Com. v. Taulton, E. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ERIC NIGEL TAULTON,
Appellant No. 2549 EDA 2015
Appeal from the PCRA Order August 4, 2015
in the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0004611-2003
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED FEBRUARY 19, 2016
Appellant, Eric Nigel Taulton, appeals pro se from the order of August
4, 2015, denying his fourth petition filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On September 24, 2004, a jury convicted Appellant of corrupt
organizations, criminal conspiracy, multiple counts of criminal use of a
communications facility, and three counts of delivery of cocaine in an
amount of at least 100 grams.1 On December 8, 2004, the trial court
sentenced Appellant to an aggregate term of incarceration of not less than
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 911(b), 903, 7512, and 35 P.S. § 780-113(a)(30),
respectively.
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twenty-one nor more than forty-two years. On May 2, 2006, this Court
affirmed the judgment of sentence, and the Pennsylvania Supreme Court
denied leave to appeal on December 13, 2006. (See Commonwealth v.
Taulton, 903 A.2d 54 (Pa. Super. 2006) (unpublished memorandum),
appeal denied, 912 A.2d 1292 (Pa. 2006).
Subsequently, Appellant filed three PCRA petitions. The PCRA court
dismissed each petition, and this Court affirmed their dismissals on appeal.
On October 16, 2014, Appellant filed the instant, pro se, fourth PCRA
petition. On June 10, 2015, the PCRA court filed a Rule 907 notice of its
intention to dismiss Appellant’s PCRA petition. See Pa.R.Crim.P. 907(1). On
July 15, 2015, Appellant filed a response. On August 4, 2015, the PCRA
court dismissed Appellant’s fourth PCRA petition. Appellant timely
appealed.2
Appellant raises one question for this Court’s review:
I. Is the Appellant’s sentence a nullity in light of this
Court’s ruling in Commonwealth v. Newman[, 99 A.3d
86, 103 (Pa. Super. 2014) (en banc), appeal denied, 121
A.3d 496 (Pa. 2015),] in which the mandatory sentencing
statutes have been found to be facially unconstitutional?
(Appellant’s Brief, at 7) (most capitalization omitted).
____________________________________________
2
Appellant filed a timely concise statement of errors raised on appeal
pursuant to the court’s order on September 2, 2015. See Pa.R.A.P.
1925(b). The PCRA court filed an opinion on September 15, 2015. See
Pa.R.A.P. 1925(a).
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Our standard of review for an order denying PCRA relief is well-settled:
This Court’s standard of review regarding a PCRA court’s
order is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Great deference is granted to the findings of the PCRA court, and
these findings will not be disturbed unless they have no support
in the certified record.
Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations
and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a
trial court has no jurisdiction to entertain the petition.” Commonwealth v.
Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted).
Here, Appellant filed his fourth PCRA petition on October 16, 2014.
The PCRA provides that “[a]ny petition under this subchapter, including a
second or subsequent petition, shall be filed within one year of the date the
judgment becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1). Appellant’s
judgment of sentence became final on March 13, 2007, ninety days after the
Pennsylvania Supreme Court denied leave to appeal and Appellant did not
file a petition for a writ of certiorari with the United States Supreme Court.
See U.S.Sup.Ct.R. 13; 42 Pa.C.S.A. § 9545(b)(3). Therefore, Appellant had
one year, until March 13, 2008, to file a timely PCRA petition. Because
Appellant did not file his current petition until October 16, 2014, the petition
is facially untimely. Thus, he must plead and prove that he falls under one
of the exceptions at Section 9545(b) of the PCRA. See 42 Pa.C.S.A. §
9545(b)(1).
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Section 9545 provides that the court can still consider an untimely
petition where the petitioner successfully proves that:
(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.
Id. at § 9545(b)(1)(i)-(iii). Further, a petitioner who wishes to invoke any
of the above exceptions must file the petition “within [sixty] days of the date
the claim could have been presented.” Id. at § 9545(b)(2). The
Pennsylvania Supreme Court has repeatedly stated that it is an appellant’s
burden to plead and prove that one of the above-enumerated exceptions
applies. See, e.g., Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268
(Pa. 2008), cert. denied, 555 U.S. 916 (2008).
Here, however, Appellant contends that he does not need to
demonstrate timeliness because his sentence is a legal nullity. (See
Appellant’s Brief, at 10-13). He further claims all arguments about whether
or not the United States Supreme Court’s decision in Alleyne v. United
States, 133 S. Ct. 2151 (2013), and this Court’s decision in Newman,
supra, apply retroactively to cases on collateral review are somehow
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irrelevant. (See Appellant’s Brief, at 10-13). In essence, he appears to
state that because the laws that he was sentenced under are void ab initio,
his sentence is unconstitutional because it is as if the offense for which the
jury convicted him never existed. (See id.). We disagree.
Firstly, the fact that Appellant challenges the legality of sentence,
claiming his sentence is a legal nullity, does not allow him to evade the
PCRA’s timeliness requirements. In Commonwealth v. Fahy, 737 A.2d
214 (Pa. 1999), the Pennsylvania Supreme Court rejected this contention.
The Fahy Court stated, “[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.” Fahy, supra at 223 (citation omitted).
Thus, Appellant cannot evade the PCRA timeliness requirements based on a
claim of an illegal sentence. See id.
In any event, Appellant fails to point to a single case in which this
Court has applied either Alleyne or Newman to cases on collateral review.
(See Appellant’s Brief, at 10-13). On the contrary, this Court has clearly
stated that Alleyne does not apply on collateral review:
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 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.
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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).
Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014). Since
Miller, neither our Supreme Court nor the United States Supreme Court has
held that Alleyne applies retroactively. Appellant’s claim that his sentence
is a legal nullity and that upholding his sentence is in conflict with Newman,
is simply without any relevant legal support. See Miller, supra at 995; see
also Commonwealth v. Riggle, 119 A.3d 1058, 1067 (Pa. Super. 2015)
(holding “Alleyne is not entitled to retroactive effect in th[e] PCRA
setting.”).
Here, Appellant was sentenced in 2004. His judgment of sentence
became final in early 2007. Thus, this matter is clearly on collateral review,
and his PCRA is facially untimely. Because Alleyne does not apply
retroactively to cases on collateral review, it cannot afford Appellant relief.
See Riggle, supra at 1067; Miller, supra at 995. Thus, the PCRA court
properly found that Appellant’s PCRA petition was untimely with no statutory
exception applying. See Hutchins, supra at 53.
Order affirmed.
President Judge Gantman joins the Memorandum.
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President Judge Emeritus Bender concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/2016
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