourth petition filed under the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-46. We affirm.
The trial court set forth the history of this case:
On December 17, 2013, [Zeigler] entered into a
negotiated guilty plea whereby he would plead guilty to
two counts of Possession with Intent to Deliver[,]
Possession of a Firearm[,] and Possession of Drug
Paraphernalia[1] and receive the mandatory 5 to 10 year
sentence. He was sentenced according to the plea
agreement and given a February report date.
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1
35 P.S. § 780-113(a)(30), 18 Pa.C.S. §6105(a)(1), and 35 P.S. §
780-113(a)(32), respectively.
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On August 6, 2014, [Zeigler] filed a pro se [PCRA
petition]. On August[] 12, 2014, this Court appointed
Jennifer Tobias to represent him. She filed a Petition to
Withdraw Under the [PCRA,] which satisfied the
requirements of a “no-merit” letter pursuant to
Commonwealth v. Turner, 518 Pa. 532, 544 A.2d 927
(1988), and Commonwealth v. Finley, 379 Pa.Super.
390, 550 A.2d 213 (1988) on September 22, 2014. This
Court filed [a] Notice of Intent to Dismiss on October 1,
2014, and [a] final dismissal on October 28, 2014.
Subsequently, [Zeigler] filed a second PCRA on March 23,
2015. Attorney Tobias was permitted to withdraw and
Attorney DePowell was appointed to represent [Zeigler] on
April 22, 2015.
On June [10], 2015, a Petition to Withdraw was filed.
This Court granted that motion and filed its Notice of
Intent to Dismiss and Memorandum Opinion [on] June 23,
2015. A final dismissal was issued on August 3, 2015.
On August 28, 2015, [Zeigler] filed his third pro se
PCRA[,] which was not entertained on September 29,
2015. A fourth pro se PCRA was filed on October 3, 2016.
On November 1[6], 2016[,] we issued a Notice of Intent to
Dismiss and Memorandum Opinion.
Mem. Op., 12/20/16, at 1-2.
On December 1, 2016, Zeigler filed a notice of appeal. 2 On December
13, 2016, the PCRA court dismissed Zeigler’s PCRA petition. 3 On December
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2
While Zeigler has appealed from the November 16, 2016 notice of
intent to dismiss his PCRA petition, the PCRA court subsequently entered an
order dismissing Zeigler’s petition. Therefore, Zeigler’s appeal is properly
before us. See Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the
announcement of a determination but before the entry of an appealable
order shall be treated as filed after such entry and on the day thereof.”).
3
While Zeigler attempted to couch his claims as a request for habeas
corpus relief, the PCRA court properly treated his claims, which request relief
from mandatory minimum sentences, as a request for PCRA relief. See 42
Pa.C.S. § 9542 (“The action established in this subchapter shall be the sole
(Footnote Continued Next Page)
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19, 2016, the PCRA court amended its order dismissing the petition to
advise Zeigler of his right to appeal to this Court within 30 days.4
Zeigler raises the following issues on appeal:
[I.] Did the trial court err[] in dismissing [Zeigler]’s motion
to correct an [E]ighth [A]mendment violation of the U.S.
Constitution and [A]rticle 1 of the Pennsylvania
Constitution due to the fact that mandatory minimum
sentences have been declared unconstitutional and now
have no statute aut[h]ority to support [Zeigler]’s sentence
as he is challenging the legality of his confinement and the
Department of Corrections has been deprived of their
authority to continue custody over [Zeigler] because
[Zeigler]’s sentencing order now has no statute
authorization supporting it because his mandatory
minimum sentences have been declared unconstitutional?
[II.] Is the time constraint on having an illegal sentence
corrected under 42 Pa.C.S. § 9545, unconstitutional as it
denies criminal defendants opportunity to have
unconstitutional sentences corrected?
