Com. v. Benninghoff, J. ( 2017 )

J-S54043-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN CHARLES BENNINGHOFF :
:
Appellant : No. 570 WDA 2017
Appeal from the Order Entered March 2, 2017
In the Court of Common Pleas of Mercer County
Criminal Division at No(s): 175 CR 1998
BEFORE: OTT, MOULTON, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 17, 2017
Appellant, John Charles Benninghoff, appeals pro se from the order
entered in the Mercer County Court of Common Pleas dismissing his second
Post Conviction Relief Act1 (“PCRA”) petition as untimely. Appellant claims
that his petition was timely filed in light of the Pennsylvania Supreme Court’s
decision in Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016). We affirm.
For purposes of the instant appeal, the underlying facts and procedural
history of this case need not be reiterated in detail. It is sufficient to note
that in April 1998, Appellant pled guilty to one count of involuntary deviate
sexual intercourse and one count of aggravated indecent assault. On July 9,
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S. § § 9541-9546.
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1998, the trial court sentenced Appellant to an aggregate sentence of ten
and a half to thirty years’ imprisonment. Appellant was sentenced above the
mandatory minimum sentence applicable at the time. Appellant did not file
a direct appeal.
Pro se Appellant filed the instant PCRA petition, his second, on March
2, 2017. The petition was couched as a motion to correct illegal sentence
wherein Appellant claimed his sentence was unlawful under Alleyne v.
United States, 133 S.Ct. 2151 (2013). The PCRA court denied the petition
without a hearing, and the instant appeal followed. Appellant and the PCRA
court both complied with Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
1. Did the [c]ourt err in denying Appellant’s PCRA Motion
to Correct Illegal Sentence, pursuant to the holding in
Commonwealth v. Washington, 142 A.3d 810 (PA.
2016)[?]
II. Whether [j]udgement of [s]entence should be vacated
and remanded to [t]rial [c]ourt for resentencing[?]
Appellant’s Brief at 2.
As a prefatory matter, we consider whether the PCRA court had
jurisdiction to entertain the underlying PCRA petition. Appellant argues the
court had jurisdiction to entertain his PCRA petition pursuant to the
Pennsylvania Supreme Court’s decision in Wolfe, which he contends renders
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his sentencing claim free of “ordinary waiver principals [sic].” 2 Appellant’s
Reply Brief at 1. No relief is due.
On appellate review of a PCRA ruling, “we determine whether the
PCRA court’s ruling is supported by the record and free of legal error.”
Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008).
We . . . turn to the time limits imposed by the PCRA, as
they implicate our jurisdiction to address any and all of
[a]ppellant’s claims. To be timely, a PCRA petition must
be filed within one year of the date that the petitioner’s
judgment of sentence became final, unless the petition
alleges and the petitioner proves one or more of the
following statutory exceptions:
(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.
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2 In Wolfe, the “[a]ppeal was allowed to assess the validity of the Superior
Court’s sua sponte determination that a sentencing statute is facially
unconstitutional under Alleyne v. United States, [ ] 133 S.Ct. 2151, [ ]
(2013).” Wolfe, 140 A.3d at 653. This Court held that the ten year
mandatory minimum sentence for IDSI was facially unconstitutional. Id. at
655. The Pennsylvania Supreme Court affirmed the order of the Superior
Court. Id. at 663.
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42 Pa.C.S. § 9545(b)(1).
We emphasize that it is the petitioner who bears the
burden to allege and prove that one of the timeliness
exceptions applies. In addition, a petition invoking any of
the timeliness exceptions must be filed within 60 days of
the date the claim first could have been presented. 42
Pa.C.S. § 9545(b)(2). . . .
Id. at 719-20 (some citations omitted and emphasis added).
Our Supreme Court
has repeatedly stated that the PCRA timeliness
requirements are jurisdictional in nature and, accordingly,
a PCRA court cannot hear untimely PCRA petitions. In
addition, we have noted that the PCRA confers no
authority upon this Court to fashion ad hoc equitable
exceptions to the PCRA time-bar in addition to those
exceptions expressly delineated in the Act. We have also
recognized that the PCRA’s time restriction is
constitutionally valid.
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations
and quotation marks omitted).
“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. Miller, 102 A.3d 988, 995
(Pa. Super. 2014) (citation omitted). In Commonwealth v. Washington,
142 A.3d 810 (Pa. 2016), the Pennsylvania Supreme Court addressed the
issue of “whether the Supreme Court of the United States’ decision in
Alleyne . . . applies retroactively to attacks upon mandatory minimum
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sentences advanced on collateral review.” Id. at 811. The Washington
Court held that “Alleyne does not apply retroactively to cases pending on
collateral review, and that [the a]ppellant’s judgment of sentence, therefore,
is not illegal on account of Alleyne.” Id. at 820.
In this case, Appellant was sentenced on July 9, 1998. He then had
thirty days to file a notice of appeal. See Pa.R.A.P. 903(a). He did not take
an appeal, and thus his judgment of sentence became final in August of
1998. Appellant then generally had one year to file a PCRA petition. See 42
Pa.C.S. § 9545(b)(1). The instant petition was filed more than eighteen
years later in March of 2017. Therefore, Appellant’s petition is untimely on
its face, and he must plead and prove the applicability of one of the above-
stated timeliness exceptions to establish the jurisdiction necessary for a
review of his claim.
Appellant fails to meet this burden. He seemingly attempts to argue
that our Supreme Court’s decision in Wolfe requires both his sentence to be
vacated and exempts his PCRA petition from the PCRA’s time restriction.
However, as discussed above, neither the United States Supreme Court nor
the Pennsylvania Supreme Court has held that Alleyne is to be applied
retroactively to cases pending on collateral review when Alleyne was
decided. See Washington, 142 A.3d at 820. Appellant’s citation to Wolfe
does not establish a timeliness exception; therefore, the PCRA court lacked
jurisdiction. See Robinson, 837 A.2d at 1161. We find the PCRA court’s
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order dismissing Appellant’s petition is supported by the record and free of
legal error. See Marshall, 947 A.2d at 719. Accordingly, we affirm the
order of the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/2017
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