Com. v. Arnold, S. ( 2014 )

J-S59042-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHAWN PAUL ARNOLD, SR.,
Appellant No. 1248 EDA 2014
Appeal from the Order Dated March 21, 2014
in the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0000836-2002,
CP-15-CR-0000837-2002, CP-15-CR-0000838-2002,
CP-15-CR-0000839-2002, CP-15-CR-0000841-2002,
CP-15-CR-0000842-2002, CP-15-CR-0000843-2002,
CP-15-CR-0000844-2002
BEFORE: SHOGAN, LAZARUS, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 17, 2014
Shawn Paul Arnold, Sr. (Appellant) appeals from the March 21, 2014
order which dismissed his petition filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
In 2002, Appellant pled either guilty or nolo contendere to seven
counts of robbery and two counts of theft. On December 19, 2002, he was
sentenced to concurrent sentences of five to ten years of imprisonment
pursuant to 42 Pa.C.S. § 9712 (providing mandatory minimum sentences for
d a firearm or a
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*
Retired Senior Judge assigned to the Superior Court.
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2014, Appellant filed a PCRA petition challenging the legality of his sentence
and the voluntariness of his pleas. Counsel was appointed, and the PCRA
court subsequently gave counsel leave to withdraw his appearance pursuant
to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
On March 4, 2014, the PCRA court entered notice of its intent to
Appellant timely filed pro se
on by order of March 21, 2014. Appellant
timely filed a notice of appeal. The PCRA court ordered Appellant to file a
concise statement of errors complained of on appeal, and Appellant timely
filed his statement.
Appellant presents the following question
omitted).
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Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (quoting
Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)).
The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Robinson, 12 A.3d 477, 479 (Pa. Super. 2011).
where neither party nor the PCRA court [has] addressed the matter, it is
well-settled that we may raise it sua sponte since a question of timeliness
1
Commonwealth v. Gandy, 38
A.3d 899, 902 (Pa. Super. 2012) (internal quotation omitted), appeal
denied, 49 A.3d 442 (Pa. 2012).
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
of sentence is final unless the petition alleges, and the petitioner proves,
that an exception to the time for filing the petition is met. 42 Pa.C.S.
§ 9545. A PCRA petition invoking one of these statutory exceptions must
Robinson, 12 A.3d at 480.
Appellant not having appealed his December 19, 2002 judgment of
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1
In the instant case, the PCRA court did not address the timeliness of
the Commonwealth raised the issue in its
PCRA court, and may affirm on any basis. Commonwealth v. Doty, 48
A.3d 451, 456 (Pa. Super. 2012).
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than ten years later. The petition was thus patently untimely. In order for
the PCRA court to have had jurisdiction to grant Appellant relief, Appellant
had to plead and prove that a timeliness exception applied.2
Commonwealth v. Munday, 78 A.3d 661 (Pa. Super. 2013), which held
that the statute which provides mandatory minimum sentences for offenses
committed with firearms is unconstitutional under Alleyne v. United
States, 133 S. Ct. 2151 (2013).
Appellant claims that his PCRA petition satisfies a timeliness exception
because Munday decision becoming
available to him in the institution library, on November 20, 2013, thereby
satisfying the exceptions to the PCRA jurisdictional time bar of
§ 9545(b)[(1)](ii) (Facts previously unknown), and/or § 9545(b)[(1)](iii)
Commmonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011). Second, the
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2
The Commonwealth argues that Appellant is challenging the wrong
judgment of sentence, as he was resentenced in March 2010 after being held
Thus, contends the Commonwealth, Appellant presently is not eligible for
relief from his 2002 sentence under the PCRA. Id. at 7-8 (citing 42 Pa.C.S.
§ 9543). Because we determine that the PCRA court lacked jurisdiction to
ty for
PCRA relief.
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Munday decision was not handed down by the Pennsylvania or United
States Supreme Court, let alone with a holding that it recognized a
retroactively-applicable new right.3
Appellant failed to satisfy a PCRA timeliness exception. The PCRA
claims, and dismissal of the PCRA petition was proper.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/2014
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3
Even if the October 10, 2013 Munday decision satisfied subsection
decision. That he was unaware of the case until November 20, 2013 does
not extend the (b)(1)(iii) filing deadline. See, e.g., Commonwealth v.
Brandon -day period [for
invoking the subsection (b)(1)(iii) exception] begins to run upon the date of
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