_______________________
(Footnote Continued)
means of obtaining collateral relief and encompasses all other common law
and statutory remedies for the same purpose that exist when this
subchapter takes effect, including habeas corpus and coram nobis.”); see
also Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa. 2001) (“The plain
language of the statute above demonstrates quite clearly that the General
Assembly intended that claims that could be brought under the PCRA must
be brought under that Act. No other statutory or common law remedy ‘for
the same purpose’ is intended to be available; instead, such remedies are
explicitly ‘encompassed’ within the PCRA.”).
4
Zeigler filed another notice of appeal on December 27, 2016. This
appeal, which was docketed at 90 MDA 2017, was dismissed on March 6,
2017 for failure to file a docketing statement. See Pa.R.A.P. 3517 (“Failure
to file a docketing statement may result in dismissal of the appeal.”).
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Zeigler’s Br. at 1925(b) Stmt. (full capitalization omitted).5
Our standard of review from the denial of a PCRA petition “is limited to
examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).
It is well settled that “the timeliness of a PCRA petition is a
jurisdictional requisite.” Commonwealth v. Brown, 111 A.3d 171, 175
(Pa.Super. 2015), app. denied, 125 A.3d 1197 (Pa. 2015). A PCRA 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 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).
Zeigler pled guilty on December 17, 2013 and did not file a direct
appeal. Thus, his judgment of sentence became final 30 days later, on
January 16, 2014. See Pa.R.A.P. 903 (providing that notice of appeal “shall
be filed within 30 days after the entry of the order from which the appeal is
taken”). Zeigler had one year from that date, or until January 16, 2015, to
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5
Zeigler labeled his statement of issues presented as “1925B
Statement.” However, we note that the PCRA court did not order Zeigler to
file a statement of matters complained of on appeal pursuant to Pa.R.A.P.
1925(b).
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file a timely PCRA petition. His current petition, filed on October 3, 2016, is
therefore facially untimely.
To overcome the time bar, Zeigler was required to plead and prove
one of the following exceptions: (i) unconstitutional interference by
government officials; (ii) newly discovered facts that could not have been
previously ascertained with due diligence; or (iii) a newly recognized
constitutional right that has been held to apply retroactively. See 42
Pa.C.S. § 9545(b)(1)(i)-(iii). To invoke one of these exceptions, Zeigler
must have filed his petition within 60 days of the date the claim could have
been presented. See 42 Pa.C.S. § 9545(b)(2).
Zeigler’s PCRA petition failed to plead or prove any exception to the
one-year time bar. Therefore, like the PCRA court, this Court lacks
jurisdiction to consider any claim, including a challenge to the legality of his
sentence. 6
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6
To the extent Zeigler attempts to raise the “new constitutional right”
exception to the PCRA time bar, his claim is without merit. Zeigler contends
that his sentence is illegal because it involves statutes applying a mandatory
minimum, which have been held to be unconstitutional. In his PCRA
petition, Zeigler cited Commonwealth v. Hopkins, 117 A.3d 247 (Pa.
2015). In Hopkins, the Pennsylvania Supreme Court found that pursuant to
Alleyne v. United States, 133 S. Ct. 2151 (2013), the mandatory minimum
sentencing scheme set forth in 18 Pa.C.S. § 6317 (“Drug-free school zones”)
was unconstitutional in its entirety. 117 A.3d at 262. Unlike Zeigler, who
sought relief through a PCRA petition, the appellant in Hopkins had filed a
direct appeal, as his sentence was not final at the time the United States
Supreme Court issued its decision in Alleyne.
(Footnote Continued Next Page)
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/2017
_______________________
(Footnote Continued)
Further, “[a]lthough legality of sentence [claims are] always subject to
review within the PCRA, claims must still first satisfy the PCRA’s time limits
or one of the exceptions thereto.” Commonwealth v. Infante, 63 A.3d
358, 365 (Pa.Super. 2013) (quoting Commonwealth v. Fowler, 930 A.2d
586, 592 (Pa.Super. 2007)).
Finally, we note that Zeigler did not file his petition within 60 days of
Hopkins. See 42 Pa.C.S. § 9545(b)(2).
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